22 January 2016
Hands v Scottish Ministers [2016] CSOH 9, 15th January 2016 – read judgment
The Outer House of the Court of Session has refused a petition for judicial review brought by a convicted murderer against decisions made by the Scottish Prison Service (SPS) about his prison conditions and supervision level.
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22 November 2021
On the one hand, there are raptors. On the other there are game birds. The former are highly protected under statute. The latter bring in serious revenues to rural businesses for shoots. Hen Harriers (image right) are dependent on, amongst other things, the protein from grouse chicks for their young.
On the cuteness scale, I know who wins, wings down.
But here we have it. The voracious teenagers that you see in the first paragraph are the protected species. The fluffy number in image 2 is a designated target for paying hunters, as well as mother hen harriers.
And now we move on to the law.
RSPB, R (On the application of) v Natural England [2021] EWCA Civ 1637 (9 November 2021)
This case was an appeal by the RSPB and Dr Mark Avery, a scientist specialising in nature conservation, against a ruling by the court below that the grant of a licence by the respondent, Natural England (NE), to “take and disturb” hen harriers from the Northern English uplands for scientific, research or educational purposes pursuant to the Wildlife and Countryside Act 1981 Pt I s.16(1)(a) was lawful.
Background law and facts
Under Article 4 of Directive 2009/147 on the conservation of wild birds, EU Member States are required to designate special protection areas (SPAs) for their conservation. There are two such SPAs in England.
Under this network of rules it is a criminal offence to disturb these protected birds. Nevertheless they have been persecuted: killing and nest destruction by contractors employed to maximise the number of grouse available for shooting in the autumn.
In an effort to resolve the impasse between conservationists and landowners running shoots, NE in 2015 recommended piloting a “brood management scheme”, whereby eggs and chicks would be removed from the parental hen harrier nests, reared in captivity and then released when they were fully fledged into a suitable habitat, away from the grouse moors. NE duly received a licence application in 2017, on which they carried out a Habitats Regulations Assessment pursuant to Regulation 63 of the Conservation of Habitats and Species Regulations 2017. This report did turn up a potential decrease in breeding and juvenile survival as the principal risk of the trial and suggested potential mitigation. Apparently no such mitigation was available. So the NE completed a Technical Assessment and concluded that there was no satisfactory alternative to the proposed scientific trial.
The first licence for relocation of eggs and chicks was granted in January 2018.
8 August 2016
SSHD v ZAT (Syria) and ors (UNHCR and anor intervening) [2016] EWCA Civ 810
Court of Appeal decides, in the absence of an application under the Dublin III regulations, asylum seekers can only succeed on article 8 ECHR grounds in “exceptional circumstances”
Four asylum seekers, namely three unaccompanied minors and one disabled adult, were in “the jungle” – the (increasingly permanent) temporary refugee and migrant camp in Calais – since October 2015. Having fled from war-torn Syria, they were trying to join their siblings in the UK. The problem was that the French system for processing asylum claims under EU rules would involve considerable delays and the evidence showed that the conditions in the camp were wholly inadequate: these children experienced physical violence and their medical needs were unmet. So they ignored the EU rules and issued a claim in the UK.
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.
12 February 2026
Dairy UK Ltd v Oatly AB UKSC 4
The Supreme Court has just come up with a ruling in an attempt to end a dispute over non-cow based milk products. In April 2021, plant-based company Oatly registered the trade mark “POST MILK GENERATION” for use in relation to certain categories of products. The issue on this appeal was the validity of that trade mark in relation to their popular oat-based food and drink products.
Lactose intolerant and vegetarian/vegan consumers, as well as those with an eye on the environment, have flocked to buy their cartons of “milk” in preference to the products of animal dairy farming. The photo accompanying this post is the one we are most familiar with, along with the “Wow no cow” slogan. Their “POST MILK GENERATION” mark, which was accompanied by an image of a stylised milk wave, was opposed by Dairy UK Ltd before the UK Intellectual Property Office (IPO).
Background law and facts
Oatly is a Swedish company whose business involves the manufacture of oat based food and drink products as alternatives to dairy products. The respondent, Dairy UK Ltd, is the trade association for the UK dairy industry.
