The Future Lawyer Weekly Update – w/c 15th February

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Government Bill 2019-21

Domestic abuse bill

Reported by Katie Henderson

Discretion given to family court judges in domestic abuse cases, is putting victims at risk. The domestic abuse bill currently going through the House of Lords, which aims to improve the effectiveness of the justice system in protecting victims, should remove this discretion.

The gravity of domestic abuse cases is shown by the statistics; two women, every week, will be murdered by a partner or ex-partner. It follows that women are at most risk of harm at the point of leaving their abuser. A study by Women’s Aid in 2016 showed cases of 19 children in 12 families who were all intentionally killed by a parent who was also a known perpetrator of domestic abuse. Due to this danger domestic abuse refuges offer protection by placing victims in secret locations with strict security. However, the current law has enabled judges to disclose sensitive information, including refuge addresses, to abusive ex-partners and parents. It has been proposed the new bill should specify that refuge addresses should never be disclosed, removing the discretion of the court in this respect. London’s independent victim’s commissioner, Claire Waxman says “only the office address of the organisation should be used to effect service (of court orders) on a survivor fleeing violence”. On this basis, not even the court would have the address, providing maximum safety and protection.

The call for reform follows reports of abuse victims being stalked and tormented due to the provision of information to the perpetrator. Family barrister, Charlotte Proudman has seen first-hand the result of such failings. “I have seen a refuge worker named and the refuge identified in a court order and I have seen a refuge being ordered to agree to child contact despite safety risks. In one case, the refuge explicitly stated that contact should not take place because of the safety risks to the victim of domestic abuse and the child.” She continues, “The judge ignored the refuge and ordered contact which led to the alleged perpetrator finding their location in the refuge and stalking her. Horrendously, the alleged perpetrator then abducted the child abroad causing emotional harm.” A proper assessment of the risk should have been made in this case, and Dr Proudman warns of the ‘irreversible harm’ that could be done if this is not made clear.

The bill offers a valuable opportunity to refine the law and ensure victims living in such refuges, as well as the support staff, are not at risk of “violence and harassment”.

You can find more here or here.

Case Law

Nigerian communities can sue Shell in English courts, Supreme Court rules
Okpabi and others v Royal Dutch Shell Plc and another [2021] UKSC 3

Reported by Jasmine Cracknell

The Supreme Court has ruled that Nigerian communities affected by oil pollution can bring legal claims against Royal Dutch Shell and its Nigerian subsidiary in UK courts.

The appeal concerns whether Royal Dutch Shell, a UK domiciled company, owed a common law duty of care to individuals in respect of the actions of its subsidiary, The Shell Petroleum Development Company of Nigeria Ltd (SPDC).

The Ogale and Bille communities, who are represented by Leigh Day, argue that Shell’s significant control over or assumed responsibility for its subsidiary’s operations in the area give rise to a duty of care.

The communities are seeking to bring claims for clean-up and compensation after what they say has been decades of pollution, including environmental damage, water well contamination, and damage to vegetation. They have tried for five years to bring their case in the English courts as they maintain they would not receive justice in Nigeria.

In February 2018 the Court of Appeal dismissed the case on the basis that there was no arguable claim, however the applicants were successful in their appeal to the Supreme Court.

Giving judgement, the Supreme Court said the Court of Appeal had erred in law on several occasions. It found that the Court of Appeal was wrong in conducting a mini-trial at the interlocutory stages, as this led the court to prematurely evaluate the weight of the evidence, rather than focus only on whether the case put forward presented an arguable claim.

The Supreme Court also found that the Court of Appeal was wrong to accept a ‘general principle’ that a parent company could never incur a duty of care in respect of the actions of a subsidiary just because of group-wide policies and guidelines. It further held that the Court of Appeal focused ‘inappropriately’ on the issue of control, and should instead have considered ‘the extent to which the parent did take over or share with the subsidiary the management of the relevant activity. That may or may not be demonstrated by the parent controlling the subsidiary’.

The Supreme Court ultimately found that there were real issues to be tried in the case, mostly due to Shell’s corporate structure which allowed for delegation of authority in relation to environmental responsibility. The court said that the degree to which authority was delegated ‘clearly raised triable issues’.

Leigh Day partner Daniel Leader said: ‘This Supreme Court judgment gives real hope to the people of Ogale and Bille who have been asking Shell to clean up their oil for years. We hope that now, finally, Shell will act.’

‘But it also represents a watershed moment in the accountability of multinational companies. Increasingly impoverished communities are seeking to hold powerful corporate actors to account and this judgment will significantly increase their ability to do so.’

Find out more here and here.

Case Law

Meghan Markle Privacy Case

Reported by Laurence Tsai

After a two-year legal battle between the Meghan Markle and Associated Newspapers Limited (“ANL”), the High Court ruled that ANL breached Ms Markle’s privacy after reproducing large extracts of a five-page letter she had sent to her estranged father. ANL is considering an appeal. Ms Markle, the Duchess of Sussex, sued ANL, which publishes Mail on Sunday and MailOnline, for misuse of private information and on data protection and copyright infringement grounds.

