25 July 2018 by Guest Contributor
A radical problem determined by ‘straightforward application of established principles’?
Network Rail Infrastructure v. Stephen Williams (1) Robin Waistell (2) [2018] EWCA Civ 1514 – read judgment
Introduction
Hancock’s curse, monkey fungus, elephant ears, pea shooters, donkey rhubarb are all (bizarre) English names for Fallopia japonica or Japanese knotweed. Although initially lauded for its beauty (it was so celebrated that in 1847 it was named by one Horticultural society as the ‘most interesting new ornamental plant of the year’) it is now well known as a fast growing and pernicious weed that is very difficult to eradicate. This is because it has a large underground network of roots (rhizomes). So bad is its destructive nature that since 2013 a seller of property is required to state whether Japanese knotweed is present on their property through a TA6 form – the property information form used for conveyancing.
Its destructive potential, and its potential for devaluation of property was at the heart of this recent decision of the Court of Appeal.
The appeal arose from the decision of Recorder Grubb sitting in Cardiff that the Appellant, Network Rail (‘NR’), was liable in nuisance by reason of the devaluation of the Claimant’s property due to the presence of knotweed on an embankment behind the Claimant’s property. The appeal raised a number of key issues as to what kinds of damage give rise to an actionable claim in the tort of private nuisance.
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24 July 2018 by Jim Duffy
A bank requires its would-be recruits and some of its existing employees to undergo a medical. It sends them to the home of one particular, self-employed doctor. There, they undergo a medical examination, unaccompanied by anyone from the bank.
The doctor completes the bank’s proforma examination form, headed with its logo and entitled “Barclays Confidential Medical Report”. The form is detailed. It includes sections on chest “Inspiration” and “Expiration”, “Abdomen (including Genito-Urinary System)”. It contains a section for “Female applicants only”, asking whether they have suffered from menstrual or pregnancy disorders.
The doctor – Gordon Bates – subsequently dies. A large group of women sue the bank alleging that it is liable for sexual assaults carried out by the doctor during the examinations. The question for the Court of Appeal in Barclays Bank plc v Various Claimants [2018] EWCA Civ 1670 was whether the bank could be vicariously liable.
Background
Following Dr Bates’ death in 2009, 126 women came forward alleging that he had abused them during medical examinations carried out on behalf of Barclays between around 1968 and 1984. The police concluded in 2013 that, had he been alive, there would have been sufficient evidence to pursue a criminal prosecution against him.
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23 July 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
In the News:
Sir Cliff Richard won his privacy case against the BBC, prompting a wide-ranging debate about press freedom.
Following an allegation of historic child sexual abuse, South Yorkshire Police raided Sir Cliff’s home in August 2014. The BBC decided to broadcast live footage of the raid which it filmed from a helicopter. Sir Cliff was interviewed under caution, but never charged.
The singer argued that the BBC’s coverage of the raid amounted to a ‘serious invasion’ of his right to privacy for which there was no lawful justification. In particular, he said his right to privacy under Article 8 ECHR had been undermined, and that the Data Protection Act 1998 was breached. The BBC submitted that it was tipped off about the police investigation, and felt it had a duty to pass the information to the public.
The High Court held that a suspect in a police investigation was capable of having a “reasonable expectation of privacy”, depending on the facts of his/ her situation. There was no “genuine public interest” in the police investigation. It further held that damage to reputation may form part of a breach of the right to privacy. Mr Justice Mann awarded initial damages of £210,000. The BBC must pay 65% of the damages, with South Yorkshire police paying the remainder.
Sir Cliff’s solicitor said his client had offered to settle for “reasonable” damages and an apology, but this gesture had been rebuffed.
The BBC is considering whether to appeal. Fran Unsworth, the BBC’s director of news and current affairs, apologised to Sir Cliff outside court by saying “in retrospect, there are things we would have done differently.” South Yorkshire Police also apologised for its mistakes.
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19 July 2018 by Guest Contributor
Sir Cliff’s case against the BBC (Sir Cliff Richard OBE v (1) The British Broadcasting Corporation (2) Chief Constable of South Yorkshire Police ) following the raid on his home in August 2014 was billed as of “enormous importance” in relation to whether the media are able to identify a suspect pre-charge, as well as having “massive implications” for the reporting of early phases of police investigations. The first trial of its kind in this country, this article considers the ramifications of this High Court decision on the press reporting of those subject to police investigation.
