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Coronial powers and the rights of the unborn (Part 1)

11 August 2023 by Ruby Peacock

In this two-part article, Maya Sikand KC, Tom Stoate, and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield. 

This first part seeks to answer the question: should coroners have jurisdiction to investigate stillbirths?

The second part will examine whether foetuses should enjoy Article 2 rights which do not conflict with the rights of the mother.

Rianna Cleary, who was 18 years old at the time, gave birth to Aisha Cleary alone in her cell in HMP Bronzefield, on the night of 26 September 2019, without medical or any other assistance. Ms Cleary’s two calls for help via the prison emergency intercom system in her cell were first ignored, then unanswered – despite there being a 24-hour nursing station on her wing in the prison. Terrified and in pain, without knowing what to do, Ms Cleary felt compelled to bite through her umbilical cord. Aisha’s birth was not discovered by prison staff until the next morning – after other prisoners raised their concerns – at which time Aisha was ‘not moving, had a tinge of blue on her lips, but was still warm’.^[1] Unsuccessful resuscitation attempts were made, with an adult oxygen mask in the absence of any paediatric or neo-natal mask. Less than an hour later, paramedics confirmed that Aisha had died.  The Senior Coroner for Surrey, Richard Travers, stated that Aisha ‘arrived into the world in the most harrowing of circumstances’.^[2]

Following a month-long inquest, involving ten interested persons (‘IPs’) and more than 50 witnesses, including three expert witnesses, Mr Travers concluded that numerous causative failings contributed to Aisha’s death.

Judge orders that patient be operated on against her will

3 June 2010 by Elspeth Wrigley

DH NHS Foundation Trust v PS (by her litigation friend, The Official Solicitor) [2010] EWHC 1217 (Fam) – Read judgment

The head of the Family Division, Sir Nicholas Wall, has ordered that a woman with learning disabilities be forced under sedation to undergo surgery in order to save her life.

This case brought to the fore the complex balance between allowing those who lack the capacity the autonomy to make decisions about how they wish to live their lives, and enabling the State to step in when such decisions are not only unwise but actually life threatening.   It treads a delicate path between a number of human rights, in particular Article 2 (right to life), Article 5 (right to liberty and security) and Article 8 (right to privacy).

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Torture, Restraint of Children in Care, and LGBTQ+ Rights in Uganda: The Weekly Round-Up

8 June 2023 by Anna Moody

In the news 

The UK’s role in the torture of detainees following the 9/11 attacks, is in question. Last week, the investigatory powers tribunal announced that, on grounds of public interest, they will examine complaints “of the gravest possible kind” which were brought by Mustafa al-Hawsawi against the UK’s intelligence services. Al-Hawsawi was detained in secret CIA prisons and tortured between 2003 and 2006, having been accused of aiding the September 11 attacks. It is alleged that in this time, UK intelligence “aided, abetted, encouraged, facilitated, procured and/or conspired” with the US in Al-Hawsawi’s torture. A related issue concerning the conduct of the CIA is also being heard by the Supreme Court in the case of Zubaydah v Foreign and Commonwealth Office and others next week. 

Wind, peat and reasons: do I know why I lost?

9 July 2011 by David Hart KC

RWE Npower Renewables Ltd v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment

There are two things which public law fairness demands of a judge or a planning inspector before they rule against a party. The first is to make sure that any doubts about a party’s case is put to that party so he can respond. The second is that the judge or inspector explains his reasons for his conclusions in summary form. Unfortunately, in this case, the inspector did neither, and hence the decision was quashed by Beatson J. The judgment, at [37], contains a very good summary of the current cases on the adequacy of reasons in both planning and non-planning contexts. 
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Panorama at Winterbourne View: the human rights angle – Lucy Series

3 June 2011 by Lucy Series

I watched Panorama’s exposé of institutional abuse of adults with learning disabilities at Winterbourne View Hospital with mounting horror.    What legal mechanisms were available to prevent abuses like this, or bring  justice to victims?

There can be little doubt that the acts of the carers towards the patients were inhuman and degrading, a violation of their Article 3 rights.  It is highly questionable whether the establishment fulfilled their rights to privacy and dignity under Article 8, the right to private and family life.

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Would resurrected Neanderthals have human rights?

11 March 2013 by Rosalind English

A newsflash on the eve of the May 2010 elections was instantly eclipsed by the news of the coalition-bartering in the days that followed. But it concerned one of the most important scientific discoveries of the year, if not the century.

