20 December 2019
In our 100th episode, Emma-Louise Fenelon talks to Neil Sheldon QC about how to help your expert stay out of trouble in clinical negligence cases. The episode considers the recent trend in trenchant judicial criticism of expert witnesses and discusses the following cases:
19 December 2019
And so, we reach the end of another year. And what a year it has been. As well perhaps the most tumultuous period in British politics for decades, this year saw the first ever image taken of a black hole, a victory for the England men’s cricket team at the World Cup, the discovery of a new species of prehistoric small-bodied human in the Philippines and signs that humpback whale numbers in the South Atlantic have bounced back thanks to intensive conservation efforts.
And the law? Well, rather a lot has happened really. As the festive season draws near, what better way is there to celebrate than to rewind the clock and relive the 10 cases which have defined 2019?
19 December 2019
The tragic events of the Guildford pub bombings saw four people killed and another 65 injured when the IRA blew up two pubs in 1974. In January of this year, the decision was taken to resume the inquest into the Guilford pub bombings, more than 40 years since it was suspended.
One of the victims of the bombings was Ann Hamilton. Her sister, Cassandra Hamilton, has had her legal aid application refused and will be unable to have legal representation at the inquest. The Government has stated that the coroner could question witnesses on behalf of relatives.
18 December 2019
This week sees Baroness Hale sitting for the final time as President of the Supreme Court. Photo credit: The Guardian.
A brief delay to the publication of this article has helpfully afforded this blogger the opportunity to move beyond the political events of last Thursday and instead focus on much more interesting legal matters (more on those later).
However, it would be remiss not to recognise the consequences of last week’s election, which saw the Prime Minister return newly empowered by a sizeable Conservative majority. At the time of writing, proposals were being made to put the legislation required to withdraw from the European Union back to MPs as early as this Friday.
Sneaking in at page 17 of the Conservative manifesto (one page after a commitment to extend the water rebate in the South West) came the party’s offering on law and order. This included commitments to increase the number of police, enhance the use of “fair and proportionate” stop and search, as well as promote longer sentences and the greater use of electronic tags. The manifesto was however silent on some matters which have drawn attention of late, including court closures, legal aid cuts, and previous suggestions from ministers that the Human Rights Act might be amended to protect soldiers from prosecution for acts performed during their time in service. With such a significant majority however, the Government will be in a position to pursue its chosen agenda with enthusiasm, and so these and other mooted at policies, such as reform of the judicial review process, may not be as fanciful as previously thought.
Moving gratefully on from politics, today saw the first day in the case of XX v Whittington Hospital NHS Trust (appealing [2018] EWCA Civ 2832), which also serves as Baroness Hale’s final case as President of the Supreme Court before her replacement on January 11thby Lord Reed. The case provides an interesting example of a scenario in which factual matters combined with absent or inadequate law require the court to consider matters of a deeply public policy nature.
Continue reading →
9 December 2019
Conor Monighan brings us the latest updates in human rights law
In the News:
Court of Appeal judges overturned the convictions of the ‘Oval Four’ after it was found that their sentences were based on evidence given by a corrupt police officer.
The ‘Oval Four’ refers to a group of black men who were arrested by officers claiming to have seen the men stealing Tube passengers’ handbags. The men were subsequently convicted in 1972 based solely on the basis of evidence given by those officers. None of the ‘victims’ appeared at the trial.
The case became a focus point for black rights and the treatment of BME people by the police. It was referred to the Criminal Cases Review Commission, which ultimately led to the successful appeal.
Whilst the convictions of three of the men were overturned, the fourth member of the ‘Oval Four’ unfortunately cannot be found.
The Lord Chief Justice, Lord Burnett, expressed “regret is that it has taken so long for this injustice to be remedied”. Lord Burnett also stated that there was “an accumulating body of evidence that points to the fundamental unreliability of evidence given by DS Ridgewell [the lead officer] … and others of this specialist group”.
3 December 2019
R (Hemmati and others) v Secretary of State for the Home Department [2019] UKSC 56
In a significant public law decision, the Supreme Court dismissed the Secretary of State’s appeal and held that the policy governing detention pending removal fails to comply with the Dublin III Regulation as it lacks adequate certainty and predictability.
