Public Interest Litigation Update:

05th June 2013


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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  • Nicklinson Right To Die Cases
In a follow-up to a case previously covered by the PILS Update, two severely disabled men and Tony Nicklinson’s widow have taken their cases on assisted suicide to the Court of Appeal of England and Wales. All three appellants want health professionals to be legally protected if they assist people who wish to end their own lives. Mr Nicklinson, now deceased, lost his High Court case to be able to legally end his own life with the help of a doctor after suffering from locked-in syndrome for a number of years. In that instance, the court said that the issue was one for parliament to decide. Nicklinson’s widow is now continuing the case by appealing the court’s decision, alongside two other severely disabled men, one of whom, Martin, also suffers from locked-in syndrome. The second man, Paul Lamb has only slight movement in one hand. At the beginning of the appeal hearing the court said "We are acutely aware of the desperate situation in which the appellants find themselves and we are very sympathetic. But we know, and they surely know, that we cannot decide this case as a matter of personal sympathy. We have to decide it as a point of law."  The appeal case began mid-May 2013 and was expected to go on for several days.
  • Marie Fleming Right To Die Case (Roi)
A terminally ill Irish woman has lost the latest legal challenge in her case to win the right to take her own life with the assistance of her partner. The woman lost her case in January 2013 and launched an appeal which was rejected by the Irish Supreme Court in April 2013. The court said that although the Irish constitution guarantees a right to life, there is no corresponding right to die with the assistance of another person. Assisted suicide in the Republic of Ireland can lead to a prison sentence of up to 14 years for the person who assists. The woman, Marie Fleming, suffers from Multiple Sclerosis and can only mover her head, is unable to swallow and is in constant pain. On 29th May 2013 it was reported that the Irish Prime Minister Enda Kenny has recently rejected a plea by Ms Fleming’s family to change the law on assisted suicide in Ireland.
  • Swiss Law Unclear On Assisted Suicide
Gross v Switzerland (application no. 67810/10) [2013] ECHR 429
The European Court of Human Rights has said that Swiss law is ‘not clear enough’ as to when assisted suicide is permitted. In its judgment the Court said that there had been a violation of Article 8 of the ECHR in the case concerning the complaint of an elderly woman wishing to end her life, but who does not suffer from a clinical illness. Her complaint was based on the fact that she was unable to obtain permission from the Swiss authorities to receive a lethal dose of a drug by injection. The court said that although Swiss law provides for the possibility of obtaining such an injection, it is not sufficiently clear on the extent of this right. The court did not take a stance on whether the woman should have been granted the possibility to obtain the medication she had requested in order to end her life. This decision by the Court is not final.
  •  Axel Desmond Stillbirth Inquest
Attorney General’s Application [2013] NIQB 52
The NI High Court has dismissed a challenge by Attorney General John Larkin against a decision by the senior coroner not to hold an inquest into the death of Axel Desmond, who was stillborn, in 2001. Inquests are not currently held into stillbirths anywhere in the United Kingdom or Ireland. In the judgement issued on May 8, the court said that the ramifications of allowing inquests to take place into stillbirths would reverberate widely and would have implications in other areas like abortion, stem cell research, IVF and cloning. The child died at Altnagelvin Hospital in 2001, and had been alive with a heartbeat until his mother was put under anaesthetic for a caesarean section. The court said that, despite persuasive evidence on both sides, there were serious policy issues to be considered such as the nature of personhood, whether it is possible to die before one is born, and whether there is a legal difference between life within and outside of the womb. The Attorney General is pursuing an appeal against this decision.

