QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen (on the application of
(by their litigation friend the Official Solicitor)
|- and -
|EAST SUSSEX COUNTY COUNCIL
|- and -
|THE DISABILITY RIGHTS COMMISSION
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Murray Hunt (instructed by Leigh Day & Co) for the claimants X and Y
Ms Beverley Lang QC and Ms Jenni Richards (instructed by the Director of Legal and Community Services) for the defendant
Mr David Wolfe (instructed by the Disability Rights Commission) for the interested party
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Mr Justice Munby:
i) The first issue ("the user independent trust issue") is whether care staff may lawfully be provided to the family by ESCC by means of a vehicle known as a 'user independent trust'. This raises a short but important point of pure law.
ii) The second issue ("the manual handling issue") concerns the legality of what is said to be ESCC's policy of not permitting care staff to lift A and B manually. This is a much more complicated issue, raising, on one view of the matter, difficult questions of law (by which I mean domestic law, human rights law and European Community law), of policy and of fact.
The manual handling issue
i) First, there are the lifts which take place as part of A and B's normal daily routine within the house. Included within this group are most of the "unresolved lifts" referred to in Wilson J's order and identified in Ms Couldrick's report and witness statement: these include, for example, turning A from prone to supine, transferring A from her bed to a changing trolley, transferring A from the changing table to a standing frame, transferring B from the floor, where she sleeps, onto a changing trolley, and transferring both A and B into their wheelchairs.
ii) Secondly, there are lifts which would normally take place as part of A and B's normal daily routine within the house but which are hindered either by the kinds of incidents which took place on 20 and 26 September 2002 or by A or B becoming distressed or even refusing to be moved in the usual way.
iii) Thirdly, there are lifts which would normally take place as part of A and B's normal daily routine within the house but which may have to take place in abnormal situations, for example if there has been a power cut making it impossible to use one of the hoists or in the event of a fire or other emergency.
iv) Finally, there are those lifts associated with A and B's life outside the house. Their disabilities mean that, inevitably, they live a very circumscribed life both inside and outside the house, but three activities which, it is clear from the evidence, are of great importance to them are going shopping with X and Y, going swimming and, on occasions, going horse-riding. Activities such as this at present involve a number of manual lifts reflecting, for example, the fact that the swimming pool they regularly use is not equipped with hoists and that changing their incontinence pads when they go shopping has to be done in places where there is no appropriate equipment.
The statutory setting
Domestic law the statutory framework
"(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
(2) Without prejudice to the generality of an employer's duty under the preceding subsection, the matters to which that duty extends include in particular
(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees."
"It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety."
"3(1) Every employer shall make a suitable and sufficient assessment of
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,
for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions
4 Where an employer implements any preventive and protective measures he shall do so on the basis of the principles specified in Schedule 1 to these Regulations.
5(1) Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures ...
12(1) Every employer and every self-employed person shall ensure that the employer of any employees from an outside undertaking who are working in his undertaking is provided with comprehensible information on
(a) the risks to those employees' health and safety arising out of or in connection with the conduct by that first-mentioned employer or by that self-employed person of his undertaking; and
(b) the measures taken by that first-mentioned employer or by that self-employed person in compliance with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions in so far as the said requirements and prohibitions relate to those employees ...
13(1) Every employer shall, in entrusting tasks to his employees, take into account their capabilities as regards health and safety ...
14(1) Every employee shall use any machinery, equipment, dangerous substance, transport equipment, means of production or safety device provided to him by his employer in accordance both with any training in the use of the equipment concerned which has been received by him and the instructions respecting that use which have been provided to him by the said employer in compliance with the requirements and prohibitions imposed upon that employer by or under the relevant statutory provisions ... "
"General principles of prevention (This Schedule specifies the general principles of prevention set out in Article 6(2) of Council Directive 89/391/EEC)
(a) avoiding risks;
(b) evaluating the risks which cannot be avoided;
(c) combating the risks at source;
(d) adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health;
(e) adapting to technical progress;
(f) replacing the dangerous by the non-dangerous or the less dangerous;
(g) developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment;
(h) giving collective protective measures priority over individual protective measures; and
(i) giving appropriate instructions to employees."
