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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoners/page/11/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
This week saw a novel legal challenge which may have significant consequences for the Equality Act 2010. The case arose following the dismissal of Jordi Casamitjana by the League Against Cruel Sports on the grounds of gross misconduct. This was because he released information showing that the pension fund of employees was being invested in firms engaging in animal testing. However, Mr Casamitjana claims he was discriminated against by his former employer because he is vegan.
Mr Casamitjana alleges that he first raised his concerns about the pension investments internally. He says the charity responded by offering staff an alternative ‘ethical’ investment strategy with lower rates of return. Mr Casamitjana subsequently wrote to colleagues saying that their money was still being invested in non-ethical funds, and that there were other alternative investments available with good financial outcomes.
Mr Casamitjana argues that his sacking was due to the charity discriminating against his belief in ‘ethical veganism’. The League strongly deny the allegations and have stated Mr Casamitjana was dismissed purely because of gross misconduct.
The dispute means that an employment tribunal will have to decide whether veganism is a ‘belief’ which should be protected by the Equality Act 2010. It is thought to be the first time this issue has been raised. The ruling could have significant consequences for the provision of goods and services, as well as on employment rights more generally. However, others have warned that recognising too many views as protected characteristics would be excessively restrictive. Continue reading →
Welcome back to the human rights roundup, a regular bulletin of everything we have not managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
The UK Supreme Court under the spotlight
Last week the UKSC’s constitutional status, message, work and composition were the focus of various articles.
Roger Masterman and Jo Murkens tried to establish what kind of court is the UK Supreme Court, with particular reference to its constitutional status. Amongst many interesting points, Masterman and Murkens believe that as a result of some of its own features, the Court has begun cementing its place as a constitutional actor of its own right.
Richard Cornes, for the Guardian, believes that the most interesting message the Supreme Court is sending has gone almost unheard. Cornes argues this is the result of a combination of the obstacles to the efforts to make the Court more transparent, and the quality of coverage of the Court’s work. In particular, Cornes believes readers of mainstream media (he cites the Daily Mail, the Times and the Guardian as examples) will not have the same impression of the Supreme Court as the person who follows the UK Human Rights blog’s Twitter feed or checks the Guardian Law or Times Law pages online.
(1)The British Humanist Association (2) Jeremy Rodell (a member of the Richmond Inclusive Schools Campaign) v London Borough of Richmond upon Thames (2)The Roman Catholic Diocese of Westminster (3) The Secretary of State for Education [2012] EWHC 3622 (Admin) – read judgment
This was an application for judicial review of decisions of the defendant Council to approve proposals put forward by the Roman Catholic Diocese of Westminster to establish a voluntary aided secondary school designated by the Secretary of State as a school having a religious character as a school for Roman Catholics and a similarly designated primary school.
The British Humanist Association took the claim on behalf of non-religious people. The second claimant was an association of local residents which campaigns to seek to ensure that any new state schools which open in the Council’s area operate open admissions policies. The claimants’ concern was that the Council’s decisions to allow the opening of the new Catholic primary and secondary schools would mean that new schools funded by the state will operate admissions policies focused predominantly on children who are Catholic, rather than being more widely available to children in the Council’s area. Continue reading →
On 14th September 2018 the Court of Appeal allowed an appeal by a doctor against a finding that his fitness to practice was impaired by reason of dishonesty.
This case concerned professional disciplinary proceedings against the appellant, Dr Hemmay Raychaudhuri. A complaint had been made in relation to how the appellant had filled in a form to record the medical examination of a child patient. This complaint was referred to a Medical Practitioners Tribunal (MPT). Assessing the scope for misunderstanding between the appellant and other medical staff, the MPT upheld the charge of ‘misleading actions’ rather than ‘dishonest actions’. As such there was no impairment of his ability to practice as a doctor.
