Public Interest Litigation Update:

29th October 2012

 

Welcome to the PILS Project's Public Interest Litigation Update. The Update provides you with information on current public interest cases, judgments, news and events.
 
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Health
  • Man with Locked-in Syndrome Appeals for Right to Assisted Death
A man suffering from locked-in syndrome, who identifies himself as ‘Martin,’ is to take his case on the right to die to the Court of Appeal of England and Wales with the assistance of medical professionals. Martin, whose original case was rejected by the High Court, wishes to be able to go to Dignitas in Switzerland where he could legally end his life. Martin would need assistance to do this, and so his lawyers have asked the court to rule that professionals such as lawyers, doctors and carers would be allowed to help him take these steps. In the 2009 case of (Purdy) v DPP [2009] UKHL 45, the court decided that a family member would be unlikely to face prosecution for helping a woman travel to Dignitas. However, the court decided in Martin’s previous case that this unlikelihood does not necessarily extend to paid professionals. Martin’s lawyers therefore want to argue on appeal that the lower court was wrong. One option given to Martin is that if he were to refuse food and drink, he could legally be given pain relief and sedatives by doctors.
 
On a similar theme, a High Court has agreed to a hospital trust’s request to withhold lifesaving treatment from a brain damaged Muslim man if his condition deteriorates. The court said that it would be lawful to withhold the treatment as it would not prolong life ‘in any meaningful way’ although the man’s family had argued that their Muslim faith requires that everything possible be done to prolong life. The court did not grant permission to the family to appeal the decision, although they may ask the Court of Appeal to intervene.

  • Mother Challenges Virgin Care Takeover of Mental Health Service

http://www.gponline.com/News/article/1153725/Judicial-review-launched-45m-Virgin-takeover-childrens-services-Devon/

A mother whose children receive treatment for mental health problems has challenged the planned takeover by Virgin Care of children’s health and social care services in Devon. The woman argued that the council and NHS trust failed to comply with equalities legislation and their own equality policy, including by not conducting an equality impact assessment.

The High Court ruled earlier this month that the takeover was unlawful, but permitted the deal to go ahead as a delay would be detrimental to the wellbeing of children in Devon relying on the services. The court said that the woman had failed to demonstrate how she or her children would suffer under the new arrangement, but said that the deal was unlawful because the impact on the children who use the service was not properly assessed. More than 4,000 children will be affected by the change which was confirmed last month and which will take place from 1 April 2013.
  • Call for Investigation into Marie Stopes Abortion Clinic in Belfast
The Northern Ireland Attorney General has called for an investigation into the newly opened Marie Stopes abortion clinic in Belfast. The clinic will provide pregnancy terminations within Northern Ireland’s current legal framework under which abortions are very strictly controlled. The Marie Stopes clinic has said it will carry out medical procedures only up to 9 weeks gestation and within the existing legal framework in NI. The centre has been protested against by members of religious denominations and pro-life groups. The Attorney General has written to the Stormont Justice Committee inviting them to investigate the practices of the facility.
  • Judicial Review Granted for Alcohol Price Increase in Scotland

Opinion of Lord Hodge in the Petition by Alcohol Focus Scotland to intervene in the Judicial Review application by the Scotch Whisky Association

Drinks manufacturers in Scotland will attempt to block the introduction of minimum pricing of 50p per unit. The Scotch Whisky Association is leading the opposition to the Alcohol (Minimum Pricing) (Scotland) Act 2012 which was passed on 24 May this year. If successful, the legal action could also prevent the introduction of minimum unit pricing in England. The legislation introduced by the Scottish government will lead to an increase in the price of cheap supermarket spirits. Alcohol Focus Scotland, a campaigning charity, has been given permission by the court to support the Scottish government in defending the legislation. They have proposed that the unit pricing will have a positive impact and have drawn attention to the risks associated with alcohol consumption. It is thought that this is the first time that a charity has been given permission for a third party intervention in the Scottish courts. The Court of Session granted an order to the charity that each party to the intervention will bear its own costs under its power under Rule 58.8A(7)  of  the Rules of the Court of Session.  The judicial review is taking place in Edinburgh this week and is expected to last 6 days. It is anticipated that the losing side will proceed to take its case to the Supreme Court. The drinks manufacturers have also lodged a complaint with the European Commission.

