No more reasonable doubt in suicide inquests

20 May 2019 by

In R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire v The Chief Coroner for England Wales [2019] EWCA Civ 809, the Court of Appeal conclusively held that the standard for proof for both short form and narrative conclusions concerning suicide was the civil balance of probabilities test, rather than the criminal beyond reasonable doubt.

The decision of the divisional court in R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire v The Chief Coroner for England Wales [2018] EWHC 1955(Admin) to the same effect marked a significant reversal of the commonly understood position that the criminal standard of proof applied – see Owain Thomas QC’s comment here.

Lord Justice Davis gave the only substantive judgment. He began by summarising that in the instant inquest concerning the death of a prisoner who had been found hanging, the Chief Coroner for Oxfordshire had followed the Chief Coroner’s Guidance No 17 and also the guidance contained within the Coroner’s Bench Book. The Coroner had accepted that the evidence on a ‘Galbraith plus’ basis was insufficient to enable a jury, properly instructed, to conclude to the criminal standard that the deceased had intended to take his own life.

However, having so ruled, the Coroner had further decided that it would not be appropriate simply to elicit an open conclusion from the jury and that they should be asked to ask a number of questions in order to elicit a narrative conclusion. In light of the way the questions were framed, the jury had for the purposes of their narrative conclusion, considered whether the deceased had intended fatally to hang himself by reference to the balance of probabilities. Their narrative conclusion included a determination that the deceased had intended to kill himself.


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Anisminic 2.0

15 May 2019 by

The Supreme Court has ruled in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the Investigatory Powers Tribunal’s decisions are nevertheless amenable to judicial review, despite the existence of a powerfully-drawn ‘ouster clause’ preventing its decisions from being questioned by a court.

In this article we will navigate our way through the decision and have a look at the principles that lie behind this case and what its wider significance might be.

Background

The Investigatory Powers Tribunal (IPT) is the body which has jurisdiction to examine the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Effectively, the IPT is the court where a person can challenge the lawfulness of a decision to put them under surveillance.

The question in this case was whether the decisions of the IPT itself could be challenged in court. In particular, did the High Court have jurisdiction to entertain an application for judicial review brought by Privacy International against a decision by the IPT that computer hacking by GCHQ fell lawfully within its general warrant to undertake such activity?


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Law Pod UK – the new copyright directive

13 May 2019 by

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In Episode 78 we explore the implications of the EU Directive on Copyright in the Digital Single Market for the music industry. Intellectual Property lawyer Andrew Lewis considers the criticism levelled at the new proposals for closing the “value gap” created by platforms such as You Tube. Will the Directive bring about the earth shattering change as its detractors claim, or will it simply level the playing field between You Tube and subscription only streaming services?

Law Pod UK is available on SpotifyiTunes,AudioboomPodbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.  

Landmark ruling for inquests and Chelsea Manning released from prison: The Round Up

13 May 2019 by

Conor Monighan brings us the latest updates in human rights law

Manning

Credit: The Guardian

In the News:

Chelsea Manning, the ex-US intelligence analyst, was released from prison last week.

Manning was found guilty of a variety of charges in 2013, including espionage. She was subsequently given the longest sentence for a security leak in US history. After serving an initial period in jail, the remainder of her sentence was commuted by President Obama in 2017 on the basis that it was “disproportionate” to her crimes.

Ms. Manning has since refused to testify to a grand jury about her connections to WikiLeaks and Julian Assange (its founder). She claims that she has already given testimony as part of her trial in 2013, and objects to the grand jury system in principle. However, prosecutors have suggested that her evidence may have been inaccurate. A judge in Virginia ordered her to be taken into custody for 62 days.

She was released last week after the 62 day period elapsed. In the meantime, however, Ms. Manning was served with another subpoena which requires her to appear before a grand jury on May 16th in order to testify about the same issues. It seems likely, therefore, that she will be imprisoned again for contempt of court.
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Sight impaired voters and the secret of the ballot box

12 May 2019 by

How can someone who suffers from severely limited sight avail herself of the process for making a mark on a paper ballot under the Representation of the People Act 1983?

