Alfie Evan’s Case

Alfie Evans Photo

Introduction:

Over the past years, science has made great discoveries, opening up new opportunities for patients and making their lives a lot easier. However, there are still things that can’t be fully controlled or helped. Some people might ask themselves whether is fair that people have their lives made longer, when actually it might not be the best option, because they are going to suffer a lot, due to the medications and actually, they might even feel worst because of them. People ask themselves if this is a life worth leaving, or if is better for them to be ‘let go’, in order to end their suffering. Other people however really believe that a life is always worth saving, because in their believes it comes from God and only God can decide when is the right moment for a person to depart. Due to this division of opinions, at times is really hard to decide what’s best for the person, whether to just end the medications and all the support given, which will end the person’s life and his or her suffering, or if it’s better to keep fighting and hope that everything will improve with time. Such a case is the case of Alfie Evans. Parents and medical team can’t really decide what could be best for the child and have really different ideas about what to do for him. Usually parents and medical team will go through together with what to do for the patient, but in this case opinions are really divided.

Background story:

Alfie Evans is a child born at the Liverpool Women’s Hospital. However, by the time he was 6 months old, there were concerns about his development and on the 14th of December he became a patient of the Liverpool’s Alder Hey Children’s Hospital. He was from Tom Evans and Kate James. The baby has been ill for more than 20 months and nobody really knows what’s effecting him. The hospital would like to “stop the medical ventilation” because they feel it will end his pain and is in his best interest. However, his parents disagree and would like to have him moved to the Ospedale Pediatrico del Bambin Gesù. For this reason, a legal battle has risen between the hospital and the parents, because they both have their own ideas on how the situation should be handled. The reason why their ideas are so split is because the infant hasn’t fully been diagnosed, but is believed that he suffers from some sort of neuro-degenerative disorder. However there is also the possibility that the child is suffering from a metabolic disorder, which could possibly lead to a more positive outcome. Because of latest examinations the hospital believes that little can be done for him, since he remains highly unresponsive. His MRI shows signs of damaged to the brain that is believed to be far gone any possible treatment available. Recently he is been kept in the pediatric intensive care unit. It is also believed that his condition is progressive and there is not much that can be done to help.

In Court:

Because of the afore mentioned situation, Mr Justice Hayden was recently involved and stated that

“Dr M, a Consultant Paediatrician, specialising in intensive care medicine, records the following:
“The MRI brain scan done on 30.11.2016 showed evidence of
borderline delayed myelination for his chronological age and
unexplained diffusion restriction along sensory motor cortex, the
cortical-spinal tracts and fibres leading into the medial temporal
lobes. The appearances were not typical for any specific disorder.
Suggested possible diagnoses to be excluded included mitochondrial
disorders and non- ketotic hyperglycinaemia.” “

Article taken from Alder Hey Hospital v Evans

This means that the infant has very restrict to no-movement, is not really able to feel external stimulations and it appears to have no specific explanation as to why is this happening. The statement also talked about how due to this misterious illness, Alfie keeps suffering from epileptic seisures. Due to the situation, it is believed by the doctors that there is no chance for his brain cells to regenerate, making it harder for him to recover. Even in the event of recovery, it will be very unlikely that he will be  able to fully recuperate normal cerebral activities.

“Professor Cross concluded that Alfie has a progressive, ultimately fatal
neurodegenerative condition, most likely a mitochondrial disorder. During her
cross-examination by F she told him in gentle terms that even if it were possible to
stop Alfie’s seizures, which did not look likely given his poor response to anticonvulsant
treatment to date, his brain is entirely beyond recovery. The brain she
said, again on F’s enquiry, simply has no capacity to regenerate itself unlike e.g. the
liver. She agreed that nobody knew quite why the brain does not have the ability to
do so but it is simply acknowledged by neurologists that it cannot.”

Article taken from Alder Hey Hospital v Evans

Because of this diagnosy, doctors are concerned about the possibilities that the child could lead a normal and care-free life. However, because the child’s brain hasn’t fully developed yet, there might be a chance that it might recuperate in part.

Because of all the uncertainties, Alfie’s parents made and appeal to the Court of Appeal. Since they don’t want to end the fight for his life, they wouldn’t want him taken off life support and they would like for him to be able to receive food and water. They would also like to be able to transfer him to Italy, so that the baby could receive different and possible better care. However, this has been promptly dismissed and the Court of Appeal refused to agree to move Alfie to Italy. It states that it wouldn’t be in his best interests. It is believed that he would not make it there and would die before.

The plans to take him to Italy have to be evaluated against this analysis of his needs. There are obvious challenges. Away from the intensive care provided by Alder Hey PICU, Alfie is inevitably more vulnerable, not least to infection. The maintenance of his anticonvulsant regime, which is, in itself, of limited effect, risks being compromised in travel. The journey, self-evidently will be burdensome. Nobody would wish Alfie to die in transit.”

