Introduction
1. Nigel Farage, quoted in ‘Alfie Evans: World’s reaction to sick toddler’s case’, BBC News, 25 April 2018, https://www.bbc.co.uk/news/uk-england-merseyside-43892684
2. H. Sachs, ‘Alfie Evans, the State and Us’, American Thinker, 29 April 2018, https://www.americanthinker.com/articles/2018/04/alfie_evans_the_state_and_us.html
3. ‘UK judge rejects bid to take sick toddler Alfie Evans abroad – Parents cucked twice, first by brain dead baby then by judge’, https://kiwifarms.net/threads/uk-judge-rejects-bid-to-take-sick-toddler-alfie-evans-abroad.42288/page-5
4. Senator Ted Cruz, press release, 25 April 2018, https://www.cruz.senate.gov/?p=press_release&id=3760
5. Nigel Farage, quoted in ‘Alfie Evans: World’s reaction to sick toddler’s case’, BBC News, 25 April 2018.
6. L. Deacon, ‘“Death Panel”: European court says terminal baby must die despite parents funding extra care’, Breitbart, 29 June 2017, https://www.breitbart.com/london/2017/06/29/eu-court-terminal-baby-must-die-despite-parents-funding-extra-care/
7. D. Loucks, ‘Commentary: Socialized medicine seeks Charlie Gard’s death’, Austin American-Statesman, 10 July 2017, https://archive.md/MCOmz
8. ‘Theresa May speech in full’, 4 October 2011, http://www.politics.co.uk/comment-analysis/2011/10/04/theresa-may-speech-in-full
9. ‘EU human rights court order Italy to pay Amanda Knox £15,600 in damages for violating her rights during Meredith Kercher murder investigation’, @DailyMailUK, Twitter, 24 January 2019, https://twitter.com/DailyMailUK/status/1088397934494994434
10. S. Johnson, ‘Cleaning up in the small claims court: Council worker awarded £9,000 compensation for tripping over a mop’, Daily Mail, 27 July 2012, https://www.dailymail.co.uk/news/article-2179757/Council-cleaner-given-9-000-compensation-tripping-MOP.html
11. D. Martin, ‘Jackpot tribunal payouts face axe: Plan to limit discrimination at work claims’, Daily Mail, 11 May 2011, https://www.dailymail.co.uk/news/article-1385731/Jackpot-tribunal-payouts-face-axe-Plan-limit-discrimination-work-claims.html
12. ‘Comment: Employment tribunals are legalised extortion’, This is Money, 6 January 2011, https://www.thisismoney.co.uk/money/article-1710536/Comment-Employment-tribunals-are-legalised-extortion.html.
13. R. Littlejohn, ‘Unsuitable work for a woman’, Daily Mail, 20 February 2014, https://www.dailymail.co.uk/debate/article-2564235/RICHARD-LITTLEJOHN-Help-My-ID-stolen-Call-Fraudbusters.html
14. Interview with Ken Clarke, International Bar Association, November 2011, https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=F4A4D433-36F9-4D3B-A3CA-ED94A30EF09A
15. On 30 November 2019, Telegraph columnist Allison Pearson tweeted, in reference to the barrister who had represented the London Bridge terrorist Usman Khan: ‘On the other hand, we have a criminal justice system – including human rights QCs – who facilitate violent jihadists to get away with murder’. This tweet was subsequently deleted. Original slugline here: https://twitter.com/allisonpearson/status/1200700221904-375808
16. Theresa May MP, House of Commons, 22 October 2013, Hansard, column 162, https://hansard.parliament.uk/Commons/2013-10-22/debates/13102262000002/ImmigrationBill?highlight=Care%20COL:%20162
17. L. Perrins, ‘The feminists who are turning British justice against men’, Daily Mail, 7 September 2016, https://www.dailymail.co.uk/debate/article-3777053/The-feminists-turning-British-justice-against-men-writes-LAURA-PERRINS.html
18. Philip Davies MP, quoted in D. Barrett, ‘Judges weaken rules on paedophiles’, Telegraph, 20 August 2011, https://www.telegraph.co.uk/news/uknews/law-and-order/8713203/Judges-weaken-rules-on-paedophiles.html
19. R. Prince, ‘David Cameron: when a burglar invades your home they give up their rights’, Telegraph, 9 October 2012, https://www.telegraph.co.uk/news/politics/conservative/9595589/David-Cameron-when-a-burglar-invades-your-home-they-give-up-their-rights.html
20. M. Robinson, ‘Brazen prisoners FILM a cell raid on smuggled mobile phone and taunt the inmate led away by officers in riot gear at jail they dub “Butlins with bars”’, Daily Mail, 23 October 2017 http://www.dailymail.co.uk/news/article-5008749/Brazen-prisoners-FILM-cell-raid-officers-riot-gear.html
21. Douglas Carswell MP, quoted in J. Slack, ‘Enemies of the people: Fury over “out of touch” judges who have “declared war on democracy” by defying 17.4m Brexit voters and who could trigger constitutional crisis’, Daily Mail, 3 November 2016, https://www.dailymail.co.uk/news/article-3903436/Enemies-people-Fury-touch-judges-defied-17-4m-Brexit-voters-trigger-constitutional-crisis.html
22. J. Slack, ‘Enemies of the people: Fury over “out of touch” judges who have “declared war on democracy” by defying 17.4m Brexit voters and who could trigger constitutional crisis’, Daily Mail, 3 November 2016.
23. G. Adams, ‘The judges and the people: Next week, 11 unaccountable individuals will consider a case that could thwart the will of the majority on Brexit. The Mail makes no apology for revealing their views – and many have links to Europe’, Daily Mail, 3 December 2016. https://www.dailymail.co.uk/news/article-3995754/The-judges-people-week-11-unaccountable-individuals-consider-case-help-thwart-majority-Brexit-Mail-makes-no-apology-revealing-views-links-Europe.html
24. J. Slack, ‘Enemies of the people: Fury over “out of touch” judges who have “declared war on democracy” by defying 17.4m Brexit voters and who could trigger constitutional crisis’, Daily Mail, 3 November 2016.
25. It was me. In my first book, The Secret Barrister: Stories of the Law and How It’s Broken (Picador, 2018). If you haven’t read it yet, I suggest that you do so. Then this self-referential jokette will make more sense. Although it will probably be no funnier.
26. The National Archives aimed to have all legislation updated by the end of 2020: http://www.legislation.gov.uk/help#faqs (accessed 20 July 2019).
27. Ibid.
28. The Stationery Office website, ‘The National Archives (Legislation)’, http://www.tsonline.co.uk/our-expertise/case-studies/national-archives-wwwlegislationgovuk (accessed 26 August 2018).
29. D. Hoadley, ‘Open access to case law – how do we get there?’, Infolaw Newsletter, November 2018, http://www.infolaw.co.uk/newsletter/2018/11/open-access-case-law-get/
30. BAILII, ‘Frequently Asked Questions: What case law can I find on BAILII?’, https://www.bailii.org/bailii/faq.html#whatcase The problem, it seems, is that historically the courts have often not bothered to publish their own judgments, meaning that the only written records are kept by private transcription companies, who will only permit distribution of their intellectual property for a fee beyond the reach of a charity. Yes, I know.
31. Offences Against the Person Act 1861.
32. The Vagrancy Act 1824 was brought into force under William IV to address the social ills caused by the large number of homeless soldiers following the end of the Napoleonic Wars, but its scope was broadened throughout the nineteenth century to criminalise a smorgasbord of perceived immorality.
33. See Appendix for the answer.
34. A common, if simplistic, analogy is that of a doctor and a consultant/surgeon. The solicitor (doctor) is your first port of call, diagnoses the problem and, if called for, instructs a barrister (consultant) to offer specialist advice or carry out ‘surgery’ in court. It’s not a brilliant metaphor, but captures the essence.
35. Judges are experienced, legally qualified experts who sit in courts throughout the court hierarchy. Magistrates are unpaid, non-legally qualified volunteers who sit in the magistrates’ courts. These are on the bottom rung of the legal ladder, but magistrates still have the power to send people to prison (in criminal proceedings) and remove their children (in family proceedings).
36. ‘Third of Britons don’t know difference between civil and criminal courts’, The Times, 8 November 2019, https://www.thetimes.co.uk/article/third-of-britons-dont-know-difference-between-civil-and-criminal-courts-nvv7rqv6h
37. Citizens Advice, ‘Responsive justice: How citizens experience the justice system’, November 2015, p.2, https://www.citizensadvice.org.uk/Global/CitizensAdvice/Crime%20and%20Justice%20Publications/Responsivejustice.pdf
38. The only known gavel in an English and Welsh courtroom is at Inner London Crown Court, where the clerk bangs a gavel to announce the entrance of the judge into court. Otherwise, they are the exclusive preserve of auctioneers and picture editors.
1. Yourself and Your Home
1. ‘Conservative conference: Force against burglars to be allowed’, BBC News, 9 October 2012, https://www.bbc.co.uk/news/uk-politics-19879314
2. S. Morris, ‘The killer who won a nation’s sympathy’, Guardian, 30 October 2001, https://www.theguardian.com/uk/2001/oct/30/tonymartin.ukcrime2
3. Ibid.
4. R. Alleyne, ‘Killer who was a hero to victims of crime’, Telegraph, 31 October 2001, https://www.telegraph.co.uk/news/uknews/1361023/Killer-who-was-a-hero-to-victims-of-crime.html
5. Ibid.
6. I. Burrell, ‘Payment to Tony Martin was justified, says PCC’, Independent, 3 October 2003, https://www.independent.co.uk/news/media/payment-to-tony-martin-was-justified-says-pcc-89575.html
7. P. Waugh, ‘Hague calls for overhaul in laws of self-defence’, Independent, 26 April 2000, https://www.independent.co.uk/news/uk/crime/hague-calls-for-overhaul-in-laws-of-self-defence-266716.html
8. S. Morris, ‘The killer who won a nation’s sympathy’, Guardian, 30 October 2001.
9. P. Wintour, ‘What the memo tells us about Tony Blair’s style of leadership’, Guardian, 18 July 2000, https://www.theguardian.com/politics/2000/jul/18/labour.politicalnews
10. M. Sullivan, ‘DON’T CHARGE HIM: Join The Sun to demand an end to murder probe into hero OAP Richard Osborn-Brooks, accused of stabbing serial burglar’, the Sun, 5 April 2018, https://www.thesun.co.uk/news/5984919/petition-richard-osborn-brooks-murder-burglar/
11. P. Waugh, ‘Hague calls for overhaul in laws of self-defence’, Independent, 26 April 2000.
12. Cited in J. R. Spencer, ‘Using force on burglars’, Archbold Review, issue 2 (March 2016), p. 6.
13. Section 2 of the Homicide Act 1957.
14. R v. Martin (Anthony Edward) [2001] EWCA Crim 2245; [2002] Cr App R 27.
15. Section 3 of the Criminal Law Act 1967.
16. Palmer v. R [1971] AC 814.
17. R v. McInnes [1971] 55 Cr App R 551.
18. Facts taken from the Court of Appeal judgment, R v. Martin (Anthony Edward) [2001] EWCA Crim 2245; [2002] Cr App R 27.
19. R. Alleyne, ‘Killer who was a hero to victims of crime’, Telegraph, 31 October 2001.
20. ‘“Have a go hero” businessman Munir Hussain freed by Court of Appeal’, The Times, 20 January 2010, https://www.thetimes.co.uk/article/have-a-go-hero-businessman-munir-hussain-freed-by-court-of-appeal-kr8p9v6057g
21. Ibid.
22. R. Clark, ‘Munir Hussain: He’s free but what an outrage that he was prosecuted’, Daily Express, 22 January 2010, https://www.express.co.uk/comment/expresscomment/153368/Munir-Hussain-He-s-free-but-what-an-outrage-that-he-was-prosecuted
23. ‘“Have a go hero” businessman Munir Hussain freed by Court of Appeal’, The Times, 20 January 2010.