In November 2021, Dairy applied for a declaration that the registration of Oatly’s trade mark was invalid under the Trade Marks Act 1994. Under s.3(1)(c) of this Act, marks contrary to law or morality cannot be registered. Dairy also argued that Regulation (EU) No.1308/2013 (part of post-Brexit retained EU law) contained such a prohibition.
Oatly appealed successfully to the High Court, which found “POST MILK GENERATION” not a “designation of milk” due to its metaphorical nature. The Court of Appeal reversed this ruling, deeming it a prohibited “designation.” Oatly then appealed to the Supreme Court.
Issues before the Supreme Court
The Court considered two key questions:
Article 78 states: “Member States… shall ensure that… no designations of milk… are used… in respect of… products not obtained by the milking of animals… [except] where those products are used to clearly… describe… a characteristic quality of the product.” The Court interpreted “designation” broadly and exemptions narrowly.
Decision of the Court
The Supreme Court unanimously dismissed Oatly’s appeal on 11 February 2026, upholding the prohibition. Lords Hamblen and Burrows delivered the judgment, with Lords Hodge, Briggs and Stephens concurring.
On issue one, “POST MILK GENERATION” was held a “designation” because it evokes “milk” imagery via “milk” and the milky wave device, positioning oat drinks as a successor generation to dairy milk. The Court rejected Oatly’s “metaphorical” argument, noting that trade mark law targets consumer perception, not literal meaning.
On issue two, no exemption applied. The slogan did not, in the Court’s view “clearly describe a characteristic quality” like oat composition or plant-based production. Instead, it aimed to market superiority over milk without factual clarity.
Reasoning behind the Court’s decision
Article 78(1) prohibits “designations of milk” (e.g., cream, butter) on non-animal products to protect the dairy sector. There is also a notion about protecting the consumer here, although arguably the consumer is all too aware that this “milk” does not come from a cow, which is why the product is popular in the first place.
The regulation’s use of the word “designation” is important. It encompasses evocative phrases, not just exact terms, per ordinary meaning and purpose. In the Court’s view, the “milky device” of Oatly’s TM functioned as an imitation evoking dairy fluidity.
According to the Court, even though this trade mark could be regarded as referring to a characteristic quality of the products (namely, the characteristic of being milk-free), it was doing so in an oblique and obscure way and was certainly not doing so “clearly” see para [40]. In particular, it did not make clear whether the product is entirely free of milk, or only that the milk content is low [41].
There are exemptions under Article 78(2), but only for terms which “clearly describe” inherent qualities of a product (e.g., “soya-based”) excluding vague or comparative claims. The Supreme Court found that Oatly’s slogan failed as promotional rhetoric, not descriptive elucidation.
Comment
This is the start of a very long battle of trade marks, food descriptions and labelling requirements. “Meat” and “dairy” products that are not derived from livestock are here to stay. Whilst plant-based claims are easy to dismiss on the basis of their origin, what about “beef”products grown from stem cells in a laboratory, fed by animal serum (so-called “clean meat” because of their drastically reduced carbon footprint?)
Plant based products fall within the Novel Foods Regulation, part of our EU retained law (Regulation (EU) 2015/2283). Because of its proximity to real livestock, cultivated meat is outside the NFR and comes within Regulation (EC) 853/2004 (the legislation that provides specific hygiene rules for food of animal origin). This is because these cell-cultivated products originate from a cell, or cells, taken from animals.
So whilst this decision lies in the way of claims to dairy and meat equivalence for plant-based products, industry lobbying is bound to ratchet up as alternatives to livestock farming gain traction.
Does this judgment stifle innovation? For the moment, perhaps. Oatly will have to rebrand their UK marketing (although for the author of this post, their slogan “Wow no cow” has always been reason to buy the product in full knowledge of its origin). Incidentally, the slogan “Wow No Cow” apparently evaded direct prohibition by avoiding exact dairy terms but fuelled Dairy UK’s opposition to Oatly’s trade marks. “It exemplified Oatly’s irreverent style, turning lawsuits into PR wins”.
Comment from one vegan barrister:
“It really is baffling, this run of appeals was about the phrase “POST MILK GENERATION” being used on oat milk cartons. At least by the time of the SC appeal hearing, both parties agreed that it was NOT the name of the product and that it was not confusing consumers, so the dairy lobby has really spent all this money just to stop Oatly using that phrase on their cartons.”
