Gender Recognition Act and an issue of privacy

A transgender woman has failed in her claim that the Gender Recognition Act 2004 breaches the privacy of those who have had surgery or other medical procedures towards gender reassignment. Section 3(3) of the Act requires that individuals reveal details of such medical procedures to a Gender Recognition Panel to back up an application for a Gender Recognition Certificate. Yet the Panel is empowered to issue the certificates to people who have had no such procedures as long as they can provide evidence of gender dysphoria and show they intend to live according to their chosen gender for the rest of their life.

A UK High Court judge rejected the claim by Helen Carpenter, who has transitioned from male to female, that the extra burden on those who had had or were contemplating medical procedures was a breach of Article 8 of the European Convention on Human Rights on privacy.

Section 3(3) of the GRA 2014 says that if the applicant for a certificate “has undergone or is undergoing treatment for the purpose of modifying sexual characteristics” or plans such treatment or has had it prescribed then it is required that a doctor’s report on her position “provides details of it”. Mrs Justice Thirlwall said: “Given that this information is necessary to the decision to be taken, that its dissemination beyond the Panel is prohibited, I am satisfied that the provision of the information required in paragraph 3(3) is necessary and proportionate to the legitimate aim. There is no incompatibility with Article 8.”

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PLT Anti-Marketing cold-call blocking: not a ‘scam’ after all?

An attempt to close down a company accused by the UK Government of a cold-call blocking “scam” has hit something of a stalemate in the Court of Appeal. PLT Anti-Marketing Ltd charges £40 a year for a cold-calling and junk mail blocking service already available free from official providers. The court has quashed a judge’s finding that PLT breached regulations and Lord Justice Briggs has produced strong arguments in favour of the company despite an attempt by the Department of Business (BIS) to close it down. Nevertheless PLT remains barred from pursuing its business as it wishes until a full trial – when judgment could turn against it. The litigation has so far been going on for more than a year and a half – during which time PLT has been able to continue charging current customers but not to take on new ones without telling them about the free service. The whole affair raises the issue of whether current legislation is adequate for dealing with alleged consumer scams of this sort.

The free cold-calling and direct mail blocking services are available from Telephone Preference Service (TPS – provided by Ofcom; see: Regulation 26 of the Electronic Communications (EC Directive) Regulations 2003) and the Mail Preference Service (MPS – offered by the Direct Marketing Association in co-operation with the Post Office). PLT takes the names of its paying customers and adds them to the free lists. It maintains a service for its customers to complain about any continued unwanted calls and mail, but that also links into the free official services. Customers continue to pay on a monthly or annual basis. 

The Department of Business (BIS) started investigating PLT in 2012. In April 2013 it issued a “public interest winding up petition” under Companies Act 1985 S.124A – and the matter has been bogged down in court hearings ever since.

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Newhaven Port: Why UK Supreme Court ruled beach cannot be village green

There was bad news and worse news for village green campaigners in the long UK Supreme Court judgment in R (Newhaven Port & Properties Ltd) v East Sussex County Council. The council and locals have lost the use of West Beach on the Sussex coast as the local port authority seeks to develop the port. The worse news is that the court has sought to close off all hope of turning beaches into village greens to protect them from development.

The reasons for rejecting the Newhaven village green claim are complex and rather narrow – though they will stymie many village green claims against public authorities or companies acting on their behalf with statutory duties and powers.

But the Supreme Court justices also allowed themselves free rein to preempt any wider bathing beach claims that fall outside the limited Newhaven definitions. Although they didn’t come to a final conclusion on this, Lord Carnwath did much of the spadework that would suggest village green applications on beaches would not be entertained. Consideration of the wider points will require another post at some time. Here the specifics of Newhaven are examined.

