The Chair of the Brook House Inquiry, Kate Eves, has published her report into the mistreatment of individuals who were detained at Brook House Immigration Removal Centre today. Read the full report here.

The Brook House Inquiry was set up to investigate the circumstances surrounding the mistreatment of individuals detained at Brook House Immigration Removal Centre between 1 April 2017 and 31 August 2017, as shown in the BBC Panorama programme “Under-Cover: Britain’s Immigration Secrets” aired on 4 September 2017.

Sarah Simcock was first junior counsel to the Inquiry, instructed by The Government Legal Department. Cecily White represented the Practice Plus Group (PPG), instructed by James Lawford Davies of Hill Dickinson LLP.

The Brook House Inquiry has gained significant media attention and you can read about it further on BBC News and The Independent.

Rhys Hadden has appeared in the Court of Appeal in Re SA (Declaration of Non-Recognition of Marriage) [2023] EWCA Civ 1003, a complex appeal concerning the inherent jurisdiction of the High Court to make a declaration that an overseas marriage should not be recognised as valid in England and Wales when one party to the marriage lacked capacity to enter into that marriage.

The issue arose in the context of concurrent proceedings before the Family Division and Court of Protection where an application for a Forced Marriage Protection Order (“FMPO”) had been made by West Northamptonshire Council on the basis that SA, a British woman with a learning disability, had entered into an arranged marriage in Bangladesh when she lacked capacity to do so.

Newton J had previously determined that SA lacked capacity to enter into marriage or engage in sexual relations (both at the time and at the date of the hearing), made a final FMPO and granted a “declaration of non-recognition” regarding the status of the marriage in England and Wales. SA’s mother, supported by SA’s father, appealed against the declaration of non-recognition, relying heavily on the extensive obiter comments of Mostyn J in NB v MI (Capacity to Contract Marriage) [2021] EWHC 224 (Fam). The appeal was opposed by the local authority and the Official Solicitor.

In a detailed and wide-ranging judgment, Moylan LJ confirmed that sections 55 and 58 of the Family Law Act 1986 (“FLA 1986”) do not prohibit the court from making a declaration of non-recognition under the inherent jurisdiction in respect of a voidable foreign marriage (see paras 78-95 of the judgment). The Court of Appeal further confirmed that Newton J was right to make such a declaration in the factual circumstances of this case, and that it is not necessary to demonstrate that an adult has actually suffered violence, coercion or distress before the Court will be prepared to grant this form of relief (paras 97-100).

While considered by a number of first instance decisions, this issue had not been considered at an appellate level since the landmark decision of Westminster City Council v C [2008] EWCA Civ 198. It clarifies any legal uncertainty that has arisen following the decision NB v MI. The Court of Appeal’s decision also reinforces the position that a declaration of non-recognition remains a necessary and important remedy in the context of protecting a vulnerable adult from the legal consequences of entering into a marriage when they lacked capacity to do so.

Rhys represented SA through the Official Solicitor. He was instructed by Laura Hobey-Hamsher and Brigdhe Gallivan of Bindmans LLP. The full judgment can be accessed via BAILLI here and The National Archives here.

Pravin Fernando represented a County Council before the High Court in a long running case concerning capacity for contact with family members and the application of the inherent jurisdiction. The case involved a 30-year-old woman with Down’s Syndrome and moderate learning difficulties who was refusing to meet her parents and wider family. The applicant considered that P lacked capacity to make decisions regarding contact and that she was susceptible to undue influence. The applicant also sought an order under the inherent jurisdiction in relation to supporting contact between P and her family if the court concluded that P retained capacity for contact. Cobb J determined that P did retain such capacity and that the conditions required for invoking the inherent jurisdiction were not met.  The judgment importantly clarified the applicable limits of the inherent jurisdiction in cases involving vulnerable adults.

Rhys Hadden had also previously acted for the County Council.

Re RK (Capacity: Contact: Inherent Jurisdiction) [2023] EWCOP 37 judgment available here.

Interviewed by both The Telegraph and The Times following the Letby conviction, Sir Robert Francis KC comments, “At the heart of this tragic case are concerns raised by doctors about the safety of patients who have died. Whenever that happens, the prime concern in any investigation is to start with the safety of the patient, because if you have concerns about patients then you act urgently. If you start looking at disputes between individuals, or HR procedures, then you get into trouble, things lag.”

Read the full article in The Telegraph here. 

The High Court has handed down judgment today in Victor v Chief Constable of West Mercia Police, available here. The decision is of some topicality and importance. John Beggs KC and Aaron Rathmell appeared for the defendant Chief Constable.

The facts were, briefly: off-duty misconduct by the claimant while she was a probationary police constable, in the form of verbal abuse in discriminatory terms while intoxicated in a public place (substantially admitted); final written warning given at a misconduct meeting pursuant to the Police (Conduct) Regulations 2020; vetting review conducted on behalf of the Chief Constable, pursuant to the College of Policing’s Authorised Professional Practice on Vetting (“APP”); recruitment vetting withdrawn, based on the behaviour demonstrated by the claimant in connection with the same off-duty incident; discharge pursuant to regulation 13 of the Police Regulations 2003, terminating the claimant’s probationary service, in light of the absence of vetting.