BBC News report on this story
Prisoners' Rights
  • Indeterminate Sentences Declared Unlawful by Strasbourg Court
James, Wells and Lee v the United Kingdom (application nos. 25119/09, 57715/09 and 57877/09)
 
http://www.guardian.co.uk/law/2012/sep/18/prisoners-indeterminate-sentences-ipps
 
http://www.bbc.co.uk/news/uk-wales-19710280
 
The European Court of Human rights has declared that open-ended sentences being served in England and Wales are “arbitrary and unlawful”. Indeterminate sentences were introduced on the basis that rehabilitation would be made available to the prisoners concerned. However, the court found that the three prisoners who brought the case “had no realistic chance” of accessing the rehabilitation courses that they needed to qualify for release. The court awarded up to £6,500 compensation to the three men who had been held up to two years and ten months longer than the recommended minimum sentence imposed by their trial judge. The court held that many prisoners without release dates, particularly those with learning difficulties or mental health issues, would have no realistic chance of attending and passing rehabilitation courses to prove that they could be released back into society.

  • Prisoners to Challenge Whole Life Sentences

Five convicted criminals will have their case heard at the Court of Appeal in London. Four of the men were given whole life sentences, meaning they would spend the rest of their lives in prison. Some observers are treating the appeals as a test of the whole life sentencing scheme in the UK. The five appeals come ahead of separate cases also being heard at the ECHR in Strasbourg where the court ruled in January that the whole life sentence given to three men did not amount to inhuman and degrading punishment. However, this decision will now be tested at the Grand Chamber of the European Court of Human Rights in Strasbourg after a right of appeal was granted to the prisoners. The hearing is scheduled for 28 November this year.


Criminal Law
  • London Bomb Plotters Launch Appeal Over Flawed Evidence
Four men convicted for the July 2005 bomb plot claim evidence was unreliable and have launched an appeal to have their sentences quashed. The bombs failed to detonate and the defence used by the men was that it was an elaborate hoax intended as a protest. The bombs allegedly contained substances that would ensure no harm was caused. A former government scientist believes that the forensic evidence used to convict the men was flawed. Lawyers for the men claim that concerns about the evidence should have been disclosed to the Court and it is argued that failure to do so was an abuse of process. It will be up to the Court of Appeal and Criminal Cases Review Commission whether or not to grant leave to the men to challenge their convictions. The first application to appeal the convictions was refused and can be accessed here.
  • Two Men Convicted of Possession of Paracetamol in Legal First
 Two men have been found guilty of possessing 150kg of ground paracetamol and caffeine, despite neither of the substances being illegal. Police believed that they would be used to give heroin a higher street value of £5m. The men were charged with importing a quantity of caffeine and paracetamol that was ‘capable of encouraging or assisting… the supply of a controlled Class A drug’. Police on the case said that this was the first time in the UK that a successful prosecution was made when the drug was not itself an illegal substance. The case has set a precedent for this type of offence in the future. The men were sentenced on 19th October to 8 years imprisonment.


Property Law
  • US Court of Appeal Rules Individuals Can Claim Ownership of Human Genes
Association for Molecular Pathology and others v the Patent Office and Myriad Genetics
The Federal Appeals Court ruled in a 2 – 1 decision to uphold the validity of human gene patents related to breast and ovarian cancer. The court found that biotechnology company Myriad was entitled to its patents on the genes because they represented a “non-naturally occurring composition of matter”. Myriad’s patents on genes linked to inherited breast and ovarian cancer mean that the company has exclusive rights on a particular kind of testing that can help identify hereditary risk of the cancers and may assist patients in deciding whether to undergo preventative surgery. The challenge to the patents was brought by the US Council for Civil Liberties, who claimed they had been unable to obtain access to the testing procedures because of the control by Myriad. They argued that the patented genes are “products of nature” which are ineligible for patent. However the Federal Appeals Court ruled that the DNA products in question are not found in nature and are man-made, the product of human ingenuity. This decision has been welcomed by biotech and drug companies and condemned by patient groups and medical organisations.
  • New Anti-Squatting Law Leads to Conviction and Potential Legal Challenge
A young man has been jailed for 12 weeks for squatting, under a new criminal law which came into force on 1st September of this year in England and Wales. The maximum penalty for the crime is 6 months in prison, a £5,000 fine, or both. The man moved to London from Plymouth seeking work and better opportunities, and had been squatting at the housing association property for two months. A spokesperson from the Ministry of Justice has said that "It is extremely encouraging that the new criminal offence of squatting in a residential building…is enabling the police and other agencies to take quick and decisive action to protect homeowners against squatting." There has been a backlash from members of the legal profession towards the new law, which has been called “unnecessary” and “headline grabbing” and criticised for its potential to harm vulnerable people.
 
In relation to the new legislation, a woman in Wales is preparing to challenge the law which could result in her being jailed and removed from the house she has lived in for 11 years. The mother of four seeks assurances that she will not be evicted from the cottage that she has been living in with her children, and will rely on her Article 8 rights under the European convention on human Rights which protects her right to a private and family life.