In R (on the application of Rachel Andrews v Minister for the Cabinet Office [2019] EWHC 1126 (Admin) Swift J was presented with this very question, as the claimant, a sufferer from myopic macular degeneration who has been registered blind since 2000, was unable to vote without assistance, “either from the Presiding Officer at a Polling Station or a companion”

The main basis for her claim was that the regulations under the 1983 RPA have failed to achieve the purpose of prescribing the use of a device that enables blind and partially sighted voters to vote without assistance.

In the judgment, Swift J refers as short hand to “blind voters”, rather than “blind and partially sighted voters”.

Under challenge were the provisions for voting for blind voters. Rule 37 sets out the procedure thus:

The voter, on receiving the ballot paper, shall forthwith proceed into one of the compartments in the polling station and there secretly mark his paper and fold it up so as to conceal his vote, and shall then show to the presiding officer the back of the paper, so as to disclose the number and other unique identifying mark, and put the ballot paper so folded up into the ballot box in the presiding officer’s presence.

The provision for blind voters is limited to “at least one large version of the ballot paper” to be displayed at the polling station and

A device of such description which may be prescribed for enabling voters who are blind or partially-sighted to vote without the need for assistance from the presiding officer or any companion.

The device prescribed is a “tactile voting device” made from a sheet of plastic with a number of tabs, printed in Braille, corresponding to the number of candidates standing in the constituency. However there are a number of shortcomings with the TVD, including the fact that a blind person has no way of knowing the name of the candidate or the name of the party the candidate represents. The TVD only permits a blind person to vote without assistance if she or he has memorised the order of candidates on the ballot paper.

The claimant contended that this was unsatisfactory. Without the assistance of the poll officer or a companion there was no way that she could mark her ballot paper against the name of the candidate she wished to vote for. It was not realistic, she contended, to expect her to memorise not only all the names of the candidates but the order in which they appeared on the ballot paper. In the 2009 by-election in her constituency for example there were twelve candidates. The position becomes even more complicated if more than one election takes place on the same day.>

This effectively denied her the opportunity to cast her ballot in secret.

The question before the court was the precise meaning of the words in Rule 29(3A) making provision for blind voters:

…a device … for enabling voters who are blind or partially-sighted to vote without any need for assistance from the presiding officer or any companion …

The judge concluded that a device that enabled a blind voter to vote without the need for the assistance that could be provided by a Presiding Officer or companion would need to do more than the present TVD.

It would, at the least, have to comprise a fuller TVD of the sort suggested by the Claimant, which in addition to the numbered tabs has the name of each candidate and/or the party she stands for, either in raised lettering, or Braille, or both.

This was because of what it means to vote, which extends beyond the dictionary definition of the word. The respondent claimed that it meant the mere marking of one of the areas indicated on the ballot paper. But, in Swift J’s view, there was more to it, as indicated by the rules on spoilt ballot papers, which reflect

the clear (and to my mind obvious) connection between marking the ballot paper and choice. Voting under the rules means marking a ballot paper so as to indicate an intention to vote for one or other candidate….A device that does no more than enable blind voters to identify where on a ballot paper the cross can be marked, without being able to distinguish one candidate from another, does not in any realistic sense enable that person to vote. Enabling a blind voter to mark ballot papers without being able to know which candidate she is voting for, is a parody of the electoral process established under the Rules. [paras 21 – 22]

His conclusion was that the present TVD did not represent the fullest possible use of the power at Rule 29(3A). In order to enable a blind person to vote, a device must allow the blind voter to mark the ballot paper against the name of her candidate of choice. Declaratory relief was ordered to that effect.

The GDPR v Machine Learning Algorithms

10 May 2019 by

Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.

Josef. K the protagonist of Kafka’s novel ‘The Trial’ was an ambitious and successful banker prior to his unexpected arrest. The criminal charges brought against him were never explained because they were beyond the comprehension of all but the most senior judges. Attempting to understand his guilt, consumed K’s every thought – he was distracted at work, subservient to his lawyer and ultimately docile when led to his execution. ‘The Trial’ eloquently argued that transparency is a prerequisite of accountability. In the Age of the Algorithm, Kafka’s novel is now more relevant than ever.

Machine learning algorithms increasingly regulate our lives making decisions about us in finance, education, employment and justice. Ultimately, it will become pervasive in most, if not all aspects of decision making in the foreseeable future. But what is a machine learning algorithm? How does it decide? What rights do data subjects have? This article aims to answer all three of these questions.