24. R v. Hussain & Hussain [2010] EWCA Crim 94; [2010] 2 Cr App R (S) 60, per Lord Judge C. J. at [34].
25. ‘Homeowners and self-defence – DPP issues further details of cases’, Crown Prosecution Service press release, 13 January 2005, cited in S. Lipscombe, ‘Householders and the criminal law of self defence’, House of Commons Library, 10 January 2013.
26. ‘Welby farm shooting: Couple will not face charges’, BBC News, 5 September 2012, https://www.bbc.co.uk/news/uk-england-leicestershire-19496531
27. D. Batty, ‘Burglars should accept risk of being shot, says judge’, Guardian, 26 September 2012, https://www.theguardian.com/world/2012/sep/26/burglars-accept-risk-shot-judge
28. ‘Yorkshire farmer, 83, claims shooting was “self-defence”’, BBC News, 10 March 2017, https://www.bbc.co.uk/news/uk-england-humber-39229170
29. ‘Farmer, 83, cleared over shooting man on his land’, BBC News, 10 March 2017, https://www.bbc.co.uk/news/uk-england-humber-39233017
30. Lord Thomas of Gresford, House of Lords, 22 January 2008, Hansard, column 135, https://publications.parliament.uk/pa/ld200708/ldhansrd/text/80122-0003.htm
31. Conservative manifesto 2010, ‘Invitation to Join the Government of Britain’, p.56: ‘We will give householders greater legal protection if they have to defend themselves against intruders in their homes.’ http://conservativehome.blogs.com/files/conservative-manifesto-2010.pdf
32. J. Slack and J. Chapman, ‘“They loaded up my Skoda and drove off”: David Cameron reveals he has been burgled twice as he tells homeowners they can use disproportionate force against intruders’, Daily Mail, 8 October 2012, https://www.dailymail.co.uk/news/article-2214830/They-loaded-Skoda-drove-David-Cameron-reveals-burgled-twice-tells-homeowners-use-disproportionate-force-intruders.html
33. R. Prince, ‘David Cameron: when a burglar invades your home they give up their rights’, Telegraph, 9 October 2012, https://www.telegraph.co.uk/news/politics/conservative/9595589/David-Cameron-when-a-burglar-invades-your-home-they-give-up-their-rights.html
34. ‘Chris Grayling: How I’m fulfilling my promise on new rights for householders’, Sunday Telegraph, 24 November 2012, https://www.telegraph.co.uk/news/politics/9700895/Chris-Grayling-How-Im-fulfilling-my-promise-on-new-rights-for-householders.html
35. O. Bowcott, ‘Chris Grayling’s self-defence plans greeted with dismay by lawyers’, Guardian, 9 October 2012, https://www.theguardian.com/politics/2012/oct/09/chris-grayling-self-defence-lawyers
36. G. Wilson, ‘It’s official: You can batter a burglar’, the Sun, 8 October 2012, https://www.thesun.co.uk/archives/politics/975563/its-official-you-can-batter-a-burglar/
37. R. Prince, ‘David Cameron: when a burglar invades your home they give up their rights’, Telegraph, 9 October 2012.
38. Section 76(6) of the Criminal Justice and Immigration Act 2008.
39. R. Prince, ‘David Cameron: when a burglar invades your home they give up their rights’, Telegraph, 9 October 2012.
40. G. Wilson, ‘It’s official: You can batter a burglar’, the Sun, 8 October 2012.
41. Ibid.
42. Section 76(5A) of the Criminal Justice and Immigration Act 2008.
43. R (on the application of Collins) v. Secretary of State for Justice [2016] EWHC 33 (Admin).
44. As the use of ‘reasonable force in self-defence’ had been previously (and consistently) found to be compatible with the Article 2 right to life, the Court’s finding that section 76(5A) did not change the fundamental test of ‘reasonableness’ meant that the new subsection did not create any compatibility problems.
45. Per Sir Brian Leveson P., ibid at [62].
46. M. Beckford, ‘You can’t bash a burglar after all: Government’s tough rhetoric branded a farce as it’s revealed homeowners are barred from fighting raiders in garden or chasing them outside’, Daily Mail, 27 April 2013, https://www.dailymail.co.uk/news/article-2315808/You-bash-burglar-Governments-tough-rhetoric-branded-farce-revealed-homeowners-barred-fighting-raiders-garden-chasing-outside.html
47. H. Goodman, ‘NRA’s Behind-the-Scenes Campaign Encouraged “Stand Your Ground” Adoption’, Florida Center for Investigative Reporting, 23 March 2012, https://fcir.org/2012/03/23/nras-behind-the-scenes-campaign-encouraged-stand-your-ground-adoption-across-the-country/
48. A. O’Neill, ‘NRA’s Marion Hammer stands her ground’, CNN, 15 April 2012, https://edition.cnn.com/2012/04/15/us/marion-hammer-profile/index.html
49. A. Goodnough, ‘Florida Expands Right to Use Deadly Force in Self-Defense’, New York Times, 27 April 2005, https://www.nytimes.com/2005/04/27/us/florida-expands-right-to-use-deadly-force-in-selfdefense.html
50. N. Flatow, ‘At Least 26 Children Or Teens Died In Florida Stand Your Ground Cases’, Think Progress, 5 February 2014, https://thinkprogress.org/at-least-26-children-or-teens-died-in-florida-stand-your-ground-cases-726443948a64/
51. S. Taylor Martin, ‘Florida “stand your ground” law yields some shocking outcomes depending on how law is applied’, Tampa Bay Times, 17 February 2013, https://www.tampabay.com/news/publicsafety/crime/florida-stand-your-ground-law-yields-some-shocking-outcomes-depending-on/1233133
52. ‘Deaths Nearly Triple Since “Stand Your Ground” Enacted’, CBS Miami, 20 March 2012, https://miami.cbslocal.com/2012/03/20/deaths-nearly-triple-since-stand-your-ground-enacted/
53. D. K. Humphreys, A. Gasparrini and D. J. Wiebe, ‘Evaluating the Impact of Florida’s “Stand Your Ground” Self-defence Law on Homicide and Suicide by Firearm’, Journal of the American Medical Association, January 2017, https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2582988
54. E. Elkin and D. Andone, ‘What you need to know about “stand your ground” laws’, CNN, 29 July 2018, https://edition.cnn.com/2018/07/29/us/stand-your-ground-law-explainer-trnd/index.html
55. C. McClellan and E. Tekin, ‘Stand Your Ground Laws, Homicides, and Injuries’, Journal of Human Resources, Summer 2017, vol. 52, no. 3, pp. 621–53.
56. A. Munasib, G. Kostandini and J. L. Jordan, ‘Impact of the Stand Your Ground law on gun deaths: evidence of a rural urban dichotomy’, European Journal of Law and Economics, June 2018, vol. 45, no. 3, pp. 527–54.
57. M. Hoekstra, ‘The deadly consequences of “Stand Your Ground” laws’, Reuters, 13 February 2014, http://blogs.reuters.com/great-debate/2014/02/13/the-deadly-consequences-of-stand-your-ground-laws/?utm_source=hootsuite&utm_campaign=hootsuite
58. ‘Dallas police officer shoots neighbour dead after entering wrong apartment’, Guardian, 7 September 2018, https://www.theguardian.com/us-news/2018/sep/07/dallas-police-officer-shoots-neighbor-wrong-apartment
59. R. Prince, ‘David Cameron: when a burglar invades your home they give up their rights’, Telegraph, 9 October 2012.
60. M. Sullivan, ‘DON’T CHARGE HIM: Join The Sun to demand an end to murder probe into hero OAP Richard Osborn-Brooks, accused of stabbing serial burglar’, the Sun, 5 April 2018.
61. S. Swinford, V. Ward and H. Dixon, ‘Justice Secretary pledges to protect homeowners after “career-criminal” burglar allegedly killed by pensioner’, Telegraph, 5 April 2018, https://www.telegraph.co.uk/politics/2018/04/05/justice-secretary-pledges-protect-homeowners-career-criminal/
1. Senator Ted Cruz, press release, 25 April 2018, https://www.cruz.senate.gov/?p=press_release&id=3760
2. ‘Alfie Evans: Protesters try to storm Alder Hey hospital’, BBC News, 23 April 2018, https://www.bbc.com/news/uk-england-merseyside-43867132
3. Facts taken from the judgment of Francis J. in Great Ormond Street Hospital v. Yates & others [2017] EWHC 972 (Fam).
4. ‘Charlie Gard’s parents to use £1.3m fund for charity’, BBC News, 15 August 2017, https://www.bbc.co.uk/news/uk-england-london-40940881
5. L. Deacon, ‘“Death Panel”: European court says terminal baby must die despite parents funding extra care’, Breitbart, 29 June 2017, https://www.breitbart.com/london/2017/06/29/eu-court-terminal-baby-must-die-despite-parents-funding-extra-care/
6. P. Greenfield, ‘Charlie Gard: Pope shows solidarity with parents of critically ill 10-month-old’, Guardian, 3 July 2017, https://www.theguardian.com/world/2017/jul/02/pope-shows-solidarity-with-charlie-gards-parents
7. D. Hughes, ‘Charlie Gard: Boris Johnson says terminally ill baby can’t be moved to Vatican’, Independent, 5 July 2017, https://www.independent.co.uk/news/uk/home-news/charlie-gard-boris-johnson-italy-foreign-minister-vatican-pope-francis-paediatric-hospital-care-a7825261.html
8. ‘European parliamentarians condemn “outrageous” Charlie Gard ruling in open letter to Theresa May and Jeremy Hunt’, Christian Concern, 5 July 2017, https://www.christianconcern.com/press-release/european-parliamentarians-condemn-outrageous-charlie-gard-ruling-in-open-letter-to-the
9. T. Starnes, ‘Charlie Gard: What kind of a nation would kill a baby in his mother’s arms?’, Fox News, 9 July 2017, https://www.foxnews.com/opinion/charlie-gard-what-kind-of-a-nation-would-kill-a-baby-in-his-mothers-arms
10. S. Berry, ‘Charlie Gard: How government and the courts usurp parental rights’, Breitbart, 6 July 2017, https://www.breitbart.com/politics/2017/07/06/charlie-gard-government-courts-usurp-parental-rights/
11. D. Loucks, ‘Commentary: Socialized medicine seeks Charlie Gard’s death’, Austin American-Statesman, 10 July 2017, https://archive.md/MCOmz
12. C. Thomas, ‘Charlie Gard – the state is not God’, Fox News, 13 July 2017, https://www.foxnews.com/opinion/charlie-gard-the-state-is-not-god
13. @SpeakerRyan, Twitter, 13 July 2017, https://twitter.com/SpeakerRyan/status/885603958756179968
14. R. Lydall and K. Proctor, ‘Charlie Gard and parents given “US citizenship”, but court ruling blocks baby from being taken from hospital’, Evening Standard, 19 July 2017, https://www.standard.co.uk/news/uk/charlie-gard-and-parents-all-given-us-citizenship-but-baby-still-cant-be-removed-from-hospital-a3591456.html
15. M. MacLeod, ‘Statement from Chairman of Great Ormond Street Hospital’, 22 July 2017, https://www.gosh.nhs.uk/news/latest-press-releases/statement-chairman-great-ormond-street-hospital-22-july-2017
16. Great Ormond Street Hospital v. Yates & others [2017] EWHC 1909 (Fam), https://www.bailii.org/ew/cases/EWHC/Fam/2017/1909.html
17. @Nigel_Farage, Twitter, 24 July 2017, https://twitter.com/Nigel_Farage/status/889601759374708736
18. @tedcruz, Twitter, 24 July 2017, https://twitter.com/tedcruz/status/889621865161011208
19. ‘Charlie Gard: Mother’s full statement – “we are so sorry that we couldn’t save you”’, Telegraph, 24 July 2017, https://www.telegraph.co.uk/news/2017/07/24/charlie-gard-mothers-full-statement-sorry-couldnt-save/
20. Facts taken from judgment of Hayden J. in Alder Hey Children’s NHS Foundation Trust v. Evans & others [2018] EWHC 308 (Fam), https://www.judiciary.uk/wp-content/uploads/2018/02/alder-hey-v-evans.pdf
21. T. Davidson, ‘RECAP as Alder Hey Children’s Hospital urges protestors to stay away as Alfie Evans’ parents await fresh legal challenge’, Mirror, 13 April 2018, https://www.mirror.co.uk/news/uk-news/live-alfie-evans-dads-emotionally-12353771
22. S. Paterson and M. Robinson, ‘Alfie Evans’ mother is “kicked out of hospital for complaining over visitor restrictions” as his father claims he has been threatened with jail if he tries to take brain-damaged son to Italy for treatment’, Daily Mail, 13 April 2018, https://www.dailymail.co.uk/news/article-5611775/Alfie-Evans-supporters-issue-fresh-call-arms-new-protest-outside-hospital.html
