New Podcast: The Right to Be Forgotten

16 May 2018 by

Dominic Ruck-Keene posted earlier on the order from the High Court that Google “delist” links in its search results to articles about the spent conviction of a businessman. You can hear him discussing the so-called “right to be forgotten” with Rosalind English in the latest episode of Law Pod UK.

Law Pod UK is available for free download on iTunes, Audioboom and Overcast.

Should civil partnerships only be available to same sex couples?

13 May 2018 by

Following on from the UK Supreme Court’s special session in Belfast hearing the “Gay Cake” case, the Court now gathers in London to hear oral arguments in the Equal Love litigation whose factual origins are somewhat closer to Parliament Square in more ways than one.

Rebecca Steinfeld and Charles Keidan contend they were unlawfully refused an opportunity to register a Civil Partnership at Chelsea Town Hall on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. This exclusion started to appear somewhat anomalous when the government opened marriage up to same sex couples by way of the Marriage (Same Sex Couples) Act 2013. The effect of this is that same sex couples in England and Wales (and Scotland – but not Northern Ireland) had a choice of marriage and civil partnership but different sex couples only had the former option.

What then is to be the future of the status of Civil Partnership created in 2004 (and covering the whole of the UK)? Most countries, upon enacting, same sex marriage abolished civil partnership schemes or barred new entrants to their schemes (like the Republic of Ireland). A few countries like the Netherlands, where civil partnership regimes are open to different sex couples as well, left couples with a choice of arrangements. Uniquely England, Wales and Scotland have (at present) left in place a situation in which same sex couples can choose between Civil Partnership and marriage but different sex couples only have the latter available to them.
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Win (for now) for app developer against Google

11 May 2018 by

Unlockd Ltd and others  v Google Ireland Limited and others (unreported, Roth J, Chancery Division 9 May 2018) – transcribed judgment awaited

Unlockd, an app developer, sought an interim injunction to prevent Google withdrawing its services. Roth J found that the balance of convenience was in the applicants’ favour. Their claim raised a serious issue to be tried and any action by Google to withdraw their platform would severely damage the applicants’ business. An interim injunction was granted.
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The Round Up: An anonymity injunction, the role of assurances in extraditions, and when a person’s refugee status can end.

8 May 2018 by

Conor Monighan brings us the latest updates in human rights law

Blog James Bulger

Credit: The Guardian

In the News:

In the matter of the person previously known as Jon Venables, Application by Ralph Stephen Bulger and James Patrick Bulger: Sir James Munby, sitting in the High Court, rejected a legal challenge to release the new identity of one of James Bulger’s killers.

Dame Elizabeth Butler-Sloss issued an injunction in 2001 conferring lifelong anonymity on Bulger’s killers. A number of Bulger’s relatives subsequently issued an application seeking to vary the injunction, though Bulger’s mother was not a party to it.

The application was considered by Edis J earlier this year, who made an order that it be considered by the President of the Family Division at the first available opportunity. The application requested that the court “consider that over 17 years on and with serious offending the experiment of ‘anonymising’ Jon Venables has not worked”. The application was made in light of child sex offences committed by Venables since 2001.

However, the bundle prepared for the hearing by the applicants did not comply with the relevant Practice Direction’s mandatory requirements. In particular, the applicants did not outline how the injunction should be varied or discharged. Compliance, the court held, was important to achieve the aims of bringing down waiting times and delays in hearing cases. Sir James Munby expressed regret that the Practice Direction was still not being adhered to 18 years after it was first issued. Secondly, a witness statement did not comply with Family Procedure Rule 25.4(2). If the applicants wished to reply on expert evidence, they should have made an application to do so. The court recognised that the application had been prepared in haste but noted that deficiencies remained three months later.

In light of this, counsel for Mr Venables and the Attorney General were severely disadvantaged in their understanding of the case. An order was therefore made to remedy the deficiencies in the relatives’ application.
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Privacy Rights: How should a court remedy legislative incompatibility with EU law?

8 May 2018 by

iraq war human rights compensation civilian Camp Bassa compensation damages conflict of laws international humanitarian law

R (The National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department & Anor [2018] EWHC 975 (Admin) (27 April 2018)

In the first phase of Liberty’s landmark challenge to the Investigatory Powers Act 2016 (“IPA”), Singh LJ and Holgate J sitting as a Divisional Court have granted a declaration that in the area of criminal justice, Part 4 of the Investigatory Powers Act 2016 is, in part, incompatible with EU law. Other parts of Liberty’s challenge to the IPA will be considered at a later date.

Part 4 was declared incompatible in so far as it (a) authorises the issue of retention notices for the purpose of investigating crime that is not “serious crime”, and (b) provides for access to retained data that is not subject to prior review by a court or an independent administrative body.

