Public Interest Litigation Update:

30th June 2014

 

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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Medical Law

In the application of David Tracey (personally and on behalf of the estate of Janet Tracey (deceased) –v- Cambridge University Hospital NHS Foundation Trust and others (2014) EWCA Civ 822
 
Janet Tracey was diagnosed with terminal lung cancer in February 2011.  Later that month she was taken to Addenbrooke hospital with a neck fracture sustained in a car accident.  She died in the hospital on 7th March 2011 after two ‘Do Not Resuscitate’ (DNR) orders were placed on her medical records without consultation. 
 
On 17th June the Court of Appeal of England and Wales handed down its judgment in the case.  In placing the DNR orders on Mrs Tracey without informing or consulting her, the Court held that the doctors acted unlawfully and in breach of her right to have her physical integrity and autonomy protected under Article 8 ECHR.
 
The judgment means that all NHS Trusts have a legal duty to consult with and inform patients if such an order is to be placed on medical records.
 
Click here to read an article by Leigh Day solicitors who acted for Mrs Tracey’s husband.  An article by the UK Human Rights Blog can be accessed here.
  • Assisted suicide
R (on the application of Nicklinson and another) (Appellants) –v- Ministry of Justice (Respondent) 2014 UKSC 38
 
On 25th June the Supreme Court delivered its judgment on three legal challenges on the law relating to assisted suicide.
 
The legal challenges were brought by Paul Lamb, who is paralysed as a result of a car accident and Jane Nicklinson, the widow of the right-to-die campaigner Tony Nicklinson.  They wanted the Court to make a declaration that the current law prohibiting doctors from helping to end of the lives of patients is incompatible with human rights legislation.  Another claimant, knows as AM, challenged the Director of Public Prosecutions’ (DPP) policy on assisted suicide which he claimed needed revised and clarified. 
 
The nine judges were divided on whether the current prohibition on assisted suicide is incompatible with Article 8 ECHR rights.  However, a majority of the Justices ruled that the Court could in theory declare the ban incompatible unless Parliament acts to reform it.
 
Similarly, the Court refrained from ordering the DPP to clarify the 2010 prosecuting policy on assisted suicide.  However,  it is clear that she is expected to look again at her policy.  In relation to this issue, Lord Neuberger, President of the Supreme Court stated:
“If the DPP’s policy does not mean what she intends it to mean, and this has been made clear in open court, then it is her duty…to ensure that the confusion is resolved.”
  
For further commentary, click here to read an article by barristers at Doughty Street Chambers, or for coverage from The Guardian click here.
Miscarriages of Justice

With the death of Gerry Conlon, a member of the Guildford Four, on 22nd June, it is apt to reflect upon recent miscarriages of justice cases. The MoJ has refused to pay compensation to Victor Nealon, who was wrongly imprisoned for 17 years before being freed on appeal.
Victor Nealon, originally from Dublin, was convicted of the attempted rape of a woman outside a night club in Redditch, Worcestershire in 2007.  The alleged attacker was described as having a strong Scottish accent and a lump on his forehead.  Mr Nealon had neither and, despite having an alibi, he was convicted and sentenced to life imprisonment.  He was not paroled as he consistently maintained his innocence. 

On 13th December last year, the Court of Appeal heard DNA material found on the then 22-year-old victim's blouse belonged to an "unknown male" and called into doubt the jury's original guilty verdict.  His conviction was declared unsafe and he was freed within hours.  He was given £46 and a train ticket to Shrewsbury on leaving prison.   

However, Mr Nealon’s application for compensation has been refused by the MoJ   The MoJ said the owner of the DNA could not be identified, and added it could not be established that it "undoubtedly belonged to the attacker".

Mr Nealon’s solicitor has stated that his client will seek a judicial review of the decision.  Read an article by The Justice Gap here.
Belfast man, Frank Newell, was sentenced to four years in prison for a robbery in Lisburn in August 1973.  He always maintained his innocence insisting the car was hijacked by thieves linked to loyalist paramilitaries.

On 16th June, before the Northern Irish Court of Appeal, his lawyers argued that police and the prosecution failed to disclose three categories of information during the non-jury trial.    They pointed to evidence which showed high-ranking police officers believed Mr Newell was innocent. 
The Court allowed the appeal with one of the three panel judges stating         
‘It does appear that there are periods when there was a disconnect between the investigative criminal justice branch of the police and the intelligence side of the police.’

Congratulations to our stakeholder, the Committee on the Administration of Justice, who acted for Mr Newell.

International Human Rights Law
  • Hospital’s disposal of still-born child as clinical waste was unlawful
Maric v Croatia ECHR 168 (2014)
On 7th August 2003 a Croatian national gave birth to a still-born child at a public hospital in Split, Croatia.  The parents did not want to take the child’s remains, leaving the hospital to carry out an autopsy, and burial.  After the autopsy was carried out the hospital disposed of the child’s remains with their clinical waste. 