The respondents were five individuals who had travelled to the UK illegally and made claims of asylum, having entered via at least one other member state of the European Union in which they had already claimed asylum. Relying on the procedure set out in the Dublin III Regulation (Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013) (“Dublin III”), the Secretary of State requested those states to take responsibility for examining the asylum claims. Each such state agreed.
The respondents were then detained pending their removal pursuant to paragraph 16(2) of the Immigration Act 1971. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that in exercising powers of detention, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State.
26 November 2019
Ali v Serco, Compass and the Secretary of State for the Home Department – read judgment.
Serco hit the headlines in July of last year when it introduced its controversial eviction practice of changing the locks of refused asylum seekers. In a judgment that refugee charities are describing as a worrying precedent, the Inner House of the Court of Session ruled that this practice is lawful.
Euan Lynch has also posted on this case, focussing on the question of whether Serco should be classified as a “public authority” under the HRA 1998 as the Outer House and the Inner House of the Court of Session reached different conclusions on this point.
26 November 2019
Ali (Iraq) v Serco Ltd [2019] CSIH 54
The Inner House of the Court of Session has ruled that Serco Limited acted lawfully when evicting a failed asylum seeker from temporary accommodation in Glasgow without first obtaining a court order. This is the same conclusion that was drawn by the Outer House of the Court of Session in April. Daniel McKaveney has posted on the main points in this judgement here.
Whilst each judgment reached the same end result, one striking difference between the two is the reasoning that the Lord Ordinary and the Lord Justice Clerk deployed to answer the question of whether Serco should be classified as a “public authority” under section 6 of the Human Rights Act 1998 (“the HRA 1998”).
The persuasiveness and significance of each courts’ reasoning will be considered below.
26 November 2019
Middle Temple’s exhibition celebrates the centenary of the admission of women to the legal profession. We were lucky enough to be guided around this fantastic exhibition by the curator, Rosalind Wright CB QC. Listen to Rosalind discuss the first 100 years of women in law with Rosalind English in the latest episode of Law Pod UK here.
The exhibition consists of 25 portraits of women Middle Templars over the last 100 years, including Helen Normanton, the first woman to become a member of an Inn. It is accompanied by a digital exhibition of many more of our distinguished women members. The exhibition curated by Rosalind Wright CB QC, a Bencher of Middle Temple with specially commissioned photography by Chris Christodoulou. The portraits are exhibited in order of Call to the Bar.
Visit the exhibition, and listen along, to see the women past, present and future who have changed the legal landscape at Middle Temple here.
25 November 2019
In the news
With an election on the horizon, a coalition of 29 women and human rights organisation has published a manifesto for women and girls. Their stated goals are to “end violence against women and girls”; “secure women’s equal representation in politics”; “promote equality in the workplace and in the home”; “invest in public services”; and “lift women and children out of poverty”. To achieve these goals, they propose measures including a new ‘Violence Against Women and Girls’ bill to lay before Parliament; funding for high-quality sex and relationships education; improvements to the criminal justice system regarding allegations of rape and sexual assault; equal pay; increased maternity pay and maternity allowances; an end to pregnancy discrimination; and a strengthening of the law on sexual harassment at work, creating a duty on employers to prevent harassment from occurring. The manifesto is available here.
The backlash against internet intermediaries and ‘surveillance capitalism’ continues this week. Amnesty International have released a report entitled ‘Surveillance Giants’, which analyses in detail the human rights threats posed by Facebook, Google, and other technology corporations. The report is available here. Meanwhile, in the courts, Singh LJ granted Ed Bridges permission to appeal the facial recognition judicial review which he lost in September, noting that Mr Bridges’ appeal had a reasonable prospect of success.
25 November 2019
Middle Temple’s exhibition celebrates the centenary of the admission of women to the legal profession. It consists of 25 portraits of women Middle Templars over the last 100 years, including Helen Normanton, the first woman to become a member of an Inn. It is accompanied by a digital exhibition of many more of our distinguished women members. The exhibition curated by Rosalind Wright CB QC, a Bencher of Middle Temple with specially commissioned photography by Chris Christodoulou. The portraits are exhibited in order of Call to the Bar.
We were lucky enough to be guided around this fantastic exhibition by Ros Wright herself. Listen to her discuss the first 100 years of women in law with Rosalind English in the latest episode of Law Pod UK.
