The ‘shifting’ burden and the drawing of adverse inferences – 3PB

‘The Supreme Court has unanimously dismissed this appeal concerning two questions of law:
(i) whether a change in the wording of equality legislation has altered the burden of proof in employment discrimination cases, and
(ii) when a tribunal may draw adverse inferences from the absence of a potential witness.’

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3PB, 9th August 2021

Source: www.3pb.co.uk

Why Is Disability Hate Crime So Hard To Prove? – Each Other

‘Under UK law, something is deemed a hate incident if the victim or anyone else thinks it was motivated by hostility or prejudice based on disability, race, religion, gender identity or sexual orientation. It then becomes a hate crime if it crosses the boundary of criminality.’

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Each Other, 3rd August 2021

Source: eachother.org.uk

Efobi v Royal Mail Group Limited: The burden of proof and drawing of inferences in discrimination claims – Littleton Chambers

‘The Supreme Court has delivered a unanimous and emphatic judgment on the burden of proof in discrimination claims. The decision has confirmed that the Claimant bears the initial burden of proof to establish a prima facie case, and so restored the orthodoxy that had been disturbed by the ruling of the EAT earlier in these proceedings. It also offers some useful guidance on the drawing of adverse inferences.’

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Littleton Chambers, 23rd July 2021

Source: littletonchambers.com

The Reverse Burden of Proof in Health and Safety Prosecutions: As You Were – Henderson Chambers

‘In R v (1) AH Ltd and (2) Mr SJ, the appellants sought leave from the Court of Appeal to challenge the reverse evidential and legal burdens of proof to establish the “reasonably practicable” defence pursuant to s40 HSWA1974. Although permission to appeal was ultimately refused, the reasoning behind the decision is important reading for health and safety practitioners in the context of increasingly vigorous prosecutions.’

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Henderson Chambers, 9th July 2021

Source: www.hendersonchambers.co.uk

New Judgment: Royal Mail Group Ltd v Efobi [2021] UKSC 33 – UKSC Blog

‘The Supreme Court has unanimously dismissed this appeal concerning two questions of law: (i) whether a change in the wording of equality legislation has altered the burden of proof in employment discrimination cases and (ii) when a tribunal may draw adverse inferences from the absence of a potential witness.’

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UKSC Blog, 23rd July 2021

Source: ukscblog.com

The Lachaux libel case returns with an expensive result for the publishers – Transparency Project

‘This post is not about family law; it’s about defamation law. It involves alleged behaviour by a husband (Bruno Lachaux) to his wife (Afsana Lachaux). Since their separation, Mr and Mrs Lachaux have been involved in litigation in the family court which we wrote about in September last year. That litigation involved both financial matters and children matters. There was also a separate ongoing libel case brought by Mr Lachaux regarding a number of publications about his marriage. Mrs Lachaux was not a party in the libel case.’

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Transparency Project, 7th July 2021

Source: www.transparencyproject.org.uk

Indirect Discrimination Against Working Mothers – Littleton Chambers

‘On 22 June 2021, the President of the Employment Appeal Tribunal handed down judgment in Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19/LA. CLICK HERE to read the judgment.’

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Littleton Chambers, 23rd June 2021

Source: littletonchambers.com

Suicide and the burden of proof – Law Society’s Gazette

Posted December 1st, 2020 in burden of proof, coroners, inquests, news, standard of proof, suicide by sally

‘Although suicide was decriminalised more than 60 years ago, it was still always necessary to meet the criminal standard of proof when reaching a finding that someone had taken their own life. But this month, in a departure from this common understanding, the Supreme Court in R (Maughan) v HM Coroner for Oxfordshire [2020] UKSC 46 found that the ‘degree of conclusivity’ required was, in fact, the civil standard – the balance of probabilities.’

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Law Society's Gazette, 30th November 2020

Source: www.lawgazette.co.uk

Children: Public Law Update (October) – Family Law Week

“John Tughan QC of 4PB considers the latest judgments that Public law child lawyers need to know about.”

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Family Law Week, 28th October 2020

Source: www.familylawweek.co.uk

Is there a different burden of proof in relation to misconduct cases in which there is a possibility that an employee who works with children may pose a danger? No, says the EAT in K v L UKEAT/0014/18/JW – 3PB

‘The Claimant had been employed by the respondents for 20 years as a teacher. On 30th December 2016 the Police entered his property having been granted a warrant to search for and seize computers in the possession of the Claimant. The warrant was based on intelligence that indecent images of a child or children had been downloaded to an IP address associated with the Claimant. The Claimant lived at the address with his son. One of the computers was found to have data that was of interest to the Police.’

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3PB, 2nd October 2020

Source: www.3pb.co.uk

Is there a different burden of proof in relation to misconduct cases in which there is a possibility that an employee who works with children may pose a danger? No, says the EAT in K v L UKEAT/0014/18/JW – 3PB

‘The Claimant had been employed by the respondents for 20 years as a teacher. On 30th December 2016 the Police entered his property having been granted a warrant to search for and seize computers in the possession of the Claimant. The warrant was based on intelligence that indecent images of a child or children had been downloaded to an IP address associated with the Claimant. The Claimant lived at the address with his son. One of the computers was found to have data that was of interest to the Police.’

