Public Interest Litigation Update:

19th July 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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PILS Project/PILA Joint Conference

On 07th June 2012, PILS and PILA co-hosted an event analysing how international law can be used to safeguard and extend the protection of the rights of vulnerable people. It was well attended by members of the legal and NGO sectors from across the island.

The 3 main speakers were drawn from academic and legal fields. They used their vast experience to demonstrate the attitude adopted by courts in both jurisdictions to arguments based upon international law and treaties.

As well as the main speakers, the conference had question and answer sessions and seminars. The seminars concentrated on how international law can be used to protect human rights as well as how the legal and voluntary sectors can work together more closely to protect the rights of vulnerable people.

The conference benefited the presentations given by the speakers and the contributions from those who attended. It is hoped both lawyers and NGOs can incorporate arguments involving international law to protect human rights here. A more detailed summary of the event and papers from the speakers can be found here
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New Members of PILS Staff

There have been some staff changes here at the PILS Project. Marieanne McKeown, Development Officer, has taken up a post with PILnet in Budapest. Solicitor/Project Manager, Melissa Murray is now on maternity leave.  
 
David Hawkins has been recruited as the Development Officer on a long term basis. He is acting as Solicitor/Project Manager while Melissa is on maternity leave. Caoimhe Deery has been recruited as the temporary Development Officer to support the work of PILS during this period. David’s email address is david@pilsni.organd Caoimhe can be contacted at caoimhe@pilsni.org


Criminal Law
  • First Conviction and Sentence in Northern Irelanf for the Offence of Corporate Manslaughter
R V JMW Farm Ltd [2012] NICC 17
 
The Crown Court in this jurisdiction has handed down its first conviction and sentence for the offence of corporate manslaughter.

The case R v JMW Farm Ltd [2012] NICC 17, related to the circumstances behind events leading to the death of a worker on a farm. This worker was cleaning a large bin located on the forks of a forklift truck. The forklift used to lift the bin off the ground was a replacement for the normal forklift. The forks of this replacement vehicle were not of the correct proportions, meaning the forks did not provide adequate support to the bin and the employee it was holding. The employee fell off the forks and the bin fell on top of him, killing him.
 
The employer pleaded guilty and accepted that it managed or organised its activities in a way that amounted to a gross breach of the duty of care it owed to its employee. Judgment was handed down by His Honour Judge Burgess. In the course of his judgment, he acknowledged the significant assistance he derived from the sentencing guidelines in force in England and Wales relating to this particular field. He sentenced the employer to pay a fine of £200,000 and to pay prosecution costs. Please click here for the judgment in full.

  • Recent Developments in the Extradition of Julian Assange.
Assange v Swedish Prosecution Authority [2012] UKSC 22
 
The extradition of one of the founders of Wikileaks, Julian Assange, is a case that continues to cause controversy and remains far from resolved. The main issues in the case relate to the European Arrest Warrant and the definition of a “judicial authority” entitled to issue such a warrant.
 
The UK Supreme Court has held that the prosecuting authorities in Sweden are “a judicial authority”, and the European Arrest Warrant issued in this case is therefore valid. The Supreme Court has held that Mr Assange ought to be extradited to Sweden to face the criminal allegations against him. This is a case that has attracted significant media and academic coverage. Please click here for coverage in the UK Human Rights blog. A challenge to the decision of the UK Supreme Court by his Senior Counsel, Dinah Rose QC, was rejected by the Supreme Court.
 
Most recently, he has presented himself to the Ecuadorian Embassy in London to make an application for asylum. To date, no decision has been made by the Ecuadorian authorities on this claim. Police have stated they will arrest Mr Assange once he leaves the Embassy on the grounds that he has breached his bail conditions
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LGBT
  • Government Allowing MPs a Free Vote on Plans to Legalise Same Sex Marriages.
The UK Government has re-stated its commitment to pass legislation to legalise same sex marriages. However the Government has attracted criticism from the Liberal Democrat leader Nick Clegg as the Prime Minister has decided to allow Conservative MPs a free vote on the legislation. Several Conservative MPs have declared opposition to the legalisation of same sex marriages. There are concerns on the part of the Anglican and Roman Catholic leaders that legislating in this field will necessarily lead to same sex marriages compulsorily taking place in all churches.
 