19 November 2019
Whitehouse and Clark v The Chief Constable, Police Scotland and The Lord Advocate [2019] CSIH 52
In an appeal brought by the former joint administrators of Rangers Football Club, the Inner House of the Court of Session ruled that the Lord Advocate does not have absolute immunity from suit for malicious prosecution. It marks a significant change in an area of the law that has remained largely untouched for almost sixty years.
The serious financial troubles and subsequent winding up and sale of Rangers Football Club is well documented.
The two pursuers in this case were appointed as the joint administrators of Rangers when the club entered administration in 2012. They reported to the police that the acquisition of Rangers may have involved illegal financial assistance. The police then investigated the acquisition and financial management of Rangers. Whitehouse and Clark ceased to be the administrators later in 2012 when the club entered liquidation after an agreement with the club’s creditors couldn’t be reached. New joint liquidators were then appointed.
In November 2014, the pursuers were detained by Police Scotland on suspicion of being involved in a “fraudulent scheme and attempt to pervert the course of justice”. It was alleged that Craig Whyte, who became the club’s majority shareholder in 2011, had fraudulently bought the club and forced it into administration, which had financially benefitted the pursuers. Over the next year, there were a series of hearings and court proceedings. The pursuers were detained once again and re-arrested and charged with similar offences. They were then charged on a separate occasion with “conspiracy to defraud and attempting to pervert the course of justice”. They objected to the relevancy of these charges.
Whitehouse and Clark aver that they were then told by the Crown in June 2016 that all proceeding against them were finished, and they have not been charged with any offences since.
18 November 2019
In the latest Henry Brooke Lecture (12th November, hosted by BAILII and Freshfields Bruckhaus Deringer), Supreme Court Justice Lord Sales warned that the growing role of algorithms and artificial intelligence in decision making poses significant legal problems.
He cited as an example a recent case in Singapore. The judge had to decide on mistake in contract – except that the two contracting parties were both algorithms. In that instance the judge was able to identify the human agents behind the programmes, but that will soon not be the case.
12 November 2019
R (on the application of) Friends of Antique Cultural Treasures Ltd v Department for the Environment, Food and Rural Affairs – read judgment
“We believe that the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products.” (Defra’s statement in consultation in introducing the Ivory Bill)
The Ivory Act 2018, which received Royal Assent in December 2018, proposes to prohibit ivory dealing with very limited exceptions. This includes antique items made with ivory. According to the Government, the Act contains “one of the world’s toughest bans on ivory sales”. No date has yet been fixed for it to become law.
The purpose of the Act is to enhance the protection of African and Asian elephants in the face of ongoing threats to their survival. It does so by prohibiting the sale, as opposed to the retention, of all ivory (that is, anything made out of or containing ivory), subject to a very limited and tightly defined exemptions. These prohibitions are backed by criminal and civil sanctions.
The claimant company represented UK dealers in antique worked ivory such as Chinese fans, walking canes with sculpted ivory tops and furniture with ivory inlay. The appeal of these items is not confined to Sinologist antiquarians. Netsuke, smaller carved ornaments worn as part of Japanese traditional dress, are an example. Even for the non connoisseur, Edmund de Waal’s novel The Hare with the Amber Eyes is a celebration of the significance and aura that these ornaments bestow on their owners, not just for the carving, but for the material of which they are made. Religious, hierarchical, magical, and even medicinal.
12 November 2019
J.D. and A v the United Kingdom (nos. 32949/17 and 34614/17) – read judgment
Much may have changed in the political world since the Coalition Government introduced its controversial ‘bedroom tax’, but the legal fall-out from the policy continues. The European Court of Human Rights has delivered its verdict on the compatibility of the scheme with the prohibition on discrimination set out in Article 14 of the European Convention on Human Rights. The Strasbourg Court has found that the policy discriminated unlawfully against women at risk of domestic violence.
Background
As is well known, in 2012 the United Kingdom government introduced new regulations with the effect that those in social housing with an ‘extra’ bedroom had their housing benefit reduced: the so-called ‘bedroom tax’. The purported aim of the policy was to save money and to incentivise those with an ‘extra’ bedroom to either move property or take in a lodger thereby resulting in a saving of public funds.
It is not difficult to imagine why someone might have an extra bedroom but have strong reasons (related to disability or gender) for not moving house. The Government sought to make provision for such cases through a discretionary scheme operated by local authorities but funded by central government.
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