Divisional Court gives guidance on article 2 inquests

5 November 2020 by

R (Peter Skelton and anr) v Senior Coroner for West Sussex [2020] EWHC 2813 (Admin) — Judgment here.

Susan Nicholson and Caroline Devlin were killed by the same man during the course of abusive relationships. They died in 2011 and 2006, but the man was not convicted – of murder and manslaughter respectively – until 2017.  The inquest into Susan’s death in 2011 resulted in a verdict of accidental death. Following the murder conviction, the Coroner applied to the High Court for this to be quashed, with the intention of holding a short inquest at which a fresh conclusion of “unlawful killing” would be recorded. However, the Claimants in this case – Susan’s parents – sought to expand the scope of the inquest to consider what they thought, understandably, were police failings. They were successful; this blog explains why, and examines the wider implications of the ruling.


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New Podcast! Brexit and the Flaws of the Delegated Legislation System

4 November 2020 by

1COR podcast law pod uk logo

In Episode 129, Emma-Louise Fenelon speaks to Joe Tomlinson and Alexandra Sinclair, authors of the new Public Law Project report: Plus ca change? Brexit and the flaws of the delegated legislation system. They are joined by Lord Anderson of Ipswich QC for a fascinating discussion about parliamentary goings-on in a time of Brexit.

The Public Law Project is an independent national charity carrying out research, policy work, training and legal case work to promote the rule of law, improve decision making and facilitate access to justice. The PLP takes no position on the UK’s decision to leave the EU.

Joe is Research Director at the PLP. He is also Senior Lecturer in Public Law at the University of York. He researches widely on public law, and particularly the administrative justice system and his work has been published in leading journals and cited by a variety of bodies, including the Ministry of Justice, the All Party Parliamentary Group on the Rule of Law, and the House of Commons Library. His work, with Professor Robert Thomas, on administrative review will also form the basis of a Law Commission project.

Alexandra is a Research Fellow at the Public Law Project and a PhD student at the London School of Economics Faculty of Law.  She has worked as a judges’ clerk at the New Zealand High Court and as a barrister in Auckland, New Zealand. She was awarded the Cleary Memorial Prize by the New Zealand Law Foundation in 2015 for showing outstanding promise in the legal profession.

David Anderson will be well known to listeners. He is a barrister at Brick Court Chambers and a Cross Bench Peer. Following him on twitter @bricksilk is highly recommended to anyone with an interest in public law.

For those interested in public law more generally, signing up to the Public Law Project mailing list is also worthwhile.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

Mental health, clinical negligence and the illegality defence

3 November 2020 by

        

In Ecila Henderson v. Dorset Healthcare University NHS Trust Foundation [2020] UKSC 43 the Supreme Court has revisited the defence of illegality (“ex turpi causa”) in the context of a claim for clinical negligence.

The claimant — a mental health patient — had committed a criminal offence as a result of the defendant health authority’s admitted negligence. Can a claimant, who would not have committed an offence but for the Defendant’s negligence, recover losses arising from their own criminality? Can they seek compensation for the pain, suffering and loss of earnings caused by a custodial sentence? Can they recover general damages for feelings of guilt and remorse? The Supreme Court answered these questions with a resounding “no”.

The Facts

Ms Henderson suffered from paranoid schizophrenia or schizoaffective disorder. Whilst under the care of the Defendant’s community mental health team she stabbed her mother to death. She did so whilst experiencing a serious psychotic episode. She was convicted of manslaughter by reason of diminished responsibility.

In sentencing her, the judge said that: “… there is no suggestion in your case that you should be seen as bearing a significant degree of responsibility for what you did”. The judge sentenced Ms Henderson to a hospital order under the Mental Health Act 1983.

Ms Henderson subsequently brought a civil claim against the Defendant Trust. The Trust admitted liability for its negligent failure to return her to hospital when her psychiatric condition deteriorated and accepted that, if it had done this, the tragic killing of Ms Henderson’s mother would not have taken place.

However, the Trust argued that Ms Henderson’s claim was barred for illegality (“ex turpi causa”), because the damages she claimed resulted from: (i) the sentence imposed on her by the criminal court; and/or (ii) her own criminal act of manslaughter.


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Prosecution of trafficking victim not an abuse of process

2 November 2020 by

Image: Wikipedia

R v A [2020] EWCA Crim 1408

On 29/10/2020, the Court of Appeal dismissed an appeal against an aggravated burglary conviction brought by a teenage victim of human trafficking.