However, the quality of the arguments raised by the clergy has been contested by a number of different writers. Please see an article on the UK Human Rights blog.
 
Locally, Belfast City Council recently passed a motion which "supports the same rights and entitlements to civil marriages for all citizens of Belfast regardless of race, religion or sexuality".

  • The Health Minister Confirms Lifelong Ban Preventing Gay Men Giving Blood Will Remain in Force
The Minister for Health, Edwin Poots has recently confirmed that the lifetime ban on gay men giving blood will remain in place. He states he has received medical reports that vindicate this decision. The retention of this ban is in contrast to the decisions taken in Great Britain. As of February 2012, gay men in England, Scotland and Wales are allowed to donate blood provided they are not sexually active, or have not been for at least a year.
 
However, Minister Poots is not only content for the current lifetime ban on gay men giving blood remaining in place. He is also in favour of excluding others who engage in “high risk sexual behaviour” from giving blood. Sue Ramsey MLA, Chair of the Health Committee believes the Minister is denying gay men their human rights by not lifting the ban. For more coverage please click here.

  • Local Organisation to Sue Mayor of London Over Failure to Post Advertisement on London Buses
The Mayor of London, Boris Johnson, intervened directly to prevent London Buses carrying what he deemed to be homophobic advertisements. A local organisation has stated that it intends to take Court action against the Mayor of London regarding the decisions taken by Mr Johnson.

Immigration
  • UKBA Criticised for Detaining Children in Poor Conditions
The UKBA has been criticised heavily for the way it detains children at Heathrow Airport, in a report from the Independent Monitoring Board. The report refers to the fact that children are detained at the airport every day. The children are kept in rooms that are small, stuffy and have no natural light. Often there is no sleeping accommodation and only hand basins for washing. Although the UK Border Agency appears to have accepted the findings of the Independent Monitoring Board, they contend that the British Aviation Authority is responsible for the provision of facilities at the airport. To read a copy of the report, please click here.

Prisoners' Rights
  • Judicial Review Appeal on Mandatory Prison Searches Heard
In the Matter of an Application by Brendan Conway for Judicial Review [2012] NICA 11
 
The Northern Ireland Court of Appeal has remitted back to the High Court a challenge to a policy of the Northern Ireland Prison Service to perform body searches on remand prisoners leaving and re-entering prisons.
 
The appellant was on remand in HMP Maghaberry awaiting trial on a number of serious criminal allegations. The Northern Ireland Prison Service have a routine policy in place that means every prisoner is subject to a body search each time they leave or return to prison.
 
In relation to the appellant, he refused to consent to the mandatory body search on a number of occasions. On one occasion, the search was carried out against his wishes. As a result of his actions, the appellant was subject to the prison disciplinary procedures.
 
The Court of Appeal noted that although the Trial Judge had made rulings regarding the searching policy, he had not reached a decision on whether or not the policy as it was applied to the applicant amounted to a disproportionate interference with his human rights.
 
The Court of Appeal made a number of observations and sent the case back to the Trial Judge for decisions to be made on the particular facts of this case.
  • Prisoners’ Right to Vote Still Not Resolved
Scoppola v Italy (no.3) - 126/05 [2012] ECHR 868
 
The subject of the right to vote being extended to at least certain categories of prisoners is a contentious topic for the government and for the Prime Minister in particular. The UK has still not introduced voting rights for prisoners in line with the decisions of the ECtHR inHirst despite the significant amount of time that has elapsed since that judgment was handed down.
 