LGBT
  • ECHR Rules on Homosexuality, Discrimination and Imprisonment
X v Turkey (application no. 24626/09) [judgement available in French only]
 
The European Court of Human Rights has for the first time in its history found a violation of Article 3 of The Convention in relation to a complaint of sexual orientation discrimination. The case concerned a young homosexual man convicted of various fraud offences who was placed in a single, small, dirty cell with rats, segregated and permitted no contact with other prisoners. This occurred after he complained about intimidation and harassment by other inmates relating to his sexual orientation, and requested a move to a cell with other homosexual prisoners. The man argued that his solitary confinement led to a deterioration of his mental and physical health. The Court found that the conditions in solitary confinement had seriously impacted upon his mental and physical health and amounted to “inhuman and degrading treatment” under Article 3 ECHR. The court also said that the treatment suffered by the man, being based solely on his sexual orientation, was discrimination under Article 14 of the ECHR.

  • Gay Couple Win B&B Refusal Case
Black & Morgan v. Wilkinson (unreported, 18 October 2012, Slough County Court)
 
Post on UK Human Rights Blog concerning this case
 
Court rules that a gay couple who were turned away from a Berkshire B&B have been discriminated against. The couple had booked a room at the B&B but were refused lodgings when they arrived for their stay in March 2010. The court found that by refusing the couple access to a room, the B&B owner had "treated them less favourably than she would treat unmarried heterosexual couples in the same circumstances". The men were awarded £1,800 each in compensation at Slough County Court. Susanne Wilkinson, who owns the B&B has been given permission to appeal the decision and says she will seriously consider doing so. James Welch, from civil rights group Liberty which took up the men's case, said: "It is simply unacceptable for people running a business to refuse to provide a service because of someone's sexual orientation." The decision in this case comes as the similar case of Peter and Hazelmary Bull awaits a Supreme Court hearing, which will likely take place in late 2013 or early 2014.

  • Court Says Unmarried Couples May Adopt in Northern Ireland
The Northern Ireland Human Rights Commission’s Application [2012] NIQB 77

Summary of judgment

The High Court has said that unmarried and same-sex couples in Northern Ireland should be allowed to adopt children, declaring the Adoption Order NI 1987 and Adoption Order (N.I) 1997 incompatible with the European Convention on Human Rights. The rest of the UK currently permits unmarried and same-sex couples to adopt children, while the law in Northern Ireland allows single men and women, regardless of their sexual orientation, and married couples to apply for adoption. However, unmarried couples and those in civil partnerships are ineligible to be considered for adoption in NI. This case was brought by the NI  Human Rights Commission   under Article 8 (right to private and family life) and Article 14 (right not to be discriminated against) of  the  Convention. Northern Ireland's Chief Commissioner for Human Rights, Michael O'Flaherty, said the successful lawsuit "sought to protect the best interests of the child. Given the high numbers of children in care, who need a family in Northern Ireland, the importance of this case in widening the pool of prospective parents cannot be overstated."

Health Minister Edwin Poots plans to appeal the ruling.



Immigration & Asylum
  • The Detention of Mentally Ill Asylum Seekers
R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin)
 
The High court has said that the detention of a mentally ill failed asylum seeker was unlawful. The man had applied for asylum, had his application refused and was detained in October 2012 for the purposes of removal. At this time the man suffered from depression and post-traumatic stress disorder. During detention the man’s mental health deteriorated and he was released in March 2011. The Secretary of State for the Home Department cancelled the removal of the man and he was granted discretionary leave to remain in the UK. The Court considered whether the detention of the man between 26 October 2012 and 28 December 2012 was lawful, and found that the Defendant had acted unlawfully in failing to consider whether the man should still be detained even though he was mentally ill.


Forced Labour
  • Strasbourg Finds Violation by France of Article 4 ECHR (Prohibition Of Slavery And Forced Labour)
 CV and N v France (application no 67724/09)
 
The European Court of Human Rights has found a violation of Article 4 ECHR because of France’s failure to put in place effective legislation to outlaw servitude and forced labour. In the case of CN and V, two young girls were held in servitude and forced to do domestic chores by their aunt and uncle. The two girls, orphans, were aged 10 and 16. The court said that CN in particular had been subjected to forced labour which would have been described as work if it were performed by a remunerated professional. The girls had been kept in the basement at their aunt and uncle’s house, in unhygienic conditions and were excluded from family meals and subjected to verbal and physical harassment. The court looked at the issue of France’s obligations under Article 4 ECHR and said that the relevant criminal law had not provided adequate and effective protection to the girls.

Education
  • New law grants anonymity to teachers accused of an offence
The Education Act 2011 section 13 came into force on 1st October this year, and will grant automatic anonymity  to teachers accused of activity amounting to a criminal  offence. The section is intended to address the damage that can be caused by false allegations, for example assaulting a pupil, which can seriously impact on the lives and careers of teachers. This law means that teachers are the first group in UK history who will be granted such anonymity. The Guardian reports further on this story here.