"Breach of a duty imposed by these Regulations shall not confer a right of action in any civil proceedings."
"any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force."
"Each employer shall
(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or
(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,
(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable, and
(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on
(aa) the weight of each load, and
(bb) the heaviest side of any load whose centre of gravity is not positioned centrally."
"In determining for the purposes of this regulation whether manual handling operations at work involve a risk of injury and in determining the appropriate steps to reduce that risk regard shall be had in particular to
(a) the physical suitability of the employee to carry out the operations;
(b) the clothing, footwear or other personal effects he is wearing;
(c) his knowledge and training;
(d) the results of any relevant risk assessment carried out pursuant to regulation 3 of the Management of Health and Safety at Work Regulations 1999;
(e) whether the employee is within a group of employees identified by that assessment as being especially at risk; and
(f) the results of any health surveillance provided pursuant to regulation 6 of the Management of Health and Safety Regulations 1999."
i) Regulation 4(1)(a): avoid hazardous manual handling operations so far as is reasonably practicable this, the booklet suggests, may be done by redesigning the task to avoid moving the load or by automating or mechanising the process.
ii) Regulation 4(1)(b)(i): make a suitable and sufficient assessment of any hazardous manual handling operations that cannot be avoided.
iii) Regulation 4(1)(b)(ii): reduce the risk of injury from those operations so far as is reasonably practicable the booklet suggests that particular consideration should be given to the provision of mechanical assistance but where this is not reasonably practicable then other improvements to the task, the load and the working environment should be explored.
iv) Regulation 4(1)(b)(iii): at the same time provide employees with suitable information and training.
i) The fourth edition of 'The Guide to the Handling of Patients: Introducing a safer handling policy' published in July 1997 by the National Back Pain Association in collaboration with the Royal College of Nursing, together with a supplement published in February 1998.
ii) 'Partnership in the Manual Handling of Patients: a Joint Statement by the Chartered Society of Physiotherapy, the College of Occupational Therapists and the Royal College of Nursing' published in the September 1997 issue of the British Journal of Occupational Therapy.
iii) The second edition of 'Manual handling in the health services' published in 1998 by the Health and Safety Executive.
iv) 'Safer Handling of People in the Community' published in 1999 by BackCare, the National Organisation for Healthy Backs (formerly the National Back Pain Association).
v) 'Handling home care: Achieving safe, efficient and positive outcomes for care workers and clients' published in 2001 by the Health and Safety Executive (HSG225).
Domestic law the case-law
"The onus was on the defendants to establish that it was not reasonably practicable in this case for them to have prevented a breach of s 49. The construction placed by Lord Atkin on the words "reasonably practicable" in Coltness Iron Co v Sharp  AC 90, 94, seems to me, with respect, right. "Reasonably practicable" is a narrower term than "physically possible" and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident. The questions he has to answer are: (a) What measures are necessary and sufficient to prevent any breach of s 49? (b) Are these measures reasonably practicable?"
" For my part, I am quite prepared to accept [that] to bring the case within the obligations of regulation 4 there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability. I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety. I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees' safety which they might not otherwise have.
 However, in making such assessments there has to be an element of realism. As the guidance on the regulations points out, in appendix 1 at paragraph 3:
" a full assessment of every manual handling operation could be a major undertaking and might involve wasted effort."
 It then goes on to give numerical guidelines for the purpose of providing "an initial filter which can help to identify those manual handling operations deserving more detailed examination."