The claimant submitted that the vetting and regulation 13 decisions taken by the Chief Constable were unlawful inter alia because they were in “conflict” with the misconduct proceedings, which had not resulted in the outcome of dismissal. The claimant submitted that because her behaviour had already been dealt with in the misconduct proceedings, any review of her vetting clearance should be limited to consideration of her integrity and her access to police assets, otherwise the protections of the conduct regulations would be frustrated.

The Court dismissed the claim. Mr Justice Eyre observed that a review of vetting clearance following misconduct proceedings was a proper practice in accordance with the APP and was to be a full review, not constrained by the outcome of those proceedings (paras 81–83 and 91). All the more so because the claimant was a probationer, though this was not the only basis for the decision.

Further, the Chief Constable had been “right to say that public confidence in the police service would be diminished if those who are immature or who have shown an ability to lose their self-control when affected by drink or when in anger have access to confidential information” (para. 74). The decisions were “well within the range of permissible decisions … clearly rational” (para. 93).

The judgment affirms that “The starting point is that the misconduct proceedings and the review of the Claimant’s vetting clearance were different processes carried out by different officers applying different rules. The objectives of those processes were closely related but they were not identical. It is, accordingly, not surprising that the processes had different outcomes …” (para. 80). See also para. 91:

“…the misconduct proceedings and the review of the Claimant’s vetting clearance were different processes in which different, but related, criteria were applied. Moreover, and significantly the Vetting Code of Practice and the APP to which the Defendant was required to have regard called for the review to be undertaken in these circumstances. For such a review to be undertaken properly it could not simply mirror the outcome in the misconduct proceedings but had to be a genuine review of the vetting clearance having regard to all the considerations relevant to such a review. Although there is force in the Claimant’s point that primacy should be accorded to the conclusion reached in the misconduct proceedings as to the measures necessary to maintain professional standards and public confidence it cannot outweigh the factors in favour of lawfulness. In particular it cannot prevail against the fact that the requirement that there was to be a review of the Claimant’s vetting clearance is strongly indicative that this was to be a full and not an attenuated review …”

The judgment does not of course mean that Professional Standards Departments can bypass or otherwise subvert the important protections for police constables in the conduct regulations. Indeed, Eyre J noted the public interest in the independence of police constables and the protections given to them (paras 62–69).

What the judgment does do, however, is reiterate the “... potent public interest in ensuring the highest standards of integrity, professionalism, and performance by police officers and in limiting access to the material to which police officers are privy to those who are fit to have such access …” (paras 69, 91) and the distinct, important role for vetting in achieving this.

The judgment may also lend confidence to decision-makers who act in good faith, applying the regulations and vetting guidance for their intended purposes, sensitive to the facts of each case, and giving multi-factorial reasons for decisions.

It is a nuanced judgment, worth reading closely.

https://www.bailii.org/ew/cases/EWHC/Admin/2023/2119.html 

We are pleased to announce that Emma Sutton KC has been appointed to sit as a Judge of the Court of Protection for the South West region. Emma, who sits as a Fee-Paid Judge of the First-Tier Tribunal (Mental Health), has been nominated by the President of the Family Division to sit in the Court of Protection for a period of six years, to commence later this year.

Emma is delighted to add this part-time judicial appointment to her practice, alongside her recent appointment to Silk.

Emma will continue to practise from Serjeants’ Inn Chambers and accept instructions in the usual way.  She has extensive experience in the Court of Protection, public and administrative law, education and inquest and inquiries work.

To read more about Emma’s practice, please see here.

R (on the application of Swalcliffe Park School) v Wokingham Borough Council and another [2023] EWHC 1451 (Admin).

David Lawson appeared for the successful school in a judicial review claim challenging the decision of a local authority to name the school in an EHCP plan against the school’s advice.  The case was unusual, involving a challenge to a tribunal order by judicial review, as well as to the decision of the local authority.

The successful ground of challenge was consultation, in particular the duty on a local authority to give conscientious consideration to the results of a consultation.

David was instructed by Mike Charles of Sinclairs Law.

Serjeants’ Inn is delighted to announce the following 21 nominations at The Legal 500 UK Bar Awards 2023.

• Clinical Negligence Set of the Year
• Court of Protection and Community Care Set of the Year
• Professional Disciplinary and Regulatory Set of the Year
• Public Law Set of the Year
• Public Services and Charities Set of the Year
• Michael Mylonas KC for Court of Protection and Community Care Silk of the Year
• John de Bono KC for Clinical Negligence silk of the Year
• Katie Gollop KC for Court of Protection and Community Care Silk of the Year
• Bridget Dolan KC for Court of Protection and Community Care Silk of the Year
• Sarah Clarke KC for Financial Services and Insurance Silk of the Year
• Claire Watson KC for Clinical Negligence Silk of the Year
• Anthony Haycroft  for Professional Disciplinary and Regulatory Junior of the Year
• Heidi Knight for Clinical Negligence Junior of the Year
• Eloise Power for Clinical Negligence Junior of the Year
• James Berry for Public Services and Charities Junior of the Year
• Rhys Hadden for Court of Protection and Community Care Junior of the Year
• Cecily White for Professional Disciplinary and Regulatory Junior of the Year
• Catherine Calder for Chambers Leader of the Year
• Lee Johnson for Senior Clerk of the Year
• Marketing Team of the Year
• Front of House Team of the Year

Many thanks to all our clients for taking the time to participate in the research and good luck to all the different chambers and counsel nominated!

Please see the full The Legal 500 UK Bar Awards 2023 shortlist here.