23. Ibid.
24. R. Hill, ‘MEP Steven Woolfe makes passionate plea for Alfie’s Law as he insists that doctors ‘‘make mistakes’’ and refers to Ashya King case’, Irish Mirror, 27 April 2018, https://www.irishmirror.ie/tv/mep-steven-woolfe-makes-passionate-12435772
25. L. Traynor, ‘Pope Francis calls for a solution in Alfie Evans case as family prepare for latest legal battle’, Liverpool Echo, 15 April 2018, https://www.liverpoolecho.co.uk/news/liverpool-news/pope-francis-calls-solution-alfie-14533970
26. @Pontifex, Twitter, 23 April 2018, https://twitter.com/Pontifex/status/988496588283826177
27. T. Stickings, ‘Could medics face trial for conspiracy to murder? Alfie Evans’ father plans private prosecution against three Alder Hey doctors over son’s care’, Daily Mail, 25 April 2018, https://www.dailymail.co.uk/news/article-5657273/Could-Alfie-Evans-medics-face-trial-conspiracy-murder.html
28. ‘Alfie Evans: Alder Hey Hospital defends staff against abuse’, BBC News, 25 April 2018, https://www.bbc.co.uk/news/uk-england-merseyside-43900571
29. ‘Alfie Evans: World’s reaction to sick toddler’s case’, BBC News, 25 April 2018, https://www.bbc.co.uk/news/uk-england-merseyside-43892684
30. ‘Nigel Farage talks Alfie Evans and Britain’s medical system’, Fox News, 26 April 2018, https://www.youtube.com/watch?v=rGwSNfZVKeA
31. https://m.facebook.com/groups/265101867249571/permalink/353390198420737/
32. For this historical summary, I am grateful to the Law Commission Working Paper No. 96, Family Law Review of Child Law: Custody (1986), at §6.1 onwards. http://www.lawcom.gov.uk/app/uploads/2016/08/No.096-Family-Law-Review-of-Child-Law-Custody.pdf
33. The Court of Chancery was a court of equity which operated parallel to the traditional courts of law, up until the Supreme Court of Judicature Acts of 1873 and 1875 fused the Chancery and common law courts into the High Court of Justice. Courts of equity, to crassly distil one of the most complex areas of our legal system into a snappy footnote, arose formally around the sixteenth century out of the Lord Chancellor’s function as ‘Keeper of the King’s Conscience’. They applied somewhat vague ‘equitable’ principles of fairness to mitigate the harshness of the common law developed in the King’s courts; a sort-of parallel justice system that led to the creation of land law and the laws of trusts, among other subjects feared and loathed by law students. In short, if there was a gap in the common law that would lead to injustice, the court of equity was your backstop. The law relating to children fell within that backstop.
34. Re Agar Ellis [1883] 24 Ch D 317, per Bowen L. J.
35. Section 31 of the Children Act 1989.
36. Section 8 of the Children Act 1989.
37. Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571.
38. Re B (A Child: Immunisation) [2018] EWFC 56, at [20].
39. Section 1(3).
40. Re G (Children) [2012] EWCA Civ 1233 (Fam).
41. General Medical Council Ethical Guidance for Doctors, https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/0-18-years/guidance-for-all-doctors
42. For a discussion as to the difficulties in quantifying the precise number, see ‘10 cases like Charlie’s? Actually we’re not sure . . .’, Transparency Project, 1 August 2017, http://www.transparencyproject.org.uk/10-cases-like-charlies-actually-were-not-sure/
43. Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386.
44. An NHS Trust v. Child B and Mr & Mrs B [2014] EWHC 3486 (Fam).
45. B. Farmer, ‘A sick toddler’s parents believe her fate should be left in the hands of God – but a judge has ruled otherwise’, Manchester Evening News, 28 February 2019, https://www.manchestereveningnews.co.uk/news/greater-manchester-news/sick-toddlers-parents-believe-fate-15898226
46. @TuckerCarlson, Twitter, 10 July 2017, https://twitter.com/TuckerCarlson/status/884569449281531904
47. GOSH’s Position Statement, Hearing on 13 July 2017, Katie Gollop QC, at §8, https://www.gosh.nhs.uk/file/23611/download?token=aTPZchww
48. Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421.
49. K. Gollop QC and S. Pope, ‘Charlie Gard, Alfie Evans and R (A Child): Why A Medical Treatment Significant Harm Test Would Hinder Not Help’, Transparency Project, 22 May 2018, http://www.transparencyproject.org.uk/charlie-gard-alfie-evans-and-r-a-child-why-a-medical-treatment-significant-harm-test-would-hinder-not-help/
50. Per Baroness Hale in Aintree University Hospital NHS Trust v. James [2013] UKSC 67 and per MacDonald J. in King’s College NHS Foundation Trust v. Thomas, Haastrup and Haastrup [2018] EWHC 127 (Fam).
51. First judgment, [2017] EWHC 972 (Fam) para 14.
52. Court of Appeal judgment of 23 May 2017 is at Yates and Gard v. Great Ormond Street Hospital [2017] EWCA Civ 410. Supreme Court, Permission to appeal hearing (Charlie Gard), 8 June 2017, Judgment summary, https://www.supremecourt.uk/news/permission-to-appeal-hearing-in-the-matter-of-charlie-gard.html
53. Gard & others v. United Kingdom (application no. 39793/17), https://hudoc.echr.coe.int/eng-press#{‘itemid’:[‘003-5768362-7332860’]}
54. See the helpful commentary on the events of these dates in B. Rich, ‘Update on Charlie Gard case – The last stage of the litigation: facts and sources’, Transparency Project, 1 August 2017, http://www.transparencyproject.org.uk/update-on-charlie-gard-case-the-last-stage-of-the-litigation-facts-and-sources/
55. Great Ormond Street Hospital v. Yates and Gard [2017] EWHC 1909 (Fam).
56. The position statement by Charlie’s guardian is worth reading, not least where they observe that, ‘If novel therapies are to be offered, it appears to the Guardian to be imperative that those offering to provide them are fully aware of the clinical condition and medical history of the particular patient . . . so that offers are made on an informed basis and without setting up false hope and expectations.’ Position Statement of the Guardian for Hearing, 24 July 2017, https://www.serjeantsinn.com/wp-content/uploads/2017/08/Gard-Guardian-PS.pdf
57. Parliament technically has the power to petition the Queen to remove a judge, derived from the Act of Settlement 1701 and reflected in section 11(3) of the Supreme Court Act 1981, but this has never been exercised in England and Wales (just once in Scotland, in 1830, when a corrupt judge pinched money from litigants).
58. C. Buck, ‘Brain dead toddler taken off life support in Los Angeles’, Sacramento Bee, 25 August 2016, https://www.sacbee.com/news/local/article97861097.html
59. K. O’Neill and T. Belger, ‘Alfie Evans judge questions medical evidence after watching emotional video of desperately ill baby “yawning”’, Mirror, 8 February 2018, https://www.mirror.co.uk/news/uk-news/alfie-evans-judge-questions-medical-11994598
60. Re E (A Child) [2018] EWCA Civ 550, at [23] to [25], and [133] to [146].
61. Supreme Court, Permission to appeal determination (Alfie Evans), 20 March 2018, Reasons for determination, https://www.supremecourt.uk/cases/docs/alfie-evans-reasons-200318.pdf
62. Re E (A Child) [2018] EWCA Civ 550, at [36] and [133] to [146].
63. Evans and James v. Alder Hey Children’s NHS Foundation Trust [2018] EWCA Civ 805, at [27].
64. Alder Hey Children’s NHS Foundation Trust v. Evans & others [2018] EWHC 818 (Fam), at [7].
65. Evans and James v. Alder Hey Children’s NHS Foundation Trust [2018] EWCA Civ 805, at [67].
66. Evans v. United Kingdom 18770/18 [2018] ECHR 357 (23 April 2018).
67. Alder Hey Children’s NHS Foundation Trust v. Evans & others [2018] EWHC 953 (Fam), at [8].
68. See Alder Hey Children’s NHS Foundation Trust v. Evans & others [2018] EWHC 953 (Fam) at [14].
69. [2018] EWCA Civ 984.
70. ‘Alfie Evans’ father reveals son has been breathing unassisted after life support stops’, Telegraph, 24 April 2018, https://www.telegraph.co.uk/news/2018/04/24/alfie-evans-father-reveals-son-has-breathing-unassisted-life/
71. ‘Judge attacks advisers to parents of Alfie Evans’, The Times, 25 April 2018, https://www.thetimes.co.uk/article/judge-attacks-advisers-to-parents-of-alfie-evans-sft9rq39w
72. M. Scott, ‘The Tragic Case of Alfie Evans’, Quillette, 28 April 2018, https://quillette.com/2018/04/28/tragic-case-alfie-evans/
73. @JoshHalliday, Twitter, 24 April 2018, https://twitter.com/JoshHalliday/status/988817200940273670