And another:
“In case anyone was misled into thinking that oats, unlike coconuts, had breasts”
17 July 2023
In the News
Concluding five days of speculation, Huw Edwards was named on Wednesday as the BBC figure at the centre of the Sun’s allegations of sexual impropriety. The newspaper claimed the presenter had paid a young person for ‘sordid images,’ suggesting a criminal offence may have taken place if the teenager had been under 18 when the arrangement was made. Edward’s wife, Vicky Flind, has stated that her husband has been placed in hospital, the allegations having provoked a mental health crisis. The young person’s lawyer has denied the Sun’s story, stating that ‘nothing unlawful’ had occurred. The police have indicated no criminal charge will be pursued, undermining the media’s public-interest prerogative to publish the allegations. The Sun has now stated that it never intended to allege criminality, but legal commentators have suggested Edwards may be able to pursue claims for libel action and breach of privacy. A barrier to such actions is that Edwards’ identity was neither stated outright nor reasonably inferable from the initial publications, only being revealed later by his wife.
28 January 2015
R (o.t.a Henderson) v. Secretary of State for Justice, Divisional Court, 27 January 2015 – judgment here
The Court (Burnett LJ giving the sole judgment) has ruled on whether the statutory changes made to the ability of acquitted defendants in the Crown Court to recover their costs from central funds are compatible with the ECHR.
Its answer – an emphatic yes, the new rules are compatible. This conclusion was reached in respect of the two statutory regimes applicable since October 2012, as we shall see.
25 February 2019
In 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.
Listeners can find recent interviews on informed consent with James Badenoch QC here and John Whitting QC here.
The podcast refers to the following cases:
– Montgomery v Lanarkshire Health Board [2015] UKSC 11
– Chester v Afshar [2004] UKHL 41
– Meiklejohn v. St. George’s Healthcare NHS Trust [2014] EWCA Civ 120
– Shaw v. Kovac [2017] EWCA Civ 1028
– Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307
– Khan v. MNX [2018] EWCA Civ 2609
– Hughes-Holland v. BPE Solicitors and Another [2017] UKSC 21
– South Australian Asset Management Corporation v. York Montague Limited (“SAAMCO”) [1997] 1 AC 19
Law Pod UK is available on Audioboom, iTunes, Spotify, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
9 November 2017
Independence and public inquiries – why you need it and how you can lose it
There is a scene in “Yes Minister” in which the beleaguered Jim Hacker is contemplating a public inquiry into the latest failing of his department. He warily suggests to his Permanent Secretary, Sir Humphrey Appleby, that perhaps the judge chairing the inquiry could be leant on to come up with a favourable outcome. Sir Humphrey is outraged at this violation of the separation of powers. Surely the Minister wasn’t serious? After all, wouldn’t it be better to appoint a judge who didn’t need to be leant on in the first place?
Jim Duffy’s recent post on the Contaminated Blood Inquiry – and the importance of an inquiry being independent and being seen to be independent – brought this encounter to mind. The ever more frequent calls for a ‘judge-led inquiry’ must be a source of both pride and concern to the judiciary. Pride as ‘judge-led’ is a synonym for a forensic, thorough and above all independent tribunal to assess the matter in question. We will come to the concern later.
Times have changed since the careers of Hacker and Sir Humphrey. The Inquiries Act 2005 contains provisions intended to secure and display the suitability and impartiality of those charged with conducting a statutory inquiry (see in particular s.8 and 9). When it comes to appointing a judge, the Act provides that the minister must consult with the Lord Chief Justice or another relevant senior member of the judiciary (s.10). Sir Humphrey would be disappointed.
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15 January 2019
R (Johnson, Woods, Barrett and Stewart) v SSWP CO/1552/2018 (11 January 2019) – read judgment
This case was brought by four social security claimants contesting the proper method of calculating the amount of universal credit payable to each claimant under the Universal Credit Regulations 2013. Singh LJ and Lewis J concluded that treating claimants as having “earned” twice as much as they do if they happen to be paid twice within one monthly assessment period is “odd in the extreme” [para 54] and “…. could be said to lead to nonsensical situations” [para 55].