The applicant’s personal circumstances, including as a victim of trafficking, were properly reflected by way of mitigation of sentence. But his culpability and criminality were not extinguished or so diminished as to lead to the conclusion that he would or might not have been prosecuted.


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Use of force by police: what is the standard for determining misconduct?

28 October 2020 by

Jermaine Baker was shot dead in December 2015. Image: The Guardian

The Court of Appeal has delivered a judgment in R (Officer W80) v Director General of the Independent Officer for Police Conduct [2020] EWCA Civ 1301 regarding the applicable conduct standard and provisions governing police in cases of use of force.

The Court ruled against the police officer W80, holding that his honest, but mistaken, belief that his life was being threatened could be examined for reasonableness in the context of disciplinary proceedings. Accordingly, the Independent Office for Police Conduct (IOPC) was justified in concluding that it was open to a disciplinary panel to make a finding of misconduct if W80’s belief was found to be unreasonable.

In 2015, W80 shot dead 28-year old Jermaine Baker. He challenged the IOPC’s decision to bring disciplinary proceedings for gross misconduct in using excessive force against him and to direct the Metropolitan Police Commissioner (Commissioner) to give effect to such recommendation after the Commissioner rejected it.


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Home Office Removals Policy Unlawful, holds Court of Appeal

27 October 2020 by

Image: Wikipedia

R ((1) FB (Afghanistan) (2) Medical Justice) v Secretary of State for the Home Department [2020] EWCA Civ 1338

On 21/10/2020, the Court of Appeal ruled that the Home Office’s removal window policy (‘the Policy’) was unlawful. The Policy incorporated an unacceptable risk of interference with the right of access to court by exposing a category of irregular migrants — including those who have claims in respect of their right to life and/or freedom from torture and inhuman or degrading treatment — to the risk of removal without any proper opportunity to challenge a relevant decision in a court or tribunal.


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Latest Law Pod UK: The Cumberlege Review with Marina Wheeler QC

22 October 2020 by

In Episode 128 Emma-Louise Fenelon talks to Marina Wheeler QC about the Independent Medicines and Medical Devices Safety Review, better known as the Cumberlege Review, which investigated the response of England’s healthcare system to patients’ reports of harm from drugs and medical devices.

Since the report was published in July (available here), the National Institute for Health and Care Excellence has indicated it will be taking a number of steps in response to the review (more information here). In recent weeks a number of questions were tabled asking what the government plans to do next in response.

The episode includes a discussion about consent, and reference to Montgomery v Lanarkshire Health Board [2015] UKSC 11

Find an article written by Marina Wheeler QC and Amelia Walker on the Cumberlege Review on page 5 of Issue 6 of the 1COR Quarterly Medical Law Review (QMLR).

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

Free School Meals and Governmental Responsibility — Dr Kirsteen Shields

22 October 2020 by

Marcus Rashford has campaigned prominently on this issue. Image: Wikipedia

This article is a condensed version of a piece in the Edinburgh Law Review, Jan 2021 Issue.

Questions around government responsibility for food systems, churning away during the Brexit debates, long ignored, sometimes derided, are meeting stark realities in the coronavirus pandemic. This week we are back to free school meals (FSM).

This summer when the government proposed that it would be stopping the provision of free school meals in England over the summer holidays, it was met with public outcry. When the government U-turned on the decision it was attributed to a successful online campaign led by footballer Marcus Rashford. On 10 October he was awarded an MBE in the Queen’s Birthday Honours.

In the background human rights lawyers Jamie Burton of Doughty Street Chambers and Dan Rosenberg of Simpson Millar acting on behalf of the Good Law Project and Sustain had issued a judicial review pre-action protocol to the Secretary of State for Education, Gavin Williamson MP (hereinafter SSE).

When the government reversed the decision on free school meals, the legal proceedings were halted and as a result potentially significant legal precedent was lost. This comment sets out the human rights case against the government in respect of not providing free school meals in England that may be of renewed and wider relevance in the future. (Education is a devolved matter and therefore the UK government powers in this area do not extend to Scotland and Wales.)

It is also noted that yesterday an Opposition motion in the House of Commons to extend provision of Free School Meals to Easter 2021 was voted down by 322-261. Marcus Rashford has issued a tweet in response. The issue has not gone away.