74. Evans & others v. Alder Hey Children’s NHS Foundation Trust [2018] EWCA 984 (Civ), at [33].
75. Ibid, at [39] and [40].
76. Portsmouth City Council v. King & others [2014] EWHC 2964 (Fam).
77. @AndrzejDuda, Twitter, 25 April 2018, https://twitter.com/AndrzejDuda/status/989054152155258880
78. J. Halliday, ‘“Call from God”: American pro-lifer’s role in Alfie Evans battle’, Guardian, 28 April 2018, https://amp.theguardian.com/uk-news/2018/apr/28/call-from-god-american-pro-lifers-role-in-alfie-evans-battle?CMP=share_btn_tw&__twitter_impression=true
79. G. Peaker, ‘On the Naughty Step – the questionable ethics of the Christian Legal Centre’, Nearly Legal, 28 April 2018, https://nearlylegal.co.uk/2018/04/on-the-naughty-step-the-questionable-ethics-of-the-christian-legal-centre/
80. Christian Concern, press release, 5 July 2017, https://www.christianconcern.com/press-release/european-parliamentarians-condemn-outrageous-charlie-gard-ruling-in-open-letter-to-the
81. Dr Ranjana Das, ‘The Charlie Gard twitterstorm: a violent and negative impact (new research)’, LSE, 4 August 2017, http://blogs.lse.ac.uk/polis/2017/08/04/the-charlie-gard-twitterstorm-a-violent-and-negative-impact-new-research/
82. R. Bishop, ‘Alfie Evans’ supporters take to the streets in protests worldwide over parents’ wishes being rejected by courts’, Mirror, 26 April 2018, https://www.mirror.co.uk/news/uk-news/people-across-london-northern-ireland-12433984
83. ‘Law Center: Husband seeks autopsy on Terri Schiavo’, CNN, 29 March 2005, https://edition.cnn.com/2005/LAW/03/28/schiavo/
84. C. Thomas, ‘Charlie Gard – the state is not God’, Fox News, 13 July 2017, https://www.foxnews.com/opinion/charlie-gard-the-state-is-not-god
85. L. LaMaster, ‘AZ Rep Trent Franks Stands Up for Charlie Gard and His Parents’, Prescott News, 12 July 2017, https://www.prescottenews.com/index.php/news/current-news/item/30349-az-rep-trent-franks-stands-up-for-the-charlie-gard-and-his-parents; C. Tognotti, ‘Who is Rep. Trent Franks? His 20-Week Abortion Ban Is Coming Up For A Vote’, Bustle, 29 September 2017, https://www.bustle.com/p/who-is-rep-trent-franks-his-20-week-abortion-ban-is-coming-up-for-a-vote-2481919
86. ‘Charlie’s Army: The people fighting for Charlie Gard’, The Week, 26 July 2017, https://www.theweek.co.uk/85153/charlies-army-the-people-fighting-for-charlie-gard
87. S. Berry, ‘US Pro-Life Leaders: We Are All Charlie Gard’, Breitbart, 6 July 2017, https://www.breitbart.com/politics/2017/07/06/u-s-pro-life-leaders-charlie-gard/
88. S. Berry, ‘Charlie Gard: How Governments And The Courts Usurp Parental Rights’, Breitbart, 6 July 2017, https://www.breitbart.com/politics/2017/07/06/charlie-gard-government-courts-usurp-parental-rights/
89. C. K. Chumley, ‘Charlie Gard makes Trump case for speedy Obamacare repeal’, Washington Times, 3 July 2017, https://www.washingtontimes.com/news/2017/jul/3/charlie-gard-makes-trump-case-speedy-obamacare-rep/
90. @realDonaldTrump, Twitter, 5 February 2018, https://twitter.com/realDonaldTrump/status/960486144818450432
91. B. Jacobs, ‘US Conservatives use case of terminally ill child Alfie Evans to criticise NHS’, 26 April 2018, https://www.theguardian.com/us-news/2018/apr/25/alfie-evans-american-conservatives-criticize-nhs-ted-cruz
92. Senator Ted Cruz, press release, 25 April 2018.
93. ‘Alfie Evans: World’s reaction to sick toddler’s case,’ BBC News, 25 April 2018.
94. Ibid.
95. ‘Nigel Farage talks Alfie Evans and Britain’s medical system’, Fox News, 26 April 2018.
96. K. Gander, ‘Nigel Farage caught on video suggesting NHS should be run privately’, Independent, 13 November 2014, https://www.independent.co.uk/news/uk/politics/nigel-farage-caught-on-video-suggesting-the-nhs-should-be-run-privately-9857389.html
97. See tweets cited in M. Scott, ‘The Tragic Case of Alfie Evans’, Quillette, 28 April 2018.
98. See, for example, S. Phillimore, ‘What are the nature of and limits to parents’ rights?’, Child Protection Resource, 27 July 2017, http://childprotectionresource.online/what-are-the-nature-of-and-limits-to-parents-rights/
3. Your Health
1. S. Swinford and L. Hughes, ‘Car insurance premiums to fall by £40 a year under plans to end “rampant compensation culture”’, Telegraph, 17 November 2016, https://www.telegraph.co.uk/news/2016/11/17/car-insurance-premiums-fall-by-40-a-year-under-plans-to-end-ramp/
2. ‘Bart Gets Hit by a Car’, Season 2, Episode 10, The Simpsons, first aired 10 January 1991. This episode was itself a pastiche of Meet Whiplash Willie, a 1966 comedy starring Jack Lemmon and Walther Matthau in which rogue lawyer ‘Whiplash Willie’ tries to convince his brother-in-law to fake paralysis following a road traffic accident to secure compensation.
3. My Cousin Vinny (1992), obviously. Obviously.
4. Christopher McGovern, Chairman of the Campaign for Real Education, quoted in R. Sabey, ‘CLASSROOM COMPO: £2.9 million bill for school accident victims – for slipping in rounders and falling off see-saw’, the Sun, 17 September 2016, https://www.thesun.co.uk/news/1803661/2-9-million-pound-bill-for-school-accident-victims-for-slipping-in-rounders-and-falling-off-see-saw/
5. R. Littlejohn, Daily Mail, 11 November 2009, https://www.dailymail.co.uk/debate/article-1226483/RICHARD-LITTLEJOHN-Only-Gordon-Brown-turn-tribute-gross-insult.html
6. ‘Pupil awarded £6,000 for custard splash as playground “compensation culture” costs taxpayers £2million’, Daily Mail, 4 July 2011, https://www.dailymail.co.uk/news/article-2011131/Pupil-awarded-6-000-custard-splash-playground-compensation-culture-costs-taxpayers-2million.html
7. S. Johnson, ‘Cleaning up in the small claims court: Council worker awarded £9,000 compensation for tripping over a mop’, Daily Mail, 27 July 2012, https://www.dailymail.co.uk/news/article-2179757/Council-cleaner-given-9-000-compensation-tripping-MOP.html
8. S. Adams, ‘NHS blows £2.2billion a year paying for its medical mistakes, new figures reveal’, Daily Mail, 4 November 2018, https://www.dailymail.co.uk/news/article-6350635/NHS-blows-2-2billion-year-paying-medical-mistakes-new-figures-reveal.html
9. Cited in Better Regulation Taskforce, ‘Better Routes to Redress’, May 2004.
10. ‘Five of America’s most notorious and extraordinary lawsuits’, Daily Mail, 28 February 2014, https://www.dailymail.co.uk/news/article-2569996/Serviette-smile-McDonalds-sued-1-5-million-employee-called-Angel-gives-one-NAPKIN.html
11. Secretary of State for Transport Justine Greening, ‘Britain is the whiplash capital of Europe – and I’m going to stop it’, Mail on Sunday, 4 February 2013, https://www.dailymail.co.uk/news/article-2096597/Justine-Greening-Britain-whiplash-capital-Europe--Im-going-stop-it.html; and, more recently, the comments of Chris Philp MP, Civil Liability Bill [Lords] Debate, House of Commons Second Reading, 4 September 2018, Hansard, volume 646, column 108, https://hansard.parliament.uk/commons/2018-09-04/debates/C5C185BA-C520-4561-B4A9-069335D3E41F/CivilLiabilityBill(Lords)
12. See Ministry of Justice, ‘Reducing the number and costs of whiplash claims: A consultation on arrangements concerning whiplash injuries in England and Wales’, Consultation Paper CP17/2012, Cm 8425, December 2012, at p. 3; and see Rory Stewart MP, Civil Liability Bill [Lords] Debate, House of Commons Third Reading, 23 October 2018, Hansard, volume 648, column 226, https://hansard.parliament.uk/commons/2018-10-23/debates/08FEE407-6D41-4294-9098-DA400C53EB83/CivilLiabilityBill(Lords)#contribution-F4EC132D-14B5-4C68-A669-090F6C503188
13. See Chris Philp MP, Civil Liability Bill [Lords] Debate, House of Commons Third Reading, 23 October 2018, Hansard, volume 648, column 160.
14. R. Massey, ‘Europe’s whiplash capital: Compensation culture makes British twice as likely to claim, adding £90 to premiums’, Daily Mail, 20 April 2013, https://www.dailymail.co.uk/news/article-2311979/Europes-whiplash-capital-Compensation-culture-makes-British-twice-likely-claim-adding-90-premiums.html
15. N. Hilborne, ‘Solicitor struck off after trying to influence medical expert’, Legal Futures, 14 December 2018, https://www.legalfutures.co.uk/latest-news/solicitor-struck-off-after-trying-to-influence-medical-expert
16. K. Pickles, ‘Feeling flush! Council worker hit by toilet lid gets £12,000 payout – while cleaner whose feet got trapped in a Henry Hoover also wins £12,000’, Daily Mail, 19 July 2015, https://www.dailymail.co.uk/news/article-3167391/Crazy-compensation-payouts-Council-pays-12-000-worker-hit-toilet-lid-12-000-cleaner-feet-trapped-Henry-Hoover.html
17. ‘Brain-injured teen from Sussex to get payout from NHS’, BBC News, 20 June 2018, https://www.bbc.co.uk/news/uk-england-sussex-44541006
18. C. Sergeant, ‘The Anglo-Saxon origins of UK compensation law’, InfoLaw, 25 June 2014, https://www.infolaw.co.uk/partners/the-anglo-saxon-origins-of-uk-compensation-law/
19. As happens, for example, in New Zealand, where there is a system of state-funded social provision for those who suffer loss through injuries, irrespective of fault. There is an interesting academic debate as to whether we should adopt a similar scheme in England and Wales, and do away with our fault-based model.
20. [1932] UKHL 100.
21. The ‘Six Pack’ of health and safety legislation comprises the Management (Health, Safety and Welfare) Regulations 1992 (now 1999); the Provision and Use of Work Equipment Regulations 1992 (now 1998); the Manual Handling Operations Regulations 1992; the Workplace (Health, Safety and Welfare) Regulations 1992; the Personal Protective Equipment at Work Regulations 1992 and the Health and Safety (Display Screen Equipment) Regulations 1992. These have been joined by others, including the Control of Substances Hazardous to Health Regulations 2002 (‘COSHH’) and the Work at Height Regulations 2005.
22. There are certain absolute duties imposed under some legislation, such as the Animals Act 1971 and the Consumer Protection Act 1987 for injuries caused by animals and defective products respectively, but these ‘strict liability’ offences, not requiring proof of a lack of reasonable care, are rare. In the employment field, there was until 2013 an automatic right to compensation if an employer breached certain statutory duties and injury was caused, but Parliament changed the law to remove this right and inject a requirement of fault (section 69 of the Enterprise and Regulatory Reform Act 2013).
23. This is a boiled-down summary of the key principles in the landmark case of Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582.
24. K. Pickles, ‘Feeling flush! Council worker hit by toilet lid gets £12,000 payout – while cleaner whose feet got trapped in a Henry Hoover also wins £12,000’, Daily Mail, 19 July 2015.
25. The Limitation Act 1980 provides the framework for calculating ‘limitation’. There are many nuances – children, for example, have until their twenty-first birthday (three years after attaining majority) to issue a claim – and circumstances in which the period might be extended, but the general rule is that an injured person has three years from the date on which the cause of action accrued (i.e. the date of the injury) or three years from the date that person had knowledge of a significant injury. The latter would apply in cases where, say, an employee was exposed to asbestos a decade ago but only becomes aware of the resultant disease years after the fact.
26. See, for example, Lunt v. Khelifa [2002] EWCA Civ 801, cited in D. Boyle, An Introduction to Personal Injury Law, Law Brief Publishing, 2017, p. 49.
27. Exemplary damages can only be claimed in cases falling within three categories: (i) oppressive, arbitrary or unconstitutional action by servants of the government; (ii) wrongful conduct by the defendant which has been calculated by him to make a profit for himself which may well exceed the compensation payable to the complainant; (iii) where a statute authorises such an award. Rookes v. Barnard [1964] AC 1129.
28. Technically, the Court of Appeal has the power to revise the recommended awards – see Simmons v. Castle [2013] 1 WLR 1239.
