Search Results for: right to die


Teacher subject to disciplinary proceedings entitled to legal representation if his name is to be added to children protection register

23 January 2010 by

Governers of X School v R(on the Application of G) (Claimant) & Y City Council and Secretary of State for Children and Schools and Families (Interveners) & Equality and Human Rights Commission (Interested Party)

[2010] EWCA Civ 1;CA (Civ Div) (Laws LJ, Wilson LJ, Goldring J) January 20 2010

Where an individual had a civil right being determined in one set of proceedings for the purposes of Article 6, he would be able to claim protection under that provision in any other proceeding involving him if the outcome of that other would have a substantial effect on the determination of that civil right.

SUMMARY

The claimant had been employed as a teaching assistant at the appellant school. As a result of alleged incident of a sexual nature with a pupil, disciplinary procedures were instigated against him which culminated in the hearing before the committee. He was told that in these hearings employees could be represented by a colleague or a trade union representative but that any other form of legal representation would not be permitted.

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No removal without access to solicitor

27 January 2012 by

The Queen on the Application of Medical Justice v Secretary of State for the Home Department  [2011] EWCA Civ 1710 – read judgment

People who make unsuccessful claims to enter or remain in the United Kingdom cannot be removed without being given sufficient time for a lawyer to prepare a proper challenge to their claim.   The government has failed in its appeal against the Administrative Court’s finding that government policy unlawfully provided for expedited removal procedures in certain pressing circumstances – for example where there was a risk that the person concerned, if given advanced notification of his removal, might attempt to frustrate those measures of removal. The policy was quashed because it interfered with people’s right of access to a lawyer.

The Home Secretary is responsible for granting or refusing leave to remain in the United Kingdom for those who do not have the right of abode in this country in accordance with the Immigration Rules. It is an important aspect of maintaining immigration control that a credible enforcement process is in force and that those with no right to remain in the United Kingdom are removed from the jurisdiction while not infringing the accepted rights of those about to be removed.
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Supreme and Strasbourg Courts square off on Art. 6 and housing

10 May 2017 by

Poshteh v Royal Borough of Kensington & Chelsea S [2017] UKSC 36, 10 May 2017 – read judgment 

For the last 15 years, whether the right of the homeless to suitable council accommodation is an Art.6(1) ECHR civil right has been argued over in the courts.  And the question arose again in today’s judgment of the Supreme Court.

Ms Poshteh had been imprisoned and tortured in Iran, and asked her local council in London to house her as she was homeless in the UK. She then rejected the offer of a flat because she said its windows reminded her of those in her Iranian prison cell. This rejection was held fatal to her housing claim, as we shall see.

To understand the Art.6 point, we need to have a quick look at the council’s housing duties for the homeless.

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Detention by British forces in Iraq did not breach constitutional rights

13 July 2010 by

Al Jedda V Secretary Of State For Defence [2010] EWCA Civ 758 – Read judgment

The Court of Appeal has found that there was no breach of the “essence” of a right guaranteed under the Iraqi Constitution to have a prisoner’s detention reviewed by a judicial authority when the reviewing authorities were not judges, but had the necessary judicial qualities.

Mr Al Jedda was detained in Iraq in 2004 by British forces on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007 in Iraq but was at no time charged with any offence.

The case has had an interesting route through the courts which is worth summarising briefly.
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High Court overturns decision not to prosecute rape allegation

14 April 2020 by

The Divisional Court has recently handed down a novel decision in R (FNM) v DPP, considering the right of complainants to a fair opportunity to make representations to the Director for Public Prosecutions (“DPP”), and for those representations to be considered, when conducting a review under the Victims’ Right to Review Scheme (“the VRR Scheme”).

The Court held that in circumstances where the DPP had not waited to give the complaint an opportunity to make representations as to whether there should be a criminal prosecution, the decision not to prosecute was materially flawed.


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Times on the legal naughty step for bizarre ‘right to marry’ headline splash

29 December 2013 by

photoThe debate over the European Union’s Charter of Fundamental Rights is already mired with misunderstanding (see this and this), but amazingly Saturday’s Times (£) managed to up the stupid-quotient by another few notches.

The headline was “Ministers to block ‘right to marry’ in EU backlash“. Apparently the Government has “vowed to block a fresh push to introduce new EU human rights, such as the right to marry and the right to collective bargaining, into Britain“. And as the Times’ political editor Francis Elliot (not to be confused with the generally sound legal correspondent Frances Gibb) reported:

The charter enshrines a host of rights not found in other declarations, including personal, work and family relations. One of them is a proposed “right to marry and found a family”.

The only problem is that… the right to “marry and found a family” already exists in the European Convention on Human Rights. It’s in Article 12. It has been there since the UK signed up to the ECHR in 1953. Here it is:

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Disability Discrimination, Judicial Review Standing and Right to Die – The Human Rights Roundup

4 August 2013 by

Paul Lamb (credit- Guardian)Welcome back to the UK Human Rights Roundup, your regular heat wave of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.

A fairly quiet week in terms of volume, but nevertheless some notable  issues. Of note are plans to restrict judicial review, the ‘bedroom tax’ judgment, and a key decision in the ongoing debate on assisted suicide.


