The ‘Ridiculisation of Law’

Corporal Stephen Allbutt was killed in a 'friendly fire' incident in Iraq in March 2003

Corporal Stephen Allbutt who was killed At the beginning of the Iraq War in 2003 during the assault on Basra

Yesterday, the House of Commons Defence Committee released a report claiming that recent court cases by injured service men and women alleging negligence against the Ministry of Defence (MoD) risk the ‘judicialisation of war’.

The Committee expressed a particular concern about a recent Supreme Court judgment Smith, Allbutt and Others v MoD [2013] UKSC 41 in which Leigh Day is acting for some of the claimants.

Apparently, commanders on the battlefield increasingly fear they will be subjected to legal action challenging their operational decisions such that they are becoming unwilling to assume responsibility or take necessary risks.

The Committee’s report follows in the footsteps of a scaremongering report released by the right wing think-tank Policy Exchange last year called “The Fog of Law”.

It was therefore no surprise when Defence Secretary Philip Hammond lauded the Committee’s report and claimed that legal challenges to “legitimate combat decisions” could “make it more difficult for our troops to carry out operations in the future.”

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The “Injustice” of Indeterminate Sentences

The former Home Secretary, David Blunket, has acknowledged in an interview with BBC Newsnight that the implementation of Indeterminate Sentences for Public Protection (“IPP”), which he was responsible for passing whilst in office, has caused an “injustice” to many prisoners. He stated:

“We certainly got the implementation wrong.  The consequence of bringing the Act in has led, in some cases, to an injustice and I regret that”.

IPP sentences were introduced by the Criminal Justice Act 2005, and were intended to be given to prisoners who had committed the most serious violent or sexual offences.

The thinking behind IPP sentences was that these prisoners would serve a minimum term of imprisonment (ie a ‘tariff’), and would then remain in prison until the Parole Board were satisfied that they had demonstrated a sufficient reduction in their risk of reoffending to justify their release.  A key part of demonstrating a reduction of risk was the completion of specialised offending behaviour courses.

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Futile Detention

Yesterday the Chief Inspector of Borders & Immigration published a damning report highlighting what has long been known by those caught up in the UK Government’s mass internment of foreigners and the few voices that stand up for them.

In An Inspection of the Emergency Travel Document Process, John Vine (CBE QPM) draws attention to the Home Office’s indiscriminate detention of Foreign Nationals (many, but not all, former offenders) for months and years where there is no prospect of their removal from the UK.

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Disabled people’s right to liberty

In March 2014 the Supreme Court handed down a landmark judgment recognising the right of disabled people to the protections afforded by Article 5 of the European Convention on Human Rights.  Article 5 of the Convention gives people deprived of their liberty procedural safeguards to ensure their deprivation of liberty is lawful. Until now, incapacitated individuals have not necessarily always been accorded such Article 5 rights.

Over the years, the courts have considered cases concerning the circumstances of individuals without the capacity to consent to their deprivation, or ‘mentally incapacitated’ people.   However, until the recent judgment, there had been no clear test for when an incapacitated person fell within Article 5.

For example, the cases of two sisters with severe mental impairments and the case of a man with severe learning disabilities were considered by the courts from 2009 to 2014 (more details on their particular circumstances can be found here.

In the lower courts, it was decided that the living arrangements of the two sisters did not constitute a deprivation of liberty, whereas the man’s living arrangements did. The cases went to the Court of Appeal who found the opposite: that none of the three individuals fell within Article 5. Finally, when the cases reached the Supreme Court in October it was held all three were deprived of their liberty and consequently that detention had to be authorised and regular checks had to be in place to ensure the deprivation was lawful. This means checking that the individuals were being looked after in the least restrictive way possible and they, or someone acting on their behalf, could regularly seek review from the court of their situation.

Up until the judgment of the Supreme Court there had been much confusion over what constituted a deprivation of liberty for someone without capacity. It was hoped that the judgment would provide clarity, which it indeed has done in this historic decision. The court has provided a new test for deciding if a mentally incapacitated person is deprived of their liberty and it simply comes down to whether they are under constant supervision and control and whether they are free to leave their placement. The judgment only applies to placements arranged by the state, which include hospitals, state run care homes, supported living and foster placements.

In addition, the Supreme Court set out a number of factors that are now irrelevant. For example, it no longer matters if those arranging the placement have the best of intentions for the individual, as Lady Hale said in her judgment, “a gilded cage is still a cage”. Similarly, it does not matter whether the individual is compliant with their placement or not. The Court stressed the universality of human rights, applying to disabled and non-disabled alike.