By way of remedy, the court has allowed the Government and Parliament a “reasonable amount of time” to correct the defects which exist and which are incompatible with EU law. This period will expire on 1 November 2018. However, the court decided not to disapply the legislation.

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Claimant held in contempt of court for grossly exaggerating negligence claim

3 May 2018 by

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Calderdale Huddersfield NHS Foundation Trust v Sandip Singh Atwal [2018] EWHC 961 (QB) — read judgment

In a landmark case an NHS trust has successfully brought contempt proceedings against a DJ who grossly exaggerated the effect of his injuries in an attempt to claim over £800,000 in damages for clinical negligence. He faces a potential jail sentence.

 

Background

In June 2008 Sandip Singh Atwal attended the A&E department of Huddersfield Royal Infirmary with injuries to his hands and lip sustained after being attacked with a baseball bat. In 2011 Mr Atwal sued Calderdale and Huddersfield NHS Foundation trust for negligence, alleging a failure to treat his injuries appropriately. The trust admitted liability, offering Mr Atwal £30,000 to settle the case. Mr Atwal did not accept the offer and in 2014 made a claim for £837,109. The claim including substantial sums for future loss of earnings and care, on the basis that he was unable to work and was grossly incapacitated as a result of his injuries.

The trust were suspicious of Mr Atwal’s claimed disabilities, which were out of all proportion to his injuries and were inconsistent with entries in his contemporaneous medical records. In 2015 they commissioned covert video surveillance of Mr Atwal and investigated his social media postings. The footage showed him working as a courier, lifting heavy items without visible signs of discomfort and dancing in a music video for a single he had released. This led the trust to plead fraudulent exaggeration and to seek to strike out the whole of the special damages claim as an abuse of process. In 2016, shortly before the assessment of damages hearing, Mr Atwal accepted the trust’s offer of £30,000. However the whole £30,000 in compensation was swallowed up in paying the trust’s costs. In fact, Mr Atwal owed a further £5,000 to the trust after eight years of litigation.

 

Contempt Proceedings

In November 2016 the trust made an application to bring committal proceedings against Mr Atwal for contempt of court, claiming that he had pursued a fraudulent claim for damages for clinical negligence by grossly exaggerating the continuing effect of his injuries. It alleged two forms of contempt:

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Coroner defeated over controversial ‘cab-rank’ burial policy

1 May 2018 by

Shaheen Rahman QC is a barrister at One Crown Office Row

R ((1) Adath Yisroel Buriel Society (2) Ita Cymerman) v HM Senior Coroner For Inner North London (Defendant) & Chief Coroner of England & Wales (Interested Party)  [2018] EWHC 969 (Admin)

Adath Yisroel.jpgThe Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs.  The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).

The policy at the heart of this highly publicised battle between the coroner and faith groups has drawn criticism from across the political spectrum.  It is to the effect that

No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officer’s or coroners.

It has resulted in a blanket refusal of requests for expedition in circumstances where a religion stipulates that burial must take place within a short period of deathSuch requests have arisen in cases where the family is waiting for the coroner to decide whether a post mortem examination is required.

 
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The Round-Up: Snooper’s Charter, Coroner’s Cab-Rank Ruling, and Foul Play with Freedom of Information

30 April 2018 by

A woman in a room of servers

Image Credit: Guardian

The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor: Liberty’s challenge to Part 4 of the Investigatory Powers Act, on the ground of incompatibility with EU law, was successful. In particular, Liberty challenged the power bestowed on the Secretary of State to issue ‘retention notices’ requiring telecommunications operators to retain communications data for up to 12 months (detail at [22]). This engaged three EU Charter rights: the right to private life, protection of personal data, and freedom of expression and information.

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Liability of private hospitals seminar: two new podcasts

27 April 2018 by

Recently the clinical negligence team at 1 Crown Office Row held a seminar debating the liability of private hospitals and clinics. In “Lessons learned from the Paterson litigation” two talks on the topic were given then a case scenario was presented for the panel to discuss. Making up the claimant’s panel are Elizabeth-Anne Gumbel QC and Robert Kellar. For the defendants are John Whitting QC and Jeremy Hyam QC.  The event was chaired by Dame Christina Lambert.

We have recorded the case scenarios for Law Pod UK which are now available for download: tune in to Episode 30 (part 1) and Episode 31 part 2).

Law Pod UK is available for free download from iTunes, Audioboom and Overcast.

Musicians and hearing loss: New podcast

26 April 2018 by

We posted previously about the case of Goldscheider v Royal Opera House. There was a lot of interesting material in the judgment, not all of it to do with the law, so we decided to invite a musician on to Law Pod UK to explore the player’s perspective. Tune in to Episode 29 to hear Rosalind English in discussion with opera singer and composer Susie Self about the realities of orchestral placement, ear defenders, hearing loss and the hazards faced by musicians on the performing stage.