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‘Do Not Resuscitate’ and the Right to Die – the Human Rights Roundup

29 June 2014 by

Do-not-resuscitate-band-HRRWelcome back to the UK Human Rights Roundup, your regular game, set and match of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

In the News

The Right to Die

This week, in the cases of R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) (AP) v The Director of Public Prosecutions [2014] UKSC 38, the Supreme Court rejected the appeal of campaigners who asserted a right to die under Article 8 of the Convention.

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Court of Protection upholds the right of a confused, lonely man to refuse treatment

13 October 2015 by

Empty-hospital-bed-300Wye Valley NHS Trust v B (Rev 1) [2015] EWCOP 60 (28 September 2015) – read judgment

The Court of Protection has recently ruled that a mentally incapacitated adult could refuse a life saving amputation. This is an important judgement that respects an individual’s right to autonomy despite overwhelming medical evidence that it might be in his best interests to override his wishes. The judge declined to define the 73 year old man at the centre of this case by reference to his mental illness, but rather recognised his core quality is his “fierce independence” which, he accepted, was what Mr B saw as under attack.
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High Court upholds autonomy over fatherhood for learning disabled man

20 August 2013 by

sterilisationNHS Trust v DE [2013] EWHC 2562 (Fam) 16 August 2013 – read judgment

For the first time a UK court has permitted non therapeutic sterilisation of a male individual who, through learning disabilities, was unable to consent to such a procedure.

The NHS Foundation Trust  made an application in the Court of Protection for a raft of declarations in relation to a 37 man, DE, who suffers from a profound learning disability.  After fifteen years of hard work and sensitive care by his parents and social workers he had achieved a modest measure of autonomy in his day to day life and had a long standing and loving relationship with a woman, PQ, who is also learning disabled.

But things changed dramatically for the worst in 2009, when PQ became pregnant and  had a child. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. As a result of the distress he felt following this event DE was clear that he did not want any more children. Evidence before the court suggested that his relationship “nearly broke under the strain.”
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10 cases that defined 2018

20 December 2018 by

Jonathan Metzer is the commissioning editor of the UK Human Rights Blog. He is a barrister at One Crown Office Row.

And so we come to the end of another whirlwind year.

It has gone by with worryingly rapid speed. As I write this it is hard to remember that scorching hot summer, with a Royal Wedding in bright sunshine and the England team surpassing all expectations at the World Cup. But as well as a number of major geopolitical events (including Brexit, which I promise not to mention for the rest of this article), this year also saw the unveiling of astonishing artwork at the Roman ruins of Pompeii, the reintroduction of the Chequered Skipper butterfly to Rockingham Forest, the first time that a robot addressed a Parliamentary meeting, and the demise of the Charles Darwin £10 note.

But what happened in the courts? Oh what an adventure it has been, dear reader. Strap on your seat belts and join me as we take a whistle-stop tour through 10 of the biggest legal battles of the last year.


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Conscientious objection to abortion: Catholic midwives win appeal

3 May 2013 by

human-foetus_1666004cDoogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment here

The Inner House of the Court of Session (the Scottish civil court of appeal) ruled last week that two midwives from Glasgow could not be required to delegate to, supervise or support staff on their labour ward who were involved in abortions. 

The ruling makes it clear that the conscientious objection provision in s.4 of the Abortion Act 1967 has very broad scope. This probably means that the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), the Royal College of Midwives (RCM) and the Royal College of Nursing (RCN) will all need to change their guidance on the subject, since the existing versions take a much narrower view. This judgment affects England and Wales as well as Scotland (since the Act covers all three countries), but not Northern Ireland.

The facts of the case, and the original decision of Lady Smith in the Outer House of the Court of Session are covered in our previous blog post here.

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Article 2

1 June 2010 by

Article 2| Right to life

Read posts on this Article

Art.2 European Convention on Human Rights provides as follows:

(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is necessary:
(a) in defence of any person from unlawful violence.
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained.
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

The corresponding provision in the EU Charter is also Art.2 which reads:

(1) Everyone has the right to life.

(2) No one shall be condemned to the death penalty, or executed.

The right to life is not absolute, although the limitation carved out in the first paragraph of the ECHR provision ceases to apply now that the UK has ratified Protocol 6, in pursuit of its undertaking so to do in the Human Rights Act 1998 , and the death sentence has been abolished altogether from the statute books. The UK cannot now reintroduce the death penalty in future, except for acts committed in time of war or imminent threat of war.

Art.2 is relevant to several aspects of State power:

  1. The use of  lethal force by the State through the mobilisation of its police and armed forces to combat terrorism, fight crime and quell civil unrest;
  2. The prevention and prosecution of homicide
  3. Legislation relating to abortion; and
  4. The supply of medical services and the allocation of healthcare resources.

The right to respect for life, following the case of Diane Pretty v United Kingdom, does not include the right to die with dignity, although this element is considered in this context together with the right to physical integrity and privacy under Article 8.  This extended implied right under Article 2 does not oblige the state however to enable a sufferer from severe mental bipolar disorder to obtain, without a prescription, a substance enabling him to end his life without pain and without risk of failure: Haas v Switzerland (2011).