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The Status of Foreign Law in Chinese Courts

8 May 2019 by

Usually when a court in the UK is asked to consider a question of foreign law, the contents of that law are treated as a question of fact that must be pleaded and proved by the parties, usually by expert opinion. This is the case too in the United States, and in Hong Kong.

If the parties do not adduce factual evidence on the contents of the foreign law concerned, the English court will assume that the foreign law is exactly the same as the relevant English law – this is the common law notion of “presumption of identity”. This means, in effect, that where there is no foreign precedent on the point in question, or where the authorities are in conflict, the court must decide the matter for itself.

In an interesting briefing published by Links Law Office as part of their Dispute Resolution Bulletin, authors Patrick Zheng and Charles Qin explain that in China it is not clear whether foreign law constitutes a question of law or fact, as the Chinese court retains the power to investigate and clarify the applicable foreign law of its own motion.

Chinese law provides a number of ways for the parties and the court to “investigate and clarify” the applicable foreign law, including submissions by the parties, or the relevant foreign embassy, Chinese or foreign legal experts or “any other reasonable way to find foreign law, for example through the internet”.

This week’s round up – Williamson fired over Huawei and the courts return after Easter

7 May 2019 by

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Former Secretary of State for Defence Gavin Williamson. Credit: The Guardian.

Despite the return of the courts on Monday, it was another relatively light week in terms of decisions in the fields of public law and human rights. However, the High Court decided a number of interesting clinical negligence cases, whilst the Court of Appeal gave judgement in the case of TM (Kenya), R (On the Application Of) v Secretary of State for the Home Department [2019] EWCA Civ 784.

TM (Kenya) concerned a 40 year old Kenyan woman who faced deportation after her applications for leave to remain and asylum were rejected by the Home Office. She had been detained at Yarl’s Wood Immigration Removal Centre in advance of proceedings to remove her from the country, during which time she had been uncooperative with staff. In light of her behaviour and in advance of her removal to Kenya, she was removed from free association with other detainees. Such detention was authorised by the Home Office Immigration Enforcement Manager at Yarl’s Wood, who was also the appointed “contract monitor” at the centre for the purposes of section 49 of the Immigration and Asylum Act 1999.

She sought judicial review of the decision to deprive her of free association. The initial application was refused. She appealed to the Court of Appeal where she advanced three grounds, including that her detention was not properly authorised.

The court found no conflict in the dual positions held by the manager at Yarl’s Wood. The Home Secretary had legitimately authorised her detention under the principles described in Carltona Limited v Commissioners of Works [1943] 2 All ER 560. In addition, there was no obligation to develop a formal policy concerning removal from free association, as Rule 40 of the Detention Centre Rules 2001 was sufficiently clear to meet the needs of transparency.
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Straining the Alphabet Soup: Part 2 — Drafting anonymity orders

2 May 2019 by

Angus McCullough QC is a barrister at One Crown Office Row. Read Part 1 about Anonymity orders in Personal Injury proceedings here.

In Part 1 we looked at the circumstances in which a court may be prepared to grant anonymity in personal injury proceedings, and the applicable principles. In Part 2 I consider practical issues in the drafting of these orders, and problems encountered in this.

In particular, I will suggest that the standard Court Form PF10, that is now frequently being adopted, is generally inappropriate for anonymity orders in personal injury proceedings.


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Law Pod UK: Anonymity for claimants, Anonymity for doctors

1 May 2019 by

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In Episode 77, Emma-Louise Fenelon talks to Rajkiran Barhey about two recent decisions on anonymity, Justyna Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB)and General Medical Council v X [2019] EWHC 493 (Admin) (Westlaw paywall).

Rajkiran’s article on Zeromska-Smith can be found here.

The episode also refers to ABC v St George’s Healthcare Trust [2015] EWHC 1394 (QB),covered on the Blog here and here and the case of JXMX (A Child) v Dartford and Gravesham NHS Trust  [2015] EWCA Civ 96, covered on the Blog here.

Angus McCullough QC considered anonymity in a recent Blog article here.

You can catch the episode by clicking here.

Law Pod UK is available on SpotifyiTunes, AudioboomPodbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.  

Straining the Alphabet Soup: Part 1 — Anonymity orders in Personal Injury proceedings

30 April 2019 by

Angus McCullough QC is a barrister at One Crown Office Row

Amendments to CPR r.39.2; new Guidance issued by the Master of the Rolls; and a recent High Court decision refusing anonymity to a claimant prompt this review of anonymity orders in personal injury proceedings.

