Public Interest Litigation Update:

29th April 2016

 

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European Court of Human Rights
  • Investigations into mistaken identity killing not a breach of Article 2 Right to Life
Armani da Silva v the United Kingdom (application no. 5878/08)

The European Court of Human Rights has ruled by thirteen votes to four that the UK government did not breach its procedural obligations under Article 2 of the European Convention on Human Rights, by failing to prosecute any individual involved in the death of Jean Charles de Menezes.  He was shot dead on 22nd July 2005, a few weeks following attacks on the London transport network, because police mistakenly believed him to be a suicide bomber. 

Surveillance officers had been deployed to the apartment block where two suspects were believed to reside.  However, mistakes were made during the course of the operation.  Special Firearms Officers were not deployed on time to intercept anyone leaving the block and the victim was not at any time before his death stopped or positively identified as the suspect.  While the Metropolitan Police were successfully prosecuted and fined under the Health and Safety at Work legislation, the Crown Prosecution Service and Independent Police Complaints Commission concluded that there was insufficient evidence to prosecute the individual officers involved.  There was therefore no breach of the investigative duty under Article 2. 

The majority held that, ‘following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to prosecute.’

Three of the four dissenting judges however held that, ‘If acts of killing in putative self-defence based on an unjustified error are not properly criminalised and punished under domestic law, there is a serious danger that the police may use excessive force with lethal effect.’ 

Read the UK Human Rights Blog article here.


 
  • Use of unchallengable witness evidence not a violation of Article 6
Case of Seton v The United Kingdom (Application no. 55287/10)

The European Court of Human Rights held that the use of telephone recordings as evidence in a criminal trial did not violate the applicant’s rights under Article 6 of the Convention, despite the fact that he had no opportunity to challenge the evidence.

The applicant was on trial for murder and in his defence made a statement that he believed the murder had been carried out by Mr Pearman, who was at the time serving a sentence for drug dealing.  The applicant alleged that they had both been involved in a drug deal with the victim.  Mr Pearman was uncooperative and answered ‘no comment’ when questioned.  He then telephoned his family and stated that he did not know the applicant and had no knowledge of the murder.  The calls were recorded and the defence alleged that Mr Pearman was likely to know this.  The prosecution sought to rely on the recordings to disprove the applicant’s case.

The applicant argued that his right to a fair trial had been violated and specifically the right ‘to examine or have examined witnesses against him’ as set out under Art. 6(3)(d).  The Court, in deciding the matter, considered it necessary to take into account three factors:

1. Whether there were good reasons for the absence of the witness (not in this case);

2. Whether the evidence was sole or decisive (it was not as there was overwhelming evidence against the applicant) and

3. Whether counterbalancing factors existed to allow the evidence to be tested (and this was considered sufficient).

The Court found that the criminal proceedings as a whole had been fair and upheld the verdict.

You can access the article from Human Rights Europe here.


 
  • Denial of right to legal representation does not violate Article 5
Hammerton v. the United Kingdom, Application no. 6287/10

The European Court of Human Rights (ECtHR), by a majority of 4 to 3, has held that detaining an individual following his breach of a contact order, where he had no legal representation did not violate his right to liberty and security of person.

The facts of the case were that the applicant and his wife had divorced.  During contact proceedings concerning their children, his former wife alleged that he had harassed her.  He gave an undertaking that he would not contact her or her parents and the County Court served an injunction which prohibited him from threatening her.  She sought to have him imprisoned for breach of both undertaking and injunction.  The judge, sitting in the Central London Civil Justice Centre, decided to combine the hearings regarding the applicant’s conduct and his request for contact.

He was not represented, was not asked if he would like legal representation and was sentenced to a term of imprisonment.  The Court held that the lack of legal representation did not amount to a ‘gross and obvious irregularity’ and was not considered automatically unlawful.  Nor was it considered arbitrary or a flagrant denial of justice.  Therefore, the majority considered that the detention was justified under Art. 5(1)(a).

The domestic courts had acknowledged that the proceedings violated the applicant’s right to legal assistance under Article 6.  He sought compensation and the ECtHR held that no effective remedy existed in domestic law and that Art. 13 had also been violated.  He was awarded a sum of €8,400.

Read the UK Human Rights Blog article here.


 


Criminal Law
  • 21 year old woman given suspended sentence for inducing abortion with pills
The defendant, who at the age of 19 procured an abortion by purchasing pills on the Internet was given a three months suspended sentence at Belfast Crown Court.  The defendant could not afford to travel to England to obtain a legal termination.  However, she sought advice from a clinic in England about what pills to buy and induced an abortion.