While special duties are owed by the authorities to protect the lives of prisoners from harm, including suicide, the Court has observed that the measures imposed should take into account principles of dignity and self-determination, indicating that oppressive security measures may go too far. In Keenan v UK ECHR 2001, where the applicant’s son committed suicide in his cell, the Court found that the prison authorities were aware of his mental problems but had taken reasonable steps by placing him in prison hospital care and under close watch when he showed signs of suicidal tendencies. There had been no reason on the day of the incident for the authorities to suspect that an attempt was likely.

In addition to the express obligation on states to respect the right to life, the Strasbourg Court has developed an implied duty on states to investigate suspicious deaths or disappearances. Critics suggest that this maneouvre was motivated by the court’s desire to avoid having to delve into “complicated and murky factual assessments” in the proliferating case law involving Turkish violations of Kurdish rights:

Extending human rights to create additional procedural obligations on states served as a cost-efficient substitute for a lack of evidence to deal with a growing docket of cases. The court has legislated its way out of its own internal problems. (Dominic Raab, The Assault on Liberty, Fourth Estate, London 2009)

Be that as it may, the domestic courts have not been slow to respond to Strasbourg expansionist tendencies in the interpretation of Article 2.  The right to life now engages the responsibility of the government for the deaths of soldiers in combat, whether they have been killed by enemy troops or illness if their demise is due to inadequate equipment or medical care (Smith v Secretary of State for Defence, [2010] UKSC 29).

Article 2 applies in countries where the Convention theoretically has no reach. In Al-Skeini v UK  (2012) the Court said that the killing of Iraqi civilians by British troops during the British occupation of the Basra region fell within the United Kingdom’s jurisdiction because Her Majesty’s army was exercising authority and control there.

More recently however, the Divisional Court has strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin (R(Long) v Secretary of State for Defence [2015] EWCA Civ 770.

As far as the Strasbourg Court is concerned, there is no right to life that can be asserted in opposition to abortion; a foetus is not protected under Article 2. However, in Vo v France [2004] ECHR 326, (2005) 40 EHRR 12 , where the mother lost the foetus due to a mistake by a doctor, the Court considered that it was neither appropriate nor desirable to decide whether the unborn child was a person for the purposes of Article 2. In Calvelli and Ciglio v Italy, where the applicant complained that the state had failed to prosecute a doctor whose negligence allegedly caused the death of his baby, the Court held that the state’s positive obligation under Article 2 to protect life required regulations in place to safeguard patients’ lives and to provide an independent judicial system which can determine the cause of death of patients in the care of the medical profession. The provision of a civil remedy which could allocate responsibility and award damages fulfilled this obligation on the state.

The failure to provide an effective examination of the circumstances of the death of the applicant’s wife in childbirth disclosed a breach of Article 2: Bryzkowski v Poland, 27 June 2006.

Ban on fertility treatment does not breach Convention, says Strasbourg

10 November 2011 by

S.H. and Others v. Austria (Application no. 57813/00), 3 November 2011 – read judgment

The Grand Chamber of the Strasbourg Court has rejected complaints from two infertile couples that the Austrian prohibition on using medically-assisted procreation techniques did not breach their right to respect for family life under Article 8 or the right to found a family under Article 12.  The choices the legislature had made reflected the then current state of medical science and the consensus in society and it had therefore not overstepped its (wide) margin of appreciation in this area.

This refusal to allow infertile couples the protection of the Convention against restrictive state legislation comes as some surprise in the light of Strasbourg’s readiness to insist that governments should allow prisoners access to artificial insemination (AI): Dickson v United Kingdom (2006).  Why should infertile couples be denied the anxious scrutiny accorded to those behind bars? This giving with one hand and taking with another simply confirms the cynic’s view of the court as being deeply partisan in its approach. And it is far from clear why governments should be allowed such leeway in an area so central to the ECHR’s concerns: the Court itself has said that where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State would normally be severely restricted. The matter of procreation and the genetic relatedness of one’s offspring must surely belong to this “core” area of life.
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A Moral Assessment of the European Court of Human Rights

9 January 2013 by

Strasbourg_ECHR-300x297This is a short version of an article on the subject to be published by John Edwards, Professor Emeritus of Human Rights at London University 

There have been three major conferences over the past two years (at Interlaken, Izmir, and Brighton) to discuss the functioning of the European Court of Human Rights and possibilities for its development and reform. Each provided an opportunity to scrutinise such important components of the Court’s work as the subsidiarity principle, the (quite separate) principle of the margin of appreciation, the prioritisation of Convention articles, admissibility criteria, the idea of “European consensus”, “just satisfaction”, and “significant disadvantage” as well as  broader topics such as the future role of the Court and whether a court of individual petition with case law as its only corpus of wisdom is the best way of promoting and protecting human rights in Europe. On each occasion debate was hijacked by the singular topic of reducing the backlog of cases. Wherever one of these components had a bearing on the Court’s overload, discussion was virtually confined to how it could be amended to cut the backlog and bring applications and judgements into balance. 
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