The Supreme Court case 2015
East Sussex County Council decided to register West Beach as a “town or village green” under the Commons Act 2006. Such registration gives certain planning protections to land and has been used to prevent development. Anyone can apply for registration for land where (according to Section 15(2) the Act

“a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years [the prescription period]; and 

(b) they continue to do so at the time of the application.” 



Crucially “as of right” means without specific permission from the owner: “nec vi, nec clam, nec precario” (not by force, nor stealth, nor the licence of the owner – precario meaning a permission that can be easily withdrawn). In April 2006, before the Act came into force, the owner of the beach, Newhaven Port and Properties Ltd (NPP), a statutory port authority, fenced it off to keep people away. Objectors said the public had established the required 20 years of use before the fencing went up. They said their use must have been “as of right”, meaning they behaved as if they had the right to be there even though they didn’t. There had previously been no fences or warning notices for example.

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Victor Nealon miscarriage of justice: the case against Chris Grayling

In the case of Victor Nealon, seeking compensation for a miscarriage of justice, UK Justice Secretary Chris Grayling seems to have flown in the face several tenets of the British legal tradition. He has overturned the principle that a person is innocent until proved guilty; reversed the burden of proof (that the prosecution must prove guilt, not the defence prove innocence); defied the standard of proof – guilt (not innocence) beyond reasonable doubt; and created himself as a quasi-judicial figure who is judge and jury in his own court. That’s some going as we celebrate Magna Carta, the foundation document for the rule of law.

On the face of it, it all seems perfectly legal, since his treatment of miscarriages of justice is enshrined in legislation passed last year. In reality, though, there is a strong case against Grayling – and a strong argument that his legislation is fatally flawed.

Nealon had been locked up for 17 years of a life sentence for attempted rape. When released in 2013 thanks to new DNA evidence he was denied compensation. His conviction in 1997 was ruled unsafe and he was released 10 years after his 7-year minimum tariff. Parole had throughout that time been rejected in part because he had continued to deny his guilt.

Grayling has refused to order compensation because his innocence has not been proved “beyond reasonable doubt”. This is quite contrary to the principle in criminal law cases that guilt must be proved beyond reasonable doubt – innocence need not be. But the new standard of proof specifically for miscarriage of justice compensation claims was rushed into law last year as an amendment to Section 133 of the 1988 Criminal Justice Act. The decision looks justifiable in law – which is probably why leave for a judicial review was turned down in December 2014.

This piece nevertheless argues that Grayling’s decision is challengeable in law and that the new legislation is unworkable – creating as it does a new legal concept (innocence beyond reasonable doubt) with no forum or expertise to establish innocence to such a level of certainty. This means that any decisions to reject claims based on the new law (rather than the perfectly functional law as it stood before 2014) will be open to challenge because they will all have been arrived at unreasonably – without the necessary evidence being made available to the Secretary of State nor any possibility of its being made available. There is also a strong arguable case that the Ministry of Justice and the new law itself is in breach of Article 6 of the European Convention on Human Rights: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Continue reading

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Victor Nealon: the Court of Appeal miscarriage of justice case

The case of Victor Nealon, denied compensation despite being imprisoned for 17 years after a miscarriage of justice, has raised important issues about the compensation regime for such cases. Nealon, a former postman, was convicted of attempted rape in Redditch in Worcestershire in 1996. He served 10 years more than his recommended minimum tariff on a life sentence, in part because he continued to protest his innocence. The facts and legal arguments about the case are outlined below in some detail, based on his successful appeal in 2013 thanks to new DNA evidence. A post on the legal issues regarding compensation and why the new law (2014 Antisocial Behaviour, Crime and Policing Act at Section 175that bars it to people in Nealon’s position unless they can prove their innocence (rather than prove a miscarriage of justice) is also available on Thinking Legally: The case against Grayling.