Anyone deprived of their liberty must have that deprivation authorised (either by a court or local authority). If this does not happen, they are unlawfully detained.  If someone is unlawfully deprived of their liberty, they are able to seek a declaration that their Article 5 rights have been breached and obtain compensation for the period of time in which they have been unlawfully detained.

The potential scale of those deprived of their liberty following on from the judgment is unknown, but to date there are indications  it could be in the region of thousands, if not tens of thousands, of people.

The current safeguards provided for by Parliament for individuals in care homes and hospitals, known as the Deprivation of Liberty Safeguards, are no longer fit for purpose and require comprehensive legislative reform.  There are currently no similar safeguards for people in supported living or foster care placements, and the only way for these individuals to have any deprivation of liberty authorised is through the Court of Protection. It is therefore hoped that a new legislative framework will be drawn up that will apply to all individuals who lack capacity to choose where to live and that this framework will be easy to understand and apply, and will protect the rights of one of the most vulnerable groups in our society.

Sarah Westoby is a solicitor in the human rights team at Leigh Day and specialises in deprivation of liberty and Court of Protection work.  If you or someone you know is affected by these recent changes in the law, please contact Sarah to discuss whether we can do anything to assist.

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The path to negligence is paved with good intentions

 

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I attended a meeting at the House of Lords earlier this month to debate Lord Saatchi’s well intentioned but in my view, flawed medical innovation Bill.

Lord Saatchi believes the law, as it stands, discourages doctors to innovate, as, he assumes, clinicians believe claims may be brought against them if they don’t follow standard procedure.

I applaud the sentiment behind this Bill. Lord Saatchi obviously believes strongly that the Bill will improve innovation and therefore increase the development of drugs that will cure diseases.

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Supreme means Supreme

Supreme Court London

Another month and yet another lot of hot air from the Conservative press office on how David Cameron plans to scrap the Human Rights Act and in particular, his plans to reassert our Supreme Court as the final arbiter on human rights. A Conservative source says “We want to make the Supreme Court supreme”.

This of course begs the question:  in what way is the supreme court currently not supreme?

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Strasbourg-bashing and section 2 of the Human Rights Act

Originally posted on socialjusticefirst:

By Rebekah Read

In the last few months, as Baroness Hale has said, “Strasbourg-bashing has become very popular”.  This was evident again last month, when Tory backbencher Dominic Raab proposed an amendment to the poisonous Immigration Bill.  Despite (reports of) repeated cajoling by Tory whips to withdraw the amendment, it was tabled and debated on Thursday.

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The HRA – Should it stay or should it go?

HRA Badge smallAs yet another media story details how the Human Rights Act prevents ‘undesirables’ being deported from the UK, the team here at Leigh Day have decided it is time for us to regularly update on why the Human Rights Act should stay on our statute books. ‘Its your Act’ is our response to what we feel is the deliberate misinformation being peddled to undermine a piece of legislation which is our defence against tyranny at all levels and should be valued rather then perpetually decried.

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Towards a legally binding treaty on human rights and multinational companies?

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Lawyers from Leigh Day assess the devastation in Bodo Creek in Nigeria from oil leaks

The People’s Forum on Human Rights and Business recently met in Bangkok on 5-7 November 2013, and called for an international treaty to impose on states the obligation to police the human rights impacts of the actions of multinational companies. The Forum called for states to establish legal liabilities for human rights violations, including allowing remedies for foreign victims, international monitoring and an international accountability mechanism.

Surely all self-respecting human rights advocates should be supporting such a call. Shouldn’t we?

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From the Scottsboro Boys to the Birmingham Six: the government’s proposals on miscarriages of justice

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The ‘Scottsboro Boys’ in 1931

Earlier this month I saw the brilliantly entertaining satirical musical ‘The Scottsboro Boys’ at the Young Vic. A moving tale of a deplorable miscarriage of justice which brought about the end of all-white juries in Alabama, the Scottsboro boys were nine black teenagers who were falsely convicted of raping two white girls in 1931.  After many years of imprisonment and numerous retrials following campaigning from the American Communist Party, the boys were gradually released, apart from one of the boys who died in prison in 1952.

This play serves as a reminder of the fallibility of the court process.  Although we would like to place such atrocious injustices behind us, most readers will be familiar with some of the more notorious miscarriages of justice over the last 50 years.  The Birmingham six, for example, vilified in a dreadful media campaign, were sentenced to life imprisonment for the Birmingham pub bombings in 1975.  They were released when their convictions were found to be unsafe after 16 years of imprisonment.  Rightly, they were awarded compensation for the years of unfair incarceration and their release led to the setting up of the Criminal Cases Review Commission, which has led to the quashing of hundreds of unsafe convictions.  The Government is now trying to restrict compensation to those who can prove their innocence.

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