 It also seems to me clear that the question of what does involve a risk of injury must be context-based. One is therefore looking at this particular operation in the context of this particular place of employment and also the particular employees involved. In this case, we have a small residential home with a small number of employees. But those employees were carrying out what may be regarded as everyday tasks, and this particular employee had been carrying out such tasks for a very long time indeed. The employer in seeking to assess the risks is entitled to take that into account."
"For my part, I am prepared to assume that some risk could be envisaged from such an operation, albeit with the reservations already expressed. However, when it comes to whether or not there was a breach of the regulations, it seems to me that in the particular circumstances of the case there was no such breach. The first obligation is to avoid the need for employees to undertake such operations, as far as reasonably practicable. In this case, it is alleged that the bed did not need to be against the wall and has since been moved away from the wall. But the purpose of having the bed against the wall was to save children from risk of harm through falling out of bed, and it seems to me that if there are children resident in the home for whom that is a risk, it is entirely appropriate that such beds should be against the wall and it is therefore not right to expect the employer to have the beds away from the wall in every circumstance."
"Regulation 4(1)(b) applies not to all manual handling activities at work but only to those which involve a risk of the employees being injured. That was made clear in the case of Koonjul The risk has to be real, a foreseeable risk of injury, although not anything approaching a probability. In deciding whether or not such a risk exists the employer is entitled to have regard to the experience of the employee said to be at risk."
" The appellant challenges the judge's finding that the ethos of the service was to discourage use of the fire brigade. There is nothing wrong in regarding it as a last resort, provided that it is available when appropriate. The evidence was that this option had always been available and was not discouraged. Crews were trained to consider it. Indeed Mr Criddle did do so but rejected it. Mr Layhe, the supervisor who gave evidence, would have done the same had he been on duty and consulted that day.
 It would have been rejected because it was not appropriate. The judge did not consider whether or not it would have been so. 'Appropriate' must mean something more than a theoretical possibility. It has to be judged against the circumstances of the case. This was not a particularly heavy patient although it was an awkward lift. He needed a response within an hour. Using the fire brigade takes a long time, may distress the patient, and is medically unsuitable for some. There was nothing to suggest that it was even possible, let alone suitable, in this case."
" In my view there is no liability There was nothing to suggest that calling the fire brigade would have been an appropriate measure in this case, whether to avoid the need to carry the patient downstairs or to reduce the risk of injury in doing so. The evidence was that it is rarely used because it has to be carefully planned, takes a long time and distresses the patient. This was not an emergency call but it was urgent. We know nothing of what the response either of the patient and his wife or the fire brigade would have been. There may be some situations in which a call for help is indeed the appropriate solution. This will depend upon the magnitude of the problem, the urgency of the case, and the actual or likely response of the patient or his carers and the fire brigade itself. But there was nothing to justify such a finding here. Nor has the claimant shown that giving this possibility more emphasis in training or more anxious consideration on the day would have avoided the claimant's injuries."
" there is a further dimension which is particularly applicable to the statutory services. As Denning LJ put it in Watt v Hertfordshire County Council  1 WLR 835 at p 838:
"It is well settled that in measuring due care you must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this: you must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk I quite agree that fire engines, ambulances and doctors' cars should not shoot past the traffic lights when they show a red light. That is because the risk is too great to warrant the incurring of the danger. It is always a question of balancing the risk against the end."
 The problem in a case such as this is that the ambulance service owe a duty of care to the members of the public who have called for their help: see Kent v Griffiths  QB 36. This can result in liability for failing to attend to a patient within a reasonable time. The service do not have the option available to a commercial enterprise of refusing to take the job. If a removal firm cannot remove furniture from a house without exposing its employees to unacceptable risk then it can and should refuse to do the job. The ambulance service cannot and should not do that. But that does not mean that they can expose their employees to unacceptable risk. The employers have the same duty to be efficient and up-to-date and careful of their employees' safety as anyone else. It does mean that what is reasonable may have to be judged in the light of the service's duties to the public and the resources available to it to perform those duties: as Colman J put it in Walker v Northumberland County Council  1 All ER 737, at p :
"The practicability of remedial measures must clearly take into account the resources and facilities at the disposal of the person or body owing the duty of care and the purpose of the activity giving rise to the risk of injury."
