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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/50/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
Schindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 957, Divisional Court 28 April 2016 – read judgment
An interesting, albeit unsuccessful, challenge to the rule which prohibits expatriates who were last registered to vote in the UK more than 15 years ago from voting in the forthcoming referendum on EU membership.
Mr Schindler (now 95) has lived in Italy since 1982, but has remained throughout a UK citizen. So is Ms MacLennan, who has worked in Brussels as an EU lawyer since 1987. Neither has dual nationality. They said that the 15 year rule is an unjustified restriction of the rights of freedom of movement under EU law. They pointed to the fact that if the UK leaves the EU, they would end up without rights of abode in their current countries, and thus they had a particular interest in the outcome of the referendum.
Jermaine Baker was shot dead in December 2015. Image: The Guardian
The Court of Appeal has delivered a judgment in R (Officer W80) v Director General of the Independent Officer for Police Conduct[2020] EWCA Civ 1301 regarding the applicable conduct standard and provisions governing police in cases of use of force.
The Court ruled against the police officer W80, holding that his honest, but mistaken, belief that his life was being threatened could be examined for reasonableness in the context of disciplinary proceedings. Accordingly, the Independent Office for Police Conduct (IOPC) was justified in concluding that it was open to a disciplinary panel to make a finding of misconduct if W80’s belief was found to be unreasonable.
In 2015, W80 shot dead 28-year old Jermaine Baker. He challenged the IOPC’s decision to bring disciplinary proceedings for gross misconduct in using excessive force against him and to direct the Metropolitan Police Commissioner (Commissioner) to give effect to such recommendation after the Commissioner rejected it.
Ofcom make some unlawful regulations in 2015, under which telecom companies have to pay higher fees. The regulations were quashed in 2017. Four telecom companies want restitutionary damages, being the difference between the sums paid under the 2015 regulations and the sums they would have paid under their predecessors, the 2011 regulations.
Big money washing around: the claim was for over £200m.
Ofcom says – no, you are only entitled to the difference between the 2015 payments and the hypothetical fees which we could lawfully have charged had we done our job properly in 2017.
Sounds quite simple, but the answer goes deep into the intersection between public and private law.
The claim, as I have said, was restitutionary.
Ofcom said that the law of restitution is rooted in the private law of obligations. The private law approach (as with any tort claim) is to apply a “but for” test – what would the telecoms have paid but for the unlawfulness? This involves the counterfactual: what lawful fees could Ofcom have imposed?
The telecoms, and the Court of Appeal, disagreed. Ofcom’s argument offended the principles of legality, and parity (the principle that those who pay voluntarily should not be worse off compared to those who refuse to pay and litigate).
Human trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.
The International Labour Organisation believes that at any one time at least 40.3 million people around the world are being coerced into a situation of exploitation or made to work against their will, often having been transported across borders. Such exploitation can take many different forms, but the most common include forced prostitution, forced labour or forced marriage.
Estimates vary hugely as to how many victims of trafficking or modern slavery there are in the UK, from 13,000 up to 136,000. What is clear is that it is a significant and constantly evolving problem, and one of the major drivers of organised crime. The UK has taken some very good steps to address the issue. However, two judgments earlier this year, and a news story this month, have drawn attention to the fact that the system put in place to combat human trafficking and modern slavery has some serious flaws in how it works in practice.
In the matter of E (Children) [2011] UKSC – read judgment
The Supreme Court has ruled that two girls, aged seven and four respectively, be returned with their mother to Norway, after she had removed them without the father’s consent. The decision was made largely under the Hague Convention on the Rights of the Child which gives more specific direction to the courts in abduction cases than the European Convention on Human Rights, although, as the Supreme Court observed, a little more reassurance that the necessary safeguards can be enforced in the destination country would make it easier for the courts in the requesting country to make orders protecting the interests of the child.
The proposed change to the rules for bringing on who can apply for international war crimes arrest warrants has predictably generated some strong reactions
The changes will make it necessary to get the consent of the Director of Public Prosecutions before an arrest warrant can be granted. The Ministry of Justice say they are changing the rules in order to prevent arrests happening after the presentation of “flimsy” evidence. Those who fear arrest under the current system range from Israeli ministers to the Pope.
The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK.
by David Scott
Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side.
But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?
The legal dispute between Getty Images (and its associated companies) and Stability AI revolves around complex issues of copyright infringement, database rights, trademark infringement, and passing off. The arguments centred on the use of Getty Images’ visual content in the training and operation of Stability AI’s generative AI model, Stable Diffusion. Media firm Mischcon de Reya has acclaimed this as the “one of the most anticipated cases in recent years.” The case has significant implications for intellectual property law as it intersects with the development and deployment of AI technologies in the UK.
Background and Parties The claimants in the case are several related companies under the Getty Images brand. These entities collectively own or have exclusive licenses over millions of high-quality photographic and artistic images referred to as the “Visual Assets” or “Copyright Works.” Stability AI Limited, the defendant, is a UK-based company that developed the Stable Diffusion AI model, which is a deep learning image generation tool that creates images based on text or image prompts, including around 12.3 million visual assets, together with associated captions, from the Getty Images websites, as well as publicly accessible third-party websites.
According to Getty Images Stability AI scraped millions of their copyright-protected images from its websites without authorisation.
