Right to Privacy
20 April 2016 by Rosalind English
Spencer v Anderson (Paternity Testing) [2016] EWHC 851 (Fam) – read judgment
A fascinating case in the Family Division throws up a number of facts that some may find surprising. One is that this is the first time the courts in this country have been asked to direct post-mortem scientific testing to establish paternity. The other is that DNA is not covered by the Human Tissue Act, because genetic material does not contain human cells. One might wonder why the statute doesn’t, given that DNA is the instruction manual that makes the human tissue that it covers – but maybe updating the 2004 law to cover genetic material would create more difficulties than it was designed to resolve.
The facts can be briefly stated. The applicant had been made aware of his possible relationship to S, who had died of bowel cancer some years before. When S had presented with the disease, it turned out that there was a family history of such cancer. The hospital treating him therefore took a blood sample and extracted DNA from it to test for high-risk genes. If the applicant was the son of the deceased he would have a 50% risk of inherited predisposition to bowel cancer. This risk would be mitigated by biannual colonoscopies.
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11 February 2015 by Guest Contributor
X & Anor v Z (Children) & Anor [2015] EWCA Civ 34 – read judgment
The Court of Appeal has ruled that it would not be lawful for DNA originally collected by the police to be used by a local authority for the purposes of a paternity test.
Factual and legal background
X’s wife had been found murdered. The police took DNA from the crime scene. Some of the DNA belonged to X’s wife and some was found to be X’s. X was tried and convicted of his wife’s murder.
X’s wife had young children and they were taken into the care of the local authority. During the care proceedings X asserted that he was the biological father of the children and said he wanted to have contact with them. He refused to take a DNA test to prove his alleged paternity. The local authority asked the police to make the DNA from the crime scene available so that it could be used in a paternity test. The police, with the support of the Home Secretary, refused on the grounds that they did not believe that it would be lawful to do so.
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11 December 2014 by Rosalind English
Liberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal [2014] UKIPTrib 13_77-, 5 December 2014 – read judgment
Robert Seabrook QC is on the panel of the IPT and David Manknell of 1 Crown Office acted as Counsel to the Tribunal in this case. They have nothing to do with the writing of this post.
This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character.
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31 May 2012 by Rosalind English
Catt v Commissioner of the Police of the Metropolis [2012] EWHC 1471 (Admin) – read judgment
Retention of data on a national database of material relating to a protester’s attendance at demonstrations by a group that had a history of violence, criminality and disorder, did not engage Article 8 of the Human Rights Convention.
The claimant, now aged 87, applied for judicial review of the decision of the defendants to retain data, seeking an order that, as he had not himself been engaged in criminality, any reference to him should be deleted from the allegedly unlawfully retained material.
Background
The data in issue was essentially comprised of records (or reports) made by police officers overtly policing demonstrations of a group known as “Smash EDO”, which carried out a long-running campaign calling for the closure of a US owned arms company carrying on a lawful business in the United Kingdom. Disorder and criminality had been a feature of a number of the protests along with harassment of the company’s staff. The defendant authority had retained data relating to the claimant’s attendance at various political protests on the National Domestic Extremism Database, and maintained by the National Public Order Intelligence Unit.
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9 May 2012 by Rosalind English
The late US law Professor Paul Miller reflected recently that Beethoven, Stephen Hawking and Elton John were examples of individuals whom, if they had been tested for serious genetic conditions at the start of their careers, may have been denied employment in the fields in which they later came to excel.
Earlier this month the Association of British Insurers announced the latest extension on the moratorium on the use of genetic test results for insurance purposes. But is this “Concordat” sufficient protection? Genetic technologies are becoming increasingly available and profound questions are arising in relation to life and health insurance and employability as genetic screening becomes cheaper and widespread.
According to the Human Genetics Commission (HGC)
The advent of cheap whole-genome sequencing, and greatly reduced costs for genetic tests in general, will provide the platform for genetic testing to be used for novel and unpredicted purposes. (Report on The Concept of Genetic Discrimination, Aril 2011)
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25 May 2011 by Adam Wagner
Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) (23 May 2011) – Read judgment
The police may have a duty under article 8 of the European Convention on Human Rights (the right to privacy) to inform members of the public that their phone calls have been intercepted.
This was only a judicial review permission hearing, which means that the full “substantive” judicial review will still have to be argued at a later date. In short, the case is the latest in the long-running News of the World phone hacking affair (see this post and this one on Inforrm’s Blog for the latest developments).
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1 February 2011 by Guest Contributor
The Court of Appeal yesterday handed down judgment in the case of JIH v News Group Newspapers Ltd ([2011] EWCA Civ 42). In allowing the appeal against the order of Tugendhat J ([2010] EWHC 2818 (QB)) the Court ordered that the claimant’s anonymity should be restored.
Although the Court stressed that each decision is fact sensitive, this approach seems likely to be followed in most types of privacy injunction cases. This eagerly awaited decision adds to the growing body of case law concerning reporting restrictions where an injunction has been granted to restrain publication of information about a claimant’s private life.
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26 November 2010 by Adam Wagner
HM (Iraq) v The secretary of state for the home department [2010] EWCA Civ 1322 – Read judgment
The Court of Appeal has overruled the Asylum and Immigration Tribunal’s decision to deport a 25-year-old Iraqi citizen who had lived in the UK since he was 12 and had recently been sent to prison for drug dealing, on the basis that it did not think carefully enough about his human rights to private and family life.
The decision – which is unusually concise and easy to follow – highlights the careful balancing exercise which an asylum and immigration tribunal must undertake in order to weigh up whether a person’s human rights to private and family life outweigh the public good of sending them back to their home country. In this case, although HM won his appeal, his case must now be reheard – for a third time – by an asylum tribunal.
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11 October 2010 by Adam Wagner
Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.
Interestingly, two crucial aspects of open justice have been reinforced as a result of a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.
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28 May 2010 by Adam Wagner
General Dental Council v Rimmer [2010] EWHC 1049 (Admin) (15 April 2010) – Read judgment
A dentist has been ordered to hand over his patients’ medical records to a court in order to help his regulator prosecute him for misconduct. The case raises interesting questions of when the courts can override patient confidentiality which would otherwise be protected by the Human Rights Act.
When health professionals are being prosecuted for misconduct,their patients’ confidential records will almost invariably be disclosed to the court if requested, even without the patients’ consent. Some may find this surprising, given the fact that medical records almost invariably contain highly private and potentially embarrassing information which a person would justifiably not want disclosed in a public court. However, the situation is not as simple as it first appears, as demonstrated by the recent case of an allegedly dodgy dentist.
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