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

Onus of Proof in Business Rates Complaints – 33 Bedford Row

Posted February 21st, 2020 in burden of proof, chambers articles, complaints, local government, news, rates by sally

‘Where a Local Authority (the ‘Billing Authority) applies by way of complaint to the Magistrates Court for a liability order against an alleged ratepayer, for allegedly due but unpaid, national non-domestic rates (‘Business Rates’), the Magistrates Court will issue a summons requiring the alleged ratepayer to attend the Magistrates Court to answer the complaint (the ‘Complaint’).’

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33 Bedford Row, 16th February 2020

Source: www.33bedfordrow.co.uk

The new SRA Standards and Regulations: Greater freedom for solicitors? – 4 New Square

‘In this article, Helen Evans and Clare Dixon of 4 New Square review whether the new principles, codes of conduct and disciplinary procedure rules wholeheartedly reflect a relaxation of the SRA’s grip, or whether competing forces are apparent. They also consider whether one of the unintended consequence of some of the liberalisation is to introduce a two-tier regulatory system for solicitors practising within regulated entities (such as firms) and those outside that structure. Finally, they reflect on the likely impact of the new rules and relaxed burden of proof on the troublesome issues of dishonesty and lack of integrity- an issue that the Divisional Court was still picking apart as recently as last week in the matter of SRA v Siaw.’

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4 New Square, 21st October 2019

Source: www.4newsquare.com

Home Office ‘doomed to repeat the mistakes of Windrush’ – The Guardian

Posted September 19th, 2019 in asylum, burden of proof, government departments, immigration, news, statistics, torture by tracey

‘The mistakes made by the Home Office over the Windrush scandal are doomed to be repeated unless the department completely overhauls its systems, according to a report about its approach to processing immigration applications.’

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The Guardian, 18th September 2019

Source: www.theguardian.com

Court of Appeal quashes convictions for unlawfully obtaining personal data – Local Government Lawyer

Posted January 25th, 2019 in burden of proof, data protection, human rights, news, statutory interpretation by tracey

‘The Court of Appeal has quashed the conviction of a defendant for unlawfully obtaining personal data. At issue in Shepherd v The Information Commissioner [2019] EWCA Crim 2 was whether s.55 (2) of the Data Protection Act 1998 imposes a legal or evidential burden of proof on a defendant; and, if the former, whether the outcome is compatible with Article 6 of the European Convention on Human Rights (the right to a fair trial).’

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Local Government Lawyer, 25th January 2019

Source: www.localgovernmentlawyer.co.uk

When Coroners are unsure – Park Square Barristers

‘The Court held that a Coroner was entitled to remain unsure about the particulars of the death of an individual who was shot by a member of the Royal Ulster Constabulary.’

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Park Square Barristers, 16th November 2018

Source: www.parksquarebarristers.co.uk

Supreme Court confirms carrier liability for cargo damage – OUT-LAW.com

Posted December 10th, 2018 in burden of proof, negligence, news, shipping law, Supreme Court by sally

‘The legal burden of disproving a claim for negligence when cargo is lost or damaged at sea rests with the carrier of the goods, the UK’s highest court has ruled.’

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OUT-LAW.com, 10th December 2018

Source: www.out-law.com

Courts uphold ‘ground breaking’ UK first unexplained wealth order – OUT-LAW.com

‘The High Court has upheld the UK’s first unexplained wealth order (UWO), dismissing a legal challenge to the order obtained by the National Crime Agency (NCA) earlier this year.’

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OUT-LAW.com, 16th October 2018

Source: www.out-law.com

Supreme Court to hear appeal from firm blamed for missed claim – Law Society’s Gazette

Posted September 13th, 2018 in appeals, burden of proof, law firms, negligence, news, Supreme Court by tracey

‘A long-running dispute about the rights of a client to sue his former solicitors will come to the Supreme Court later this year. The court confirmed today that it will hear the appeal of defunct claimant firm Raleys Solicitors against the ruling of the Court of Appeal from May 2017.’

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Law Society's Gazette, 13th September 2018

Source: www.lawgazette.co.uk