29. The Judicial College Guidelines, 14th Edition.
30. P. Cheston, ‘Autistic boy set for millions after NHS blunder’, Evening Standard, 12 June 2015, https://www.standard.co.uk/news/health/autistic-boy-set-for-millions-after-nhs-blunder-10315290.html
31. Ibid.
32. ‘Boy made autistic by NHS blunder given millions in damages after parents sue hospital’, Mirror, 12 June 2015, https://www.mirror.co.uk/news/uk-news/boy-made-autistic-nhs-blunder-5872815
33. P. Owen, ‘We waited 13 years for NHS to admit blame for our son’s brain damage’, Mirror, 15 August 2015, https://www.mirror.co.uk/news/uk-news/we-waited-13-years-nhs-6260398
34. Facts taken from Harman v. East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662 (QB).
35. ‘Refugees hit jackpot with £5.2m payouts’, Sunday Express, 18 January 2012, https://www.express.co.uk/news/uk/296341/Refugees-hit-jackpot-with-5-2m-payouts
36. E. Riley, ‘Schoolgirl, 12, who has modelled for Boden and Tesco despite suffering severe cerebral palsy since birth wins £15m NHS compensation payout’, Daily Mail, 17 July 2018, https://www.dailymail.co.uk/news/article-5962347/Schoolgirl-cerebral-palsy-wins-15-million-compensation-NHS.html
37. N. Small, ‘Council worker wins more than £12,000 in compensation after he was hit with . . . a LOO lid’, Mirror, 19 July 2015, https://www.mirror.co.uk/news/uk-news/council-worker-wins-more-12000-6095620
38. R. Clark, ‘£341,000 compensation pay out for broken loo is madness, says ROSS CLARK’, Daily Express, 5 May 2015, https://www.express.co.uk/comment/expresscomment/574840/Broken-loo-payout-just-tip-iceberg-Britain-s-compensation-culture-madness-says-ROSS-CLARK
39. Andrew Ritchie QC, ‘Summary of the Personal Injury and Clinical Negligence Claims Market in England and Wales, July 2015’, http://www.9goughsquare.co.uk/uploadedFiles/CN&PIMarketReview2015AR.pdf
40. ‘Down the pan: Council pays man £341k after falling off toilet’, Telegraph, 3 May 2015, https://www.telegraph.co.uk/news/politics/council-spending/11580198/Down-the-pan-Council-pays-man-341k-after-falling-off-toilet.html
41. R. Clarke, ‘£341,000 compensation pay out for broken loo is madness, says ROSS CLARK’, Daily Express, 5 May 2015.
42. ‘Down the pan: Council pays man £341k after falling off toilet’, Telegraph, 3 May 2015.
43. M. Levin, ‘Legal Urban Legends Hold Sway’, Los Angeles Times, 14 August 2005, http://articles.latimes.com/2005/aug/14/business/fi-tortmyths14, as cited by Lord Dyson M.R., ‘Compensation Culture: Fact or Fantasy?’, Holdsworth Club Lecture, 15 March 2013, https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Speeches/mr-speech-compensation-culture.pdf
44. ‘Five of America’s most notorious and extraordinary lawsuits’, Daily Mail, 28 February 2014.
45. See Lord Dyson M.R., ‘Compensation Culture: Fact or Fantasy?’, Holdsworth Club Lecture, 15 March 2013.
46. Y. Ekici, ‘“Compensation Culture” – behind the Daily Mail headlines’, 11 February 2015, https://www.bindmans.com/insight/blog/compensation-culture-behind-the-daily-mail-headlines
47. S. Johnson, ‘Cleaning up in the small claims court: Council worker awarded £9,000 compensation for tripping over a mop’, Daily Mail, 27 July 2012.
48. N. Small, ‘Council worker wins more than £12,000 in compensation after he was hit with . . . a LOO lid’, Mirror, 19 July 2015.
49. ‘Top 10 worst health and safety myths’, Health and Safety Executive, http://www.hse.gov.uk/myth/top10myths.htm (accessed 6 January 2019).
50. H. Frankel, ‘Handle with care’, Times Education Supplement, 7 August 2009, https://www.tes.com/news/handle-care-9
51. R. Littlejohn, Daily Mail, 11 November 2009.
52. R. Strange, ‘“Elf and safety” stories should carry a warning’, Independent, 15 March 2010, https://www.independent.co.uk/news/media/press/elf-and-safety-stories-should-carry-a-warning-1921337.html
53. Ibid.
54. J. Hyde, ‘MoJ reveals 20% annual fall in personal injury claims’, Law Society Gazette, 6 December 2018, https://www.lawgazette.co.uk/news/moj-reveals-20-annual-fall-in-personal-injury-claims/5068594.article
55. Department for Work and Pensions, ‘Compensation Recovery Unit performance data’, 23 April 2018, https://www.gov.uk/government/publications/compensation-recovery-unit-performance-data/compensation-recovery-unit-performance-data
56. ‘Legal claims against NHS continue to rise’, Practice Business, 16 July 2018, https://practicebusiness.co.uk/legal-claims-against-nhs-continue-to-rise/
57. ‘EXCLUSIVE: Police officer gets £10,000 for falling off a chair’, Evening Standard, 12 April 2013, https://www.standard.co.uk/news/uk/exclusive-police-officer-gets-10000-payout-for-falling-off-a-chair-8569997.html
58. See, for example, the members of the ‘highly-organised’ gang in Sheffield who were imprisoned for fraudulently orchestrating a series of ‘crash for cash’ traffic collisions: ‘Sheffield bus crash-for-cash gang “highly-organised”’, BBC News, 26 September 2013, https://www.bbc.co.uk/news/uk-england-south-yorkshire-24283580
59. House of Commons Justice Committee, 7th Report – ‘Small claims limit for personal injury’, 17 May 2018, at §30, https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/659/65902.htm
60. T. Evans, ‘COMPENSATION CRACKDOWN: Bogus whiplash claims add £1billion to car insurance bills every year’, the Sun, 17 November 2016, https://www.thesun.co.uk/living/2199963/bogus-whiplash-claims-add-1billion-to-car-insurance-bills-every-year/
61. S. Swinford and L. Hughes, ‘Car insurance premiums to fall by £40 a year under plans to end “rampant compensation culture”’, Telegraph, 17 November 2016.
62. ‘Statement on outcomes following Downing Street Insurance Summit’, Prime Minister’s Office, 10 Downing Street, 14 February 2012, https://www.gov.uk/government/news/statement-on-outcomes-following-downing-street-insurance-summit
63. See Chris Philp MP, Civil Liability Bill [Lords] Debate, House of Commons Third Reading, 23 October 2018, Hansard, volume 648, column 160.
64. See David Gauke MP, Civil Liability Bill [Lords] Debate, House of Commons Second Reading, 4 September 2018, Hansard, volume 646, column 108, https://hansard.parliament.uk/commons/2018-09-04/debates/C5C185BA-C520-4561-B4A9-069335D3E41F/CivilLiabilityBill(Lords)
65. House of Commons Transport Committee, ‘Cost of Motor Insurance: Whiplash’, 4th Report of Session 2013–14, HC 117, 31 July 2013, volume 1, paragraph 28, cited in K. Oliphant, ‘“The Whiplash Capital of the World”: Genealogy of a Compensation Myth’, in E. Quill and R. Friel (eds.), Damages and Compensation Culture: Comparative Perspectives, Hart Publishing, 2016, https://research-information.bristol.ac.uk/files/80271070/AAM_Whiplash_Capital.pdf
66. See summary in ‘Fake News and the Compensation Culture – An Access to Justice Investigation’, Access to Justice Action Group, 12 January 2018, https://accesstojusticeactiongroup.co.uk/fake-news-and-compensation-culture/
67. Ibid.
68. Ibid.
69. David Gauke MP, Civil Liability Bill [Lords] Debate, House of Commons Second Reading, 4 September 2018, Hansard, volume 646, column 77, https://hansard.parliament.uk/commons/2018-09-04/debates/C5C185BA-C520-4561-B4A9-069335D3E41F/CivilLiabilityBill(Lords)
70. Jo Stevens MP, Civil Liability Bill [Lords] Debate, House of Commons Third Reading, 23 October 2018, Hansard, volume 648, column 158, https://hansard.parliament.uk/commons/2018-10-23/debates/08FEE407-6D41-4294-9098-DA400C53EB83/CivilLiabilityBill(Lords)#contribution-F4EC132D-14B5-4C68-A669-090F6C503188
71. House of Commons Justice Committee, 7th Report – ‘Small claims limit for personal injury’, 17 May 2018, at §30.
72. J. Hyde, ‘“Ridiculous” heroism bill clears Lords hurdle’, Law Society Gazette, 7 January 2015, https://www.lawgazette.co.uk/law/ridiculous-heroism-bill-clears-lords-hurdle/5045846.article
73. Chris Grayling MP, ‘Our Bill to curb the Elf and Safety Culture’, 2 June 2014, ConservativeHome, https://www.conservativehome.com/platform/2014/06/chris-grayling-mp-our-bill-to-curb-the-elf-and-safety-culture.html
74. Ibid.
75. Lord Pannick, Social Action, Responsibility and Heroism Bill, House of Lords Third Reading, 6 January 2015, Hansard, column 262, https://publications.parliament.uk/pa/ld201415/ldhansrd/text/150106-0001.htm#15010644000364
76. See ‘Annex: Background to the current reforms’, in House of Commons Justice Committee, 7th Report – ‘Small claims limit for personal injury’, 17 May 2018, at §30.
77. Section 57 of the Criminal Justice and Courts Act 2015 requires a court to dismiss the whole of a personal-injury claim in such circumstances, unless the claimant would suffer ‘substantial injustice’ if the claim were dismissed.
78. Department for Work and Pensions, ‘Compensation Recovery Unit performance data’, 23 April 2018.
79. J. Hyde, ‘MoJ chief denies whiplash portal is in hock to insurers’, Law Society Gazette, 11 February 2019, https://www.lawgazette.co.uk/news/moj-chief-denies-whiplash-portal-is-in-hock-to-insurers/5069235.article
80. House of Commons Justice Committee, 7th Report – ‘Small claims limit for personal injury’, 17 May 2018, at §59.
81. Ellie Reeves MP, ‘The Civil Liability Bill – An Assault on Our Access to Justice’, 25 July 2018, http://www.elliereeves.com/news/the-civil-liability-bill-an-assault-on-our-access-to-justice
82. House of Commons Justice Committee, 7th Report – ‘Small claims limit for personal injury’, 17 May 2018, at §65-66.
83. Ibid, at §81.
84. Unison survey found that 63 per cent of members surveyed said they ‘would not have proceeded or been at all confident to bring their claim without legal representation’, cited by Ellie Reeves MP, ‘The Civil Liability Bill – An Assault on Our Access to Justice’, 25 July 2018.
85. House of Commons Justice Committee, 7th Report – ‘Small claims limit for personal injury’, 17 May 2018, at §137-9.
86. Ibid.
87. S. McGee, ‘Lawyers give dire warning as study reveals reforms will wipe out PI solicitors’, Insurance Times, 1 March 2018, https://www.insurancetimes.co.uk/lawyers-give-dire-warning-as-study-reveals-reforms-will-wipe-out-pi-solicitors/1426462.article
88. C. Canocchi, ‘Government unveils whiplash claims crackdown which it says will cut insurance premiums by £35 a year’, This is Money, 20 March 2018, https://www.thisismoney.co.uk/money/cars/article-5523253/Government-unveils-plans-cut-whiplash-claims.html
89. Civil Liability Bill [Lords] Debate, House of Commons Third Reading, 23 October 2018, Hansard, volume 648, column 160.