On the morning of the 14 August 2014, the Berkshire home of Sir Cliff Richard was searched by South Yorkshire Police (‘SYP’) in connection with allegations of historic child sexual abuse. The BBC broadcast the search more or less as it was taking place, giving it extensive coverage, including aerial shots by helicopter. The story was then picked up by other news media extending its coverage both in this country and aboard. Sir Cliff was not in the UK while his home was searched but viewed the broadcast. He was subsequently questioned about the allegations but was neither arrested or charged and was told in 2016 that he was no longer under investigation.
At the heart of Sir Cliff’s claim was a challenge to media organisations in the reporting about those named by police as being subject to investigation for serious criminal offences. In the face of increasing concern about the public naming of suspects questioned about historic sex offences, the Home Affairs Select Committee had recommended that those accused of such offences should be entitled to anonymity up to the point of charge (HC 962, Pre-Charge Bail, Seventeenth Report of Session 2014-15).
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18 July 2018 by Rosalind English
Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB) (16 July 2018) – read judgment
This was an appeal on a preliminary issue from the decision of David Berkeley QC, sitting as the Recorder below. The question was whether the defendant chief constable owed a duty of care to the claimant’s partner, who had committed suicide.
The Recorder found that the defendant, either by his officers, employees or agents, failed expeditiously and/or adequately to deal with, and/or respond to, the information conveyed to them concerning the deceased in a 999 call made by the deceased’s mother.
King J upheld the Recorder’s findings and dismissed the appeal.
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15 July 2018 by Rosalind English
On 16thJuly 2018 the Supreme Court will begin to hear legal arguments on the appeal of the children against the judgment of the Court of Appeal in CN and Anor v Poole Borough Council [2017] EWCA Civ 2185
I wrote up the original judgment here. The appeal was expedited and the Court will now consider the extent to which local authorities owe a common law duty to protect children from harm arising within the community where they live.
Background
A quick reminder of the somewhat remarkable facts of the case. In 2006 Mrs N and her two sons CN and GN, then aged nine and seven (one of whom was severely disabled), moved to a housing estate in Poole. The accommodation was arranged by the council as the local housing authority. Over the ensuing years, the family suffered from the effects of extreme anti-social activities of a neighbouring family. This behaviour was frequently reported to the property owners, officers of the council and local police. A measure of the seriousness of the case can be gained by the fact that the Home Office became involved and commissioned an independent case review which reported critically on the reaction of the agencies. The appellants’ distress was so great that one of them attempted suicide. They continued to suffer from their neighbours’ behaviour until they were provided with alternative accommodation in December 2011.
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10 July 2018 by Rajkiran Barhey
It was reported on Thursday, 5 July 2018, that three core participants in the Undercover Policing Inquiry are intending to launch a legal challenge against the Home Secretary’s decision not to appoint a panel to sit with the Chair, Sir John Mitting.
They say a diverse panel is needed who will better understand the issues of racism, sexism and class discrimination that the inquiry will inevitably raise. So where has this challenge come from, and is it likely to succeed?
Background
Three years ago, Home Secretary Theresa May announced the establishment of the Inquiry, amid great controversy concerning the conduct of undercover police officers over a number of decades. Lord Justice Pitchford was appointed as chairman, but as a result of ill-health, he had to step down in 2017 and was replaced by Sir John Mitting (a judge of the High Court).
Mitting J has experience of surveillance and the security services, having been Vice-President of the controversial Investigatory Powers Tribunal and Chairman of the Special Immigration Appeals Commission.
However, his chairmanship of the inquiry has been mired in dispute, starting with a series of decisions to grant anonymity to many officers because public disclosure of their real names would breach their Article 8 rights to private and family life. Some had also raised concerns about Mitting J’s membership of the all-male Garrick Club.
Compounding matters, at a hearing on 5 February 2018, Phillippa Kaufmann QC, counsel for the victims (who had core participant status at the Inquiry), made the point that it was impossible to rule out wrongdoing, including deceptive sexual activity, on the basis of an individual’s personal or family circumstances. Mitting J responded:
Of course it is impossible to rule it out, but you can make a judgment about whether or not it is more or less likely. We have had examples of undercover male officers who have gone through more than one long-term permanent relationship, sometimes simultaneously. There are also officers who have reached a ripe old age who are still married to the same woman that they were married to as a very young man. The experience of life tells one that the latter person is less likely to have engaged in extramarital affairs than the former.