The General Medical Council (GMC), however, alleged dishonesty on the part of the appellant. The GMC appealed to the High Court in reliance on section 40A Medical Act 1983. This stipulates the conditions under which the General Council may challenge a decision of an MPT if it believes a disciplinary decision made under section 35D does not sufficiently protect the public.
In the High Court, Sweeney J followed the decision of the Divisional Court in General Medical Council v Jagjivan [2017] EWHC, which held that the High Court had jurisdiction to hear an appeal by the GMC against a ruling by an MPT. He substituted the MPT’s finding to declare that the appellant had in fact behaved dishonestly and that therefore his fitness to practice was impaired.
There were three grounds of appeal before the Court of Appeal.
The High Court has no jurisdiction under Section 40 to hear an appeal by the GMC against a finding by an MPT that a doctor’s fitness to practice is not impaired. This was an invitation to overrule Jagjivan;
The High Court was wrong to substitute a finding that he had behaved dishonestly, where the MPT had acquitted him of dishonesty;
Even if the conduct was dishonest, the High Court was wrong to find his fitness to practice was impaired and was wrong to remit the case to the MPT.
D Borough Council v AB [2011] EWHC 101 (COP) (28 January 2011) – Read judgment
In a case which is fascinating both legally and morally, a judge in the Court of Protection has ruled that a 41-year-old man with a mild learning disability did not have the mental capacity to consent to sex and should be prevented by a local council from doing so.
The case arose when a local council, following allegations that a mentally disabled man made sexual gestures towards children, sought a court order stating that “Alan” (a false name) did not have the mental capacity to consent to sexual relations. The council ultimately wanted Alan to be banned from having sexual relations with his former house-mate and sexual partner.
In this carefully nuanced judgment, the Court of Protection has ruled that although a patient with a chronic eating disorder would in all probability face death she did not gain weight, it would not be in her best interests to continue being subjected to forced feeding inpatient regimes.
AB is a 28 year-old woman who has over many years suffered from anorexia nervosa. She was first diagnosed when she was a teenager of 13 and now has a formal diagnosis of a Severe and Enduring Eating Disorder (‘SEED’).
The NHS Trust and the team of treating clinicians who have been responsible for providing care for AB applied to the COP for declaratory relief pursuant to ss 4 and 15 of the Mental Capacity Act 2005 in these terms: (i) it is in AB’s best interests not to receive any further active treatment for anorexia nervosa; and that (ii) AB lacks capacity to make decisions about treatment relating to anorexia nervosa.
Issues before the Court
Litigation capacity: it was not in issue that AB did have the capacity to instruct her solicitors.
General capacity: this was a more difficult question to be decided under Section 3 of the Mental Capacity Act. The key question was, did she have the mental capacity to make a decision about the specific medical treatment proposed. Roberts J had to decide one way or another on whether she should be tube fed, probably under sedation (otherwise she would remove the tube).
The Trust argued that she did not have this capacity, relying on evidence from AB’s treating psychiatrist Dr B. AB said she did have this capacity.
Best interests: was it in AB’s interests to discontinue any tube feeding? The unanimous professional view of her treating team was that palliative care and no further tube feeding was in her best interests. However, since the decision not to have any further forced feeding was a life-threatening one, the case had to be referred to the Court of Protection.
Napier Barracks, Kent, which was the subject of this claim. Image: The Guardian
In R (NB & Others) v Secretary of State for the Home Department [2021] EWHC 1489 (Admin), the High Court ruled that the treatment of asylum seekers at Napier military barracks did not meet minimum legal standards, that the process for allocating asylum seekers to accommodation centres was flawed and unlawful and that the six claimants had been falsely imprisoned during the “inevitable” Covid-19 outbreak. David Manknell of 1 COR was junior counsel to the SSHD.
Background
In September 2020, Napier military barracks was converted into a medium-term accommodation centre for asylum seekers. By the end of January 2021, the centre had witnessed a major outbreak of Covid-19, protests by residents against poor conditions inside the facility and a fire.