90. O. Bowcott, ‘Charities condemn Tory cuts to criminal injuries compensation scheme’, Guardian, 23 April 2019, https://www.theguardian.com/law/2019/apr/23/charities-condemn-tory-cuts-to-criminal-injuries-compensation-scheme
91. Employers’ Liability (Compulsory Insurance) Act 1969.
92. J. Insley, ‘Compensation culture: a history of bizarre personal injury claims in Britain’, Guardian, 14 July 2011, https://www.theguardian.com/money/blog/2011/jul/14/compensation-culture-personal-insurance-claims
4. Your Work
1. S. Doughty, ‘Hallelujah! The tribunal gravy train’s derailed: As workers are made to pay £1,200 fee, discrimination cases plunge by 75%’, Daily Mail, 29 July 2014, https://www.dailymail.co.uk/news/article-2709011/As-workers-pay-1-200-fee-discrimination-cases-plunge-75.html
2. The Office for National Statistics records that, in January 2019, there were 32.53 million people in work, 15 per cent of whom were self-employed. In the year to November 2018, the total number of hours worked exceeded 1 billion. See Office for National Statistics, ‘UK labour market: January 2019’, https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/bulletins/uklabourmarket/january2019#actual-hours-worked and ‘Trends in self-employment in the UK’, 7 February 2018, https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/articles/trendsinselfemploymentintheuk/2018-02-07
3. That’s 37 multiplied by 46.4 weeks (52 weeks minus statutory holiday entitlement of 5.6 weeks) multiplied by 50.
4. ‘80% of workers ignorant of legal rights’, The Times, 8 October 2019, https://www.thetimes.co.uk/article/workers-ignorant-employment-rights-605s387c8?utm_source=newsletter&utm_campaign=newsletter_121&utm_medium=email&utm_content=121_7411059&CMP=TNLEmail_118918_7411059_121
5. Fifty-two weeks, comprising twenty-six weeks’ ‘ordinary maternity leave’ and up to twenty-six weeks’ ‘additional maternity leave’.
6. Any employee who earns on average at least £118 per week and has worked continuously for their employer for at least six months at the date of the fifteenth week before the expected week of childbirth.
7. Statutory Maternity Pay is paid at 90 per cent of your average weekly earnings (before tax) for the first six weeks, and then at either 90 per cent of your average weekly earnings or £148.68 – whichever is lower – for the remaining thirty-three weeks.
8. Yes, you do, and it is paid. We’ll look a little more at this later.
9. No.
10. Your job must be kept open for you to resume when you return from maternity leave.
11. ‘Employment tribunals are legalised extortion’, This is Money, 6 January 2011, https://www.thisismoney.co.uk/money/article-1710536/Comment-Employment-tribunals-are-legalised-extortion.html. This is Money is owned by DMG Ltd, the owners of the Daily Mail and Mail on Sunday.
12. D. Martin, ‘Jackpot tribunal payouts face axe: Plan to limit discrimination at work claims’, Daily Mail, 11 May 2011, https://www.dailymail.co.uk/news/article-1385731/Jackpot-tribunal-payouts-face-axe-Plan-limit-discrimination-work-claims.html
13. L. McKinstry, ‘An end to abuse of the employment tribunal system’, Daily Express, 31 July 2014, https://www.express.co.uk/comment/columnists/leo-mckinstry/493899/Leo-McKinstry-on-the-employment-tribunal-system
14. R. Littlejohn, ‘Unsuitable work for a woman’, Daily Mail, 20 February 2014, https://www.dailymail.co.uk/debate/article-2564235/RICHARD-LITTLEJOHN-Help-My-ID-stolen-Call-Fraudbusters.html
15. A. West, ‘First Farce: Royal Mail paid employees £70k compo after vile racist KKK note was pinned up at sorting office’, the Sun, 15 February 2018, https://www.thesun.co.uk/news/5583559/royal-mail-employees-70k-after-racist-kkk-message/
16. ‘Tesco worker SUES supermarket for £20k after colleague “FARTS in his face”’, Daily Star, 19 October 2018, https://www.dailystar.co.uk/news/latest-news/737392/Tesco-supermarket-store-grocery-London-discrimination-muslim-employment-tribunal
17. M. Beckford, ‘Pictured: Female PC who won £15,000 for sexual discrimination after failing a fitness test to become a dog handler – because she couldn’t carry an Alsatian’, Daily Mail, 14 January 2018, https://www.dailymail.co.uk/news/article-5266731/Policewoman-wins-dog-carrying-discrimination-case.html
18. David Davies MP, cited in Daily Mail, ibid.
19. R. Tyler, ‘Employment tribunal system “broken” claim employers’, Telegraph, 5 January 2011, https://www.telegraph.co.uk/finance/yourbusiness/8241409/Employment-tribunal-system-broken-claim-employers.html
20. D. Martin, ‘Jackpot tribunal payouts face axe: Plan to limit discrimination at work claims’, Daily Mail, 11 May 2011.
21. R (on the application of UNISON) v. Lord Chancellor [2017] UKSC 51, at [39].
22. Statistics cited in the Supreme Court judgment in UNISON, ibid, at [35–7].
23. R (on the application of UNISON) v. Lord Chancellor [2017] UKSC 51, at [98].
24. Industrial Relations Act 1971. Unfair dismissal should not be confused with wrongful dismissal, a claim where a person is dismissed without the notice to which they are contractually or statutorily entitled and is seeking their notice pay.
25. An ‘employee’ is distinguished in employment law from a ‘worker’. An employee, put very loosely, is somebody who is under the ultimate control of an employer, where there are continuing mutual obligations to provide and perform work. A worker is a broader concept of someone personally contracted to perform work, but who may not be an employee – such as a company director or agency worker. Different rights apply depending on whether you are an employee or a worker.
26. This ‘qualifying period’ has changed repeatedly since 1971 – falling to as little as six months – and from 1999 up until 2012 was twelve months. Part of the coalition government’s response to business criticisms of employment law was to double the qualifying period to two years, which, the government stated, would ‘improve business confidence’ and satisfy the ‘general aim’ of ‘reducing the number of tribunal claims’. See Department for Business, Innovation and Skills, Resolving Workplace Disputes: Government response to the consultation, November 2011, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/229952/11-1365-resolving-workplace-disputes-government-response.pdf
27. A quick word about constructive unfair dismissal. Where an employer commits a fundamental breach of the contract of employment, an employee can terminate the contract without notice and treat herself as ‘constructively dismissed’. An example might be an employer unilaterally changing employment terms, such as cutting your pay in half. Often, the alleged breach will be of the implied duty of mutual trust and confidence that the courts have recognised exists in all employment contracts. This covers a broad range of serious misbehaviours, including bullying. If a tribunal finds that you have been constructively dismissed, it then proceeds to look at whether that dismissal was fair, as above.
28. Sex Discrimination Act 1975.
29. Race Relations Act 1976.
30. Unlike unfair dismissal, discrimination law applies to workers, not solely employees.
31. Direct discrimination is only permitted where there is a ‘genuine occupational requirement’ – such as where a male actor is required to play a male role.
32. Or, in the words of the legislation, ‘a proportionate means of achieving a legitimate aim’.
33. Also, where A engages in unwanted conduct of a sexual nature (sexual harassment), or where A treats B less favourably as a result of B rejecting or submitting to unwanted sexual conduct.
34. A. West, ‘First Farce: Royal Mail paid employees £70k compo after vile racist KKK note was pinned up at sorting office’, the Sun, 15 February 2018.
35. Or because you have been a witness in discrimination proceedings.
36. Employers also cannot treat a disabled employee unfavourably because of something arising as a consequence of disability. It is intended to cover, for instance, a situation where an employer dismisses someone who is disabled because of their disability-related absence, and the employer says they would have dismissed anyone who had been absent for so long.
37. ‘Code of Practice on disciplinary and grievance procedures’, ACAS, https://www.acas.org.uk/article/2174/Discipline-and-grievance-Acas-Code-of-Practice
38. R. Littlejohn, ‘Grandad, Grandad, You’re fired! After a 61-year-old sales rep given the nickname “Gramps” wins compensation, RICHARD LITTLEJOHN says poor treatment of staff in their late 50s and early 60s is all about money’, Daily Mail, 22 March 2016, https://www.dailymail.co.uk/debate/article-3503687/Grandad-Grandad-fired-61-year-old-sales-rep-given-nickname-Gramps-wins-compensation-RICHARD-LITTLEJOHN-says-poor-treatment-staff-late-50s-early-60s-money.html
39. David Davies, Conservative MP for Monmouth, TheyWorkForYou, https://www.theyworkforyou.com/mp/11719/david_davies/monmouth/divisions?policy=6703 (accessed 30 January 2019).
40. M. Beckford, ‘Pictured: Female PC who won £15,000 for sexual discrimination after failing a fitness test to become a dog handler – because she couldn’t carry an Alsatian’, Daily Mail, 14 January 2018.
41. ‘“End B.A. Discrimination” Says Monmouth M.P.’, 20 October 20016, https://www.david-davies.org.uk/news/end-ba-discrimination-says-monmouth-mp
42. This is known as the ‘basic award’, and is calculated according to your length of service (capped at twenty years), age and weekly pay (capped at £489 per week). The maximum basic award is £14,670. This can be reduced, potentially to zero, if you have received a redundancy payment or other ex gratia payment from your employer.
43. This is known as the ‘compensatory award’, and is meant to compensate for the loss suffered as a result of the dismissal. This may include immediate loss of wages, loss of fringe benefits (such as company car or accommodation), loss of pension rights, expenses incurred looking for new work, and future loss of wages. The latter inevitably involves a degree of crystal-ball gazing, with the tribunal guessing how long it will take for the employee to find a new job (if they haven’t already done so). Generally, future losses tend not to extend beyond twelve months.
44. D. Martin, ‘Jackpot tribunal payouts face axe: Plan to limit discrimination at work claims’, Daily Mail, 11 May 2011.
45. This is because, under EU law, financial remedies in the domestic law of member states must allow for full compensation for loss where there is a breach of EU rights. Discrimination and equal pay are examples of EU rights.
46. Currently the cap on the compensatory award is £80,541 or fifty-two weeks’ gross pay, whichever is lower.
47. Armitage, Marsden and HM Prison Service v. Johnson [1997] IRLR 162.
48. There are four ‘bands’ for injury to feelings. The lower band (into which most awards fall) provides for awards between £800 and £8,400; the middle band, £8,400 to £25,200; the most serious cases in the upper band, £25,200 to £42,000; and exceptional cases, over £42,000.
49. Ministry of Justice, ‘Employment Tribunal and EAT statistics 2009–10 (GB), 1 April 2009 to 31 March 2010’, 3 September 2010, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/218501/tribs-et-eat-annual-stats-april09-march10.pdf
50. Ministry of Justice, ‘Tribunals and gender recognition certificate statistics quarterly: July to September 2018’, 13 December 2018, https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-july-to-september-2018
51. R. Tyler, ‘Employment tribunal system “broken” claim employers’, Telegraph, 5 January 2011.
52. Brian Binley MP, Draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, First Delegated Legislation Committee Stage, Session 2013–14, 10 June 2013, Hansard, column 15–16, https://publications.parliament.uk/pa/cm201314/cmgeneral/deleg1/130610/130610s01.htm
53. Report of the Royal Commission on Trade Unions and Employers’ Associations (1968), Cmnd 3623 (para 578).
54. Less complex unfair-dismissal claims, wage claims and breach-of-contract claims will now often be heard by an employment judge sitting alone.
