The death of the ‘right to silence’ in regulatory proceedings?

9 August 2019 by

Two recent cases have important consequences for regulated professionals who fail to participate in regulatory hearings. In Kuzmin v. GMC [2019] EWHC 2129 (Admin) the issue was whether a tribunal can draw adverse inferences if a doctor declines to give evidence. Sanusi v. GMC [2019] EWCA Civ 1172 concerned the tribunal’s duty of procedural fairness where a professional fails to attend the hearing at all.

Kuzmin v. GMC

Background

The Claimant was a GP who faced an allegation of dishonesty. It was alleged that he had failed (dishonestly) to draw his employer’s attention to conditions imposed by the Interim Orders Tribunal. The doctor failed in his half-time submission of no case to answer. The doctor then indicated that he would not be giving any evidence and applied to withdraw his witness statement.  The GMC sought a preliminary ruling that, as a matter of principle, the Tribunal had the power to draw adverse inferences in such circumstances. The Tribunal agreed, whereupon the Claimant sought an adjournment and applied for judicial review. 


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The “long arm” of the police – how “confidential “ are family proceedings?

7 August 2019 by

“Not very” seems to be the answer in the Court of Appeal decision in M (Children) [ 2019] EWCA Civ 1364

Sir Andrew McFarlane upheld Keehan J’s decision to disclose the parents’ initial statement and position statement to the police following the initial interim care hearing.

In family proceedings parents are advised that their evidence is confidential to those proceedings. They are encouraged to be open and frank and to understand that their children’s interests are the Court’s main concern.

But something seems to be eroding these principles, a trend set since the case of Re H (Children) [2009] EWCA.

The Court of appeal approved the test from Re C ( see below) and gave it the “fit for purpose” badge. The decision should be seen in the context of this being a police terrorism enquiry.

The Facts

The case involved two children aged 2 and 3, born in Syria to parents who were UK Citizens. The parents had travelled to Syria in 2014 against FCO advice, and met there.
The family came to the attention of the UK authorities in November 2018 when they were in a detention centre in Turkey, intending to travel to the UK. The Home Secretary made a Temporary Exclusion order against the father.
The family returned to the UK in January 2019. The parents were arrested under S. 41 of the Terrorism Act 2000, interviewed and subsequently granted bail. The children were placed in foster care initially under police protection.
On 11 January a hearing took place for an application for interim care orders. The threshold was pleaded on the basis of the harm the children were likely to have been exposed to whilst in Syria. The parents did not contest the application, with an interim care plan for placement with grandparents.

On 1 February the police investigating potential criminal activity by the parents made an application to the Family Court for disclosure of the parents’ witness and Position statements. The application was heard by Keehan J on the 8th April, who granted disclosure to the police.

The parents appealed.


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Round UP 5.8.19: Principles of justice considered by the Supreme Court

5 August 2019 by

867

New President of the Supreme Court Lord Reed: Credit The Guardian.

In the week after the appointment of Lord Reed as the new President of the Supreme Court, the final week of July brought with it the end of the legal term and a flurry of judgements in the senior courts.

In the Supreme Court, the case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019) gave the court the opportunity to examine the principle of open justice, in particular how much of the written material made available to the court ought to be accessible by those not directly party to proceedings. The case came about after an asbestos victim support group, not party to the initial proceedings, made an application to have access to all the documents from a settled personal injury asbestos case. The defendant from the initial trial appealed against the granting of such an order under the common law and the provisions of CPR rule 5.4C. The Media Lawyers Association intervened, advancing arguments based on the importance of media reporting to maintaining open justice, and the reliance such reporters have on access to documents subsequent to the conclusion of proceedings. In deciding to remit the matter back to the High Court, the court provided a good summary of the principles concerning open justice laid down in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420[2013] QB 618.

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Rejected consumer goods – are they “waste”?

4 August 2019 by

As invidual consumers we are constantly exhorted to separate the goods and substances we want to get rid of into “rubbish” destined for landfill or items for recycling. Clearly we have to pay attention to this to avoid material going into landfill that could be recycled or turned into energy, but not only that; we need to be aware of the cost of goods being manufactured that never see the light of day at all, because by virtue of being mixed by less pristine goods, they count as waste, with all the consequences that entails.

In a recent ruling the CJEU considered the question of retail goods that have been returned by consumers or become redundant in the seller’s product range: Openbaar Ministerie v Tronex BV C-624/17.

The case should raise alarm bells. When we return an item against a refund of the purchase price we do not think we are discarding it. The CJEU ruling turned on the application of Article 3(1) of the Waste Directive 2008/98/EC, which provides that

‘“waste” means any substance or object which the holder discards or intends or is required to discard’.

Individual consumers are clearly not liable under waste legislation for returning goods. But the concept of waste forms the basis of a criminal penalty for possession in EU member states.  So once those items reach the retailer the situation changes, because it may or may not become “waste” in their hands.