NB and the other five claimants had been kept at the barracks for months. This was despite evidence that that they had all experienced “people trafficking and/or torture prior to their arrival in the United Kingdom” and that several of them were suffering from pre-existing mental health issues as a result of their experiences. At issue in this case was the Defendant’s decision in each of the Claimants’ cases that they should be accommodated at the Barracks.
Article 14 of the European Convention on Human Rights provides:
The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
This right is parasitic; it is of no use to someone wishing to complain of discrimination who cannot establish that another free-standing Convention right is engaged. As with the other Convention rights it is only actionable against the State and public authorities as defined by the Human Rights Act 1998.
So, Article 14 must be pleaded in relation to some other substantive right in the Convention. It is not necessary to establish an actual violation of another Article; if the claim comes within the ambit of another protected right then it is possible for the applicant to succeed on discrimination alone, even if the primary violation has not been established, or the Member State’s action has been found to come within one of the permissible exceptions to that right (Belgian Linguistic Case (1967) 1 EHRR 252).
A good example of this is to be found in the sex discrimination case, (1) Abdulaziz (2) Cabales (3) Balkandali v United Kingdom (1985) 7 EHRR 471 ). The European Court of Human Rights stated here that:
Although the application of Article 14 does not necessarily presuppose a breach [of the substantive provisions of the Convention and its Protocols] – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the rights and freedoms.
Equally, even if the right does not itself arise directly out of one of the Convention provisions – the right to have a system of appeal courts, for example, is not implicit in the fair trial provisions of Article 6 – once a signatory State has put such an appellate system into place, it cannot operate it in a discriminatory fashion since Article 14 prohibits discrimination in access to courts throughout the whole judicial system.
In cases where the Court finds a violation of a substantive right, it is still theoretically possible to obtain a ruling that Article 14 has been infringed as well. In Marckx v Belgium (1979) 2 EHRR 330, the Court concluded that the unfavourable treatment of illegitimate children under Belgian inheritance laws violated their right to a family life under Article 8, and breached the requirement under Article 14 that Convention rights should be secured without discrimination. On the other hand, in (1) Lustig-Prean (2) Beckett v United Kingdom : (1) Smith (2) Grady v United Kingdom (1999) 29 EHRR 449 the Court held that the investigations into and subsequent dismissal of several members of the armed forces on grounds of their sexual orientation amounted to a breach of their right to a private life under Article 8. The applicants contended that they had also been discriminated against in the enjoyment of their Convention rights, but the Court held that this contention did not give rise to any issue separate to that already considered under Article 8.
In most cases, however, the Court will content itself with a finding that a substantive right has been breached. In another case involving Article 8, the applicant challenged laws criminalising homosexual behaviour in Northern Ireland (Dudgeon v United Kingdom (1981) 4 EHRR 149). The Court, having found a violation of Article 8, left it at that, without going on to consider the applicant’s claim that the imposition of these laws in Northern Ireland and not in the rest of the United Kingdom was a breach of Article 14.
According to Karen Reid in The Practitioner’s Guide to The European Convention on Human Rights (Sweet and Maxwell, 2015), there has been a recent emphasis on the condemnation of racism and ethnic hatred with corresponding positive obligations on the state to maintain the confidence of minorities in the ability of the authorities to protect them from racist violence, and to investigate properly incidents of racial hatred (Menson v United Kingdom, App No 47916/99) ECHR 2003). Indirect discrimination may disclose a violation of Article 14; in other words where a neutral measure has a disproportionate effect on a group it is not necessary to show that there is any discriminatory intent; the burden shifts on to the Government to show that the difference in impact of the legislation or the or measure was the result of objective factors unrelated to ethnic origin: DH v Czech Republic, where statistics showed that Roma children were being grouped into special schools (13 November 2007). Although this could have been done with the best possible intention of providing educational support, the Court criticised the way that in practice these became ways of excluding the Roma children from mainstream schooling, without effective procedural safeguards. The fact that the parents themselves had consented to the placements was not a defence. The Court stated that no waiver of the right not to be subjected to racial discrimination could be accepted.