She pleaded guilty to two offences: procuring her own abortion by using a poison, and supplying a poison with intent to procure a miscarriage, contrary to the Offences Against the Person Act 1861.
Judge McFarland spoke of the difference in legislation surrounding abortion in Northern Ireland, compared to other parts of the UK.  Under the Offences Against the Person Act 1861, the maximum penalty is life imprisonment.  He referred also to the potential dangers of taking such drugs which should only be administered under medical supervision.

The conviction and sentence followed a week after the High Court of Northern Ireland declared that the country’s abortion law was incompatible with Article 8 of the European Convention on Human Rights.  Abortion is only permitted in Northern Ireland when a woman’s life is at risk or there is a permanent and serious risk to her mental or physical health.  New guidance on abortion has been published.

You can access Amnesty International Press release here and read BBC News article regarding the publication of new abortion guidelines for Northern Ireland here.

 
 


Historical Investigations
  • Court dismisses challenge to Historical Abuse Inquiry
On 8th April 2016 the High Court dismissed an application for judicial review which challenged the decisions of the Secretary of State for Northern Ireland and the Historical Institutional Abuse Inquiry (HIA).  The applicant, Gary Hoy, was a victim of abuse at the care home.  He sought to bring Kincora Boy’s Home within the remit of a separate Westminster Independent Inquiry into Child Sexual Abuse established by the Home Secretary, from which it was excluded. 

The applicant had filed evidence to the HIA Inquiry which indicated that members of the army and/ or security services may have been complicit in the abuse or had failed to take steps to prevent it.  The Secretary of State was of the view that the HIA Inquiry was the better forum for investigation of allegations about Kincora.  The protection of children was a devolved matter and work had already been commenced by the HIA. 

At the present time, Mr Justice Treacy was of the opinion that the application was ‘premature and misconceived.’  He said that the HIA had pledged to examine whether security and intelligence personnel were responsible for alleged failings at Kincora.  It is also the intention of the Inquiry to collate and make public what had occurred at the care home.  Mr Justice Treacy said that, ‘when it does so the authorities including the court will be in the best position to determine whether the UK Government bears any further obligation that needs to be met in some form.’

Patrick Corrigan from Amnesty International stated that, ‘Nothing less than a full public inquiry – with all the powers of compulsion which that brings – can finally reveal what happened and the role that the security services may have played in the abuse of these vulnerable boys.’

The summary of the judgment is available here.  Read the report from the Solicitors acting on behalf of the applicant here.

 
  • Hillsborough inquest jury rules that fans were unlawfully killed
The inquest jury of the Hillsborough disaster, by a 7-2 majority has determined that football fans who died in a crush at the infamous football match at Hillsborough Stadium, Sheffield on 15th April 1989, were unlawfully killed. 

Ninety-six people were found to have died following the admission of a large number of supporters to the stadium through exit gates.  The commanding officer failed to prevent supporters from entering pens that were already filled to capacity which led to the crush.  The inquest also found failings in the design of the stadium and that both Sheffield Wednesday FC and their engineers contributed to the disaster.  The emergency response of both the police and the ambulance service was deficient. 

The jury were satisfied that match commander Chief Superintendent David Duckenfield owed a duty of care to the ninety-six victims, he was in breach of that duty, the breach caused the deaths and the breach which caused the deaths amounted to gross negligence.

You can read an article from RightsNI here.


 


Health Law
  • No duty of care to family members when diagnosing genetic diseases
Connor Smith and Nicola Claire Louise Smith (as personal representative of the Estate of Callum Smith, deceased) v University of Leicester NHS Trust

The facts of this case were that Neil Caven suffers from Adrenomyeloneuropathy (AMN), a genetic disease.  In 2003 his doctor requested genetic testing which was not carried out.  He was not tested until after his second cousin, Callum Smith was diagnosed in 2006.  Following this diagnosis, Callum’s brother Connor was also tested and diagnosed with the condition.  Mr Caven’s test confirmed that he was a sufferer of the condition and that other family members were ‘at high risk’ of this disorder.  Due to progression of the disease, treatment was no longer beneficial to Callum who died in 2012. 

The applicants alleged that the defendant hospital was in breach of its duty of care by failing to perform tests on Mr Caven which would have led to the testing of the wider family.  This may have improved the outcome for both Callum and Connor as they would have been diagnosed two and a half to three years earlier.

The High Court held that a third party cannot recover damages for a personal injury suffered because of an omission in the treatment of another person.  It held that it would not be fair, just and reasonable on policy grounds to impose a duty of care on the Defendant in respect of those who are not its patients.  The Statement of Case was therefore struck out on the basis that it disclosed no reasonable grounds for bringing the claim.

You can read the UK Human Rights Law blog article here.
 