Article taken from Alder Hey Hospital v Evans

However, his parents believe that is in his best interest to try and give him the best possible care anyway, even if the chances of him making it look pretty slim. Only they, as parents would be able to take the best course of action for him and could decide what would be in his best interest. The Supreme Court however, ruled it out and stated that only if it was believed that the child was in danger, section 100 (3) and (4) of Children’s Act 1989 could be applied. However, because it was the hospital who was taking care of Alfie and deciding what could be best for him, it was possible to decide that it was not in his best interest. For this reason, the Supreme Court decided that it would be better to leave it up to the doctors to decide what to do next. The Supreme Court trusted that the doctors are professionals enough to make sure that Alfie would not suffer.

Supporting all this is the diligent professionalism of some truly remarkable doctors and the warm and compassionate energy of the nurses whose concern and compassion is almost tangible. All this creates an environment which inherently conveys dignity to Alfie himself. In my judgement his life has true dignity. The far more challenging question is whether and if so how that can be maintained.”

Article taken from Alder Hey Hospital v Evans

However, Alfie’s parents did not stop their search for justice and just recently went to the European Court of Human Rights, where they stated that the UK was not keeping in line with Article 8 of the European Convention. This article states that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Because of the inability to make decisions for they son, the Evans feel denied of their role as parents and feel violated by the court. However, the Court declared that this was not the case and the case got turned again to the Domestic Court. Several protests in front of the hospital are being held, and his parents would like to remove their baby from the hospital. Reason being for this is because the Domestic Court would like to stop any treatment, while his parents would like to continue the research of a solution. Even the Pope got involved and showed his support to Alfie’s parents on this matter. He sent a message over twitter expressing that:

‘”everything necessary may be done in order to continue compassionately accompanying little Alfie Evans’”

In the meantime, Alfie’s parents are trying again to have their son removed from his current hospital and move him to Rome. The Court of Appeal however is ruling again against them. The Court of Appeal stated that

There is also no reason for further delay. There will be no further stay of the Court of Appeal’s order. The hospital must be free to do what has been determined in Alfie’s best interests. That is the law in this country. No application of the European Court of Human Rights Strasbourg can or should change that.”

Alfie’s parents will continue to fight for what they believe and will soon appeal to the ECtHR again, citing Article 5 of the Convention. The Article states that:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.”

Alfie’s parents want to try and make sure that their boy is being looked after and kept safe and sound, as well as making sure that they will kept in control over what decisions could lead to a more positive outcome.

Conclusion:

It is very hard for parents not to feel listened and validated in their role. Especially when they are dealing with such a heartwrenching situation. However some may ask how is it fair that someone is being kept alive, while potentially suffering a great deal. Others might instead say that life is the most precious gift of all and should be preserved. In a situation such as this is very hard to fully understand what the best choice might be. According to some, is no use to push for something that might seem as futile. Others however will still hold on to the hope that if everything that’s possible gets done, the situation might turn for the better.

By Fiammetta Broggi 

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Human Rights Abuses in South Sudan

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TOPSHOT-SSUDAN-POLITICS-ATTACKS-UNREST-UN
TOPSHOT – South Sudanese civilians flee fighting in an United Nations base in the north-eastern town of Malakal on February 18, 2016, where gunmen opened fire on civilians sheltering inside killing at least five people. Gunfire broke out in the base in Malakal in the northeast Upper Nile region on February 17, 2016 night, with clashes continuing on Thursday morning that left large plumes of smoke rising from burning tents in the camp which houses over 47,000 civilians. / AFP / Justin LYNCH

The Issue

On December 13 2017, Human Right Watch  (HRW) Report ,was  going to press the South Sudan’s council of ministers who approved the hybrid court statute and the government’s memorandum of understanding with the African Union. Human Rights Watch calls on the government to move promptly to take the next steps necessary to ensure the court becomes operational as soon as possible. South Sudan’s top officials have failed to make good on promises to establish an African Union- South Sudanese hybrid court to try international crimes committed during the country’s civil war.

Background

In Human Rights Watch report, South Sudan’s  civil war began on December 15 2013 when troops loyal to president Salva Kiir – a Dinka- clashed with those of then-Vice-president Riek Machar- a Nuer – in the capital Juba. Within hours, mainly Dinka government troops carried out large- scale targeted killings, detentions, and torture of many Nuer civilians in various parts of Juba. while thousands of Nuer soldiers defected to an opposition army. In the following months, fighting spread to Bor, Bentiu, Malakal, and across the Greater Upper Nile region. As towns changed hands, soldiers on both sides killed thousands of civilians, often based on their ethnicity, and destroyed and pillaged civilian property. In late 2015, conflict spread to the Equatorias, as a new rebel groups claiming an affiliation formed, and government forces carried out deadly attacks in previous stable regions south and west of the capital. Government soldiers have attacked civilians sheltering inside the UN base in Malakal and Juba, in blatant violation of international law.