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Abortion “pills by post”: approval of procedure not unlawful – Court of Appeal

21 October 2020 by

Christian Concern, R (On the Application of) v Secretary of State for Health and Social Care [2020] EWCA Civ 1239 CA (King LJ, Nicola Davies LJ, Phillips LJ) 25/09/2020

The secretary of state had granted a temporary approval during the COVID-19 pandemic of “the home of a pregnant woman” as a class of places for the taking of Mifepristone, one of the two drugs required for a termination of pregnancy during the first 10 weeks. The appellants challenged this decision by way of judicial review, arguing, inter alia, that it was unlawful as being without the powers conferred by the Abortion Act 1967 (as amended).

Legal background

The 1967 Act sets out the legal framework under which abortions can be performed in England and Wales. Section 58 of the Offences Against the Person Act 1861 makes it a criminal offence to administer drugs or use instruments to procure an abortion. Section 59 of the same Act makes the supply of drugs, knowing that they are intended to be unlawfully used to procure the miscarriage of any woman, a criminal offence.

The Act excludes from criminal liability the termination of a pregnancy by a medical practitioner under certain circumstances including maximum term of twenty four weeks and risk to the woman. The Act also stipulates that treatment must be carried out in an approved place.


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Redress for ‘historical’ child abuse in care: what can Scotland learn from Ireland? — Dr Maeve O’Rourke

21 October 2020 by

The Scottish Parliament is considering a Bill for redress for survivors of child abuse in care. Image: Wikipedia

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill is currently undergoing parliamentary scrutiny.

How survivors experienced Ireland’s institutional abuse ‘redress’ schemes (the Residential Institutions Redress Board (RIRB) and the Magdalen Restorative Justice Ex-Gratia Scheme) over the past two decades can tell us a great deal about the elements of good practice in the Scottish Bill and the areas requiring amendment.

The Scottish Bill improves greatly on some problems that have beset Irish redress schemes by proposing a non-adversarial approach, provision of legal and other assistance throughout a survivor’s engagement with the scheme, freedom of expression for survivors, and a prohibition on the review body reducing the payment proposed at first instance.

However, the Bill’s shortcomings include the waiver requirement, the five-year time limit for applications, the anticipated obligation on survivors to provide documentary evidence ‘in all but exceptional cases’, and the exclusion of corporal punishment from the scheme’s scope. My recent correspondence to the Scottish Parliament’s Education and Skills Committee discusses all of these issues.

Here, I focus on the waiver. This requires that a survivor must trade their right to sue the State and any institution that has made ‘fair and meaningful contribution’ to the scheme in exchange for a payment of up to £80,000.

Scotland has the opportunity to use this redress scheme to support survivors who wish to pursue litigation against the State and/or other entities, by contributing to these individuals’ psychological and financial security in the short term. Instead of the current waiver proposal, the Bill could direct the courts to reduce any future damages award by the amount already paid by the relevant Defendant under the scheme. This approach would recognise the absolute and inalienable human right of survivors of torture or other cruel, inhuman or degrading treatment to accountability for such abuse, and to compensation commensurate with the gravity of the harm suffered. Such recognition would strengthen current and future protections against torture and ill-treatment while redressing past failings.


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The Weekly Round-Up: Three Tiers

19 October 2020 by

Andy Burnham, Mayor of Greater Manchester

In the News:

On 12 October 2020, the Prime Minister made a statement in Parliament and addressed the nation to announce a new three tier lockdown system would be introduced across the country. The Secretary of State for Health introduced three statutory instruments before Parliament which came into force two days later.

In oversimplified terms, the restrictions in place in each tier are as follows:


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When is it too harsh to separate a child from their parent?

16 October 2020 by

Image: Wikipedia

HA (Iraq) [2020] EWCA Civ 1176 and AA (Nigeria) [2020] EWCA Civ 1296

There has, in recent years, been a proliferation of case law on appeals against deportation by foreign national criminals on grounds of private and family life.  The statutory scheme is complex enough, but the various tests (“unduly harsh”, “very compelling circumstances”) have also been subject to extensive judicial gloss, leaving practitioners and judges to wade through a confusing sea of alphabet-country soup case names.

It will come as welcome news, then, that the Court of Appeal has greatly simplified things by encouraging tribunals to focus on just a handful of key authorities.  In doing so, it has also somewhat softened the approach to determining whether separating a foreign national criminal from his settled child or partner is “unduly harsh.”