55. R. Tyler, ‘Employment tribunal system “broken” claim employers’, Telegraph, 5 January 2011.
56. ‘Employers concerned about return to the past on tribunals, says BCC’, British Chambers of Commerce, 26 July 2017, https://www.britishchambers.org.uk/news/2017/07/employers-concerned-about-return-to-the-past-on-tribunals-says-bcc
57. Ministry of Justice, ‘Tribunals and gender recognition certificate statistics quarterly: July to September 2018’, Main Tables, ET3, Percentage of disposals by outcome and jurisdiction, 2007/8 to Q2 2018/19, https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-july-to-september-2018
58. P. Aldrick, ‘“Malicious” tribunal claims hit business’, Telegraph, 8 March 2011, https://www.telegraph.co.uk/finance/jobs/8367670/Malicious-tribunal-claims-hit-business.html
59. M. Gibbons, ‘Better Dispute Resolution: A review of employment dispute resolution in Great Britain’, Department of Trade and Industry, March 2007, https://www.effectivedisputesolutions.co.uk/wp-content/uploads/2014/09/mgibbons-review.pdf
60. Ian Murray MP, Draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, First Delegated Legislation Committee Stage, Session 2013–14, 10 June 2013, Hansard, column 20, https://publications.parliament.uk/pa/cm201314/cmgeneral/deleg1/130610/130610s01.htm.
61. Baroness Whitaker, Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013, 8 July 2013, Hansard, volume 747, column 83, https://hansard.parliament.uk/Lords/2013-07-08/debates/13070845000225/AddedTribunals(EmploymentTribunalsAndEmploymentAppealTribunal)Order2013
62. Employment Tribunal Rule 37(1).
63. Employment Tribunal Rule 39(1).
64. Employment Tribunal Rule 76(1).
65. Ministry of Justice, ‘Tribunals and gender recognition certificate statistics quarterly: July to September 2018’, Main Tables, ET3, Percentage of disposals by outcome and jurisdiction, 2007/8 to Q2 2018/19.
66. A. Beecroft, ‘Report on Employment Law’, 24 October 2011, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/31583/12-825-report-on-employment-law-beecroft.pdf
67. See Ian Murray MP, Draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, First Delegated Legislation Committee Stage, Session 2013–14, 10 June 2013, Hansard, column 21.
68. A. Porter and R. Winnett, ‘Firms get powers to sack the slackers’, Telegraph, 9 January 2011, https://www.telegraph.co.uk/finance/economics/8249491/Firms-get-powers-to-sack-the-slackers.html
69. See Lord Monks, Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013, 8 July 2013, Hansard, volume 747, column 83, https://hansard.parliament.uk/Lords/2013-07-08/debates/13070845000225/AddedTribunals(EmploymentTribunalsAndEmploymentAppealTribunal)Order2013
70. See ‘A truly remarkable democratic mandate’, The Secret Barrister, 27 June 2016, https://thesecretbarrister.com/2016/06/27/a-truly-remarkable-democratic-mandate/
71. R (on the application of UNISON) v. Lord Chancellor [2017] UKSC 51, at [8].
72. Ibid, at [35–7].
73. See Ian Murray MP, Draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, First Delegated Legislation Committee Stage, Session 2013–14, 10 June 2013, Hansard, column 22.
74. ‘Survey of Employment Tribunal Applications (SETA) 2008: findings’, Department for Business, Innovation and Skills, 23 March 2010, https://www.gov.uk/government/publications/survey-of-employment-tribunal-applications-seta-2008-findings
75. Lord Monks, Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013, 8 July 2013, Hansard, volume 747, column 83.
76. Baroness Whitaker, Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013, 8 July 2013, Hansard, volume 747, column 84.
77. Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013 (SI 2013/1892).
78. R (on the application of UNISON) v. Lord Chancellor [2017] UKSC 51, at [39].
79. Ibid, at [40–2].
80. House of Commons Justice Committee, ‘Courts and tribunal fees’, 16 June 2016, at §71 https://publications.parliament.uk/pa/cm201617/cmselect/cmjust/167/16701.htm
81. Ibid.
82. R (on the application of UNISON) v. Lord Chancellor [2017] UKSC 51, at [43–4].
83. House of Commons Justice Committee, ‘Courts and tribunal fees’, 16 June 2016, at §69.
84. A. Grice, ‘Vince Cable interview: Charging fees for employment tribunals was “a very bad move”’, Independent, 29 April 2015, https://www.independent.co.uk/news/uk/politics/generalelection/vince-cable-interview-charging-fees-for-employment-tribunals-was-a-very-bad-move-10213703.html
85. The government expected a recovery rate of ‘around a third’. The recovery rate for 2014/15 and 2015/16, after remissions, was 13 per cent. See Unison at [56].
86. Unison, at [58–9].
87. Unison, at [57].
88. The Council of Employment Judges, ‘Submission on the Review of the Introduction of Employment Tribunal Fees’, 24 July 2015, https://consult.justice.gov.uk/digital-communications/review-of-fees-in-employment-tribunals/supporting_documents/cejfeesreviewsubmission.pdf
89. Unison, at [55].
90. R (on the application of UNISON) v. Lord Chancellor [2017] UKSC 51 at https://www.supremecourt.uk/cases/uksc-2015-0233.html
5. Our Human Rights
1. ‘Theresa May speech in full’, 4 October 2011, http://www.politics.co.uk/comment-analysis/2011/10/04/theresa-may-speech-in-full
2. The names are disguised to protect the identity of the victims. ‘Fiona’ is referred to in the proceedings as ‘DSD’. ‘Manisha’ is referred to as ‘NBV’. The facts are taken from the High Court judgment in 2014: DSD and another v. Commissioner of Police of the Metropolis [2014] EWHC 436 (QB).
3. Ibid, at [308].
4. In such cases, claims may be made (as they were by Fiona and Manisha) against the offender himself, where he has means to pay, and/or to the Criminal Injuries Compensation Authority, but, prior to this judgment, claims could not be made against the police.
5. Commissioner of Police of the Metropolis (Appellant) v. DSD and another (Respondents) [2018] UKSC 11.
6. See I. Drury, ‘Folly of human rights luvvies: As actors fight plans to axe Human Rights Act, how thousands of foreign convicts use it to stay in Britain’, Daily Mail, 27 May 2015, https://www.dailymail.co.uk/news/article-3098327/amp/Folly-human-rights-luvvies-actors-fight-plans-axe-Human-Rights-Act-thousands-foreign-convicts-use-stay-Britain.html
7. J. Slack, ‘Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals’, Daily Mail, 11 January 2012, https://www.dailymail.co.uk/news/article-2085420/Europes-war-British-justice-UK-loses-human-rights-cases-damning-report-reveals.html
8. ‘No excuses, Dave, end this Yuman Rites farce: RICHARD LITTLEJOHN says case of three Libyan sex offenders seeking asylum must incite government to act on appalling Human Rights laws’, Daily Mail, 2 October 2015, https://www.dailymail.co.uk/debate/article-3257056/No-excuses-Dave-end-YUMAN-RITES-farce-RICHARD-LITTLEJOHN-says-case-three-Libyan-sex-offenders-seeking-asylum-incite-government-act-appalling-Human-Rights-laws.html
9. ‘May: Scrap the Human Rights Act’, the Sun, 2 October 2011, https://www.thesun.co.uk/archives/news/813593/may-scrap-the-human-rights-act/
10. ‘European Court of Human Rights is undermining democracy’, Policy Exchange, https://policyexchange.org.uk/press-release/european-court-of-human-rights-is-undermining-democracy/
11. ‘Human rights laws are protecting the wrong people’, Telegraph, 24 April 2011, https://www.telegraph.co.uk/comment/telegraph-view/8470149/Human-rights-laws-are-protecting-the-wrong-people.html
12. A. Little, ‘Human Rights Act has DEVALUED Magna Carta, blasts David Cameron’, Daily Express, 15 June 2015, https://www.express.co.uk/news/politics/584454/David-Cameron-Prime-Minister-Magna-Carta-speech-human-rights-plan
13. ‘No excuses Dave, end this Yuman Rites farce: RICHARD LITTLEJOHN says case of three Libyan sex offenders seeking asylum must incite government to act on appalling Human Rights laws’, Daily Mail, 2 October 2015.
14. J. Slack, ‘Unelected euro judges are bringing terror to the streets of Britain’, Daily Mail, 18 January 2012, https://www.dailymail.co.uk/debate/article-2087831/Abu-Qatada-human-rights-Unelected-euro-judges-bringing-terror-streets-Britain.html
15. Chris Grayling MP, quoted in H. Phibbs, ‘Grayling’s message of toughness and tenderness’, ConservativeHome, 30 September 2014, https://www.conservativehome.com/thetorydiary/2014/09/graylings-message-of-toughness-and-tenderness.html
16. L. Brown, ‘Another Human Rights Fiasco!’, Daily Mail, 15 December 2017.
17. D. Bamber, ‘Prisoners win their claim that hardcore porn is a human right’, Telegraph, 10 November 2002, https://www.telegraph.co.uk/news/uknews/1412742/Prisoners-win-their-claim-that-hardcore-porn-is-a-human-right.html
18. J. Doyle, ‘Human rights laws are a charter for criminals, say 75% of Britons’, Daily Mail, 16 April 2012, https://www.dailymail.co.uk/news/article-2130224/Human-rights-laws-charter-criminals-say-75-Britons.html
19. ‘Theresa May speech in full’, 4 October 2011.
20. M. Spurrier, ‘After Worboys, the Met will have to take rape victims seriously’, Guardian, 21 February 2018, https://www.theguardian.com/commentisfree/2018/feb/21/worboys-met-rape-victims-theresa-may
21. R. Mason, ‘David Cameron eyes Human Rights Act repeal’, Guardian, 8 August 2013, https://www.theguardian.com/law/2013/aug/08/david-cameron-human-rights-act
22. W. Woodward, ‘Cameron promises UK bill of rights to replace Human Rights Act’, Guardian, 26 June 2006, https://www.theguardian.com/politics/2006/jun/26/uk.humanrights
23. R. Merrick, ‘Theresa May to consider axeing Human Rights Act after Brexit, minister reveals’, Independent, 18 January 2019, https://www.independent.co.uk/news/uk/politics/theresa-may-human-rights-act-repeal-brexit-echr-commons-parliament-conservatives-a8734886.html
24. ‘Dominic Cummings’s Blog’, 24 March 2018, https://dominiccummings.com/2018/03/24/on-the-referendum-24c-the-whistleblowers-and-channel-4-observer-accusations/ (accessed 29 July 2019).
25. S. Hughes, ‘EU can’t kick out Abu Qatada’, the Sun, 18 Janaury 2012, https://www.thesun.co.uk/archives/news/311309/eu-cant-kick-out-abu-qatada/
26. ‘EU human rights court order Italy to pay Amanda Knox £15,600 in damages for violating her rights during Meredith Kercher murder investigation’, @DailyMailUK, Twitter, 24 January 2019, https://twitter.com/DailyMailUK/status/1088397934494994434
27. Victoria Friedman, ‘Orban: “EU court of human rights is a security threat to Europeans”’, Breitbart, 31 March 2017, https://www.breitbart.com/europe/2017/03/31/orban-eu-court-human-rights-security-threat/
28. See reference to ‘EU court’ in J. Bell, ‘Could ROBOT judges replace humans in dishing out justice in court?’, Daily Star, 24 October 2016, https://www.dailystar.co.uk/news/latest-news/556341/robot-judges-court-justice-study
29. D. Bentley, ‘Call for withdrawal from EU human rights court’, Independent, 7 February 2011, https://www.independent.co.uk/news/world/europe/call-for-withdrawal-from-eu-human-rights-court-2206647.html
30. David Cameron stated in 2014 that, ‘It’s not just the European Union that needs sorting out – it’s the European Court of Human Rights.’ See O. Bowcott, ‘Cameron’s pledge to scrap Human Rights Act angers civil rights groups’, Guardian, 1 October 2014, https://www.theguardian.com/politics/2014/oct/01/cameron-pledge-scrap-human-rights-act-civil-rights-groups
31. ‘May: Scrap the Human Rights Act’, the Sun, 2 October 2011.