A peace agreement signed by South Sudan’s president and rebel leaders in August 2015, included a commitment to a hybrid court which is to be established by the African Union Commission (AUC). The hybrid court is to be composed of South Sudanese and other African judges and prosecutors and mandated to try those responsible for grave abuse

On July 2016, The African Commission on Human and People Rights (achpr), issued a press release on the human rights situation on the Republic of the South of Sudan. It has observed with dismay the deterioration of the human rights situation in the South of Sudan which has a massive implication on the regional peace, security, and stability. The Commission strongly condemns the recent attacks on Internally Displaced Persons (IDPs), African Embassies, The United Nations Compound, and the civilian populations, and requests the Government of the South of Sudan to ensure their full protection.

The Commission also calls for ending the hostilities and the implementation of and respect for the Addis Ababa Peace Agreement by all parties involved. The Commission advises them to lay down their weapons and stop the physical and moral integrity violation of the population.

Pursuant to the African Charter on Human and People Rights mandate to protect human and people rights, The Commission calls on the Government of the South of Sudan to respect the rights guaranteed by The African Charter and other human rights instruments to which it is a party and to refrain from any action that could threatened the human rights of its population.

The Commission urges South Sudan to take necessary measures to ensure the safety of it population as well as to respect and realize their right to peace as stipulated in Article 3(f) of The Constitutive Act of The African Union (AU).

Finally, The Commission urges The African Union IGAD and the international communities to encourage all parties to the peace agreement to ensure a peaceful end to the crisis and to the restoration of the peace process.

BUT,…..

It is reported that, despite the August 2015 Agreement on the Resolution of Conflict in South Sudan (ARCSS), which envision the hybrid court, abuses by all parties persist as the conflict continues to spread. South Sudan’s transitional government has neither ended violations by its army nor made progress toward setting up the court. The lack of progress points to the need for measures like targeted sanctions against officials responsible.

September 2017,  a report by Human Rights Watch stated that the situation in South Sudan in its fourth year of civil war, is beyond dire. The conflict has expanded across the country, with new fighting in Greater Upper Nile. Western Bahr al Ghazal, and the Equatorias, and has included a series of highly abusive government counter- insurgency operations.

Amnesty International 2017/18 reported (pages 336-338), that, the conflict expanded and new armed opposition groups emerged. Parties to the conflict continued to commit crimes under international law and human rights violations and abuses with impunity. Fighting between government and opposition forces had a devastating humanitarian impact on the civilian population. Conflict and hunger displaced hundreds of thousands of people. It observed and listed abuses carried out during the conflict.

Internal Armed Conflict

Hostilities between government and opposition forces under Riek Machar, as well as other opposition groups affected most of the country, including targeted killings of civilians often based on ethnicity or perceived political allegiance, systematic looting and destruction of civilian property, abductions, and crimes of sexual violence. In Upper Nile, government forces aided by Dinka Padang Militias for example, carried out repeated attacks on territory held by opposition-aligned Shilluk on the west bank of the White Nile throughout the year. They indiscriminately attacked civilian towns and villages, including Wau Shilluk, Lul, Fashoda, Kodok and Aburoc, and were responsible for deliberate killings of civilian, looting of property and the displacement of thousands of civilians.

Sexual Violence

Sexual violence continues to be a common feature of the conflict. All sides subjected women, girls, men and boys to rape, gang rape, sexual slavery, sexual mutilation including castration, and forced nudity during attacks on villages, searches of residential areas, on roads and at check points, and following abductions or during detention. Government forces targeted women and girls living in camps under the protection of the United Nation Mission in South Sudan (UNMISS) peace keepers, when they went to buy or search for necessities such as food or firewood. Survivors of sexual violence had little access to appropriate medical and psychological treatment because of limited availability or because they were unable to reach services. Perpetrators of crime of sexual violence were rarely held accountable.

Lack of Humanitarian Access

The hostile environment in which humanitarian workers operated significantly undermined their ability to address food, health care, education, and emergency shelter needs. Parties to the conflict regularly obstructed humanitarian access by threatening, harassing, detaining, or committing acts of violence against humanitarian workers. At least 25 aid workers were killed during the year, According to the United Nation Office for the Coordination of Humanitarian Affairs (OCHA). On numerous occasions fighting between armed groups forced humanitarian workers to relocate from areas of operation and suspend services. Humanitarian supplies were looted by parties to the conflict, including, according to OCHA, more than 670 tons of food from humanitarian compound in June and July.

Right to Food

An estimated 4.8 million people, almost half the population, were severely food insecure because of the obstruction of the humanitarian access, armed conflict, mass displacement, and economic crisis. In February famine was declared in the Leer and Mayendit counties in Unity State. In the Equatoria region, formerly rich in food, government, and opposition forces-imposed restrictions on civilian access to food to control their movement or force them from their homes and land. Those remained faced acute food shortages, and malnutrition level increase. Across the country, displacement and the threat of violence hampered agriculture and prevented civilians from tending livestock or receiving sustained and adequate food aid. Deteriorating economic situations also exacerbated the food crisis. The depreciation of local currency and the shortage of imported commodities caused food prices to soar. The government repeatedly fail to pay employees their salaries.