• Misuse of private information

Mr Justice Mark Warby found that the Duchess had a reasonable expectation that the contents of the letter would remain private. Her letter was an expression of her feelings of anguish about her father’s behaviour and the resulting rift between them, which are inherently private and personal matters.
Warby J followed the two-stage test under the tort of misuse of private information.

• Stage one: reasonable expectation of privacy

The parties disagree as to whether the Claimant, Ms Markle enjoyed a reasonable expectation that the contents of the Letter were private and would remain so; or whether she had no such reasonable expectation.
In assessing whether the Claimant had a reasonable expectation of privacy, the judge considered several factors of the case, the main ones of which are discussed below:

• • (a) The Claimant’s status

The judge explained the long established rule that public figures “must accept a degree of intrusion that others would not have to bear”. Yet, the Duchess’ status does extinguishes her right to a private life, or expose every aspect of her life to meticulous examination by the press.

• • (b) The nature of the letter or its contents

The Duchess’ heartfelt letter to her father fell within the scope of Article 8 as “correspondence” that relates to her “family life” and her “private life”. Under English law, personal correspondence is presumptively private in nature. The Duchess used a courier service to ensure the letter was personally delivered to her father, which supports that presumption.

• • (c) The public domain

ANL’s publication of much of the information contained in the letter to a large readership intruded on the Duchess’ Article 8 right. The judge was not convinced by ANL’s argument that an earlier People Article, which contains information about the existence of the letter and a description of its contents, means the Duchess permitted the letter to enter the public domain. The argument failed because ANL had actually disclosed detailed content of the letter.

• Stage two: the balancing exercise

Warby J considered whether in all the circumstances, “the Claimant’s privacy rights must yield to the imperatives of the freedom of expression enjoyed by publishers and their audiences”.
The real issue was whether the letter’s publication might be justifiable for preventing the public from being misled. Thomas Markle maintains that the People Article was misleading about the letter and damaging to his reputation, so he was justified in disclosing the actual letter on the grounds of self-defense. However, the judge found that there is no legal basis for one, who believes his portrayal is untrue, to disclose entire contents of a letter in reply to the same audience. Moreover, disclosing the letter cannot be legitimate to enhance such a reply.
It would have been fair for Mr Markle and ANL to use only part of the letter to rebut misleading assertions manufactured by the People Article, but no more than that. Although Warby J found that the People Article portrayed the letter inaccurately, ANL’s publication of most of private contents of the letter was not necessary and proportionate to reconcile any untruths to the public.

• Copyright

Warby J held that an electronic draft of the Duchess’ handwritten letter constituted part of her intellectual creativity, sufficient to render it an original work and confer copyright on its author(s). Therefore, by publishing a large and important proportion of the original content, ANL had breached the Duchess’ copyright.
Warby J ruled that details about the copyright ownership in the letter should be determined at a forthcoming trial. He did not consider data protection claim, which also remains outstanding.
The case will return to court on 2 March 2021 to decide next steps, including assessment of damages, any outstanding issues that must be decided at trial (such as copyright ownership), and costs.

You can find more here or here.

Human Rights in Supreme Court

The end of death penalty for prisoners with severe mental health problems in Pakistan

Reported by Emma Ducroix

Since 2014, 518 people have been executed in Pakistan, and 4,225 people are on death row.

In a landmark decision, Pakistan’s supreme court ruled that prisoners with serious mental health problems cannot be executed for their crimes.
Indeed, on Wednesday, the court commuted the death sentences of Kanizan Bibi, 46, and Imdad Ali, 55, who have spent years on death row after being convicted of murder.

Bibi was convicted when she was 16 of murdering the wife and five children of the wealthy landlord she worked for. In 2000 she was diagnosed with schizophrenia.
Ali was convicted of murdering a religious scholar in 2001. He was diagnosed with schizophrenia in 2008.

The Cornell Center on the Death Penalty Worldwide stated that Bibi was wrongfully convicted. She was allegedly tortured in police custody for several days before being sentenced to death in 1991.
Bibi and Ali will now be transferred to a government-run mental health facility.

Usama Malik, a human rights attorney, told the Guardian the supreme court had not “granted carte blanche relief to every prisoner on death row suffering from mental health issues”, but a medical board will now determine which prisoners “have such grave mental health issues that sending them to the gallows would be against the principle of retribution”.
The judgment read: “If a condemned prisoner, due to mental illness, is found to be unable to comprehend the rationale and reason behind his/her punishment, then carrying out the death sentence will not meet the ends of justice.”

The court has also directed that prosecutors and trial judges be provided with training in how to assess mental health issues during trials.

Sarah Belal, executive director of Justice Project Pakistan, told the Guardian: “With this ruling, the supreme court of Pakistan has laid the groundwork for much broader prison reforms. It is a monumental judgment not only in terms of how it looks to uphold the rights of people with psychosocial disabilities, but also how it binds the federation and provinces to uphold the standards of due process and fairness.”

Pakistan halted capital punishment from 2008 to 2014 after pressure from international rights groups and campaigners. But in 2014, after a deadly Taliban attack on a school in Peshawar, stricter laws were introduced and the moratorium was lifted.
The verdict was hailed by rights activists, who said it laid the groundwork for broader prison reforms in the country.

Find out more here or here.