The comments were not well received and, later in the hearing, Mitting J acknowledged that he “may stand accused of being somewhat naive and a little old-fashioned” but that he would “own up to both of those things” and would take it into account and revisit his own views.
The Walk-Out
At the next hearing, on 21 March 2018, Ms Kaufmann made a number of submissions criticising the inquiry:
The first concerns the failure to ensure that the Inquiry is heard by exactly that, a panel representing a proper cross-section of society and in particular — and this is absolutely essential for reasons I’m going to come to — including individuals who have a proper informed experiential understanding of discrimination both on grounds of race and sex. Two issues that lie absolutely at the heart of this Inquiry. I’m sorry to say this, but instead we have the usual white upper middle class elderly gentleman whose life experiences are a million miles away from those who were spied upon. And the very narrow ambit of your experience is not something I’m simply creating out of thin air. It has been exemplified already in the way that you have approached these applications.
She then referred to Mitting J’s comments at the February hearing and concluded by inviting him to either recuse himself or appoint a panel to sit alongside him. She then walked out of the hearing, accompanied by her legal team and the core participants.
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10 July 2018 by Rosalind English
Subscribers to the UKHRB will have received an earlier version of our announcement of recent podcasts by Emma-Louise Fenelon. There was a mix-up in the episode numbers and links which has now been corrected. Apologies for any confusion this may have led to, and please enjoy the properly attributed and linked recording!
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10 July 2018 by Rosalind English
Emma-Louise Fenelon recently interviewed Richard Booth QC about a successful injunction application to prevent a gross misconduct disciplinary hearing. You can hear the interview on Episode 39 of Law Pod UK.
The Claimant, represented by Jeremy Hyam QC, was a consultant forensic psychiatrist whose employment duties included working on the healthcare wing at Lewes prison. Following the death in custody of an inmate on the healthcare wing who had been under the Claimant’s care, the Trust initiated an investigation into the Claimant’s conduct and capability. The report of the investigation made a number of findings of failure to meet professional standards in particular with respect to the record keeping of ward reviews, but put them in the context of an under-resourced prison service. Based on the report, the Trust’s case manager purported to convene a hearing to consider disciplinary action for gross misconduct against the Claimant.
An injunction was sought to prevent such hearing going ahead on the basis that, taken at its highest, the content of the investigation report did not justify a charge of gross misconduct; that the Trust’s policy definition of gross misconduct was lower that normally set by the common law; and that the Case Manager’s management statement of case went beyond the findings in the investigation report. Granting the injunction on an interim basis, the Court concluded that there were serious issues to be tried on all the issues raised by the Claimant and the balance of convenience was clearly in favour of the grant of the injunction.
The judgment can be found here: Bailii.
Law Pod UK continues to go from strength to strength and has surpassed 55k listens. All episodes are freely available to listen or download from a number of podcast platforms, including iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast.
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9 July 2018 by Dominic Ruck Keene
In R. (on the application of Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 the Court of Appeal held that the blanket ban on assisted suicide in the Suicide Act 1961 s.2(1) was a necessary and proportionate interference with the ECHR art.8 rights of the appellant.
The appellant had proposed an alternative scheme for assisted suicide containing certain conditions and safeguards, including the approval of a High Court judge, for those who were terminally ill and had less than six months to live. However, it was held that the alternative scheme would not be effective and raised wide-ranging policy issues that would be better dealt with by Parliament.
The Court identified the origin of the case as being that the Claimant has a prognosis of six months or less to live and wishes to have the option of taking action to end his life peacefully and with dignity, with the assistance of a medical professional, at a time of his choosing, whilst remaining in control of the final act that may be required to bring about his death. However, Section 2(1) of the 1961 Suicide Act makes it a criminal offence to provide encouragement or assistance for a person to commit suicide.
Mr Conway therefore sought a declaration of incompatibility under section 4 of the HRA , on the basis that the ban on assisted suicide was a disproportionate interference with his right to respect for his private life under Article 8 of the Convention (“Article 8”).
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5 July 2018 by Guest Contributor
The rendition to Libya in 2004 of Mr Belhaj and his wife, Mrs Boudchar has given rise to a series of important cases in the domestic courts. In Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another [2017] UKSC 3 the Supreme Court unanimously ruled that the doctrine of state immunity did not operate to bar claims against the Government arising from their detention (as discussed in these pages by Dominic Ruck Keene).