The Core Claims Getty Images initially brought a broad claim including allegations of primary and secondary copyright infringement, database right infringement, trademark infringement, and passing off. They argued that: • Stability AI unlawfully used Getty’s copyrighted works without permission to train the AI model. • The AI model outputs sometimes reproduced Getty’s images or bore their trademarks (watermarks), infringing Getty’s rights. • Stability AI’s making of the model weights available for download constituted secondary copyright infringement. (Model weights are the values that determine how inputs are transformed into outputs in a neural network, reflecting the strength and direction of connections between artificial neurons after training. During training, optimisation procedures adjust these weights so the model improves at a task; the final set of weights effectively encodes the model’s learned “knowledge” from data. These “weights” are machine-readable parameters, distinct from source code text; they are large arrays of numbers that operationalise the model’s behaviour rather than human-authored narrative code. • Use of Getty’s trademarked watermarks within generated images constituted trademark infringement.
As the judge observed,
Both sides emphasise the significance of this case to the different industries they represent: the creative industry on one side and the AI industry and innovators on the other. Where the balance should be struck between the interests of these opposing factions is of very real societal importance. Getty Images deny that their claim represents a threat to the AI industry or an attempt to curtail the development and use of AI models such as Stable Diffusion. However, their case remains that if creative industries are exploited by innovators such as Stability without regard to the efforts and intellectual property rights of creators, then such exploitation will pose an existential threat to those creative industries for generations to come.” [para 12]
“If the Conservatives come back into power it’s revolution time”. These are the words of ex-Court of Appeal judge Sir Antony Hooper at a legal aid protest rally on Thursday, as he called for lawyers to ‘walk-out’ in the event of a Conservative victory. At the same rally another senior judge, Sir Alan Moses, lamented that all political parties are ignoring “the plight of those who [cannot] afford a lawyer” – citing that only the Greens have pledged to reverse the cuts to legal aid.
However, academic Graham Gee warns against using disrespectful rhetoric when analysing the Tory manifesto. He argues people should avoid “creating an impression that [Conservative] proposals are beyond-the-pale and reflective only of short-term, self-interested calculations”.
This article was originally published on Serjeants’ Inn Chambers UK Police Law Blog. They have kindly given us permission to repost it here.
In Y v Bulgaria [2020] ECHR 163, the European Court of Human Rights set out the minimum requirements for criminal investigations where a person has been subjected to ill-treatment contrary to article 3 and held that those principles were properly derived from cases involving breaches of article 2, despite their different content and rationale. Here, the court found a breach of article 3 in respect of the authorities’ failure to pursue an obvious line of enquiry in a rape investigation and awarded €7,000. It is an example how an investigation can be satisfactory in several respects but still fail to comply with the minimum requirements of article 3. It is also worth comparing with the bands of damages that English cases have suggested.
On 10 July 2013 at 23.30, a woman was raped in a field by an unknown man with whom she had spoken at a bus stop and agreed to follow to a nearby train station. She called the police at around 00.05. The police recovered forensic material, the applicant’s clothes and, later that day, the applicant underwent medical examination and gave a description of the assailant.
R (ClientEarth No.3) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 21 February 2018, judgment here
DEFRA has been found wanting again, in its latest attempt to address nitrogen dioxide in air. This is the third time. Yet DEFRA’s own analysis suggests that some 23,500 people die every year because of this pollutant.
I have told the story in many posts before (see list at bottom), but the UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) since 2010. The Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”: Article 23.
We have now had 3 Air Quality Plans, the first produced in 2011 and quashed in 2015, and the second produced later in 2015, declared unlawful by Garnham J in November 2016.
The third, in this judgment, was dragged out of DEFRA in July 2017, after various attempts to delay things.
For some reason, this post originally appeared in the name of Colin Yeo. It is not by Colin Yeo, but by Martin Downs. Apologies for that.
The future of civil partnerships is again in the news. In October, Rebecca Steinfeld and Charles Keidan tried to register a Civil Partnership at Chelsea Town Hall but were rebuffed on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. Their lawyer, Louise Whitfield of Deighton Pierce Glynn Solicitors has announced their intention to seek a judicial review and the couple have also started a petition.
Steinfeld and Keidan have rightly identified that CPs provide virtually the same rights and responsibilities as marriage that it is within the gift of government to provide. One of the few differences concerns pension rights and even this will be considered by the Court of Appeal in February 2015.
However, the couple are attracted by civil partnership as a social construct that comes without the historical baggage of patriarchal dominance/subjection of women. They also take aim at the sexist customs that surround it such as “giving the bride away,” virginal white dresses and hen and stag do’s.
Welcome back to the UK Human Rights Roundup, your regular great bright firework display of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.
Some crucial judgments were handed down this week in the sphere of judicial review, with mixed results for the government. Elsewhere discussions continued about the future of human rights under a Tory government in 2015, as well as religious rights within the family courts. Keep an eye out for the upcoming Grand Chamber hearing on the full-face veil, as well as the open government consultation on the Balance of Competences Fundamental Rights Review.
Renu Begum holds a photograph of her sister Shamima, taken prior to the then school girls travel to Syria to support the Islamic State. Credit: The Guardian
Immigration cases have dominated human rights case law this week. However, perhaps the greatest controversy concerned the Home Secretary’s intervention in the case of Shamima Begum. News broke on Sunday morning that the nineteen-year-old had given birth in Syria to baby boy, having travelled to the country to support ISIS as a school girl three years ago.
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Schindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 957, Divisional Court 28 April 2016 – read judgment
Human trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.
On 19-20 January, the England and Wales High Court (Mrs. Justice Andrews) heard the 
Welcome back to the UK Human Rights Roundup, your regular great bright firework display of human rights news and views. The full list of links can be found 
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