The list of grounds on which a person must not be discriminated against is not exhaustive under Article 14. The provision refers to “any ground” and concludes with a reference to “other status” and has been applied, interestingly, to different treatment on the basis of a genetic disease: GN v Italy, 1 December 2009. In another example the Court found it unjustified to refuse a residence permit to the Uzbek husband and father of Russian citizens on the ground that he had HIV (Kiyutin v Russia, 10 March 2011). The Court comes particularly hard down on cases of discrimination on the basis of sex, observing frequently that advancement of equality of the sexes is a major goal of the Council of Europe and its contracting states. The same can be said of the importance of combatting racism.
In domestic terms, the Equality Act 2010 is designed to express most of the principles explicit or implicit in Article 14 in statutory terms. For public authorities at least there is a duty to consider equality in all decision making processes: see s.149 of the Act , containing the public sector equality duty).
JM (a child), Re[2015] EWHC 2832 (Fam), 7 October 2015 – read judgment
Mostyn J, ruling in the Family Division that a child should receive surgical treatment for bone cancer against the wishes of his parents, has referred to Ian McEwan’s “excellent” novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion. The judge noted however that the book was in fact “incorrectly titled”:
a question of whether a medical procedure should be forced on a 16 or 17 year old should be sought solely under the High Court’s inherent jurisdiction, and not under the Children Act.
This case on the other hand concerned a ten year old child, J. The NHS Trust sought permission to perform urgent surgery of a serious nature on his right jawbone, where he has a very rare aggressive cancer. Its medical name is a craniofacial osteosarcoma, presenting a tumour in the bone of about 4 inches long and 1½ inches wide. The unambiguous medical evidence before the court was that if it was not removed very soon then in 6 months to a year J would die “a brutal and agonising death”. The oncologist had spelt this out in unflinching detail:
J will not slip peacefully away. The cancer will likely invade his nerve system affecting basic functions such as speaking, breathing and eating. His head will swell up grotesquely. His eyes may become closed by swelling. A tracheostomy may be needed to allow breathing. Above all, the pain will likely be excruciating.
Article 3 does not dictate a minimum standard of social support for those in need, nor does it require the state to provide a home or minimum level of financial assistance to all within its care.
SUMMARY
W was an Eritrean national who had entered the UK illegally. Fingerprint evidence traced his irregular entry into the EC to Italy following which the UK authorities sought from the Italian authorities an undertaking to accept responsibility for W’s application for asylum under the terms of the Dublin II Regulation. Italy did not respond and therefore it was deemed to have accepted responsibility for the asylum claim by default.
Six decades ago today, the European Convention on Human Rights came into force. It all started brightly, as a post-war, British-led pact against Fascism and Communism. Now, human rights are under heavy, relentless attack. Politicians, press and public seem to have an endless appetite for tales of human rights gone wrong. The Justice Secretary has recently said “all options are on the table” for “major change” on human rights, and it is likely that the future of the ECHR will be a major general election issue in 2015. In short, the UK may soon withdraw from the longstanding international human rights system which it was instrumental in creating.
That would be a great mistake. It is often said that human rights are something foreign to the UK, whose proud common law tradition negates the need for these “European” protections. But even a brief consideration of the ECHR’s history shows how wrong that perspective is. The ECHR was a fundamentally British document which has had an enormous, beneficial effect. We should be proud of its history, and would be quite mad to reject it now, six decades on.
R (on the application of Rex Cart) (2) U (3) XC (Claimants) v (1) Upper Tribunal (2) SIAC (Defendants) & (1) Secretary of State for Justice (2) Secretary of State for the Home Department (3) Public Law Project (Interested Parties) & (1) Child Maintenance and Enforcement Commission (2) Wendy Cart (Interveners) DC (Laws LJ, Owen J) 1 December 2009 [2009] EWHC 3052 (QB)
The supervisory jurisdiction of the High Court, exercisable by way of judicial review, extended to decisions of the Special Immigration Appeals Commission that were not amenable to any form of appeal. It did not, however, extend to decisions of the Upper Tribunal, unless it had acted beyond its statutory remit.