 
  • The DNA of a deceased person may be tested to prove paternity
Spencer v Anderson (paternity testing) [2016] EWHC 851 (Fam)

On 15th April 2016 the High Court of England and Wales ruled that while there is no statutory power to order DNA testing to establish paternity, it possesses an inherent power to do so in cases where the absence of a remedy would lead to injustice.

The facts were that the applicant sought to determine whether the deceased was his father.  He could do so by testing a DNA sample retained by the hospital.  The deceased had died from bowel cancer and if the applicant was his son, there was a 50% chance that he too would develop the disease.  The risk could be reduced by regular bowel screening by colonoscopy every two years.

The Court ordered that the DNA test should be carried out in this case and qualified its decision on the basis that there was a real possibility that the deceased was the father, the testing would reveal that the applicant would require regular testing for bowel cancer, there was no reason to suppose that consent would have been withheld, the DNA sample was readily available, the hospital did not object and the rights of third parties carried little weight.

The High Court therefore retains an inherent power to make such rulings where there is a void in the legislation regarding these matters.

You can access the UK Human Rights Blog article here.


 


Media Law
  • Social media comments prevent defendants from having a fair trial
Ex parte BBC and others [2016] EWCA Crim 12

The BBC together with nine other media organisations appealed against Mr Justice Globe’s reporting restriction on the trial of two teenage girls accused of murdering Angela Wrightson.

The background to the case was that on 8th December 2014 the body of Angela Wrightson was discovered in her living room by her landlord.  She had been murdered following a sustained and brutal assault.  The following day two teenage girls were arrested and charged with murder and both defendants pleaded not guilty. 

As a result of the crime, over 500 comments had been posted on the facebook links to various newspaper reports of the trial.  They were either threatening to the accused, derisive of their not guilty pleas or dismissive of the court process.  Mr Justice Globe decided that the defendants could not have a fair hearing so he discharged the jury and ordered a retrial for the following year.  He ordered the media to remove the comments, links and to refrain from issuing or forwarding tweets relating to the trial.  In order to comply with the Order the media organisations argued that they would not be able to publish anything at all.

The media organisations appealed and while the Court of Appeal granted the appeal it attached a series of conditions. This meant that the media could report the trial, but could not report it on social media or permit comments from members of the public.  The legal challenge itself could not be reported until the verdicts were returned.

Lord Justice Leveson stated that the case, ‘for the first time, raises the issue of how critical fair trial protections can be extended to prevent or control communications on social media.’

Read BBC News article here.
 
 
  • Court of Protection rules that reporting restrictions can continue after death
V v Associated Newspapers Ltd & Ors [2016] EWCOP 21

The Court of Protection ruled on 25th April 2016 that where a restriction on publication of information about proceedings was in place during a person’s lifetime, the court has a duty to consider whether this restriction should remain following that person’s death.

The background to the case was that a C, a woman in her 50s had refused dialysis after suffering from kidney failure due to a failed suicide attempt.  A year earlier, the Court of Protection had ruled that an adult patient who suffered from no mental incapacity had a right to choose whether to consent to medical treatment.  There was significant media interest in the case, in particular concerning C’s sexual and relationship history and a court order had been issued which restricted reporting of the case. 

In the current case, the judge ruled that this restriction should continue, even after C had passed away.  The Article 8 rights of the deceased’s family were engaged and her two daughters were distressed by the proceedings and extensive media interest. 

Mr Justice Charles stated that, ‘fair and accurate reporting is vital if the public interest is to be promoted and I acknowledge that whether something is fair involves a value judgment and does not equate to it being balanced.’

While Article 10, which protects the freedom of the press was also relevant, the matters were private in nature and court could not act in a way that was incompatible with the Convention rights of the deceased’s family.

Read UK Human Rights Law Blog article here.

 


Employment Law
  • Former prisoner judicially reviews dismissal decision
The High Court is hearing a judicial review regarding a groundskeeper who was declared unsuitable for a job he carried out for 18 years following his release from prison.

The applicant was a former political prisoner who was released in 1987 after serving eleven and a half years for a murder he committed at the age of 16.  Following his release he secured employment as a groundskeeper in Belfast.  However, due to a technical change in the organisation’s contractual relationship with the civil service he was required to undergo security vetting.  Checks were carried out by Access NI and as a result of these checks, the DFP decided in December 2014 that the applicant was unsuitable for the role.

The judicial review centres on an alleged failure to continue to apply guidance for employers on recruiting staff with conflict-related convictions.  His barrister argued that the guidance was adopted by the Office of the First Minister and deputy First Minister (OFMdFM) and the issue should have been brought to the Executive given that it was significant, controversial and cut across departments. 

The hearing continues.

You may read the Belfast Telegraph news article here.


 

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 caroline@pilsni.org to request an application form.
 

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