You act for someone who is vulnerable as a result of a serious brain injury.  Her claim has been settled, and as a result your client is due to receive a large award of compensation, of several million pounds.  The Court’s approval of the settlement is required (under the Civil Procedure Rules r.21.10).  There is a concern that if there is publicity about the award your vulnerable client will be targeted and exploited by unscrupulous individuals.  However, principles of open justice, and rights under Article 10 (freedom of speech), are engaged and favour unrestricted reporting of court proceedings.


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Round Up 29.04.19 – Domestic courts on Easter vacation but the ECtHR keeps on…

29 April 2019 by

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Mourners including Irish Taoiseach Leo Varadkar, Sinn Fein leader Mary Lou McDonald, DUP leader Arlene Foster and SNP leader Ian Blackford give a standing ovation after Fr Martin Magill’s speech at the funeral of journalist Lyra McKee in Belfast –  April 24th 2019. Credit: The Guardian.

This week saw the senior courts continue their Easter vacation between the Hilary and Easter Terms. Consequently, neither the Supreme Court, Civil Division of the Court of Appeal or Queen’s Bench Division of the High Court recorded any new decisions in the week commencing April 22nd.

Luckily for the writer of this Blog, the European Court of Human Rights does not share the relaxed attitude of the domestic courts towards Easter working, and on the April 25th gave judgement in the case of VM v United Kingdom (No 2).

The case concerned a Nigerian woman who entered the United Kingdom illegally in 2003. She subsequently pleaded guilty to cruelty to her son and was sentenced to twelve months imprisonment with a recommendation she be deported at the end of her sentence. Pursuant to this, upon her release, she was detained under immigration powers for two years and ten months.

In the latter part of this period of detention, the claimant instructed a clinical psychologist to evaluate her case. They concluded that she gave a plausible history of physical and sexual abuse at the hands of her uncle; that she suffered from severe post-traumatic stress disorder; that she was not receiving appropriate treatment for her mental health problems in detention; that release would benefit her mental health; and that her deportation was likely to precipitate further suicide attempts. Equipped with this report, her representatives challenged her ongoing detention.

The case subsequently came before the immigration tribunal, where bail was initially refused, before the intervention of a further medical expert prompted her release in July 2011. Between March and July 2011, six reviews of her position were undertaken by the Home Office, during which the caseworker commented on “yet another psychiatric report” whilst appearing to fail to take account of the most recent medical submissions. On each occasion, the officers concluded that the risk of the applicant re-offending and absconding outweighed any presumption in favour of release.

VM sought to initiate judicial review proceedings regarding this decision but was refused by the High Court in 2012. Ultimately, she appealed, and her case ascended through the court hierarchy. In April 2016, the Supreme Court concluded that whilst there were procedural errors in relation to the consideration of her medical evidence which may have made her detention technically unlawful, she would not have been released earlier had such evidence been considered appropriately. She brought proceedings in the Strasbourg Court contending that her detention had been arbitrary as the authorities failed to act with appropriate “due diligence”, and seeking damages given the alleged failure of the domestic courts to provide sufficient redress for the period of her unlawful detention.

The ECtHR agreed, stating that they had difficulty “accepting the Government’s submission that because the necessary practical arrangements had not been made, the applicant could not have been released sooner and in particular that her detention would have been lawful until such arrangements had been made”. Upholding that there had been a violation of Article 5(1) of the convention, the court awarded her €3,500 damages and €10,700 in costs.

Meanwhile, in the news…

  • Sinn Fein and the Democratic Unionist Party committed to new talks aimed at restoring the Stormont Executive following a joint announcement to that effect by UK Prime Minister Theresa May and Taoiseach Leo Varadkar. The process saw new momentum after the funeral of murdered journalist Lyra McKee during a riot in Derry on April 18th.
  • The Government announced a leak inquiry after details of discussions by the National Security Council regarding Chinese telecoms company Huawei’s involvement in the UK’s 5G network found their way into the Daily Telegraph. The revelations raised concerns that cabinet ministers had become so accustomed to leaks they were briefing against each other using material covered by the Official Secrets Act. Swift denials were issued by many ministers including Foreign Secretary Jeremy Hunt and Defence Secretary Gavin Williamson.
  • The Foreign and Commonwealth Office issued new guidance advising against all but essential travel to Sri Lanka following bombings in the country on Easter Sunday. The death toll was revised down this week to approximately 253 people.
  • Climate change advocacy group Extinction Rebellion continued a series of protests across London, causing disruption to public transportation and blockading sites including the Treasury and London Stock Exchange.

