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UK Had Violated Several Rights of a Disabled Woman

The European Court of Human Rights had found the UK to have violated a disabled woman’s rights and had fined the country £3700 in costs and expenses. The woman was given 14 days to challenge her detention in an English hospital, but she lacked the mental capacity to proceed with her complaint.

The case happened in 2003 and the applicant, who was a British National, was detained for 28 days in an English hospital for assessment. MH, her initials, was given an order for discharge by her mother. However, the hospital detained MH because they said they feared the welfare of the mother and daughter should they release the woman.

The Rights of the Disabled

Anybody with incapacity, both physical and mental, could have their “nearest relative”, which includes their guardian or not-blood related companion, special status to act for them on their behalf under the Mental Health Act of 1983. However, the UK hospital had refused to grant this right to the mother.

MH was discharged six months after she was detained and her case was never reviewed. Her representative complained that under article 5 of the European Convention on Human Rights concerning the right to liberty, the lawfulness of her right to challenge her detention was violated.

She complained about the displacement of a ‘nearest relative’ to be granted special status and the indefinite detention she had in the hospital was unjustifiable.

Advice

According to experts, the problem was obvious because with no one to enact action for herself, even her own mother stripped of the right, a human rights law was violated, regardless of due process.

Experts said that the English hospital was probably working under strict code of ethics, but bordered on the lines of legal rights. The law could not decide for an individual not unless a declared relative could represent them. The same is true for all litigation cases concerning injuries with the person temporarily disabled to represent him or herself.

A disadvantage was to be given equal footing to ensure that all human rights are properly observed, said a legal representative. In this case, the English hospital failed to consider the ability of the guardian or “nearest relative” to care for the disabled.

Labour to create new offence of disability hate crime

A new criminal charge for disability hate crime is due to be introduced by Labour as a response to the increased concern that victims who are being targeted are repeatedly being let down. The shadow secretary for work and pensions is set to announce the proposed policy at the annual Labour conference.

Liam Byrne is also due to announce his plan to part company with Atos the company which determines people’s ability to take part in work due to their appalling performance and surrounding controversy. Figures have shown that in every 5 decisions made by the company 2 of those are appealed with the success rate of the appeals being 42%. The company has further added to their failures by not meeting their targets on the average case clearance duration.

According to Home Office estimations 65,000 disability hate crime offences take place yearly. Charities who represent the disabled community say that that figure could in fact be closer to their estimate of 100,000 which they believe is largely due to benefit scroungers. The problem is further complicated according to Mr Byrne due to a system that has failed to work accordingly.

The Labour shadow minister is expected to say to members of his party that he will fight to change the status quo. Aiding with Mr Byrne’s plans is Jenny Macklin the Australian MP who has successfully made changes in her homeland in regards to the provision of services to the disabled.  In his speech he says that today’s society and system constrains disabled people from having a home, a job and care with this urgently needing to change. His pledge in front of his party is that he will push to change the law on disability hate crime and put it on the same stance as all other hate crime.

This year the Crown Prosecution Service along with the HM Inspectorate of Constabulary and the National Probation Service all reported that the current criminal system in England and Wales is letting victims of disability hate crime down.

Landmark Court Ruling on Man’s Sterilisation

In a historic case a judge in the High Court granted the sterilisation of a male as it is in the man’s ‘best interest’ for the procedure to be carried out. The man is in his mid-thirties, suffers from learning related difficulties, and has already become a father once in 2010 when his girlfriend gave birth to a boy. Mrs Justice Eleanor King held that since a second child is likely to cause “psychological harm” to the man a vasectomy is appropriate in the circumstance and is permitted to be carried out following the legal process. Medical experts gave their expertise that the male was not mentally capable of making reasoned decisions regarding contraception although has the capacity to make judgments as to sexual consent.

