Month: September 2020

Human rights

first_img The claimant (B), a pre-operative transgender prisoner, applied for judicial review of a decision of the defendant secretary of state refusing to transfer her from a male prison to a female prison. B was a post-tariff life sentence prisoner who had been detained at a male prison following her conviction for manslaughter and attempted rape. She had been born male but had gender dysphoria. She had undergone the process of gender reassignment treatment and had been granted a certificate under the Gender Recognition Act 2004 which required her recognition as a woman. B wished to undergo gender reassignment surgery, but surgery could not be considered until she had spent time living as a woman in a female prison. However, if she were transferred to a female prison, she would have to spend an unknown period of time in segregation before moving to unsegregated accommodation. B’s request for a transfer to a female prison was refused on certain grounds, which included the risk she presented to herself and other prisoners and the significant resource implications of keeping her segregated in the female prison. The court had to determine whether (i) B’s rights under article 8 of the European Convention on Human Rights 1950 were engaged; (ii) the secretary of state’s decision violated B’s article 8 rights, considered in light of section 9 of the 2004 act; (iii) the decision was unlawful on Wednesbury unreasonableness grounds. B submitted that the secretary of state’s decision was unlawful and that the only lawful decision would be to order her transfer to a prison on the female prison estate. The secretary of state argued that article 8 was not engaged as B had sought to establish a positive obligation under article 8. The secretary of state further contended that even if article 8 was engaged the decision was lawful and proportionate, having been based on expert advice and on the need to segregate B for an unknown period of time, and the considerable costs likely to be incurred in doing so. Held: (1) The decision to retain B in the male prison estate effectively barred her ability to qualify for surgery and progress to full gender reassignment, which interfered with her personal autonomy in a manner which went beyond that which imprisonment was intended to do. That interference was a significant and personal one. Accordingly, article 8 was engaged. A finding of an initial engagement of article 8 and the application of article 8(1), where the state interfered with a person’s autonomy, did not require a high level of support, Wood v Commissioner of Police of the Metropolis [2009] EWCA Civ 414, [2009] HRLR 25 applied. (2) Preventing a transfer was likely to disturb the current stable regime, and the frustration of B’s ability to progress towards realisation in full of her gender appeared likely to lead to an increase in her risk profile, requiring segregation, even within her current environment. There was no evidence that the consequences of the frustration of B’s progress, and its possible effects on risk and the costs of keeping her within a male prison, had been taken into account by the secretary of state. The decision did not consider the possibility that the segregation period in the female prison might not be particularly long, and it failed to consider and balance the costs which would be likely to arise if the denial of a transfer and the loss of hope at progressing to qualify for surgery were to increase the difficulties of B living in a male prison and themselves led to segregation. The decision also appeared to have failed to recognise that B presented a risk in both male and female prisons. The justification for the decision advanced by the secretary of state was, therefore, significantly flawed. When issues were so close to the identity of a prisoner, the deployment of resources as a justification for the infringement of article 8 rights had to be clear and weighty to be proportionate. In the instant case they were neither clear nor weighty. The lack of proportionality was underscored by the requirement of section 9 and the fact that a biological female with the same risk profile as B would be dealt with appropriately in a female prison. The secretary of state had failed to provide a sufficient justification under article 8(2) and the decision to keep B in a male prison was not proportionate and violated her article 8 rights. (3) It was also appropriate to quash the decision on Wednesbury grounds due to the flaws in the decision. Application granted. R (on the application of AB) v (1) Secretary of State for Justice (2) Governor of Manchester Prison: QBD (Admin) (David Elvin QC): 4 September 2009 Phillippa Kaufmann (instructed by Scott-Moncrieff, Harbour & Sinclair) for the claimant; Oliver Sanders (instructed by Treasury Solicitor) for the defendants.center_img Gender reassignment – Prisoners’ rights – Right to respect for private and family lifelast_img read more

Where will the spending axe fall next?

first_imgThe new justice secretary’s in-tray is bulging. He has already found his department fighting judicial review proceedings; dealing with a drafting error that has rendered new defence costs rules unenforceable; and overseeing the scrapping of a key LSC policy on very high cost cases. The judicial review and the drafting error both relate to the controversial policy of capping at legal aid rates the costs that can be recovered by acquitted defendants who have paid their lawyers privately. The Law Society challenged the legality of the policy in the High Court last week, claiming it did not provide reasonably sufficient compensation for expenses incurred, as is required by statute. Judgment has been reserved. Of course, the policy is not Clarke’s and the defective drafting did not happen on his watch. But it was of course open to him not to defend the proceedings and ditch the policy, accepting that it did not provide sufficient reimbursement. The fact that he chose not to do so means either that he agrees with the policy, which was designed to slash £25m a year from the legal aid budget, or that he has not yet addressed the issue. Meanwhile, the LSC has announced it will be scrapping the litigator’s panel for very high cost criminal cases (VHCCs). Both of those initiatives – capping defence costs awards and the VHCC panel – were key elements of the previous government’s drive to cut spending on criminal legal aid. The VHCC panel will be gone by the middle of July, with nothing as yet to replace it, and if the High Court agrees with the Law Society, the cap on defence costs orders will also go. This will leave the new MoJ with the task of finding other policies to cut legal aid spending, thereby fulfilling Clarke’ pledge to help address the fiscal deficit. Where is there left for the axe to fall?last_img read more

Whiplash compensation system ‘open to fraud’

first_imgThree-quarters of healthcare professionals believe the ­current system of compensation for whiplash is open to fraud. A survey of more than 500 GPs, physiotherapists and consultants found widespread scepticism about the process of claiming after accidents. Almost 90% believe some whiplash claims could be given a different label, while 47% of GPs providing medical reports in personal injury believe the system encourages diagnosis for maximum gain. The survey, the full results of which will be published later this month, follows justice secretary Jack Straw’s comment that whiplash diagnoses are delivered by ‘third-rate doctors, in the pay of claims management companies or personal injury lawyers’. But the research, commissioned by three leading insurers and rehabilitation provider HCML, suggests that doctors believe their hands are tied by regulations.last_img read more

*Tips on protecting your business from terrorism

first_imgSubscribe now for unlimited access Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more

Just the beginning

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That joke isn’t funny any more …

first_imgGet your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited accesslast_img read more

Don’t poke lions

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Black swans, perfect storms…

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more

Quentin Shears: [email protected]

first_imgSubscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAY Subscribe now for unlimited accesslast_img read more

Advising traditional procurement: Have I really been negligent?

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited accesslast_img read more