Evolutionary biologists at the Max Planck Institute for Evolutionary Anthropology in Germany had finished sequencing the Neanderthal genome. In the publication of their results the team pointed up the similarity between the four billion pairs of Neanderthal DNA and stretches of the human genome, suggesting  that humans and their ancient hominid cousins must have interbred some time after modern Homo Sapiens left Africa, meaning that elements of Neanderthal genome is present in non-African modern humans. The study found that 2.5 percent of the genome of an average human living outside Africa today is made up of Neanderthal DNA. 
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Water companies are public authorities and must therefore disclose environmental information

16 April 2015 by Rosalind English

Fish Legal v Information Commissioner and others (Information rights practice and procedure) [2015] UKUT 52 (AAC) Charles J – read judgment

Water and sewage utility companies are “public authorities” for the purposes of the environmental information regulations, and are bound by them accordingly, the Administrative Appeals Chamber of the Upper Tribunal has ruled.

Fish Legal is the legal arm of the Angling Trust. In 2009 it asked United Utilities Water plc and Yorkshire Water Services Ltd for information relating to discharges, clean-up operations, and emergency overflow. Emily Shirley is a private individual. Again, she asked Southern Water Services Ltd for information relating to sewerage capacity for a planning proposal in her village. All three companies denied that they were under a duty to provide the information under Environmental Information Regulations. Both Fish Legal and Mrs Shirley complained to the Commissioner. In 2010 the Commissioner replied, explaining that as the companies were not public authorities for the purposes of EIR, he had no power to adjudicate the complaints.
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New Year, new tort of misuse of private information

23 January 2014 by Dominic Ruck Keene

Vidal Hall and Ors v Google Inc [2014] EWHC 13 (QB) – read judgment

A group of UK Google users called ‘Safari Users Against Google’s Secret Tracking’ have claimed that the tracking and collation of information about of their internet usage by Google amounts to misuse of personal information, and a breach of the Data Protection Act 1998. The Judge confirmed that misuse of personal information was a distinct tort. He also held that the English courts had jurisdiction to try the claims. 

Mr Justice Tugendhat’s decision was on the basis that (1) there was a distinct tort of the misuse of private information (2) there was a serious issue to be tried on the merits in respect of the claims for misuse and for breach of the DPA; (3) the claims were made in tort and damage had been sustained in the jurisdiction and (4) England was clearly therefore the most appropriate forum for the trial.

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Strasbourg grapples with international surrogacy and the concept of “family”

21 May 2017 by Rosalind English

Paradiso and Campanelli v Italy (Application no. 25358/12), 24 January 2017 – read judgment

The Strasbourg Court ruled earlier this year that the prohibition on commercial surrogacy arrangements did not justify the Italian authorities’ actions in removing a 9 month old child from its non-biological parents and taking him into social care. Although they found no right to family life applied in the circumstances, there was a right to private life which the Italian authorities had breached.

The majority judgment as well as the dissenting and partially concurring opinions summarised below reveal very different approaches to the concept of family life across the Strasbourg bench.
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Devolved powers and the internal market post-Brexit

3 March 2022 by Nicola Logan

R (on the Application of the Counsel General for Wales) v Secretary of State for business, Energy and Industrial Strategy [2022] EWCA Civ 118

The Court of Appeal decision handed down on 9th February 2022 is an important case concerning devolved powers.

The judgement concerns an application for permission to apply for judicial review made by the Counsel General for Wales to seek a declaration in the following terms:

The amendment of Schedule 7B of GoWA by section 54(2) of UKIMA, to add UKIMA to the list of protected enactments, does not amount to a reservation and does not operate so as to prevent the Senedd from legislating on devolved matters in a way that is inconsistent with the mutual recognition principle in UKIMA.

The application was dismissed, and the appellant appealed on the grounds that the Divisional Court was wrong to refuse permission on the grounds of prematurity.

Child radiotherapy case: “one cannot enjoy even diminished quality of life if one is not alive”.

19 January 2013 by Rosalind English

An NHS Trust v SR [2012] EWHC 3842 (Fam) – read judgment

The highly publicised case about a seven year old boy whose estranged parents could not agree about the necessary treatment following surgery for his brain tumour was resolved by a firm ruling in favour of orthodox medicine by Bodey J, four days before Christmas.

The facts of the case are well known, but it may be instructive to lay out some of the details of the procedure that follows in a situation like this, and to point up the approach of the courts to a matter where orthodox science lies flat against the claims of complementary medicine. Where the life of a child is at stake, there is no polite equivocation between the two.