Nealon was convicted of attempted rape (of Ms E) in 1997 at Hereford Crown Court and sentenced by Jowitt J. His first appeal against conviction was dismissed in 1998. In July 2012, the Criminal Cases Review Commission (“CCRC”) referred the conviction to the Court of Appeal Criminal Division on the grounds of fresh DNA evidence (following his third application to the CCRC). He had continued to declare his innocence throughout his time in prison which debarred him from consideration for release after the 7-year minimum term was up. In effect his refusal to accept the verdict of the court meant he lost an extra 10 years of his life.

The following is extracted from Lord Justice Fulford’s judgment in the Court of Appeal in March 2014.  Continue reading

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Daniel Gauntlett inquest: human rights issues and the ‘Middleton’ procedure

An inquest is to be held (on 10 December 2014 in Maidstone, Kent) into the death of Daniel Gauntlett who died in freezing temperatures outside a derelict bungalow in Kent. The death brought the notorious LASPO anti-squatting legislation into focus. An issue likely to be considered at the inquest is whether Gauntlett’s human rights were breached: did the state owe him a duty regarding his European Convention Article 2 right to life?

Campaigners have blamed his death on the LASPO legislation last year that banned squatting in residential buildings. They say he was barred from entering the building to protect himself from sub-zero temperatures last February [2013]. The inquest opens up the prospect of examining whether the legislation or the authorities acting under it bear any responsibility for Gauntlett’s death.

For that the inquest will have to be held under a “Middleton procedure”. Where public authorities might have been involved in a death, the procedure allows the coroner to examine whether the deceased’s right to life under Article 2 has been breached. As well as a standard finding on cause of death (by what means someone died) the coroner may in effect indicate where blame might lie by considering the circumstances of the death.

Campaigners want the coroner to look at how far Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 might have been responsible for Gauntlett’s death outside the bungalow in Aylesford, near Maidstone. At issue might also be the behaviour of police or social services.
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Judge Dingemans’ defiance: was he right to give Sunita Sisangia legal aid?

 Was Mr Justice Dingemans right to extend legal aid to Sunita Sisangia in her case against the UK’s Legal Aid Agency?  Or does this victory for legal aid indicate how far judges might be willing to go to defy the Government on this issue? His judgment was cleverly crafted to be within the bounds of judicial discretion regarding “statutory construction” – the judicial interpretation of legislation. But arguably it owes quite a lot to his willingness to turn a blind eye to the real intention of the UK Coalition Government’s notorious anti-legal aid LASPO legislation.

The case of R (on the application of Sunita Sisangia v Director of Legal Aid Casework is described here (and see materials below). Dingemans’ High Court judgment allowed legal aid for Ms Sisangia to take a false imprisonment claim against the police without the case having to involve police dishonesty or misfeasance. 

The argument of the Legal Aid Agency (LAA) lawyers had been that this was just the sort of claim (one allegedly involving negligence but not misfeasance) that Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) intended to deny legal aid to along with the general run of private law damages claims. The lawyers offered proof in exchanges in the House of Lords in which the relevant minister made this clear: where the police had not been dishonest or had not intended unlawful detention, legal aid should not be available.

This is what Paragraph 21 of Schedule 1 says: legal aid will not be available for damages claims in general but “civil legal services [will be] provided in relation to abuse by a public authority of its position or powers”. However: 

“(4) For the purposes of this paragraph, an act or omission by a public authority [such as the police] does not constitute an abuse of its position or powers unless the act or omission –
(a) is deliberate or dishonest, and
(b) results in harm to a person or property that was reasonably foreseeable.”

The LAA lawyers wanted those words to be read as if they said “(a) is deliberate and dishonest”. In other words there must be deliberateness as well as dishonesty (or misfeasance as Dingemans interpreted the word) before legal aid is offered. On such a reading legal aid would be reserved only for the more “serious” cases where, for example, police keep someone in detention with malice or for some ulterior motive. Dingemans preferred to stick to the words of the Act; since arresting Ms Sisangia was deliberate (how could it be otherwise?), her claim was covered even though the arrest was not dishonest.

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