Arbitrary Detentions and Torture and Ill-treatment 

In March President Kiir announced plans to release all political detainees. However, the National Security Services (NSS) and the Military Intelligence Directorate continued to conduct arbitrary arrests and hold perceived government opponents in prolonged detention without charge or trial. Individuals were denied the right to have their detention reviewed by a court and were often subjected to torture and ill-treatment. Detention conditions were harsh, detainees were regularly denied access to their family members, adequate food and clean water and inadequate medical care which contributed to the death of some detainees.

Legal, Constitutional or Institutional Development

The General Assembly of Justice and Judges went on strike on April, demanding salary increase, improving working conditions and the Chief Justice resignation following poor leadership. President Kiir responded with a decree on July removing the judges from office and invoking a constitutional provision that allowed for judges to be removed for “misconduct”. In November, a supreme court judge resigned citing lack of judicial independence.

The Development

In September 2017, it is  reported in Human Rights Watch that, the African Union and Security Council issued a communique’ on South Sudan, warning that it would consider necessary steps, including sanctions, should the South Sudanese parties continue to delay implementing the peace agreement in full, or if the government did not live up to its pledges.

 

Cessation of Hostilities Agreement 2017

In December 2017,  a  report from the Commission on Human Rights in South Sudan (pages 10-11), stated that, the Intergovernmental Authority on Development (IGAD), backed a high-level revitalization forum in Addis Ababa, in what seen by many as a final attempt to restore peace process.

 

The agreement came into effect on 24 December 2017 mandating all forces to “immediately freeze in their locations”, halt actions that could lead to confrontation, and release political detainees. In addition, to take specific measures to protect vulnerable persons including children, women, girls, elderly and persons with disabilities or special needs, support and facilitate the reunion of families and the decent burial and demoralization of the dead, facilitate the free movement of persons including women and girls and ensure protection of media and civil societies.

 

Under the agreement, particular violations of human rights law and international law are highlighted, and provisions are made for monitoring compliance. The obligation on the parties to prevent, investigate and ensure accountability for breaches of the agreement does not preclude investigations and punishment by any other entities.

But, despite ordering his forces to cease all hostilities, Rick Machar release a statement on 22 December, stating that forces should still be allowed to “act in self-defence or against any aggression”. All parties to the conflict have relied on similar language to justify ongoing attacks and continued violations during cessation of hostilities periods.

 

On 29 December 2017, IGAD released a statement condemning violations of the agreement, committed just days after its signing. In January 2018, The Council of Ministers of IGAD, issued a further statement on reports of violations of cease fire agreement stating that, “it is deplorable that the conduct of the parties amounts to not only a failure to comply with the Article of the Agreement on the Cessation of Hostilities, but also a serious violations of international human rights and humanitarian laws”. All of these violations have been reported by conflicting parties against their own people, and include killing of civilians, inflicting serious mental and psychological injuries on people, rape, sexual violence and looting.

 

The United Nations and the African Union have echoed this. The Commission is concerned that the parties to the conflict continue to commit violations of the agreement, denying this chance to make progress towards peace and more stable future.

Targeted Sanctions and Arms Embargo  

In September and December 2017, the United States announced targeted sanctions against four Sudanese officials for their role in threatening the peace, security, and stability of South Sudan. There are other individuals subject to sanctions by the United Nations.

 

On 2 February 2018, the European Union (EU), announced its first sanctions relating to the situation in South Sudan. Some individuals are now subject to assets freeze and travel bans by all EU Member States.

On the same day, the United States announced an arms embargo on all parties to the conflict in South Sudan citing the continued use of military force by the government and the armed oppositions despite the 21 September 2017 Agreement on the Cessation of the Hostilities, the continued obstruction of UMISS from fulfilling its mandate, and the continued violence against civilian humanitarian workers.

South Sudan’s Human Rights Obligations

On  July 2011, South Sudan became Africa’s 54th state. Amnesty International and HRW urge South Sudan to demonstrate its commitment to human rights by taking actions as a matter of priority by ensuring accountability for abuses by soldiers, police. or other security forces. Uphold the right to freedom of expression and association. Review legality of all detentions, particularly juveniles. Promote and protect the rights of women and girls. Hold security services to account. Protect free expression and association and peaceful assembly.  End arbitrary arrests of journalists, and, ratify international human rights treaties. But first and foremost, honouring the hybrid court treaty signed with the African Charter.

 

 

Conclusion…

South Sudan has suffered decades of civil wars before and after the separation from North Sudan. It needs more than a hybrid court to bring stability. It needs management. equal division of resources, building of strong infrastructure of civil and legal services and the willingness of the tribes to put their differences aside and learn to share the power and the ability to move forward.

Despite the geography and the separation, South Sudan is dear to the heart. We are rooting for you to lead the way. Remember, your goal of independence is achieved. It is time to stop the fighting, be united, heal the wounds, wipe the tears, rejoice and built that beloved country.