Background

Briefly, the mother would not agree to the recommended post-operative course of chemo- and radiotherapy (carrying an 80% chance of success), believing instead that her son would fare better with alternative forms of treatment and would avoid or reduce the undoubtedly detrimental long-term side effects of the treatment package being proposed. In a serious matter such as this, where the parents cannot agree, an application has to be made to the court for a declaration that the procedure in question is lawful. That involves a decision as to the child’s best interests, being the court’s paramount consideration. Hence it was incumbent on the NHS Trust concerned to apply to the High Court to determine the issue of N’s treatment following on from his brain surgery two months previously.
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Why can’t objectors appeal a planning consent or environmental permit?

6 June 2011 by David Hart KC

The ticklish question of how to come up with a cheap but effective form of environmental judicial review still has not been answered.

One way talked about at a recent seminar on environmental tribunals (see John Jolliffe’s post of today) is to use the environmental part of the new tribunal system, and have judicial reviews heard by judges sitting there. As John noted, the advantage to claimants is that there is a general practice in the part of the tribunal dealing with land disputes that costs are not awarded against them if they lose – unless they have been thoroughly unreasonable.
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“Lamentable”, “egregious” and “wholly indefensible”: High Court lambasts local authority’s conduct of care proceedings

1 February 2015 by Jim Duffy

Northamptonshire County Council v AS, KS and DS [2015] EWFC 7 – read judgment

A Family Division judge has awarded damages under the Human Rights Act against a local authority in what he described as an “unfortunate and woeful case” involving a baby taken into foster care. Mr Justice Keehan cited a “catalogue of errors, omissions, delays and serial breaches of court orders” by Northamptonshire County Council. Unusually, the judge decided to give the judgment in this sensitive case in public in order to set out “the lamentable conduct of this litigation by the local authority.”

On 30 January 2013, the local authority placed the child (known as ‘DS’) with foster carers. He was just fifteen days old. In the weeks prior to DS’s birth, his mother’s GP had made a referral to the local authority due to her lack of antenatal care and because she claimed to be sleeping on the street. The mother then told a midwife that she had a new partner. He was a heroin addict.

After the birth DS’s mother avoided seeing her midwife. She frequently moved addresses and conditions at home were exceedingly poor. Three days before DS was taken into care, his mother told social workers that her new partner was being aggressive and threatening to her. She reported that he was leaving used needles around the house.
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Planning authorities must take account of global emissions in approvals for oil and gas fields – Supreme Court

1 July 2024 by Rosalind English

R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County
Council and others (Respondents)

A detailed summary of the issues and the facts in this case can be found in the Supreme Court’s Press Release. The report below gives a very short account of these followed by a focus on the majority and dissenting judgments. I quote Lord Sales in some detail as the concerns expressed in his dissent will only prevail if Parliament were to legislate for them to do so.

Legal and factual background

In December 2018, the second respondent, Horse Hill Developments Ltd, sought planning permission from the first respondent, Surrey County Council (“the Council”), to retain and expand an existing onshore oil well site and to drill for four new wells, enabling the production of hydrocarbons from six wells over a period of 25 years. The environmental impact assessment for the project had to be carried out under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (which implemented the Directive 2011/92 EU).

The Council considered the environmental impacts of “the direct releases of greenhouse gases from with the well site boundary resulting from the site’s construction, production, decommissioning and subsequent restoration over the lifetime of the proposed development.” However, it did not assess the environmental impacts of the downstream greenhouse gas emissions that would inevitably result when the oil extracted from the development site was later refined and then used, for example, as fuel. The developer argued that, as regards the impact of the project on climate, the scope of the EIA should be confined to the direct releases of greenhouse gases from within the well site boundary during the lifetime of the project; and that the EIA need not include an assessment of the greenhouse gas emissions that would occur when the oil extracted from the wells was ultimately burnt elsewhere as fuel. The council accepted this approach and granted planning permission for the development on 27 September 2019. The appellant, acting on behalf of a local action group, applied for judicial review of the Council’s decision. Her claim was unsuccessful before the High Court and the Court of Appeal. This was her appeal to the Supreme Court

The question that the Court had to decide was this. Was it unlawful for the Council not to require the environmental impact assessment for a project of crude oil extraction for commercial purposes to include an assessment of the impacts of downstream greenhouse gas emissions resulting from the eventual use of the refined products of the extracted oil?

Henry VIII powers to be dropped

1 March 2011 by Adam Wagner

Proposals for much-criticised powers which would have given ministers broad powers to alter statutes with little or no debate are to be dropped.

The proposed changes were dubbed “Henry VIII” powers as they would have given the executive powers similar to those of the 16th century tyrant. Lord Taylor of Holbeach told the House of Lords:

I can confirm to the House that the government have accepted the arguments that bodies and offices should be listed in the schedules of this Bill only where Parliament has given its consent in primary legislation.

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