The trial was brought to court due to strong evidence against the male, his identity kept anonymous and referred to by the letters DE, is not capable of making the decision of whether he should be sterilised or not so thus the decision had to be made in the courtroom by a judge. The Court of Protection which is based in London has been told that the man in question does not wish to become a father for a second or a further time. The Court further heard that DE was unreliable as to ensure adequate methods of birth control in order to avoid pregnancy or to use condoms. Mrs Justice King in her judgment stated that the man lived at home with his parents but meanwhile maintained a long-term relationship with a woman which the court referred to as PQ who likewise suffered from learning impairment of a less serious nature.

The couple’s first child had a serious impact on both sides of the family with efforts being made in order to avoid a repeated pregnancy which went as far as separating the couple and monitoring all their get-togethers. A specialist social worker who took care of DE in a statement before the court said that it is astonishing and rare how such a deep relationship could be maintained by a couple who can be said to be very disabled. The judge stated that the male suffered from distress as a result of the break-up in addition to a loss of confidence due to losing his freedom.

Lord Cheif Justice backs move to protect vulnerable witnesses

Guidelines amending the prosecution of abuse cases regarding children are to be introduced nearly 25 years after initially being proposed which aim to shield witnesses which may be vulnerable. Lord Judge the current lord chief justice gave his approval of the decision made by the lord chancellor who announced that under the new pilot scheme vulnerable witnesses as well as children will be cross-examined prior to hearing of the case in order to save them the stress and pressure of the in court procedure. He went on to give the historical background of the proposals by saying the initial plan came from a committee in 1989 chaired by Judge Pigot QC with the idea having long standing support.

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The proposed guidelines have set out a list of the procedures and practices which prosecuting lawyers as well as police officers must adopt when handling cases with children and vulnerable witnesses. The published proposal sets out a step by step guideline to be applied to such cases from start to finish.

Foremost sexual abuse cases involving children should only be assigned to a special team of Crown Prosecution Service (CPS) prosecutors. An agreement must be reached between the police and the prosecution service for their cooperation and close work which tackles evidential problems as well as form a strategy on how to deal with the issue in hand. The following stage of the proposal requests the case to be decided and acted upon its ‘merits’ without prosecuting based on preconceptions and stereotypes. The pilot scheme demands that the police alongside the CPS provide assistance and counseling to victims where such support is deemed to be necessary. The final substantial element of the proposals is that CPS barristers are ready to come head to head with stereotypes in court proceedings as well as do their best to ensure that there is minimum delays when it comes to hearing the case.

The director of public prosecutions (DPP), Keir Starmer stated that he wishes barristers actively challenge preconceptions and stereotypes which a jury may come into the courtroom having thus eliminating vulnerability as a barrier to successfully achieving justice. He moved on to support the CPS by stating that they have an experienced team of professionals which he believes are ready to achieve the demanding aims of the proposals.

Is claiming PPI compensation your legal right?

Have you been tricked by the banks to take out a Payment Protection Insurance policy? Is the PPI policy on your name ineffective and of no use to you? Were you aware of the mis-selling of PPI to you? What can you do now?

Do you want compensation from the bank that has mis-sold PPI to you, even possibly without your knowledge of it being added on to the cost of your loan or credit card borrowing? You can do something about it and claim for a compensation amount from the bank.

Many people are unaware that claiming for PPI compensation is their legal right. You have the complete right to claim for the compensation from the bank or any other financial company that tricked you and mis-sold the PPI policy as in the UK we are protected as consumers by the law from mis-selling and mis-representation by all service and goods providers.

You have the complete right to investigate your own case and proceed with the matter. If the bank is not responding to your case, you can get help from the Financial Ombudsman Service (FOS).  You can also contact a PPI claim service provider such as MisSoldPPIClaimsCo who will help you to get back your money and deal with the whole the matter on your behalf. These service providers consist of some of the best law professional experts.

Furthermore with judicial review of the PPI policy there is no reason to delay your compensation. The High Court has ruled out the plea of British Bankers’ Association (BBA) and spelled out that the guidelines of FSA (Financial Service Authority) and FOS (Financial Ombudsman Service) as correct.