The parents subsequently tried to find out about their child’s burial without success.  They issued civil proceedings against the hospital.  The Split County Court, and subsequently the Supreme Court of Croatia, found that, under domestic law, the hospital should not have disposed of the child’s remains as clinical waste.  The Court refused compensation as no provision of the law obliged the hospital to inform parents where their still-born child was buried.

On 12th June the European Court of Human Rights (ECtHR) found that the hospital had violated Article 8 ECHR, the right to family and private life.   As the Croatian government had not cited any legislation that endorsed the method of disposal the ECtHR found that it was unlawful and awarded damages of €12,300.

To read further commentary from the Public Interest Law Alliance (PILA) please click here.

 
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Criminal Law
  • Court of Appeal overturns attempt to hold terrorism trial entirely in secret
Guardian News and Media Ltd v AB and CD 2014/02393C1
The Crown Prosecution Service’s (CPS) unprecedented attempt to hold a criminal trial wholly in secret has been overturned by the Court of Appeal on 12th June.

Erol Incedal and Mounir Rarmoul-Bouhadjar who, prior to the ruling were known as ‘AB’ and ‘CD’, have pleaded not guilty to terrorist charges.  The CPS argued that their application for trial secrecy was necessary in the interests of national security. 

The Court ruled that some parts of the trial will be heard in secret because the trial of the two men was of an exceptional nature.  However, the media and public will be able to attend the swearing in of the jury, parts of the prosecution’s introductory remarks, the verdicts and, if there are convictions, the sentencing.   

One of the three panel judges stated ‘Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system…Exceptions are rare and must be justified on the facts…No more than the minimum departure from open justice will be countenanced.’

For commentary from the UK Criminal Rights Blog click here.

Criminal Records Certificates
  • Supreme Court affirms the need for filtering of old and minor convictions
R (on the application of T and another) v Secretary of State for the Home Department and another (2014) UKSC 35
On 18th June the Supreme Court upheld an earlier ruling by the Court of Appeal that certain past minor cautions and convictions should not be disclosed in criminal records checks.

The case involved two job applicants.  One had to disclose two police cautions he had received at the age of 11 in connection with two stolen bikes when he applied for a part-time job in a football club and when he enrolled in an university course.  The other, who was cautioned as an adult for theft of a packet of false fingernails, had to reveal the caution eight years later when she applied for a job in a care home.  Both were refused the jobs because of the cautions. 

Last year the Court of Appeal ruled that the blanket disclosure of all cautions and convictions could breach the right to a private and family life.  This led to the government introducing a system to filter out certain single minor convictions and cautions.  However, the government pursued the appeal stating that the ‘protection of children and vulnerable groups must not be compromised.’ 

This ruling by the Supreme Court effectively rubber stamps the need for such a filtering system.  To read further commentary from the charity, Unlock, please click here.
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Local Developments The Moorland and Owenvarragh Residents Association (MORA) have issued judicial review proceedings over the Department of the Environment’s decision to approve a 38,000-seater GAA stadium at Casement Park.

Leave was granted to seek a judicial review on 23rd May and, on 18th June, a Protective Costs Order (PCO), limiting potential liability for opposition fees to £10,000, was also granted to the residents group.

The PCO is extremely important considering that the group, who are not able to access legal aid, has self-financed the challenge.  The vice-chairman of the residents group said:
‘A decision not to grant a PCO would have been ruinous; we simply can’t afford to pay the costs and this has allowed us to progress the case.’

Interesting the Court also agreed to limit the Department of the Environment’s costs to £35,000 in the event that they lose the action. 

For more information on the reasons for the challenge, and the grounds for judicial review, please visit MORA’s Facebook page here

On this subject please note that the PILS Project is hosting a roundtable discussion on PCOs on Friday 19th September.  Further details will follow.
Parents of children of Newtownbreda High School are challenging John O’Dowd’s planned amalgamation of their school and Knockbreda High School.  The intention is to close both schools and create a new one. 
On 28th May, at a hearing requesting permission to bring a judicial review action, lawyers for the parents argued that children’s education will suffer if the plans go ahead.  One parent involved in the challenge is mother to a dyslexic girl who fears her educational progress may be jeopardised by the move.  Lawyers for the parents also argued that the Minister for Education took the decision without proper reasoning and consultation.
The Court granted the application for leave to bring judicial review and the case was heard in full on 24th and 25th June.  Judgment is pending.  To read coverage from the Belfast Telegraph please click here.
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Pro Bono

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 join the register and find out more about opportunities to do pro bono work, please email development@pilsni.org to request an application form.
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