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Law Pod UK Summer Listening

1 August 2019 by

To celebrate reaching 200,000 listens, and in the event that any of our listeners wish to keep their grey matter ticking over during the heatwave/whilst sipping poolside pina coladas, we have prepared a Summer “Greatest Hits” playlist of our most popular episodes of 2019 so far. We hope you enjoy it, and wish all of our listeners a relaxing summer break.

1.     Lord Sumption’s Reith Lectures and Responses (Episode 88, Episode 89)

A veritable powerhouse panel respond to Lord Sumption’s 2019 Reith lectures, as part of the Constitutional and Administrative Bar Association’s summer conference featuring Lord Dyson, Sir Stephen Laws, Professor Vernon Bogdanor, Professor Meg Russell, Lord Falconer and Chaired by Mrs Justice Thornton. This episode is followed by a conversation between Lord Sumption and Lord Justice Singh, responding to the panel. Enjoy! 

2.     Consent and Causation with Robert Kellar QC (Episode 70)

Emma-Louise Fenelon talks to Robert Kellar about consent and causation, discussing the development of the law since Chester v Afshar through to Khan v MNX.


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Are there principles that trump democracy? The Reith Lectures, 2019: Lord Sumption’s Lecture and Responses

29 July 2019 by

Law Pod UK logo

Are there principles that trump democracy? This was one of a number of profound philosophical and legal questions addressed by former UK Supreme Court Justice Jonathan Sumption in his recent and controversial Reith Lectures, which addressed subjects such as law’s expanding empire, the challenges posed by human rights, and the advantage of an unwritten constitution. For a flavour of the resulting debate arising from these Reith Lectures, I highly recommend Helena Kennedy QC’s response in Prospect Magazine, available here.

The Constitutional and Administrative Law Bar Association (ALBA) recently hosted its annual summer law conference, and one of the many illustrious panels it hosted responded to these Reith Lectures.

We are enormously grateful to the Chair and Committee of ALBA, and to the participants, for enabling us to record these sessions, which are available on Law Pod UK  below.


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The ‘swings and roundabouts’ of outrageous fortune –

22 July 2019 by

Coming to terms with the cost of Access to Justice in the post-legal aid world

Don’t follow the money

Suzanne West v Stockport NHS FT and Demouilped v Stockport NHS FT [2019] EWCA Civ 1220

In these conjoined appeals the Court of Appeal (Sir Terence Etherton MR, Irwin and Coulson LJJ.) have taken the opportunity to deal with a number of issues relating to the reasonableness and proportionality of costs in PI and Clinical negligence cases and the proper approach to the assessment of those costs. 

The case is important because it considers and explains the unique position of ATE insurance premiums in clinical negligence cases. In clinical negligence it is almost always necessary for an ATE insurance policy to be obtained by a Claimant to insure against the risk of incurring a liability to pay for an expert report or reports relating to liability or causation. Specifically, the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (no.2) Regulations SI 2013/739, provide (by way of exception to the general rule in s.46 LASPO 2012) that such premium (insofar as it relates to the risk of incurring liability to pay of expert reports relating to liability or causation in respect of clinical negligence in connection with the proceedings) may be recovered.  Brooke LJ had stressed in Rogers v. Merthyr Tydfil County Borough Council [2006] EWCA Civ 1134 the availability of such ATE insurance and the recoverability of the relevant premium, is an important means by which access to justice continues to be provided in clinical negligence cases. It was perhaps therefore unsurprising that the present Court of Appeal began their analysis of the issues in the instant case by saying: 

Access to Justice must therefore be the starting point for any debate about the recoverability of ATE insurance premiums in any dispute about costs.


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Round Up 22.07.19 – A series of interesting cases decided as the government prepares to depart…

22 July 2019 by

gauke

Outgoing Secretary of State for Justice David Gauke. Credit: The Guardian.

The week ahead will, barring some extreme political drama, give us a new Prime Minister, and with it, the inevitable cabinet reshuffle. Some ministers have already made clear they believe they are unlikely to remain in post after the new PM’s appointment on Wednesday, in particular the Chancellor Phillip Hammond, and the Secretary of State for Justice David Gauke.

Whoever takes over at the Ministry of Justice will have a significant inbox. Cuts to legal aid were brought to the fore this week after it emerged a relative of those killed in the 2017 terrorist attacks at London Bridge was represented pro-bono by lawyers from international corporate law firm Hogan Lovells (see The Independent here). Mr Gauke used his forthcoming departure from post to propose scrapping short custodial sentences in a bid to reduce re-offending rates. However, the incoming Lord Chancellor will still be considerably better off than their new boss, for whom the “to do” list includes getting an oil tanker back from Iran and concluding Brexit.

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Liberalising Abortion in NI, Tommy Robinson, and the lawfulness of Child Spies – the Round Up.