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The UK Internal Market Bill and the Mother of all Ouster Clauses – Ronan Cormacain

15 October 2020 by

The United Kingdom Internal Market Bill is due for second reading in the House of Lords on 19 October 2020.  It is not an understatement to say that the Bill contains provisions which represent one of the most egregious assaults on the Rule of Law in recent times, nor is it an understatement to say that there is a remarkable hostility to it from across the political spectrum, and across the Brexit divide..  It has also united the UK’s legal profession against it.   In Reports for the Bingham Centre for the Rule of Law here and here we pointed out how this violation of international law breaches the Rule of Law.  I have also previously argued that the Bill contains an unacceptable breach of domestic law.  The former Attorney General Dominic Grieve argued that the Bill contained an unacceptable ouster clause.  I wish now to hone that argument by characterising what is now clause 47 of the Bill as containing not just a simple ouster clause, but the mother of all ouster clauses.

Brief explanation / history of ouster clauses

An ouster clause is a provision in primary legislation which ousts the jurisdiction of the courts.  It deems that provision (or decisions made under or in accordance with that provision) as not susceptible to judicial challenge. An ouster clause makes the subject matter of the clause non-justiciable, putting it outside or beyond the reach of the courts.

Parliament and the courts have played a game of cat and mouse over ouster clauses for at least the last 70 years.


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When will there be unlawful detention under the Detained Fast Track system?

14 October 2020 by

The Court of Appeal has delivered a judgment in PN (Uganda) v Secretary of State for the Home Department [2020] EWCA Civ 1213 regarding unlawful detention under the Detained Fast Track system, which indicates that a fact sensitive approach must be adopted to each case. This judgment is likely to be particularly relevant in giving guidance to practitioners whose client has previously lost an appeal under the Detained Fast Track Rules who are considering or working on claims for damages for unlawful detention.

Legal Background

In July 2015 the Court of Appeal declared that the Detained Fast Track system, which provided strict time limits for preparing appeals alongside mandatory detention, was unlawful. This was primarily because “the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases” ([45], per Lord Dyson). It did not, however, say what would happen to appeals that had been decided under this system, where wrong results may have been reached owing to this unfair procedure.

In R (TN (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 2838 (‘TN (Vietnam)’), the Court of Appeal answered this question. Lord Justice Singh emphasised that whether a First-tier Tribunal decision must be quashed owing to unfairness will be a matter of fact based on how far the Detained Fast Track Rules touched on the decision. The Court of Appeal in PN (Uganda) summarised the principles established in TN (Vietnam) as follows:

35. … (1) a high degree of fairness was required in the proceedings; (2) the 2005 DFT Rules created an unacceptable risk of unfairness in a significant number of cases; (3) there was no presumption that the procedure was fair or unfair; (4) finality in litigation was important; and (5) a long delay in locating what was said to be critical evidence might suggest that the unfairness in the 2005 DFT Rules did not make the proceedings in the FTT unfair. The Court noted at paragraph 90 that whether the proceedings were in fact unfair and liable to be set aside would “depend on a careful assessment of the individual facts”.

The decision in PN (Uganda) provides a helpful application of these principles.


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The Weekly Round-up: Operation Cygnus, lawyers in the firing line, and a new undercover policing bill

13 October 2020 by

Photo: Richard Townshend

In the news

The ‘second wave’ of UK coronavirus cases is continuing to surge. The government’s scientific experts have warned that we are at a ‘critical moment’ for handling the pandemic, after daily case numbers doubled this week. In anticipation of a difficult winter, the provisions of the Coronavirus Act 2020 have been renewed for another 6 months; local lockdowns continue in Scotland and in large parts of Wales and the North of England; and Chancellor of the Exchequer Rishi Sunak has set out a rescue package for businesses, under which the government will cover 2/3 of salary payments for businesses forced to close.

Meanwhile, we may finally be about to see the contents of Operation Cygnus, the influenza pandemic readiness exercise undertaken by the government in 2016. NHS doctor Moosa Qureshi made a freedom of information request to see the report more than 6 months ago. Following the government’s delays in responding, the Information Commissioner has now taken a dramatic step in ordering the Department of Health and Social Care to provide the document, or explain its reasons for refusing to do so, by 23rd October.


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