By Husnia Mahmoud*

 

 

 

 

 

 

 

 

 

References

 

https://www.hrw.org/news/2017/12/14/south-sudan-stop-delays-hybrid-court

.hrw.org/news/2017/12/14/south-sudan-stop-delays-hybrid-court

http://www.achpr.org/press/2016/07/d307/

https://www.hrw.org/news/2017/12/14/south-sudan-stop-delays-hybrid-cour

www.hrw.org/news/2017/09/18/south-sudan-establish-hybrid-court-and-facilitate-work-un-rights-commission

www.amnesty.org/download/Documents/POL1067002018ENGLISH.PDF

www.hrw.org/news/2017/12/14/south-sudan-stop-delays-hybrid-court

www.hrw.org/sites/default/files/related_material/Human%20Rights%20Agenda%20for%20South%20Sudan%20June%202011_1.pdf

http://www.ohchr.org/EN/HRBodies/HRC/CoHSouthSudan/Pages/Index.aspx

‘Rough Sleepers’ Are Not Right Abusers, But Are Rights’ Deprived!

R (On the Application of Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin)

 

nelson mandela

Introduction

Three previous cases of similar nature were brought

 

forward for judicial review, as test cases, before Mrs

Justice Lang DBE in the High Court of Justice, Queen’s Bench division, on 14th December 2017. The claimants, Mr Gunars Gureckis, Mr Mariusz Cielecki and Mr Mariusz Perlinski challenged the defendant, Secretary of state for the Home Department, for the lawfulness of the policy guidance and its application of the ‘European Economic Area (EEA) administrative removal’ version 3.0, published on 1st February 2017 for EEA nationals. The guidance states that any EEA national would be liable for removal for rough sleeping, as this will be seen as abusing the rights of the EU treaty.

The history

Defendant’s policy

Mr Lamont, a senior policy advisor who was employed by the Home Office and on their behalf filed a witness statement to explain the reasons behind the policy. He stated that the policy was made due to the increase of numbers of rough sleepers which led to social problems such as littering, unhygienic, anti-social behaviour and economic problems. The building of so many encampments could damage the reputation of central London as a tourist attraction. He also went onto explain that the Home Office was only interested in those socially harmful rough sleepers who intend to sleep rough and save money on accommodation while working.

Claimant 1: Mr Gunars Gureckis

Mr Gureckis, a Latvian national, had been rough sleeping for some period of time. On the 23rd February 2017 he was found rough sleeping by a Home Office Immigration, Compliance and Enforcement officer and later was interviewed regarding his personal circumstance. After the interview he was served with form IS.151A (EEA) ‘Notice to a person liable to removal’ because he was considered to have misused his right to stay in the UK according to EEA regulations under section 23(6)(c) 2016. Mr Gureckis made an appeal on the 2nd March 2017 to stop the operation of his removal.

Claimant 2: Mr Mariusz Perlinski

Mr Perlinski, a polish national, was rough sleeping in a public toilet after becoming homeless sometime in November 2016. He was found rough sleeping by an Immigration officer on the 15th March 2017 and was taken into custody and interviewed. In court, his history of work was given and admitted that he stopped working once he became homeless. The court served Mr Perlinski with form IS.151A (EEA) ‘Notice to a person liable to removal’ because he had demonstrated misuse of rights under EEA regulation section 26(1) 2016 by rough sleeping and was subject to administrative removal under EEA regulations under section 23(6)(c) 2016. Mr Perlinski made a claim for judicial review and on the 30th June 2017, he was granted temporary admission to remain in the UK because he was living with his step father. 4th October 2017, the defendant had withdrawn the removal decision.

Claimant 3: Mr Mariusz Cielecki

Mr Cielecki, a polish national, was found rough sleeping in a tent near a roundabout by immigration officers and police on 9th November 2016. After being questioned and detained he was served with form IS.151A (EEA) ‘Notice to a person liable to removal’ because the immigration officer believed he was not exercising his treaty right in the UK under EEA regulations 19(3)(a)2 and 34(2)2. Mr Cielecki appealed against the decision to be removed but the judge dismissed the appeal on the 26th April 2017 because Mr Cielecki failed to provide he was looking for a job between 22nd July 2016 and the day he was detained.

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Case Details

The AIRE Centre helped the three claimants to apply for judicial review based on common grounds. The AIRE Centre submitted a written statement arguing that the policy and the application of it by the defendant was in breach of EU law because ground 1: rough sleeping did not constitute to an “abuse of rights” under article 35 of the Directive. The requirements for the test were not met. It was also argued that ground 2: the policy discriminates between the types of rough sleepers and it was the EEA nationals who received the less favourable treatment compared to British national rough sleepers. The last argument, ground 3: was that the application of the policy was unlawful because it required a systematic verification, which under article 14(2) of the Directive, was expressly prohibited.

Defendant: Secretary of State for the Home Department

In response to the claimant’s statement, the defendant argued on ground 1 that according to the policy, rough sleeping was not an abuse of rights but rather an indicator that sleeping rough could be regarded as an abuse of right and therefore the individual circumstance may need to be investigated. What is considered as abuse of rights is when the rough sleeping is deliberate and persistent such as entering the UK with the intention of sleeping rough to save money or once having entered the UK, failing to accommodate oneself deliberately and sleeping rough. On the other hand, rough sleepers who have fallen on hard times and intend on finding an accommodation will not be seen as abusing their rights. For ground 2, the defendant argued the policy was not discriminating on grounds of nationality because there was no proper comparison to make between those who were exercising treaty rights and those who had unconditional rights to stay in the UK. For ground 3, the defendant argued that the application of the policy was a sensible and lawful approach and there was no unlawful systematic verification.