According to the guidelines laid by the FSA and FOS and the orders set out by the High Court the banks have to consider paying compensation for all the old mis-sold PPI policies to the customers without any delay. Therefore, if you have been fooled by the banks and mis-sold to with PPI you have every reason to smile now.

The Effect of the Jackson Reforms on Solicitor Businesses

The Jackson Reforms, brought into statute by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in 2012 is mainly concerned with civil law procedure. Most affected by it are Conditional Fee Agreement (CFA) cases, better known as ‘no win, no fee’ cases. Prior to LASPO, the defendant paid the solicitor’s fees and the cost of the insurance policy that was required to be taken out. From this April onwards, both of those costs will be the burden of the claimant, and solicitors would only be able to claim up to 25% of settlements in fees.

It is not known what the full impact of the reforms will be, but certain signs are being seen already, or predicted.

Firstly, disputes or concerns between solicitors and clients over fees will be increasingly common. With the former protection granted to claimants and solicitors now gone, both sides will be more determined to secure settlements and fees respectively, resulting in protracted discussions over costs.

Another factor is that legal aid is set to be reformed, meaning that many claimants for civil liability and related cases would be denied legal aid. This makes making a civil claim more risky for claimant and solicitor alike. Michael Frisby, head of litigation at Stevens & Bolton, said that the rewards have ‘effectively been removed’ for taking on personal injury cases not covered by legal aid. Many solicitors will be put off taking on complicated or risky civil claims for fear of losing and the claimant being unable to pay the fees. Not only will this be bad for their legal practice, but it will effectively deny justice to those who cannot pay (but that is another issue of the Jackson Reforms entirely).

Small to medium solicitors firms traditionally taking on CFA funded cases will be hit hard by the reforms. Unable to rely on such cases in future, in an endeavour to keep up business levels, some predict that in this instance solicitor’s fees will have to fall to attract clients. A majority of such firms in previous surveys have admitted to either considering or to be planning for diversifying into other legal areas to maintain business.  It is likely that, facing a lack of business, or losing civil cases, some small firms might go under.

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It must be noted that the majority (but by no means all) of litigation covered by LASPO focusses on personal injury, negligence, and civil liability law suits. Solicitors involved in civil disputes outside those areas will be relatively unaffected, as will large personal injury firms.

What is certain is that the issue of costs will be a major factor in subsequent civil litigation. Solicitors and their clients will be much more cost- conscious than previously. This careful approach will make a form of solicitor’s firm more cost effective- but maybe at the expense of justice as solicitors try to do things on the cheap. Further to that, costs lawyers and similar professionals are likely to be more in demand to monitor and advise on legal costs. In a survey of members of the Association of Costs Lawyers (ACA), 37% said that the demand for assistance with legal cost budgeting had risen over the last year, with 79% predicting that number to rise. This shows that the costs will probably be the centre of a future case, not necessarily the legal arguments.

It is highly likely that future CFA lawyers will be reluctant to go into court unless they have a solid case. Such reluctance will be bad for their firm, for their client- and bad for justice. From that reluctance, change will have to arise. More lawyers will probably seek arbitration, alternative dispute resolution (ADR), or out of court settlements. Many might choose to develop their skills or firms in those very areas. Their role might change slightly from that of taking matters to court to increasingly advising clients on resolution to problems due to a lack of either claimant or solicitor wanting to take a joint great financial risk.

Tellingly, that is just what the Jackson Reforms wanted to encourage in the realm of civil law.  By putting the brakes on CFA lawyers, other methods of resolution become more attractive: but at what cost to the pursuit of compensation and justice?

 

Guest Post by Amelia Jones of http://www.nowinnofeeclaims.co.

Press regulation to be debated in both England and Scotland

After past previous mutual opposition over many issues, an political matter has arisen where both Westminster and Holyrood are in agreement.

Prime Minister David Cameron and his allies have always opposed Lord Justice Levenson’s key requirement in his report that the press be regulated by a new body underpinned by statute; citing freedom of the press, Mr. Cameron’s party has proposed that such a regulatory body be backed by a Royal Charter (similar to the BBC) as opposed to statute.