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3PB, 2nd October 2020

Source: www.3pb.co.uk

Passports: Foreign law must be proved by expert evidence – EIN Blog

‘Hussein and Another (Status of passports: foreign law) [2020] UKUT 250 (IAC): CMG Ockelton VP has explained that (i) a person who holds a genuine passport, apparently issued to him, and not falsified or altered, has to be regarded as a national of the State that issued the passport, (ii) the burden of proving the contrary lies on the claimant in an asylum case, and (iii) foreign law (including nationality law) is a matter of evidence, to be proved by expert evidence directed specifically to the point in issue. The appellant Mr Hussein, who had permission to appeal, and the applicant Mr Abdulrasool, who was seeking permission to appeal, were father and son who made asylum claims, which were refused. The applicant, who was born in 2000, additionally claimed that he was so dependent on his parents that it would be disproportionate to remove him from the UK. Mr Hussein’s wife and two minor children were included in the appellant’s claim as his dependents. Both men gave their oral evidence in a hearing before FTTJ McAll in January 2020 as did Mr Hussein’s brother. The SSHD was not present and FTTJ McAll considered Mr Hussein’s claimed history in detail. He decided that he was untruthful and concluded that he had fabricated important parts of his account supporting his asylum claim. He decided that Mr Hussein was a national of Tanzania and could be returned there. He disbelieved the asylum claim and concluded that there was no good article 8 reason why he should not leave the UK and return to his country of nationality. Both appeals were dismissed.’

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EIN Blog, 7th September 2020

Source: www.ein.org.uk

‘Lawful object’ – Section 4(1) of the Explosive Substances Act 1883 – KCH Garden Sq

‘On the 11 March 2020 the Supreme Court gave their judgment in the case of R v Copeland [2020] UKSC 8. This case concerned the interpretation of the Explosive Substances Act 1883 (‘the Act’), section 4(1). This provides that anyone who makes or has in their possession explosive substances is liable to prosecution unless they can show it was ‘for a lawful object’. Specifically, the Court considered the meaning of what constituted ‘a lawful object’ and the case is likely to be of some interest to those involved in counter-terrorism matters.’

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KCH Garden Sq, August 2020

Source: kchgardensquare.co.uk

LGBT asylum seekers routinely see claims rejected in Europe and UK – The Guardian

Posted July 9th, 2020 in asylum, burden of proof, gender, homosexuality, news, transgender persons by sally

‘People seeking asylum in the UK and Europe on the grounds of sexual orientation and gender identity are routinely seeing their claims rejected because of a widespread “culture of disbelief” and an “impossible burden of proof”, researchers have said.’

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The Guardian, 9th July 2020

Source: www.theguardian.com

36 Emergency Powers Group Newsletter – The 36 Group

‘1. Knowing Your R’s from Your Elbow: Wrongful Convictions in the Time of Coronavirus – Arthur Kendrick & Tom Parker
2. “Repugnant to Ordinary Notions of Fairness”? The Burden of Proof in the ‘Leaving Home’ Offence – Catherine Rose
3. Beyond the Emergency Legislation: Offences of Deliberate Infection – Michael Haggar
4. To Derogate or Not to Derogate: Are the Lockdown Restrictions Compatible with the European Convention on Human Rights? – Nadeem Holland
5. Landlord and Tenant Rights in the Pandemic – Karen Reid
6. Immigration Appeals in the Age of Corona – Tom Wilding’

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The 36 Group, 2nd June 2020

Source: 36group.co.uk

Unconvicted terrorism suspects face indefinite controls under UK bill – The Guardian

‘Terrorism suspects who have not been convicted of any offence face expanded and potentially never-ending measures to control their lives under proposed counter-terrorism laws unveiled by the UK government.’

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The Guardian, 20th May 2020

Source: www.theguardian.com

“Repugnant to Ordinary Notions of Fairness”? The Crime of Leaving Your House – The 36 Group

‘On a sunny afternoon in April 2020, a couple sit on the grass in Finsbury Park, North London. A police officer approaches them. A month later, they plead Not Guilty at Highbury Corner Magistrates’ Court to an offence of Leaving/Being Outside Home Without Reasonable Excuse, contrary to Regulations 9(1) and 6(1) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (as amended). Two months later, they attend court again for trial.’

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The 36 Group, 24th April 2020

Source: 36group.co.uk

Upper Tribunal rules on burden of proof when statutory defence to HMO offence is pleaded – Local Government Lawyer

‘The Upper Tribunal has ruled on where the burden of proof lies when it is said that the manager of a house in multiple occupation had a reasonable excuse for conduct which, but for that defence, would amount to a relevant housing offence under section 249A, Housing Act 2004.’

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Local Government Lawyer, 25th March 2020

Source: www.localgovernmentlawyer.co.uk

‘How do I convince the Home Office I’m a lesbian?’ – BBC News

‘More than 1,500 people seek asylum in the UK on sexuality grounds every year.

The Home Office’s decision on whether to grant or refuse it depends on whether the interviewer finds the asylum-seeker’s account authentic and believable – but each interviewer may have his or her own assumptions about what an authentic and believable account should look like.’

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BBC News, 26th February 2020

Source: www.bbc.co.uk

Certainty of delivery of notices – Upper Tribunal on the burden of proof – Nearly Legal

‘A quick note on a Upper Tribunal (LC) appeal concerning whether services charge demands had been delivered. At first instance, the FTT had reached a decision about the reasonableness of the service charge demands, but in respect of the respondent, it held that the charges were not payable by the respondent because she had not received the demands.’

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Nearly Legal, 22nd February 2020

Source: nearlylegal.co.uk