This issue has been brought to the forefront once again by the decision of the same court in Scoppola v Italy. Interestingly, the Court entertained a number of representations and submissions from the UK Attorney General, Dominic Grieve in the course of the Scoppola case. The appeals section of the Strasbourg court reaffirmed its decision that blanket disenfranchisement of all those serving a period of imprisonment is illegal and imposed a fresh timetable for Britain's delayed compliance with similar past rulings. The UK has a period of 6 months from the date of the Scoppola judgment to implement the rulings of the court on this point.



Health
  • Potentially Important Decision Affecting Claims Made by People Exposed to Asbestos
Employers Liability Policy Trigger Litigation [2012] UKSC 12
 
The UK Supreme Court has held that liability for claims regarding asbestos related lung cancer was “triggered” when employees were exposed to asbestos and not when symptoms of mesothelioma developed. Please see an article covering the decision of the Supreme Court.
  • Northern Ireland’s Attorney General Considering Investigating Hospital Death
The Attorney General for NI has indicated a willingness to intervene in the case of an elderly man who died while waiting treatment in the Accident and Emergency Department of a Belfast Hospital. He has requested reports from the Trust including a Serious Adverse Incident Report.
  • Judicial Review Initiated by Applicants Seeking to Exercise Their Right to End Their Own Lives is Heard. 
Two people, one of whom is suffering from “Locked-In Syndrome”, have commenced judicial review proceedings in the High Court in London. “Locked- In Syndrome” is a condition where the patient is awake and aware but cannot move or communicate verbally because they are paralysed almost completely. The principal claimant in the judicial review is Tony Nicklinson. In 2005, he suffered a catastrophic stroke and was paralysed from the neck down, and unable to communicate verbally.
 
Mr Nicklinson is seeking a declaration that it would not be unlawful on the grounds of necessity for Mr Nicklinson's GP, or another doctor, to terminate or assist the termination of his life. He will also be asking for a second declaration over his right to respect for private life under Article 8 of the Human Rights Convention.
 
At an earlier hearing legal representatives on behalf of the Ministry of Justice attempted to argue that the matter was one where Parliament was required to legislate, and not one for the judiciary to make a ruling upon. However this argument was not accepted by the Courts in March 2012. The cases are ongoing.
  • Hospital Trust Can Provide Life Sustaining Treatment to a Patient Against Her Will
A Local Authority and E (by her Litigation Friend the Official Solicitor) v A Health Authority and E's Parents [2012] EWHC 1639 COP
 
The High Court in England has held that it is lawful and in the best interests of a 32 year old woman, who suffers from severe anorexia nervosa, to be fed using physical force and chemical treatments for at least a year. This case is commented upon in some detail by the UK Human Rights Blog.
 
The lady, who is referred to as “E”, had a troubling childhood. As a result of those difficulties, she has suffered from anorexia since she was 12 years old. She has had mental health problems periodically throughout her life and was detained under mental health legislation on approximately 10 occasions. In July 2011 and October 2011, she signed advanced decision forms. Both these forms expressed a wish that she did not want to be resuscitated or to be given any medical intervention that would prolong her life.
 
The Court held that she did not have capacity at the time the Court hearing took place. The Court also held that she did not possess the capacity to sign either advanced decision form. In particular, it was noted that in July 2011, she did not express a consistent wish to die and that in October 2011, she was detained on the same day she signed the second advanced decision form.
 
The Court held that it was in E’s best interests for her to receive life preserving treatment. You can read the full decision here.

Data Protection
  • Developments regarding the Census Act
A man in Birmingham has been granted leave to judicially review legislation that makes it a crime not to fill out the census forms. Birmingham Law Centre has been assisting privacy campaigner Nigel Simons to make the case that there is a disproportionate interference with his right to privacy, under article 8 of the European Convention on Human Rights. Although the judicial review relates to the legislation itself and the fact that failure to complete the form is a criminal offence, there are concerns over the fact that a US company is responsible for handling the data. There are concerns that this company will have to hand this information to the US Government by law. The judicial review is on-going.
 