The verdict

All evidence considered, the claim for judicial review on whether the defendant’s proposed revised policy was unlawful was granted by Mrs Justice Lang based on the following points. Firstly, the revised policy was only a summary as it was still in the panning stage which had not received the ministerial approval. Secondly, Mr Lamont briefly described three types of rough sleepers but this was not clearly expressed in the policy guidance. Mrs justice Lang referred back to the three grounds the claimant made.

In regards to ground one, abuse of rights, she applied the two-limb test from Emsland-Starke GmbH v Hauptzollamt Hamburg-Jonas [2000] ECR-I-11569, to establish an abuse of rights. After making several case references, the first limb of the test was not met because sleeping rough had no connection to the freedom of movement rights and requirements and did not affect the purpose of the Directives. For the second limb of the test, Mrs Justice Lang stated that sleeping rough was not an economic activity (working or job seeking) and therefore could not generated the conditions of an economic activity, therefore the test was not met here either so the claimants succeed on ground one. In regards to ground two, discrimination, evidence given was table indicating the increased number of rough sleepers between 2007 and 2016 by the defendant. This is true but the policy was directed at the sub-group of EEA rough sleepers and not British rough sleepers because only the EEA nationals were subject to immigration controls not the British residents therefore there was a less favourable treatment towards the EEA nationals which the defendant could not justify. So, the policy was unlawful and the claimants succeed on ground two. Ground three, systematic verification, Mrs justice Lang stated that taking all evidence given by the defendant into account, the policy was unlawful because it was a systematic, blanket policy of verification because it was presumed EEA nationals sleeping rough were abusing their rights and that’s why they were being targeted by the immigration officers and police. The claimants were successful for ground three and an order was given to quash the policy.

My Comments

The impact of this case will be that it will be seen a guidance to other relevant cases pending and to policy makers.
A rough sleeper is also a human being and has the right to all the fundamental rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the UK, the Human Rights Act 1998 gives further effect to those rights and freedoms. The United Nations has defined rough sleepers also known as homeless people as “households without a shelter that would fall within the scope of living quarters. They carry their few possessions with them, sleeping in the streets, in doorways or on piers, or in any other space, on a more or less random basis.”1

The Universal Declaration of Human Rights 1948 and the International Covenant on Economic, Social and Cultural Rights 1966 recognise adequate housing as a right and these people have the right to adequate housing, but being deprived of it leads to the deprivation of other human rights such as the right to privacy, right to property and peace enjoyment of possessions, right to work, right to social security, right to health, right to vote, right to education and the right to protection of family. The possibility of earning a living, the right to work, can be seriously impaired for a homeless person because they may not be able to provide proof of residency. “Schools may refuse to register slum children because their settlements have no official status. Inadequate housing can have repercussions on the right to health; for instance, if houses and settlements have limited or no safe drinking water and sanitation, their residents may fall seriously ill. Forced evictions can have implications for the enjoyment of several human rights, including the right to education and the right to personal security.” These elements clearly were not considered when making the home secretary was making the policy. “How is it that homelessness – one of the most egregious violations of human rights globally – can be so invisible?”

Homeless people are often denied access to basic services such as water or sanitation, and are even fined for engaging in activities necessary for their own survival — for instance, eating and sleeping in public spaces. They are treated like “human waste”, sometimes forced to establish their households on or next to garbage dumps”. “The simple truth is that homelessness is the failure of states to implement the right to housing. And they do so with impunity.”

The UK is in breach of its own United Nations human rights commitment to provide people with adequate homes because the housing crisis is so serious.”

Rough sleepers have the right to freedom of expression but if this is not respected then the chances of them finding a better living condition will be reduced considerably.

want change

Footnotes
1- Principles and Recommendations for Population and Housing Censuses (United Nations publication, Sales No. 07.XVII.8 P), para 1.328

Developments in Police Negligence

Much like buses, you wait ages for a definitive Supreme Court judgment then two come along at once. The decisions this year in DSD and Robinson have been significant in clarifying the scope of actions against the police.  The Hill principle, that the police should not be held liable in negligence for the failure to prevent a crime on public policy grounds, is still intact although the scope of this principle has been restricted as a result of these recent decisions. The Hill principle has come in for some considerable criticism in academic literature, although House of Lords have reaffirmed it on a number of occasions. Notably in 2016 in Michael the Supreme Court reaffirmed this principle but also departed from the first limb of Hill, on the issue of proximity, finding that the police were not liable in cases of omissions.