Over in Scotland, a similar report by Lord McCluskey recommended mandatory regulation for all of the press. Taking Levenson’s voluntary requirement further, this is being treated with similar wariness by First Minister Alex Salmond and the SNP.

david cameronHowever, ahead of a Parliamentary debate this week, Mr. Cameron ha been backed into a political corner over the matter. Whilst both the Liberal Democrats and Labour have now backtracked from initial calls for a new press law, and support the concept of a Royal Charter, they have caveats. Both parties and rebel Conservative MP’s want to add an “enshrinement clause” (meaning that such a charter could not be changed without the support of two thirds of MP’s, inter alia), and want to give the proposed charter legal and statutory force- something which Mr. Cameron and the press industry oppose.

Mr. Cameron has suggested that he might come round to the idea; “I don’t think [the clause is] needed but you know this is not the big issue of principle that a Leveson law would have been,” he said.

This could be the Prime Minister exercising damage limitation fearing that he might lose this vote, as indications show that the Conservatives are having difficulty in getting the necessary support in their party to support no legislation, despite great activity by party whips over the weekend.

Over in Scotland, Mr. Salmond cautiously accepted the McCluskey Report, saying it was “admirably clear”, and that he would take time to consider the report. Many Scottish parliamentarians are supportive in holding back from a new press law or mandatory regulation, with pressure groups and lobbyists such as Victim Support backing the report and the proposals for increased press regulation.

Mr. Salmond and the SNP are looking south to Westminster to see the outcome of the debates this coming week over implementing the full proposals of Lord Justice Levenson, before deciding on the implementation of Lord McCluskey’s recommendations. It is evident that the SNP is overall against implementing the whole report in full; very similar to the Conservative’s initial response to the Levenson Report.

The issue in both Scotland and England is press freedom. Both domestic law, European law protect and uphold a free and open press. Many politiicans and lawyers fear lawsuits if the respective press restrictions are imposed, and state that such restrictions are illegal. Above all, politicians and lawyers cite the simple argument that any infringement of the freedom of the press is undemocratic and morally wrong.

Pressure groups, victims of press scandals and supporters of increased, statutory and mandatory press regulation claim that implementing such measures is neither illegal nor undemocratic, but a necessary measure after previous press excesses. Victim Support spokesman David Sinclair in Scotland commented that “unless members are required to be part of the system then there is no system, and then the first time it takes a view which they disagree with, they can opt out,” adding that it was “arrant nonsense” to say that such lobby groups were acting against press freedom by implementing the relevant reforms.

Although all parties agree on tighter controls for the press, it is the mechanics of those controls, and the details, which are very contentious issues. Instead of opposing each other, as has sometimes happened, over this issue both Holyrood and Westminster are in agreement. Instead of Scotland standing up for Scottish issues, often contrary to Westminster, and being fiercely independent, this time the Scottish parliament is actively looking to London for guidance in this contentious issue.

Clearly, Mr. Salmond and the Scottish parliament have one eye on the referendum in 2014, and the press coverage that will be surrounding that, and indeed further into the future if Scotland gains its independence and the ability to legislate in all areas, including the press.

Legislation For Same-Sex Couples Marriages

1The Conservatives wish to implement legislation allowing all couples including same-sex couples who choose to enter into a life-long commitment to call it marriage. MP’s have been urged to support the change however there have been numerous concerns and upon voting, 136 Tories opposed the bill.

England is traditionally a Christian country with the majority of laws having a basis in the morals which derive from Christian teachings.  Marriage is seen as a sacred act, which, legally, is conducted between a man and a woman. The new legislation would allow a same- sex couple to marry and allow them to have the ceremony in a religious institution, providing that institution had consented. Backlash has stemmed from the sacred nature of marriage and the meaning behind it in a religious context.

