Who’s afraid of the big bad wolf?

22 August 2019 by

The Finns are, or so it appears from a recent referral to the European Court of Justice: Case C‑674/17.

Man up, Finns! That is the AG’s advice. The Habitats Directive allows of no derogation from the protection of species obligation that does not come up with a satisfactory alternative. Furthermore it must be shown that any derogation does not worsen the conservation status of that species.

Whatever the CJEU decides, the opinion of AG Saugmandsgaard Øe makes for fascinating reading, going to the heart of the conservation problem. As human populations spread, how to secure the preservation of wild species, particularly carnivores?


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‘With great power comes great responsibility’ – contributory negligence post-Montgomery

21 August 2019 by

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

Might Uncle Ben’s words prove prescient in the context of medical negligence?

Regardless of whether one attributes this famous quote to Voltaire or Spider-Man, the sentiment is the same. Power and responsibility should be in equilibrium. More power than responsibility leads to decision-making with little concern for the consequences and more responsibility than power leads to excessive caution. This article argues that there is now a disequilibrium in the NHS, which is the root cause for defensive medical practice and the growing NHS litigation bill.

Montgomery v Lanarkshire affirmed a transition from patients as passive receivers of care to active consumers by making the collaborative patient-doctor relationship a legally enforceable right. However, as yet patients are not expected to share responsibility for a negative outcome. Medical paternalism may now be dead but judicial paternalism appears to be alive and well. However, contributory negligence is a necessary counter-weight in this balance and it must urgently be applied to restore equilibrium.


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What is the correct standard to be applied in police misconduct cases? Plus a new inquiry launches, and cake goes to the ECtHR – the Round Up

19 August 2019 by

Conor Monighan brings us the latest updates in human rights law

cake

Credit: The Guardian

In the News:

An application in the Ashers ‘gay cake’ case has been lodged at the European Court of Human Rights (“ECtHR”). The case involved a Christian bakery which refused to bake a cake bearing the message ‘Support Gay Marriage’. The Supreme Court found in favour of the bakery, ruling its actions were not discriminatory because the appellants were not under an obligation to express a political view which conflicted with their religious beliefs.

Lawyers representing Mr Lee, the customer whose order was refused, have outlined some of the arguments they will be making. In their submission, merely baking the cake did not mean the bakery, or the bakers, supported its message. They argue that no reasonable person would think that the bakery supported gay marriage simply because they had produced Mr Lee’s cake. Mr Lee described the Supreme Court’s decision as allowing shopkeepers to “pick and choose” which customers they serve.
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Father of Islamic State fighter fails in judicial review claim

19 August 2019 by

The flag of Islamic State

R (on the application of Abdullah Muhammad Rafiqul Islam) v Secretary of State for the Home Department [2019] EWHC 2169 (Admin)

In a case that was described as “the first such case to have come on for hearing before this court” and one that shares many similarities with the tabloid-grabbing story of Shamima Begum (discussed on the Blog here), Mr Justice Pepperall refused permission to bring judicial review proceedings on behalf of an Islamic State combatant whose citizenship had been revoked by the Home Secretary.

The Facts

A father (Mr Islam) brought judicial review proceedings on behalf of his son (Ashraf) challenging the Home Secretary’s decision to revoke Ashraf’s British citizenship because of his involvement with the Islamic State / Islamic State of Iraq and the Levant (referred to in the judgment as ISIL).

Ashraf was born in London and is a British citizen by birth. He has lived and studied in both Bangladesh and the United Kingdom throughout his life and was studying in Dhaka at the time of his disappearance in April 2015. Shortly after his disappearance, Mr Islam learned that his son had crossed into Syria and joined ISIL.


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The Weekly Roundup: Police powers and freedom of information

12 August 2019 by

Photo by Andrew Parsons

In the news

On Friday, Prime Minister Boris Johnson set down his stance on law and order in three major announcements, fulfilling his promise to ‘come down hard on crime’. This follows the announcement of 20,000 ‘extra’ police officers a few weeks ago.

Firstly, Home Secretary Priti Patel announced enhanced stop-and-search powers for police officers under s.60 Criminal Justice and Public Order Act, on the basis of a ‘knife-crime epidemic’. Under the new rules, an officer need only believe that a violent incident ‘may occur’, not that it ‘will’, and a lower level of authorisation will be required to exercise the power.

Secondly and thirdly, Mr Johnson has promised penal reforms. The Ministry of Justice has allocated £2.5bn to create ‘modern, efficient prisons’, including 10,000 new prison places. Alongside this, Mr Johnson has announced a sentencing review, by which he hopes to increase sentences for violent and sexual offenders, and reduce the use of ‘early release’ on licence – currently available to most offenders after they served half of their sentence, under the Criminal Justice Act 2003.

The resources of this crackdown are welcome, especially with an extra £85m for the chronically underfunded CPS. However, the approach is controversial. Stop-and-search in particular has been heavily criticised in the past. Some say that it is ineffective – a study released by the Home Office in 2016 found that enhanced stop-and-search had not decreased crime when used in key London boroughs. Others say that the policy is discriminatory in its application, and worsens the relationship between the public and the police, drawing links to the 2011 London riots.

The review of the Prevent counter-terrorism initiative is expected to begin today, following the appointment of the independent reviewer. However, the process of appointing the reviewer has been criticised for its opacity – Ed Davey MP has spoken of a ‘whitewash’, while Liberty director Martha Spurrier has suggested that the government are ‘[shielding] Prevent from the scrutiny it desperately needs’.

In further unwelcome news, a report found that a chartered deportation flight lacked ‘common decency’ towards passengers. Passengers were subjected to excessive restraint (up to 14 hours at a time); not allowed appropriate privacy when using the toilet; not appropriately supervised; and subject to long delays. This was followed by revelations that the Home Office used restraint against deportees in 447 cases between April 2018 and March 2019, as reported by Guardian.


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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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public law unfairness Public Order public powers public procurement Public Sector Equality Duty Public Services Ombudsman Putin putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Joint Committee of Primary Care Trusts & Anor [2012] EWCA Civ 472 R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 Race race relations Rachel Corrie racial discrimination Racial equality radio radiotherapy Radmacher Raed Salah Mahajna Raed Saleh Ramsgate randomised controlled trial rape rape case raptors Ratcliffe 6 Ratcliffe on Soar Ratcliffe power station rating rationality rcs RCW v A 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courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic 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Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750

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