15 July 2019 by

Conor Monighan brings us the latest updates in human rights law

In the News:

same s marriage

Credit: The Guardian

The House of Commons has passed amendments which are likely to liberalise the law on abortion and same-sex marriages in Northern Ireland.

The amendments were added to the NI Executive Formation Bill. The first was put forward by Conor McGinn (Labour). It states that if the NI Assembly is not restored by the 21st October, the government must create secondary legislation to allow same-sex marriage in Northern Ireland. This means there will be no further debate in the House of Commons, because the government will make use of regulations. The second amendment, tabled by Stella Creasy (Labour), has a similar effect. However, both are subject to the condition that the Northern Irish Assembly can legislate to change the law.

Prior to the vote, Ms Creasy said “At this moment in time, if somebody is raped in Northern Ireland and they become pregnant and they seek a termination, they will face a longer prison sentence than their attacker”.

The Conservative leadership contenders were split on the vote. Boris Johnson stated that both subjects were devolved matters, whilst Jeremy Hunt voted for both proposals. Karen Bradley (the Northern Ireland Secretary) and Theresa May (PM) abstained.

Unusually, MPs in the Scottish National Party were given a free vote. The party ordinarily abstains from voting on devolved issues in other countries.
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The Return of Famines and the Pursuit of Accountability

11 July 2019 by

The ‘F’ word is back in use, famines have returned. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. People living in the Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid. 


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UK Human Rights Blog seeks Scots, NI law and ECtHR contributors

10 July 2019 by

The UK Human Rights Blog – edited by barristers at 1 Crown Office Row – is seeking recent law graduates to contribute regular articles on human rights cases handed down by the courts in Scotland, Northern Ireland and Strasbourg.

We are looking for about five contributors in total to assist us for a period of up to a year, with each contributor focusing on a particular jurisdiction.   Contributors would be expected to produce about five to ten blog posts over the course of the year.

If you are interested, please email Jim Duffy (jim.duffy@1cor.com) with a copy of your CV and an article relating to a recent human rights case handed down in one of the above jurisdictions (word limit: 1,000 words).

Please note that contributors should hold a law degree or graduate diploma in law as of this summer, and that the Scottish/NI contributors will be law graduates from universities in those countries.

The closing date is 31 July 2019.

We look forward to hearing from you!

The UK Human Rights Blog team

Pride, Protest and Litigation – American gifts to LGBT Britain

9 July 2019 by

London has just experienced its largest ever celebration of Pride – arranged for the weekend after the 50th anniversary of the Stonewall Riots so as to allow thousands of British people to fly out to New York to participate in the official commemoration. This is a striking example of the influence of a particularly American method of effecting social change adopted with much success in the UK – albeit there has not been much by way of rioting here.

It is probably a myth that the Stonewall riots were fuelled by mourners drinking to relieve their grief after Judy Garland’s death in London and funeral in New York City – but possibly the closest the UK came to watching similar scenes was 25 years later and was connected to the death of the artist and Outrage supporter, Derek Jarman. Peter Tatchell arranged a candlelit vigil outside the Houses of Parliament on 21st February 1994 to mark the death of the great film maker. The other purpose of this gathering was to enable a demonstration to take place right outside the Palace of Westminster just as the Commons were voting on establishing an equal age of consent. When Parliament voted for a compromise of 18 years of age, the 5,000 or so demonstrators invaded the grounds of the Palace and Police and Commons staff struggled to close the great doors of Parliament to keep them out.


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The Weekly Roundup: Boris Johnson, Hong Kong, and Freedom of Religion on Social Media

8 July 2019 by

Image: Annika Haas

In the news

In Hong Kong, protests have continued against a proposed law allowing extradition of Hong Kong residents to China. On Monday 1 July, campaigners delivered a letter to the UK government, petitioning the government to change the status of the British National (Overseas) Passport to include an automatic right to live and work in the UK. The government has yet to formally respond to the petition. However, Foreign Secretary Jeremy Hunt has stated that he is ‘keeping his options open’, and threatened ‘serious consequences’ if China fails to honour the Joint Declaration treaty of 1984 (which stipulated the terms of the 1997 handover).


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Seeking a secret inquest? A lesson in how NOT to go about asking for reporting restrictions

1 July 2019 by

This article, by Bridget Dolan QC, is a slightly edited version of a piece which first appeared on the UK Inquest Law Blog. The original post can be found here.

Re AB (Application for reporting restrictions: Inquest) [2019] EWHC 1668 (QB) 27.6.19 (judgment here)

When seeking any order it always helps to make the right application, to the right court, following the right procedure.   Although when it does go horribly wrong it at least provides valuable learning for the rest of us.

So make sure you are sitting comfortably, and get ready to be educated by Mr Justice Pepperall dishing out a lesson on making an application for reporting restrictions in respect of an inquest.


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