There were also concerns among Conservatives, some who have very traditional ideology and attitudes, which Cameron wishes to modernise. Nick Robinson stated, “The real reason for the anger directed at David Cameron is that many Conservatives have realised that they and their attitudes are the dragon their leader has decided to slay.”

Marriage has evolved over time, and same-sex couples are allowed to enter into a civil partnership however, the rights given under this are not the same as a marriage. Non-religious couples who wish to enter into a life long commitment call it a marriage, it no longer has a purely religious meaning and as such many argue such modernisation should be allowed.

Concerns have been raised regarding divorce, as the legal definitions of adultery and consummation, which are grounds for divorce, have definitions based upon a man and a woman.  Consequently, changing the law regarding the definition of marriage and who can marry has wider implications. The questions that may arise from the legislation are controversial and difficult to answer, which may cause a number of complicated issues.

Liberian president Found Guilty of War Crimes

Former Liberian president Charles Taylor was found guilty of financially aiding rebels that carried out atrocities in his neighboring country of Sierra Leone. He was found guilty and was sentenced to 50 years in prison by The Hague, making him the first former head of state to be convicted by an international war crimes court since World War II. Taylor’s lawyers have put forward 45 grounds of appeal.

With defense lawyers claiming that the verdict is a miscarriage of justice, they are calling for Taylor to be acquitted of his charges on the basis that he was motivated by his greed for diamonds and not blood and that this greed led him to sponsor rebels in Sierra Leone; while stating that his actions may have indirectly lead to the deaths of more than 50 000 people and left many more maimed in a ten year civil war that end in 2002.

Taylor was said to have an arrangement with Sierra Leone’s Revolutionary United Front (RUF) rebels. He would provide them with arms and logistical support and in return he would be paid in ‘conflict’ diamonds.  Prosecutors in the meanwhile are urging for Taylor’s 50 year sentence to be upgraded, although practically a life sentence, to be upgraded to an 80 year sentence, to make more of an example of the 62 year old.  Judges last year found Taylor guilty of more than 10 war crimes, including the use of child soldiers, rape murder and torture.

Taylor’s lawyers are due to speak later this week, where they will argue that some evidence used against the former president is ‘uncorroborated hearsay’. Taylor was present in court but remained silent.  His situation doesn’t seem to be getting any better with presiding Judge Richard Lussick commenting “The lives of many more innocent civilians in Sierra Leone were lost or destroyed as a result of his actions.”

Drive to Increase Senior Female Lawyer Numbers

The Law Society has backed an initiative intended to lead to an increase in the numbers of female lawyers in senior positions. The law is still a male-dominated environment, and traditionally has always been so. The latest initiative intends to set targets for women to graduate to senior jobs, with a recent investigation recognising that ‘things must change’. It was recently reported that over three quarters of judges in the UK are male, and a similar situation is prevalent in the rest o the legal industry.

Diversity is the name of the game, with the report suggesting gender support and encouragement should be put into place. The proposals were revealed at a recent summit of Women in Law, at the headquarters in the City of London. It remains to be seen how widespread the changes may be, or how they can be initiated.

Men Dominate Board-Rooms

Lucy Scott-Moncrieff, President of the Law Society, was forthright in her assessment:

“In some firms, where the opportunities for those wanting to strike a balance between high-flying work and family life are still scarce, men dominate the boardrooms. Unwittingly, these firms may be losing talented women and promoting mediocre men. If career progression was based on pure merit, some male business leaders and law firm senior partners would never even have seen the paintings on the boardroom wall.”

At the event some of the more prevalent female lawyers had opinions to voice, among them Ann Minogue, a partner at Ashurst construction:

“Targets would be the right thing to introduce as opposed to quotas, which might meet resistance and create tension if perceived as special treatment – feeding in turn into the unconscious bias issue. One aspect I thought could have been addressed more is the tendency to approach partnerships in a linear way. Senior female lawyers should still be seen as potential partners at, say, 10 years’ PQE, rather than being passed over at six or seven years’ PQE and then dismissed as partner prospects.”