Where DSD v Metropolitan police was significant was in clarifying the relationship between negligence and the police’s obligations under the Human Rights Act. As a public body under Section 6 of the Act the police are required not to act in a way which is incompatible with the European Convention on Human Rights (ECHR). The argument was made in Osman v UK that the failure of the police to prevent the murder of the applicant’s father by a known stalker constituted a violation of his rights under Article 2 of the ECHR – the right to life. The DSD case arose out of the ‘black cap rapist’ John Worboys as two of his victims claimed that the police had failed in their Article 3 duties – the prohibition of inhuman or degrading treatment  – by failing to fully investigate the pattern of crimes that Worboys was committing. Under Article 3 there is a clear investigative duty on the Police and in cases such as MC v Bulgaria and Yasa v Turkey the European Court of Human Rights has carefully set out what is expected of the police in discharging this duty. In DSD Lord Kerr held that this duty, what he termed the systems duty, had not been carried out by the police. He was however careful (see paragraph 67) to note that this did mean that Hill had to be modified for claims brought in common law. All three of the Lords were  careful to note that the case was limited to breaches of convention rights. Significantly however the floodgates argument – which has been a mainstay of cases on the Hill principle was rejected by the Court. The significance of this case is likely to be in limiting the situations where Hill can be applied and clarifying the relationship between Convention duties and claims in common law. This is a very good summary of the case and this is a good analysis of some of the wider legal consequences.

Robinson concerned an elderly woman who had been injured when a police operation to arrest a suspected drug dealer resulted in her being knocked over and injured by two officers struggling to control the man. She was a third party, simply walking along the street when this police operation barged into her, and when she brought an action against the police they contended that they did not owe a duty of care to her and there were operational policy reasons for such a duty not being imposed. After carefully reviewing the imposition of a duty of care and the different ways in which a duty may be established (and clarifying that a rigid adherence to the Caparo test is unnecessary) the Court distinguished the Hill from the current case. They argued that Hill was an attempt to impose liability for failure to prevent a crime, this concerned a police action – namely an operation to arrest a known drug dealer who the police acknowledged was likely to run away and resist arrest- that the police could envisage leading to third party harm. The significance of this case is, as Ian Skelt notes in this excellent commentary on the case that ” where a positive act can be identified, the fact that it relates to a core function of policing will not prevent a duty being imposed.”  This significantly limits the application of Hill although other cases such as Swinney have previously highlighted the limits of Hill.

 

Armes and Non-Delegable Duties

The Supreme Court this week decided a significant case in relation to the ongoing litigation arising from historic child sex abuse.  The claimants had all been abused in 1980s whilst in foster care managed by Nottinghamshire County Council.  In 2001 the House of Lords held that you could hold a children’s home liable for abuse committed on its premises by a member of staff under the doctrine of vicarious liability.  Subsequent cases have widened the scope of this responsibility to hold organisations such as the Catholic Child Welfare Society responsible for abuse committed in one of its residential schools.

In Armes v Nottinghamshire CC , which was handed down by the Supreme Court on Wednesday, the claimants were able to expand this still further arguing that given the  ” local authority carried out the recruitment, selection and training of foster parents, paid their expense” and conducted a number of other processes the relationship they had with foster parents was akin to that of employer. Furthermore the local authority
“exercised powers of approval, inspection, supervision and removal”  of children being placed with foster families meaning that the whole framework of the adoption process was under their direct control.

What was more interesting however was the issue of delegated and non-delegable duties as the claimants lost this particular argument.  Some duties of care in Tort law are non-delegable this means that a person with that duty of care cannot discharge it to another party.  The leading case on this is Woodland v Essex County Council which arose after a child was seriously injured during the course of a school swimming lesson which was run by a company called Direct Swimming Services who had been employed by the local authority to teach children swimming.  Normally it would be the company who would have been held responsible but the Supreme Court held the local authority responsible because their duty of care towards the children under their care was non-delegable – it could not be passed on to someone else. This was limited in scope the Supreme Court held  as Parents are legally obliged to entrust their child’s care to a school despite having no control over how that care manifests itself. But crucially public authorities would only owe a duty in respect of functions which they assumed a duty to perform and where the control over the child had been delegated. The Law Lords seemed to favour a limited construction of delegated duties which concentrated on the discharge of statutory functions.

In Armes Lord Reed (Paragraphs 37-45 are the relevant ones for this discussion)  held that it was too broad to hold that foster care was a non-delegable duty of care as it would limit the local authorities options in discharging their functions. The Child Care Act 1980  permits a local authority to arrange for children in care to spend time staying with their parents or grandparents, or other relatives or friend . The crucial question (para 37) was “whether the function of providing the child with day-to-day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements”

To hold them liable for every action taken by any of those groups of people would mean that the local authority would not be promoting the best interests of the child as they would be too concerned with avoiding liability.  This is applied Woodland and limited the scope of what would be considered a non-delegable duty of care.

This case should be understood as the Court’s attempt to determine what mechanism imposed liability on the authority for the actions of their appointed foster carers. To simply hold that this duty was not duty that could be delegated would be too far reaching an imposition on the Council. Instead focusing on the control the Council had to prevent abuse occurring was a better framework for the imposition of liability as it focused more on what the council could potentially have done to prevent such abuse occurring.