Finally on the blog, Rosalind English interviewed Dr Cherry James, coordinator of the Erasmus Programme at London South Bank University, for the 76th Episode of Law Pod UK. Dr Cherry discussed her views on the concept of a “European Citizen”.

What is an “EU Citizen”?

24 April 2019 by

In the 1980s the European Commission embarked upon an ambitious scheme to cultivate, on the basis of free movement, the idea of EU citizenship in higher education. Universities have long been seen as places of national citizenship formation. The Erasmus scheme was designed to further the notion of citizenship untethered to the nation state by funding and therefore encouraging student mobility.

Has it worked? Dr Cherry James, coordinator of the Erasmus Programme at London South Bank University, discusses her views with Rosalind English in Episode 76 of Law Pod UK. Cherry has recently published her findings in Citizenship, Nation-building and Identity in the EU: The Contribution of Erasmus Student Mobility  . This book sits at the intersection of three main interrelated themes: EU citizenship, the current state of the university in Europe, and student mobility.

Law Pod UK is available on AudioboomiTunesSpotifyPodbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.  

Court of Appeal upholds ‘acoustic shock’ and Lord Sumption’s comments on assisted suicide- the Round Up

22 April 2019 by

Conor Monighan brings us the latest updates in human rights law

L Sumption

Credit: The Guardian

In the News:

Lord Sumption, the recently retired Supreme Court judge, has suggested that the law on assisted suicide ought to be broken.

Lord Sumption said that whilst assisted suicide should continue to be criminalised, relatives of terminally ill patients should follow their conscience and not always abide by it. As he put it, “the law should be broken from time to time”.

The former judge argued that the law’s current position helps prevent abuse, and that any change to it could only be produced by a political process.

His comments were made as part of the Reith Lectures, a series of annual radio lectures on BBC Radio 4. Lord Sumption’s lectures ask whether the legal process has begun to usurp the legislative function of Parliament. His first lecture will be made available on the 21st May.

 

In Other News….

  • Research has revealed that 55,000 pupils have changed schools for no clear reason during the past five years. A report from the Education Policy Institute suggests some schools have been unofficially excluding students with challenging behaviour or poor academic results, as part of a practice known as “off-rolling”. One in 12 pupils who began education in 2012 and finished in 2017 were removed at some stage for an unknown reason. Just 330 secondary schools account for almost a quarter of unexplained moves. The Department for Education said it was looking into the issue, and that it had written to all schools to remind them of the rules on exclusions. More from The Week here.
  • Parliament’s Joint Committee on Human Rights (JCHR) has warned that the rights of detained children are being repeatedly breached. In a report published last Thursday, it recommended that Young Offenders’ Institutions should be banned from deliberately inflicting pain on young offenders and from putting them in solitary confinement. It found that hospitals and jails are restraining children too frequently, and that such techniques are being used disproportionately against ethnic minorities. Around 2,500 young people are in detention at present. More from the Guardian here.
  • The activities of Extension Rebellion, the climate change group, sparked discussion and controversy this week. The organisation has three core demands: greater transparency about climate change, a legally binding commitment to zero carbon emissions by 2025, and the creation of a citizens’ assembly to oversee the issue. The group has staged protests in London for the past week, which has included shutting down a large portion of Oxford Street. Over 800 people have been arrested. The group has been criticised for adding pressure on already overburdened police force, and for the disruption caused to people’s lives and businesses. Extinction Rebellion has announced that it will pause its protests for the duration of next week. More from the BBC here.

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Brexit: Is the UK’s ‘Constitutional Moment’ here at last?

17 April 2019 by

The scene at the signing of the US Constitution

Codified constitutions are most commonly adopted following a major schism with the previous order. For example, following an armed uprising such as the American War of Independence or the French Revolution. The sweeping away of the old regime, of necessity, demands the creation of new fundamental principles and rules to organise the State. A codified constitution also presents an opportunity to set out the core values on which the nation can rally around. It is commonly asserted that the lack of such a critical break in UK history since the 17th century explains the absence of a codified constitution.


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