Rights of Offenders
  • Cross Gender Searches In Prisons Found Not Unlawful
The Queen (on the Application of James Dowsett) v Secretary of State for Justice [2013] EWHC 687 (Admin)
The High Court of England and Wales has found that a policy allowing cross-gender searches in the case of male prisoners does not discriminate against male prisoners on grounds of sex. The policy of the Secretary of State under section 47(1) of the Prison Act 1952 allows rub-down searches to be conducted by females on male prisoners, and does not permit a male prisoner to normally object to such searches (except on religious or cultural grounds). The policy for female prisoners is that they can only be searched by female staff. The claimant in this case complained that the limited grounds for exception from the policy, based on ‘cultural’ objections, should be extended to cover cases where male prisoners had a genuine and sincere objection that cross-gender searching would cause discomfort or distress. It was found that there was no breach of the claimant’s Articles 8 or 14 under the ECHR. A more detailed analysis of the case can be found here at the UK Human Rights Blog.
  •  Prisoner Must Get Effective Legal Aid
Raymond Brownlee’s Application [2013] NIQB 47
The NI High Court has found that the Department of Justice must provide effective legal aid to a convicted prisoner. The man, Raymond Brownlee, was unable to find a barrister to act for the fixed fees available to him, as lawyers cited the complexity and gravity of the case compared with the small fee on offer. He sought new Counsel for his sentencing hearing following a breakdown in the relationship with his defence team.  The court said that the amended rules for fees in serious criminal cases, introduced in 2011, were inflexible and lacked provision for exceptional circumstances. The court also pointed out that it was unlawful for a public authority to act in a way that was incompatible with Mr Brownlee’s right to a fair trial, and that he must be properly represented at his sentencing hearing. The Department of Justice are to appeal the decision.
  •  Operation Exposure Not A Contravention Of Rights
In the Matter of an application by JR38 for Judicial Review [2013] NIQB 44
The High Court of Northern Ireland has found that publication in local newspapers of photographs of young people suspected of rioting in 2010 was necessary for the administration of justice and was not a ‘name and shame’ policy. In 2009, in order to identify those involved in rioting in Derry/Londonderry, the police used CCTV images and engaged the community in identifying some of the young people by publishing the images in local newspapers, in what was called ‘Operation Exposure’. One of the young people, the applicant, who was aged 12 at the time, applied for judicial review of the decision by the PSNI to release the images to the media and in a leaflet in 2010. It was claimed that the publication was a breach of his Article 8 rights under the ECHR, denied him the right to be presumed innocent and that publication was not for the prevention of disorder or crime or for the protection of rights and freedoms of others. The court said that although the publication of the photographs could engage the Article 8 ECHR, in this case the publication was necessary for the administration of justice and was not excessive in the circumstances. A summary of the judgment can be found here.
  •  Challenge To Treatment Of Detained 17 Year Olds Won By Teenager
The High Court of England and Wales ruled in April 2013 that the policy of treating 17 year-olds in police custody as adults, was ‘incompatible’ with human rights law. The case was brought by a then 17-year-old boy who had been kept in police custody for 12 hours and strip searched before being released on bail. The boy’s family was not told of his whereabouts for a number of hours and he was not offered the help of an appropriate adult.  In the ruling, the court said that treating 17 year-olds as adults when in detention was inconsistent with the Article 8 ECHR rights of the applicant and his mother. It was also said that such treatment of a 17 year-old as an adult ‘disregards the definition’ of a child in the UN Convention on the Rights of the Child. A number of charities had pushed for this reform of the codes of practice under the Police and Criminal Evidence Act (PACE) 1984, including ‘Just for Kids Law’ and the Howard League. The concern now is how the new protection will be implemented to protect 17 year-olds from now on.

Freedom of Thought, Conscience and Religion
  • Catholic Midwives Win Appeal On Abortion Case
Doogan and Wood v NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36
Two Catholic midwives from Glasgow have won their appeal in the Scottish Inner House of the Court of Session (Scottish civil court of appeal), meaning they are lawfully able to avoid taking any part in abortion procedures. In the first hearing in February 2013, the Court of Session in Edinburgh found that the women’s human rights had not been violated as they were not directly involved in terminations. However the court has now said on appeal that the women can refuse to delegate to, supervise or support staff involved in abortions on their labour ward on grounds of conscientious objection. This conscientious objection is recognised in the 1967 Abortion Act and this judgment makes it clear that the provision in section 4 of the Act has very broad scope.The judgment will affect England and Wales as well as Scotland, but will not affect Northern Ireland.

  • French Parliament Approves Law Allowing Same-Sex Marriage
In April 2013, France became the 14th country to approve the law allowing marriage between same-sex couples. The bill has also legalised adoption by same-sex couples. It follows a divisive public debate and the largest conservative and right wing street protests in 30 years, which took place outside the National Assembly building in Paris on the day the legislation was passed. The bill was passed with 331 votes for it and 225 votes against after 172 hours of debate within the Assembly and the Senate. On 28th May 2013, Vincent Austin and Bruno Boileau became France’s first same-sex couple to marry, during a ceremony in Montpellier. The marriage took place amid demonstrations and tight security.

  • Rights In Progress
Law Centre (NI) invites you to the launch of the fourth edition of Rights in Progress: A guide to the European Convention on Human Rights and the Human Rights Act
Speakers: Professor Michael O’Flaherty: Northern Ireland Human Rights Commission and Les Allamby: Director, Law Centre (NI)
Venue: The Barge, 1 Lanyon Quay, Belfast BT1 3LG
Date: Friday 14 June 11:00 am to 12:30 pm
Tea and coffee upon arrival
RSVP to: by 12 June 2013
Directions: The Barge is permanently moored on the River Lagan, behind the Waterfront Hall
Parking: Nearest car park is the Hilton car park or you can use the multi-storey Donegall Quay car park

Pro Bono
  • 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 join the register and find out more about opportunities to do pro bono work, please email to request an application form.
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