 

Monroe v Hopkins – the ‘wild west’ defence

The judgment that was handed down this afternoon in Monroe v Hopkins [2017] EWHC 433 QB is significant in its interpretation of a couple of the points to do with the interpretation of the 2013 Defamation Act.  Not least beacuse this case was the most high profile case yet of a social media spat resulting in defamation proceedings.

After the General Election in 2015 there was a protest in Whitehall which got out of hand   a war memorial was graffitied with the statement “F*** Tory scum”. It was particularly shocking as it was on the Monument to the Women of World War II and there was an attempt made by some on the far left, to explain this incident in political terms. The defendant Katie Hopkins, an outspoken opinion writer on the far right, known for deliberately seeking controversy over racist statements, tweeted the claimant, the journalist Jack Monroe saying;  “Scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?” It seems from the defendants case that she thought the claimant was another journalist who had tried to explain the protests. The claimant was shocked by this, as she came from a military family and was by her own admission proud of the military,  and she tweeted back “Dear @KTHopkins, public apology + £5K to migrant rescue and I won’t sue. It’ll be cheaper for you and v satisfying for me.”

The case of mistaken identity was resolved after an exchange of tweets, mostly from claimant, but no apology from Katie Hopkins (the Defendant was forthcoming). The first issue of whether the statement was defamatory relatively straightforward – the claimant contended that the ordinary meaning of the words were that either she had defaced a war memorial or that she approved the defacing of the war memorial. The defendant’s case was that read in its proper context what she meant was the claimant ““was supportive – politically – of those who had painted the slogan onto the monument.” The correct test was to be found in Charleston v News Group Newspapers Ltd [1995] 2 AC 65 which required the court to look at the context and the meaning that the reader would draw from the statement. The context element the judge concluded was made all the more difficult by twitter, because timelines are difficult to read as a unified piece and often earlier statements disappear. However,  looking at the statement in the first tweet and Katie Hopkins subsequent tweet where she described the claimant as “social anthrax” it was clear that the ordinary meaning of the words were to infer that the claimant did approve of the defacing of the monument as her apparent lack of concern about mis-identification meant that context in which the statement was read was one that pointed to that conclusion.

The requirement imposed by section 1 of the 2013 Defamation Act that the claimant needs to show that they the defamatory statement “has caused or is likely to cause serious harm to the reputation of the claimant.” In Sobrinho v Impresa Publishing SA [2016] it was clarified that an injury to feelings alone, however grave, will not be sufficient to activate the requirements of section 1. This provision reflects the pre-2013 position where the Courts were inclined to strike out cases involving trivial or procedural harms – see Jameel v Dow Jones [2005] EWCA Civ 75. The first tweet, the defamatory tweeted was deleted a few hours afterwards. However the court held that what matters  “is not the period of time for which a person is exposed to the message but the impact the message has”. This very significant in the assessment of the scope of section 1 and the evidence based assessment that Court undertook looking at the context of the tweet, its exposure (based on the number of views that the defendants twitter profile had) and any responses or reaction to the original tweet.

Significantly on the subject matter of the tweet and whether readers believed the court held that the absence of evidence  that it was believed was not “evidence of a lack of harm.” This seems to be quite significant as the court seems to suggest that this would not inform a contextual assessment of the damage or likely damage to reputation in an assessment of harm under section 1. This would mean that an outlandish, but harmful claim, could potentially be defamatory. The court also gave relatively short shrift to the idea of the ‘wild-west’ theory regarding social media, which maintained that more latitude should be applied to these statements.

It is noteworthy that the damages were very high because they included the full legal costs for the claimants, which has led some commentators to note that the decision raises problems about free speech and the potential “chilling effect” of the decision.  The implications for freedom of expression more generally do deserve some attention as political speech gets more heated and attempts to shoehorn views into 140 characters means nuance is lost.

Ten years on: yes, the Iraq war was wrong, but…

This basically sums up the problems the Iraq war and the humanitarian basis for it. The war had no real legal basis and was a clear stain on the authority of international law. There is however a deeper moral and political question that those of us who marched in 2003 need to reflect upon. What would have happened had he stayed.

Shiraz Socialist

Like many readers of this blog, I was there on 15 February 2003, and I’ve never had cause to regret it. But I don’t share the self-righteous preening of tyrant-lovers like Andrew Murray, nor the slightly more forgivable solipsism of Laurie Penny (who at least has -or had- the excuse of youth). Even at the time, I was sickened by the refusal of the SWP, Galloway, Murray, etc to address the human rights issues and their systematic, deliberate, whitewashing of Saddam (Galloway, of course, being the most grovelling and egregious Saddam fan). A little later, their support for the fascistic gangs who were murdering Iraqi trade unionists alienated me once and for all. The subsequent degeneration of the Stop The War Coalition into a shrivelled Westphalian excuse-machine for vicious dictators and tyrants everywhere has only served to confirm my worst expectations.

Ian Taylor, an unrepentant marcher and anti-war campaigner, puts his…

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