Family Law
  • Sexual Abuse Allegations against Parent Must be Disclosed During Contact Proceedings
Re J (A Child: Disclosure)[2012] EWCA Civ 1204
 
The Court of Appeal in England and Wales has ordered the disclosure during contact proceedings of allegations made against a parent by an anonymous third party. Contact arrangements between a ten year old girl and her father were disrupted when the girl’s mother was informed by the local authority that another anonymous young person had made serious and credible allegations of childhood sexual abuse against the girl’s father. The mother was not given any further details on the substance of the allegations or the accuser’s identity, but she was warned not to consent to unsupervised contact. A dispute arose as to whether the local authority should be required to disclose to all parties involved the details of such allegations. The court of appeal noted the Article 6, 8 and 3 rights of the child and both parents under the ECHR and said that during contact proceedings, all parties must be made aware of allegations of sexual abuse made against one of the parents, including the identity of the accuser and the substance of the allegations.


Legal Aid
  • Roger Smith of JUSTICE Speaks on Cuts to Legal Aid
Roger Smith, who sits on the PILS Project board, gave the Tom Sargant JUSTICE annual lecture on Tuesday 16th October. Roger speaks about the  Legal Aid  Sentencing and Prevention of Offenders Act  2012 (LASPO) and what needs to be done to make its cuts acceptable, given  that they will affect “about  half a million poor people a year”. It is argued that  “the basic policy goal (for legal aid) surely has to be that anyone in society, rich or  poor, is entitled to expect that any dispute is settled  on its own intrinsic legal merit and not by the extraneous issue  of the  different resources  of the parties”. The lecture calls for a newer and more sustainable model of legal aid, “a legal version of NHS Direct”, and asks for “equal justice under the law”. The full text of the lecture can be accessed here and the Guardian has given an outline of Roger’s argument on their website.

Other Rights Issue

  • Mother of Murder Victim Granted Leave to Judicially Review Rehiring of Retired RUC Officers
Vivienne McCord, whose son was murdered by loyalists has been given permission to challenge the rehiring of retired RUC officers who will assist with investigations into unsolved murders. In the case of the woman’s son it was reported that a number of Special Branch agents were involved in the gang that murdered him in 1997. The same report, by the Police Ombudsman, said that there had been collusion, and RUC rehiring is currently under investigation by the Audit Office. The woman’s lawyers argued in the application for judicial review that it would be wrong to have former RUC officers assist on historical murders while RUC conduct is under investigation. The court said that the case raises issues of some importance and will progress to a one-day hearing in December.
  • Court of Appeal Grants Right to Seek Compensation to Relatives of Soldiers Killed in Iraq
The Court of Appeal has said that families of four men who were killed during the Iraq war may seek compensation from the Ministry of Defence over alleged negligence in failing to provide proper equipment for troops. It was found that the government and armed services have a duty of care to troops on the battlefield as well as in non-combat conditions. The MoD has said that it was under no duty to protect the lives of soldiers in Iraq under the Human Rights Act 1998 as the incidents happened outside the UK and were not on an army base. Lawyers representing the relatives say that the deaths were related to a decision about equipment made in the UK.
 
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Pro Bono News
  • PILS/LSP Joint Seminar
On 17th October, PILS and LSP co-hosted an event to promote involvement in Pro Bono Litigation in Northern Ireland. A seminar took place at the Bar Library, Royal Courts of Justice and was well attended by members of the legal profession.
 
We had two keynote speakers, Rebecca Hilsenrath of LawWorks and Elizabeth Mitrow of Terence Lyons & Co Solicitors, Dublin. Rebecca talked about LawWorks and how the pro bono culture has grown in the UK and Elizabeth spoke of the excellent work done by PILA in the Republic of Ireland. Each spoke of the fact that pro bono work is fundamental to the legal profession, outlining the benefits of taking on pro bono work and ways to overcome the challenges. The session aimed to emphasise the importance of undertaking pro bono work to promote access to justice in NI, and to outline the opportunities for practitioners to do pro bono work in NI.
 
The second half of the seminar was a panel discussion and included presentations by representatives from the NI Lawyers Pro Bono Group, PILS and the LSP. This was followed by a Q&A session and discussion. It is hoped that we will be able to develop and promote a pro bono culture in Northern Ireland. Papers from the speakers can be accessed here.
  • PILS Project Seeks Lawyers….
The PILS Project has a register of legal practitioners who are interested in undertaking pro bono work with the PILS Project.  Opportunities range from writing an initial opinion to involvement in a test case, contributing to publications on public interest cases/issues and delivering training and talks to NGOs and legal practitioners. If you would like to find out more about opportunities to do pro bono work please email caoimhe@pilsni.org.

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