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In Noel Douglas Conway v The Secretary of State for Justice [2018] EWCA Civ 16, the Court of Appeal gave an unusually detailed judgment granting permission to appeal against the decision of the Divisional Court in Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640, refusing permission for the applicant to judicially review the criminalisation of physician-assisted suicide under the Suicide Act 1961.
The Divisional Court had held that that Parliament had recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR.
The pumping of raw, untreated sewage into Britain’s waterways is one of the defining political issues of the day. Its potency as a legal issue, however, is limited. That, at least, is the outcome of R (Wild Justice) v OFWAT [2023] EWCA Civ 28.
Sewage polluting the River Coln, at Fairford, Gloucestershire, this January. Photograph: Graeme Robertson/Guardian
The Claimant, a not-for-profit organisation which advocates for the protection of wildlife and nature, asked the Court of Appeal for permission to apply for judicial review of the Respondent’s alleged failure to perform its duties to regulate the discharge of raw sewage.
Permission had already been refused twice below – on the papers by Ellenbogen J, and at an oral hearing by Bourne J. This appeal was heard by Bean LJ.
The case of R (on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another is being heard today in the Supreme Court.
The Secretary of State is appealing the 2009 decision of the Court of Appeal: See our case comment from the Court of Appeal judgment.
In short, the respondent’s son Smith was a member of the Territorial Army who had been posted to Iraq in June 2003. He had spent eight days in Kuwait for the purpose of acclimatisation. The room he occupied in Iraq did not have air conditioning. In August 2003 temperatures in the shade reached in excess of 50 degrees C, which was the maximum that available thermometers could measure. He reported sick complaining that he could not stand the heat. Some days later he suffered a cardiac arrest.
In this appeal the secretary of state appeals against the decision of the Court of Appeal ([2009] EWCA Civ 441) that the deceased had been within the jurisdiction of the United Kingdom for the purposes of the Article 1 of the European Convention on Human Rights 1950 and the Human Rights Act 1998 and that, consequently, the inquest into his death had to comply with Article 2.
The hearing is expected to last for four days. See coverage in The Times and the The Guardian.
The secretary of state had granted a temporary approval during the COVID-19 pandemic of “the home of a pregnant woman” as a class of places for the taking of Mifepristone, one of the two drugs required for a termination of pregnancy during the first 10 weeks. The appellants challenged this decision by way of judicial review, arguing, inter alia, that it was unlawful as being without the powers conferred by the Abortion Act 1967 (as amended).
Legal background
The 1967 Act sets out the legal framework under which abortions can be performed in England and Wales. Section 58 of the Offences Against the Person Act 1861 makes it a criminal offence to administer drugs or use instruments to procure an abortion. Section 59 of the same Act makes the supply of drugs, knowing that they are intended to be unlawfully used to procure the miscarriage of any woman, a criminal offence.
The Act excludes from criminal liability the termination of a pregnancy by a medical practitioner under certain circumstances including maximum term of twenty four weeks and risk to the woman. The Act also stipulates that treatment must be carried out in an approved place.
In K & AM, R v Secretary of State for the Home Department [2018] EWHC 2951 Mostyn J was concerned with subsistence payments for victims of modern slavery. The case concerned whether the Home Office’s cut to payments made under this country’s internationally agreed obligations to provide support to victims of trafficking constituted a breach of the rights of the victims. The court gave judgment for the claimants, finding that the cut was unlawful.
Do advocates retain an absolute immunity for things and said and done in court, or must the invocation of the immunity be scrutinised on a case-by-case basis? A heavyweight panel of the Court of Appeal – including the Lady Chief Justice and the President of the King’s Bench Division – in Chief Constable of Sussex Police and the Crown Prosecution Service v XGY(Bar Council intervening) [2025] EWCA Civ 1230 (“XGY”) has come down decisively in favour of the former proposition, offering some much-needed clarity on this area of law.
Michael Spencer is a pupil barrister at One Crown Office Row.
The fate of Shamima Begum, the British teenager who joined the Islamic State in Syria (ISIS) and has asked to return home, has divided opinion.
Home Secretary Sajid Javid’s
decision to deprive the 19-year-old mother of her citizenship is apparently
popular: a recent poll
found that 78% support the move.
But others have raised concerns about the propriety of using such a draconian power against a British citizen by birth in circumstances where she may be rendered stateless, also leaving the fate of her child uncertain.
From Bethnal Green schoolgirl to
ISIS bride
Ms Begum was born in the UK to
parents of Bangladeshi heritage. She was
one of three 15-year-old schoolgirls from the Bethnal Green Academy who
travelled to Syria via Turkey in 2015 to join ISIS.
The Metropolitan Police
subsequently apologised to the
families for failing to warn them that the schoolgirls were at risk and
suggested that they would not face criminal charges if they returned to the UK.
After arriving in Raqqa, Syria, Ms
Begum married ISIS fighter Yago Riedijk, a Dutch national. She had three children with him, two of whom
died. Her youngest son, Jarrah, was born
in a Syrian refugee camp in February 2019.
The press caught up with Ms Begum just before she gave birth and she has given a series of incendiary interviews. She claimed that she had been “just been a housewife for the entire four years” and that she had not done anything “dangerous” or made propaganda. However, she also said she had “no regrets” about joining ISIS and suggested that the Manchester Arena bombings were justified because of the bombing of civilians in Syria.