Recently the parties in the Belhaj case have reached a mediated settlement and this action is at an end. Although the settlement was concluded without admission of liability, the Prime Minster issued an apology which included the following statement:
The UK Government’s actions contributed to your detention, rendition and suffering. The UK Government shared information about you with its international partners. We should have done more to reduce the risk that you would be mistreated. We accept this was a failing on our part.
The Remaining Case
Despite the end of those proceedings, a procedural argument remained extant which concerned the applicability of closed material proceedings to judicial review in certain cases. In Belhaj and another v Director of Public Prosecutions and another [2018] UKSC 33 (4 July 2018) the Appellants sought judicial review of a decision not to prosecute a person said to be a member of the British Secret intelligence Service.
Although the matter was then settled before judgment, the Court decided that this issue required authoritative determination in light of its importance.
The allegation was broadly one of connivance in the Appellant’s abduction, ‘rendition’ and maltreatment (although Her Majesty’s Government neither confirmed nor denied such involvement during the proceedings). The Crown Prosecution Service decision was made on the basis of 28,000 documents, none of which were disclosed to the Appellants due to their security classification.
The issue for the Court was whether this material could be received during judicial review proceedings using the closed material procedure by which the material is disclosed to the court and a special advocate but not the Appellants.
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3 July 2018 by Guest Contributor
IMB v Secretary of State for Work and Pensions ,26 June 2018
Weeks after ruling against certain sexual orientation tests for asylum seekers and finding that EU Member States must recognise the free movement rights of gay spouses, regardless of whether same-sex marriages are solemnised therein, the European Court of Justice (ECJ) held that the UK requirement for transgendered persons to be unmarried in order to qualify for a State pension at the retirement age of their current gender violated EU law.
Background facts
The claimant, identified as MB, is a male-to-female married transgendered person, i.e she was assigned the male sex at birth, but identifies as female. After being recognised as female on both passports and driving licenses issued by UK authorities, MB underwent sex reassignment surgery in 1995. She did not, however, obtain a Gender Recognition Certificate under the Gender Recognition Act 2004.
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2 July 2018 by Conor Monighan
In the News:
The Intelligence and Security Committee found that the UK had allowed terrorism suspects to be treated unlawfully.
Following a three-year investigation, it published two reports examining the extent to which Britain’s intelligence agencies were aware of the mistreatment of suspects. The reports found no evidence that British officers took part in the torture themselves. Neither was there clear evidence of a policy which sought to deliberately overlook mistreatment.
However, the Committee found that British intelligence officers had witnessed prisoners being tortured. They had seen detainees being mistreated at least 13 times, were told by prisoners that they were being abused at least 25 times and were informed of ill-treatment by foreign agencies 128 times. British agents also threatened detainees in nine cases.
Despite being aware of the mistreatment from an early stage, UK agencies continued to provide questions for interrogations. The Committee chairman, Dominic Grieve, said that the UK had tolerated ‘inexcusable’ actions.
Furthermore, British agencies assisted in the rendition of suspects to countries with ‘dubious’ human rights records. MI5 and MI6 subsidised, or offered to subsidise, the rendition of individuals on three occasions. They also provided information for the rendition of 28 people, proposed/ agreed to rendition in 22 cases and failed to stop the rendition of 23 others (including cases involving British nationals).
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28 June 2018 by Martin Downs
As predicted on this Blog, the Supreme Court has made a declaration of incompatibility covering sections one and three of the Civil Partnership Act 2004 (to the extent that they preclude a different sex couple from entering into a civil partnership).
In Steinfeld and Keidan, R (on the application of) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32 (27 June 2018) the Court found that the provision was contrary to article 14 of ECHR taken in conjunction with article 8 of the Convention.
To an extent, this was not a surprise as, by the time the case reached the Supreme Court, the government had conceded that the current situation in which same sex couples have had a choice between marriage and civil partnership since 13th March 2014, whereas heterosexual couples only have the option of marriage, is discriminatory.
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26 June 2018 by Rosalind English
Two years from the vote to leave the European Union, Catherine Barnard, Professor of EU Law at Cambridge, considers the rocks and hard places of the Brexit negotiations. She speculates on what is meant by what exactly is meant by staying “within the remit of the CJEU”, something that has drawn a lot of fire, but has no legal meaning.
We may all be jaded with Brexit coverage. But do listen to Catherine’s podcast, it is remarkably unpartisan and clear on the facts.
Catherine’s series 2903cb is freely available on soundcloud and our repost is on iTunes and other podcast platforms, Episode 38 of Law Pod UK.
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