Shortly before leave for judicial review was granted, the Crown Prosecution Service withdrew 2 prosecutions against those that failed to fill in the census forms. This development was also reported in The Guardian.
 
At least one of the cases in question appears to have been heading to trial. It is far from clear how the decision not to prosecute in those 2 cases will affect the other 252 prosecutions that have already been dealt with by the Courts. Of those already prosecuted, 198 have received Court fines, while the remainder of those prosecuted completed and returned the forms.


Impact of PILS Supported Cases
  • Clarification on the Definition of a “Miscarriage of Justice”.
Following the UK Supreme Court decisions in McCartney and MacDermott, which were supported by PILS, the Department of Justice (DOJ) agreed to reconsider their refusal to compensate those who were subject to a miscarriage of justice. However, in spite of the landmark decision by the Supreme Court, a number of different cases are before the Courts seeking further clarification on this point.
 
Two cases were recently before the High Court. Legal teams for Joseph Fitzpatrick and Terence Shiels are making the case that the DOJ mistakenly decided that no miscarriage of justice had occurred in either case. Both men were convicted of offences as youths. In the course of police interviews, neither individual was allowed access to legal representation or assistance from an appropriate adult. They were both convicted on the basis of their confessions alone. Both men had convictions overturned by the Criminal Cases Review Commission in 2009.
 
Although the DOJ did reconsider the cases, it declined to offer compensation to either individual as their convictions had not been reversed as a result of any “new or newly discovered fact” that showed beyond reasonable doubt there had been a miscarriage of justice. The Judicial Reviews are before the High Court and the decisions have yet to be handed down.
 
In another case, the High Court in Belfast has directed the DOJ to reconsider the case of Christy Walsh, whose conviction for possession of explosives was overturned by the Court of Appeal in 2010. The High Court held that the Justice Minister should review the decision to make sure that the Department considered all the evidence before reaching its decision.
  • Successful Challenges to SIA Criteria on Suitability of Door Staff
The Security Industry Authority (SIA) is a public body responsible for regulating the private security industry. The remit of this body includes providing licences to those undertaking certain categories of security work. This includes considering applications by individuals seeking a door supervision licence. The SIA have criteria in place to ensure “fit and proper” people are working in those sectors of the security industry for which they are responsible. The SIA criteria automatically deemed any applicant who had a conflict related conviction as being ineligible for certification.

Two applications for Judicial Review were initiated by Anthony Doherty and Liam Dougan in relation to this element of the criteria. These applications led the SIA to amend its criteria 
to reflect the position that those seeking a door supervision licence are now not automatically precluded from making such an application because they have been convicted of conflict related offences.
  • Latest Developments in the Case of JR47.
This judicial review is in relation to Muckamore Abbey Hospital and its failure to provide appropriate accommodation and care in the community for those with mental health difficulties.
 
The case was heard in the NI Court of Appeal in June 2012. The Court of Appeal directed that the case be remitted to the Trial Judge as there were a number of matters that were not opened fully in the course of the original hearing. It is anticipated the case will be re-heard in the High Court in September 2012.


Pro Bono News
  • 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 david@pilsni.org.
  •  Legal Support Project
In March 2012 Law Centre (NI) launched the Legal Support Project, a free representation unit that concentrates on representation at social security appeals and employment tribunals. The initiative came about because of an increased demand for representation which is currently not being met. The work is undertaken by volunteers, trained and supported by the staff of the project.
 
The Legal Support Project is looking for volunteers from a variety of legal backgrounds including law graduates, newly qualified lawyers who want to gain valuable representation experience and experienced legal practitioners. For further information contact Sinéad Mulhern, Head of the Legal Support Project, directly at tel: 90244401 or sinead.mulhern@lawcentreni.org.

Next Update

Finally, we would ask you to note that in light of the changes to our organisation, we intend to distribute the next edition of the Update in September

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