 

Law Pod UK is available for free download from iTunes, Audioboom and Overcast.

 

Legal personhood for non-human animals? The case of the Non-Human Rights Project — Dr Linda Roland Danil

26 April 2018 by

This guest article argues that it is time to consider seriously the case for granting legal personhood to certain classes of sentient animals.elephant.jpg

Introduction

This post is inspired by a larger project I have recently begun investigating – that of granting legal personhood to non-human animals. This guest post will focus on one of a number of cases initiated by the Non-Human Rights Project (NhRP), specifically in relation to the NhRP’s bid to have a number of chimpanzees in captivity relocated to a sanctuary – the case of Matter of Nonhuman Rights Project Inc. v Lavery (2017) (hereinafter ‘Lavery’).

Beginning in December 2013, the NhRP has filed petitions for writs of habeas corpus on behalf of four chimpanzees (as well as, at the time of writing, three elephants) held in captivity – two of the chimpanzees (Tommy and Kiko) are being held by private individuals, and the other two chimpanzees (Hercules and Leo) who were kept, until recently, by Stony Brook University for research into the evolution of human bipedalism. In order for this to be executed, however, the chimpanzees would have to be considered legal persons. It is important to note here that, as the NhRP itself argues, legal personhood is not synonymous with ‘human being’ – as most prominently exemplified by the fact that, for example, corporations have legal personhood. One of the aims of the NhRP is‘[…] change the common law status of great apes, elephants, dolphins, and whales from mere “things,” which lack the capacity to possess any legal right, to “legal persons,” who possess such fundamental rights as bodily liberty and bodily integrity.’ The NhRP is beginning with great apes, elephants, dolphins, and whales because they are members of species for whom there is considerable and robust scientific evidence of self-awareness and autonomy.

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Headline- Round Up: Sir Cliff Richard’s case against the BBC reaches the High Court

23 April 2018 by

Conor Monighan brings us the latest updates in human rights law

cliff

Credit: The Guardian

In the News:

The legal battle between Sir Cliff Richard and the BBC has begun in the High Court.

In August 2014, police raided Sir Cliff’s home based on an allegation of historic child sexual abuse. The BBC broadcast live footage of the raid filmed from a helicopter. The singer was interviewed under caution, but never charged.

Sir Cliff alleges that the BBC’s coverage of the police raid on his home was a serious invasion of his right to privacy, for which there was no lawful justification. He also alleges breaches of his data protection rights. The singer seeks substantial general damages, plus £278,000 for legal costs, over £108,000 for PR fees which he spent in order to rebuild his reputation, and an undisclosed sum relating to the cancellation of his autobiography’s publication. He began giving evidence on the first day of the hearing.
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Igniting the Green Revolution: some brain storming from environmental lawyers

21 April 2018 by

Image may contain: 3 people

Image Credit: Tobias Schreiner, PIEL UK

On Friday 6th April, Public Interest Environmental Law (PIEL) UK hosted their 12th annual conference. The student-led association, which was founded in 2007, is inspired by the US conference of the same name which has attracted ever-growing numbers of delegates since it began in 1983.

This year’s conference boasted three panels packed with academics and practitioners, and a keynote address from Richard Macrory CBE. In light of the movement’s snowballing strength, it seemed apposite that this year’s conference be themed ‘Environmental Litigation: Has the Green Revolution Reached the Courts?’

In fact, speakers ranged beyond this brief, partly due to recognising that it would take the coalescence of strategic litigation with procedural reform and public interest to truly ignite the ‘green revolution.’

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Salvation outside the church? CJEU rules on religious discrimination in employment — Dr Ronan McCrea

20 April 2018 by

CJEU

The Court of Justice of the European Union has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.


Background


In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:


‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’



Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.


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When does rehabilitation create a ‘right to be forgotten’?

20 April 2018 by

google magnifying glass.pngIn NT1 and NT2 v Google LLC, Mr Justice Warby considered whether Google should be required to ‘de-list’ links in its search results to articles about the spent historic convictions of two businessmen under what is commonly called the ‘right to be forgotten’. He held it was in the case of one claimant, but not the other.

The claimants argued that the Google search results conveyed inaccurate information about their offending. Further, they sought orders requiring details about their offending and their convictions and sentences to be removed from Google Search results, on the basis that such information was out of date; irrelevant; of no public interest; and/or otherwise an illegitimate interference with their rights. They also sought compensation for Google in continuing to return search results disclosing such details, after the claimants’ complaints were made. Google resisted both claims, maintaining that the inclusion of such details in its search results was legitimate.

Mr Justice Warby summarised the issues as “the first question is whether the record needs correcting; the second question is whether the data protection or privacy rights of these claimants extend to having shameful episodes in their personal history eliminated from Google Search; thirdly, there is the question of whether damages should be paid.”

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