32. M. Torrance, ‘Maxwell Fyfe and the origins of the ECHR’, The Journal, 19 September 2011, http://www.journalonline.co.uk/magazine/56-9/1010095.aspx#.XFmNgS10eis
33. ‘The Prime Minister must defy the European Court’, Daily Express, 11 February 2011, https://www.express.co.uk/comment/expresscomment/228451/The-Prime-Minister-must-defy-the-European-Court
34. Article 22 of the European Convention on Human Rights.
35. ‘Human Rights in Europe: Explainer’, RightsInfo, https://rightsinfo.org/infographics/human-rights-uncovered/
36. ‘European Court of Human Rights: The ECHR in 50 questions’, February 2014, https://www.echr.coe.int/Documents/50Questions_ENG.pdf
37. J. Slack, ‘Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals’, Daily Mail, 11 January 2012, https://www.dailymail.co.uk/news/article-2085420/Europes-war-British-justice-UK-loses-human-rights-cases-damning-report-reveals.html
38. A. Hough and T. Whitehead, ‘ECHR: Britain loses 3 in 4 cases at human rights court’, Telegraph, 12 January 2012, https://www.telegraph.co.uk/news/worldnews/europe/9008904/ECHR-Britain-loses-3-in-4-cases-at-human-rights-court.html
39. C. Woodhouse, ‘Euro judges go against UK in 3 out of 5 cases’, the Sun, 24 August 2014, https://www.thesun.co.uk/archives/politics/1053158/euro-judges-go-against-uk-in-3-out-of-5-cases/
40. A. Wagner, ‘No, The Sun, “Euro judges” do not “go against UK in 3 out of 5 cases”. More like 1 in 100’, UK Human Rights Blog, 27 August 2014, https://ukhumanrightsblog.com/2014/08/27/no-the-sun-euro-judges-do-not-go-against-uk-in-3-out-of-5-cases-more-like-1-in-100/
41. Human Rights Joint Committee, ‘Seventh Report: Human Rights Judgments’, 4 March 2015, at §2.2, https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13002.htm
42. J. Slack, ‘Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals’, Daily Mail, 11 January 2012.
43. Human Rights Joint Committee, ‘Seventh Report: Human Rights Judgments’, 4 March 2015, at §2.6; see also Lady Hale, ‘Celebrating 70 years of the Universal Declaration and 20 years of the Human Rights Act’, British Institute of Human Rights Annual Lecture 2018, 7 November 2018, https://www.supremecourt.uk/docs/speech-181107.pdf
44. Home Office, ‘Rights Brought Home: The Human Rights Bill (Cm 3782, 1997).
45. Ibid, at §1.14.
46. Ibid, section 6.
47. Ibid, section 8.
48. Ibid, section 3.
49. Ibid, section 2.
50. Ibid, section 4.
51. Often included in summaries of the ‘main’ rights are also articles 1 to 3 of protocol 1 to the convention, which prescribe the right to peaceful enjoyment of property, the right to education and the right to free elections.
52. Original Daily Mail front page available to see at C. Tobitt, ‘Daily Mail runs front page IPSO ruling on inaccuracies in Iraq compensation claim report as staff told making similar errors again would “put careers at risk”’, Press Gazette, 27 July 2018, https://www.pressgazette.co.uk/daily-mail-runs-front-page-ipso-adjudication-on-iraq-compensation-claims-as-staff-told-making-similar-error-again-would-put-careers-at-risk/
53. Alseran & others v. Ministry of Defence [2017] EWHC 3289 (QB).
54. D. Bamber, ‘Prisoners win their claim that hardcore porn is a human right’, Telegraph, 10 November 2002; see also ‘How do you label a goat?’, Daily Mail, 20 November 2006, which reported that ‘The Human Rights Act 2000 [sic] allowed serial killer Dennis Nilsen to win a case to look at hardcore pornographic magazines in his cell.’ https://www.dailymail.co.uk/news/article-417637/How-label-goat.html
55. See Department for Constitutional Affairs, ‘Review of the Implementation of the Human Rights Act’, July 2006, p. 30, https://webarchive.nationalarchives.gov.uk/+/http:/www.dca.gov.uk/peoples-rights/human-rights/pdf/full_review.pdf
56. A Judicial Communications Office statement, dated 4 October 2011, confirmed that ‘the cat had nothing to do with the decision [not to deport]’: P. Henley, ‘Theresa May in deportation cat flap’, BBC News, 4 October 2011, https://www.bbc.co.uk/news/uk-england-15174254
57. H. Phibbs, ‘Grayling’s message of toughness and tenderness’, ConservativeHome, 30 September 2014.
58. Vinter & others v. United Kingdom (2013) Application 66069/09, 130/10 and 3896/10.
59. Lord Justice Laws, at [112].
60. Section 30 of the Crime (Sentences) Act 1997.
61. R v. McLoughlin [2014] EWCA Crim 188.
62. Hutchinson v. United Kingdom (2015) Application 57592/08.
63. T. Parsons, ‘Why the Human Rights Act is just so wrong’, Sun on Sunday, 14 December 2014, https://www.thesun.co.uk/archives/news/603603/why-the-human-rights-act-is-just-so-wrong/
64. HC Deb, 22 October 2013, Col 156.
65. T. May, ‘It’s MY job to deport foreigners who commit serious crime – and I’ll fight any judge who stands in my way’, Mail on Sunday, 17 February 2013, https://www.dailymail.co.uk/debate/article-2279828/Its-MY-job-deport-foreigners-commit-crime--Ill-fight-judge-stands-way-says-Home-Secretary.html
66. T. Parsons, ‘Why the Human Rights Act is just so wrong’, Sun on Sunday, 14 December 2014.
67. Home Office, ‘Foreign criminals successfully appealing against deportation using Article 8 of the ECHR’, 16 January 2014, Annex A, figures for April 12 to March 13, https://www.gov.uk/government/publications/foreign-criminals-successfully-appealing-against-deportation-using-article-8-of-echr
68. Section 32 of the UK Borders Act 2007.
69. Per Master of the Rolls in MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1192.
70. T. Parsons, ‘Why the Human Rights Act is just so wrong’, Sun on Sunday, 14 December 2014.
71. J. Doyle and J. Narain, ‘Asylum seeker who left girl, 12, to die after hit-and-run can stay in UK . . . thanks to the Human Rights Act David Cameron promised her father he’d scrap’, Daily Mail, 17 December 2010, https://www.dailymail.co.uk/news/article-1339142/Asylum-seeker-Aso-Mohammed-Ibrahim-let-girl-12-die-stay-UK.html
72. T. McVeigh, ‘Asylum decision on hit-and-run driver embarrasses PM’, Guardian, 19 December 2010, https://www.theguardian.com/uk/2010/dec/19/asylum-ruling-fury-rights-cameron
73. ‘Anger as asylum seeker death-crash driver stays in Britain’, Metro, 17 December 2010, https://metro.co.uk/2010/12/17/anger-as-amy-houstons-dad-slams-decision-to-allow-driver-aso-mohammed-ibrahim-to-stay-614118/
74. Secretary of State for the Home Department v. R [2010] UKUT B1, at [70].
75. Ibid, at [74].
76. Ibid, at [56].
77. Ibid, at [70].
78. Lord Wilson, ‘Our Human Rights: A Joint Effort?’, The Howard J. Trienens Lecture, 25 September 2018, https://www.supremecourt.uk/docs/speech-180925.pdf
79. ‘Patrick Stewart sketch: what has the ECHR ever done for us?’ written and directed by Dan Susman, https://www.youtube.com/watch?v=ptfmAY6M6aA
80. See P. Weatherby QC, ‘Truth and justice’, Counsel magazine, November 2016, https://www.counselmagazine.co.uk/articles/truth-and-justice
81. O. Bowcott, ‘MoD paid £750,000 on legal fees denying responsibility for soldier deaths’, Guardian, 12 September 2017, https://www.theguardian.com/politics/2017/sep/12/mod-paid-750000-on-legal-fees-denying-responsibility-for-soldier-deaths
82. Smith & others v. Ministry of Defence [2013] UKSC 41.
83. C. Coleman, ‘Mother wins MoD apology over “Snatch” Land Rover death’, BBC News, 18 August 2017, https://www.bbc.co.uk/news/uk-40958686
84. R. Mason, ‘Mid Staffs: Labour Government ignored MP requests for public inquiry into deaths’, Telegraph, 17 February 2013, https://www.telegraph.co.uk/news/uknews/9875660/Mid-Staffs-Labour-Government-ignored-MP-requests-for-public-inquiry-into-deaths.html
85. L. Donnelly, ‘Stafford Hospital: the scandal that shamed the NHS’, Telegraph, 6 January 2013, https://www.telegraph.co.uk/news/health/heal-our-hospitals/9782562/Stafford-Hospital-the-scandal-that-shamed-the-NHS.html
86. N. Duffy, ‘Theresa May claims European Human Rights treaty has “added nothing” . . . despite LGBT rights victories’, Pink News, 25 April 2016, https://www.pinknews.co.uk/2016/04/25/theresa-may-claims-european-convention-on-human-rights-has-added-nothing-despite-lgbt-rights-victories/
87. G. McKinnon, ‘Theresa May saved my life – now she’s the only hope for the Human Rights Act’, Guardian, 15 November 2016, https://www.theguardian.com/commentisfree/2016/nov/15/theresa-may-saved-my-life-human-rights-act
88. Sutherland v. United Kingdom (1997) (25186/94).
89. L. Eleftheriou-Smith, ‘Last week The Sun wanted to abolish the Human Rights Act, this week they want to use it to protect their journalists’, Independent, 6 October 2014, https://www.independent.co.uk/news/uk/crime/last-week-the-sun-wanted-to-abolish-the-human-rights-act-this-week-they-want-to-use-it-to-protect-9778190.html
90. ‘A nation imperilled by the Human Rights Act’, Daily Mail, 27 August 2015, https://www.dailymail.co.uk/debate/article-3181945/DAILY-MAIL-COMMENT-nation-imperilled-Human-Rights-Act.html
91. See R (Associated Newspapers Ltd) v. Lord Justice Leveson [2012] EWHC 57 (Admin); and Associated Newspapers Ltd v. His Royal Highness the Prince of Wales [2006] EWCA Civ 1776.
92. ‘Eight reasons why the Human Rights Act makes the UK a better place’, Amnesty, 8 October 2018, https://www.amnesty.org.uk/eight-reasons-why-human-rights-act-has-made-uk-better-place-british-bill-of-rights
93. British Institute of Human Rights, ‘Getting with the Act: Our Human Rights Act’, https://www.bihr.org.uk/hraebook
94. ‘My HRA: Jenny Paton’, Liberty, 22 February 2013, https://www.libertyhumanrights.org.uk/news/blog/my-hra-jenny-paton
95. R. Clegg, ‘Council sued over polling station access’, BBC News, 23 April 2015, https://www.bbc.co.uk/news/election-2015-32414123
96. R (Bernard) v. London Borough of Enfield [2002] EWHC 2282 (Admin).
97. I. Drury, ‘Folly of human rights luvvies: As actors fight plans to axe Human Rights Act, how thousands of foreign convicts use it to stay in Britain’, Daily Mail, 27 May 2015.
98. Human Rights Joint Committee, ‘Seventh Report: Human Rights Judgments’, 4 March 2015, at §2.4, https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13002.htm
99. P (by his litigation friend the Official Solicitor) (Appellant) v. Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend the Official Solicitor) (Appellants) v. Surrey County Council (Respondent) [2014] UKSC 19; Judgment, 19 March 2014, https://www.supremecourt.uk/cases/docs/uksc-2012-0068-judgment.pdf