Read the judgment or click the “continue reading” link below to see a comprehensive summary and case comment by Rosalind English.
Harry Dunn was killed when his motorcycle collided with a car being driven on the wrong side of the road by Mrs Anne Sacoolas, the wife of a member of the administrative and technical staff of the US Embassy based at RAF Croughton. The Claimants (Harry Dunn’s parents) sought to adduce expert evidence from a retired diplomat Sir Ivor Roberts, and also made an application for specific disclosure.
The Divisional Court summarised the background to the applications as being the judicial review of:-
The decision made by the Foreign Secretary that Mrs Sacoolas had diplomatic immunity under the Vienna Convention on Diplomatic Relations;
The allegedly unlawful obstruction by the Foreign Secretary of a criminal investigation by the Northamptonshire Police;
The allegedly unlawful acceptance by the Northamptonshire Police of the advice of the Foreign Secretary or the Metropolitan Police that Mrs Sacoolas had diplomatic immunity;
The alleged breach of the investigative duty under Article 2 ECHR as a result of the Foreign Secretary and the Northamptonshire Police’s error of law as to Mrs Sacoolas’s diplomatic immunity;
The allegedly unlawful ceding of sovereignty over a military base in the UK without Parliamentary consent; and
The alleged suspension of the laws of the land without Parliamentary consent through affording diplomatic immunity to family members of the relevant personnel.
JXMX (A Child) v Dartford and Gravesham NHS Trust [2013] EWHC 3956 (QB) – read judgment
Elizabeth-Anne Gumbel QC of 1 Crown Office Row represented the claimant in this case. She has nothing to do with the writing of this post.
In Part 1 on this subject, I discussed medical confidentiality and/or legal restrictions designed to protect the privacy of a mother and child. This case raises the question in a slightly different guise, namely whether the court should make an order that the claimant be identified by letters of the alphabet, and whether there should be other derogations from open justice in the guise of an anonymity order, in a claim for personal injuries by a child or protected party which comes before the court for the approval of a settlement. Continue reading →
Whitston (Asbestos Victims Support Victims Support Groups Forum UK) v Secretary of State for Justice and the Association of British Insurers (Interested Party) [2014] EWHC 3044 – read judgment
Jeremy Hyam and Kate Beattie of 1 Crown Office Row acted for the Claimant in this case. They had nothing to do with the writing of this post.
In April 2013 the rules permitting recovery of success fees under Conditional Fee Agreements (CFAs) and After The Event (ATE) insurance premiums changed in response to the Jackson proposals – with one exception, namely in respect of mesothelioma claims.
This case concerns the Lord Chancellor’s intention to bring costs rules in mesothelioma claims in line with other claims.
As many of you will know, mesothelioma is an industrial disease caused by the inhalation of asbestos. It is a rare form of cancer which generally does not become apparent until many years after exposure to asbestos, a feature which at least in the past has led to real problems when mounting a claim against those responsible for the exposure. Once the cancer does become symptomatic its progression is rapid. Most sufferers survive for less than 12 months from the onset of symptoms. Yet the effects of the disease over the period from the onset of symptoms to death are hugely painful and debilitating. This combination of factors means that litigation in relation to mesothelioma is unusual in comparison with many other types of litigation involving personal injury or industrial disease. In almost every case in which a claim is made for damages for mesothelioma the effective defendant is an insurance company. Continue reading →
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Welcome back to the human rights roundup, a regular bulletin of everything we have not managed to feature in full blog posts. The full list of links can be found 
Raychaudhuri v General Medical Council [2018] EWCA Civ 2027
Six decades ago today, the 
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