The duty to expeditiously return under the Hague Convention vs the principle of non-refoulment in asylum law
In the News:
Last week, the Supreme Court considered an interesting interplay between two competing obligations of the state: on the one hand, the duty expeditiously to return a wrongfully removed or retained child to his home jurisdiction under the Convention on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”); on the other, the principle that refugees should not be refouled, meaning expelled or returned to a country where they have a well-founded fear of persecution.
The parties to G (Appellant) v G (Respondent) [2021] UKSC 9are the divorced parents of an eight-year-old girl (“G”). G was born in South Africa, and was habitually resident until G’s mother wrongfully removed her to England, in breach of G’s father’s custody rights. G’s mother fled South Africa when, after separating from G’s father and coming out as a lesbian, her family subjected her to death threats and violence. On her arrival in England, she applied for asylum and listed G as a dependant on her asylum application.
G’s father applied for an order under the 1980 Hague Convention for G’s return to South Africa. At first instance, Lieven J held the application should be stayed pending the determination of G’s mother’s asylum claim. The Court of Appeal considered that the High Court was not barred from determining the father’s application or making an order for expeditious return
Reynolds v United Kingdom [2012] ECHR 437 – read judgment
What – if anything – can a claimant do when she suspects that the domestic law is not only out of kilter with Strasbourg jurisprudence but is also denying her even an opportunity to bring a claim? Taking arms against a whole legal system may be an heroic ideal, but the mundane reality is a strike out under CPR rule 3.4 by a district judge in the County Court. It is a long way from there to the European Court of Human Rights.
This was the position in which Patricia Reynolds and her daughter Catherine King found themselves following the sad death of (respectively) their son and brother. David Reynolds suffered from schizophrenia. On 16 March 2005 he contacted his NHS Care Co-ordinator and told him that he was hearing voices telling him to kill himself. There were no beds available in the local psychiatric unit, so Mr Reynolds was placed in a Council run intensive support unit. His room was on the sixth floor and at about 10.30 that night Mr Reynolds broke his (non-reinforced) window and fell to his death. Continue reading →
Tchenguiz v. Director of the Serious Fraud Office [2014] EWCA Civ 472, 15 April 2014 – read judgment
This judgment is a neat illustration of how important it is to keep the concepts of public law and private law unlawfulness separate – they do not necessarily have the same legal consequences.
It arose thus. The Tchenguiz brothers are high-profile businessmen, and they did not take kindly to being arrested and bailed on charges of fraud at the behest of the SFO. They sought judicial review of the search and arrest warrants. In due course, the Divisional Court ([2012] EWHC 2254 (Admin)) held that the SFO had made material non-disclosure and factual misrepresentations to the judge which vitiated the grant of the warrants, and the brothers have brought a substantial follow-on claim for damages – £300 million according to another recent judgement here.
So the Tchenguiz brothers have established unlawfulness, but, as we shall see, this does not automatically entitles them to damages.
Campaigners have warned that a loophole allowing children aged 16 or 17 to get married with their parents’ consent is enabling forced child marriages to take place across England. Current laws against forced marriage to do not specifically protect children, and there are no laws in the UK to prevent religious or customary child marriages. The organisation Girls Not Brides UK, who sent a letter to the Prime Minister warning of the impact of this loophole last week, have suggested that child marriages disproportionately affect girls, and often lead to fewer educational and employment opportunities and a higher risk of domestic violence. The government’s Forced Marriage Unit, which collects data on cases of forced marriage, shows that more than a quarter of cases involve children. The Conservative MP Pauline Latham is currently promoting a bill in Parliament aimed at criminalising child marriage completely.
R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 read judgment
Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.
L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.
So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.
But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.
Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.
Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment
This is an extremely important judgment from the Court of Appeal on the reach of the ECHR into war zones, in this case Iraq. The CA, with the only judgment given by Lloyd Jones LJ, disagreed in part with Leggatt J – for whose judgment see Dominic Ruck Keene’s post here.
3 main points arose on appeal.
The first was the jurisdictional question under Art.1 of the Convention – were Iraqi civilians killed or injured by British servicemen covered by the ECHR?
The second is the extent to which the UK is under a duty to investigate ECHR violations alleged by Iraqis, under Arts 3 (torture) and 5 (unlawful detention).
And the third is the question of whether the UN Torture Convention could be relied upon in domestic law proceedings.
I shall cover the first point in this post. The blog will cover the other points shortly. The points arose by way of preliminary legal issues in various test cases drawn from the 2,000 or so Iraqi claimants.
MM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor [2014] EWCA Civ 985 (11 July 2014) – read judgment
Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.
Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise. Continue reading →
Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school. She was kidnapped and murdered and her body was found in September 2002. In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff. When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail. The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story.
The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking. There is a suggestion that the Official Secrets Act 1989 may have been breached. The Guardian plans to resist this “extraordinary demand to the utmost” – see The Guardian 17th September – “Hacking: Met use Official Secrets Act to demand Guardian reveals sources.”
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In Noel Douglas Conway v The Secretary of State for Justice [2018] EWCA Civ 16, the Court of Appeal gave an unusually detailed judgment granting permission to appeal against the decision of the Divisional Court in Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640, refusing permission for the applicant to judicially review the criminalisation of physician-assisted suicide under the Suicide Act 1961.
In a week when 
R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 
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