The Legal Proceedings
The four claimants are employees who are paid monthly. As they receive their salaries on or around either the last working day or last banking day of the month, there are times when salaries payable in respect of two months are paid during one assessment period. This means that there were occasions on which the claimants were only allowed to retain a single amount of £192 by way of the work allowance from the combined two months’ salary. The work allowance is the amount of earnings claimants with children or with limited capability for work can keep in full before universal credit is reduced by a proportion (63%) of their earned income under Regulation 22 of the 2013 Regulations. This way of calculating the allowance resulted in fluctuating universal credit awards and “severe cash flow problems” [para 4] for the claimants.
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23 October 2015
After 2,237 posts and 4.6 million visits from readers all over the world, the UK Human Rights Blog is 5 years old.
As we announced last month, we at 1 Crown Office Row are marking the occasion with a party next Thursday (29 October).
There are still a few places available for this free event featuring drinks, food and live music. It’s open to all our readers.
7 October 2016
The Divisional Court in R(Secretary of State) v Her Majesty’s Chief Coroner for Norfolk (British Airline Pilots intervening) – read judgment here – made some potentially noteworthy comments regarding the coronial role and the need to avoid duplicating previous investigations.
The case was largely about whether a Coroner could order disclosure of the transcript and/or recording from a cockpit flight recorder by virtue of her powers under the Coroners and Justice Act 2009. HM Senior Coroner for Norfolk was investigating the deaths of four men in a helicopter crash that had previously been investigated by the Air Accidents Investigation Branch (the AAIB).
22 September 2014
On Friday 19 September I spoke at a very interesting conference at the University of Liverpool on Human Rights in the UK Media: Representation and Reality. My talk was entitled The Monstering of Human Rights. You can download it by clicking here (PDF). It is also embedded below.
As always, comments are welcome. There is quite a lot in there tying together some of the themes I have been writing about over the past few years. As a number of people pointed out in Liverpool, it is too easy to point to errors in human rights reporting as proof that all criticisms of the human rights system are bogus, which is clearly wrong. But nonetheless, misinformation and exaggeration is an important feature of the public debate on human rights and it is interesting to consider why that might be the case, and – a question which has troubled me over the past few years – how to stop it happening.
I expect the issue of human rights reform will arise again now that the Scottish referendum process has concluded and the political parties are setting out their agendas for 2015. It seems pretty clear that the Conservative Party will promise to repeal the Human Rights Act but what they will do in relation to the European Convention on Human Rights is still very much an unknown. My expectation is that they will not promise to withdraw from the ECHR. Not yet, anyway. Labour and the Liberal Democrats are likely to retain the existing system, with a few tweaks. But whoever wins the election, there is a huge amount of work to be done to repair the reputation of human rights laws in the UK and convince the public that they are, on balance, a good thing.
PS. if any kind soul would like to turn the PDF version into a HTML linked blog-ready post, I would be eternally grateful! Email me if you would be interested, you would of course get full credit in the ensuing post/s.
10 March 2020
In a pithy parting shot to the Home Secretary, Lady Hale has given the unanimous judgment of the Supreme Court on the question of whether a person subject to a home curfew under immigration powers had been falsely imprisoned at common law and whether that concept should now be aligned with the concept of deprivation of liberty in article 5 of the ECHR. The Court decided the case against the defendant, as did every court below (the Blog covered the Court of Appeal’s decision here). The defendant had been required to pay the claimant £4,000.
False imprisonment at common law
The opening sentence sets the scene:
The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights.
The claimant had been subject to an overnight curfew, enforced by way of monitoring equipment and an electronic tag, under paragraph 2(5) of Schedule 3 of the Immigration Act 1971.
31 July 2015
O’Connell & anor v the Turf Club [2015] IESC 57 – read judgment
This recent judgment of the Irish Supreme Court addressed the issue of whether the decisions of a sport’s organising body should be amenable to judicial review. This is an issue of some vintage and vexation in this jurisdiction’s legal debate, that provides a useful backdrop against which to ask what exactly it is that makes a decision-making duty or power ‘public’.
This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor:
Jasper Gold
Assistant Editor:
Allyna Ng
Editors:
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Angus McCullough KC
David Hart KC
Martin Downs
Jim Duffy
Jonathan Metzer
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