 One returns, therefore, to balancing the various considerations. The risk to the employees in this case was not negligible. It was considerable both in the likelihood of its occurring and in the seriousness of the harm which might be suffered if it did. As Mr Goddard put it, there was a risk of a career-ending injury, which indeed happened here. As Mr Hayne put it, the activity was clearly hazardous. Against that, it was of considerable social utility. The Service did not have a choice but to respond to the patient's needs. Those needs were urgent but not an emergency. The Service had limited resources, not so much in financial but in equipment terms, with which to respond. The problem therefore remains of what could reasonably have been done to respond to those needs without putting the crew at risk. In this case there was no evidence of anything that the employer could have done to prevent the risk and no suggestion other than calling upon a third party to do the job for them. If calling the fire brigade was not appropriate or reasonably practicable for the purpose of the Directive or the Regulations it cannot be lack of reasonable care to fail to do so."
"There must be 'a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability'. When assessing risk the employer must take into account that his employees will not on all occasions behave with full and proper concern for their own safety and the particular operation being carried out in the context of the particular place of work and the particular employee must be considered. Such consideration does not involve examining the precise detailed circumstances of what occurred in each accident, as if that were the case, the regulations might not apply in cases where an employee had acted negligently. This would restrict the application of the Regulations unduly. Schedule 1 of the Regulations clearly poses questions relating to the task to be performed generally. This reinforces the view that it is the particular task which is to be considered, in the context of where it is to be performed and the particular employee who is to perform it. These questions all go to the nature of the task and the risks involved in how it is likely to be performed rather than the precise detail of how it is in fact performed."
" Had [the expert] considered that this was a case where the task should have been undertaken without any manual handling at all I have no doubt that he would have said so in his report. He did not. It is entirely clear from his report and the evidence which was given at the trial that his view was this was a task which inevitably involved some manual handling, even if mechanical aids had been provided and used. The main thrust of his report was that this was a case where the principal failure of the Respondent was the failure to provide proper training for the manual handling which had to be carried out ...
 The task was clearly one which required manual handling at least in part, and the evidence before the Judge was sufficient for her to come to that conclusion. In my view therefore the point did not arise, but in any event the Judge was perfectly entitled to deal with it and find implicitly that there was no breach of Regulation 4(1)(a)."
" Regulation 4(1) imposes on an employer a duty (a) so far as is reasonably practicable, to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured or (b), where it is not reasonably practical to avoid that need - (ii) to take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably possible.
 It is plain that the two limbs of that duty are complementary, but mutually exclusive. It is plain, also, for the reasons set out by Mr Justice Nelson, that this is not a case in which the appellant could, or can now, rely on regulation 4(1)(a). It could not be said that it was reasonably practicable for the employer to avoid the need for the appellant, a warehouse manager at a Curry's superstore, to undertake any manual handling operations which involved the risk of his being injured. Some manual handling operations involving the risk of injury were an inherent feature in what the appellant was employed to do. The relevant duty under the 1992 Regulations in the present case was that imposed by regulation 4(1)(b)(ii). The employer was required to take appropriate steps to reduce the risk of injury to the lowest level reasonably practical."
"I find the Defendant did not operate an appropriate system for lifting patients in the Beckton Ward. I also find that no real steps were taken to reduce the risk of injury to their employees to the lowest level reasonably practicable in the relevant period; and that, so far as Beckton Ward was concerned, there was no adequate response to the 1992 Regulations."
"The Claimant suffered serious and painful injuries: a disc prolapse with compression/lesion of the conus. The Claimant has suffered and continues to suffer from low back pain, particularly when sitting. Her evidence before me was interrupted so as to enable her to take breaks. She also suffered from sensory disturbance in the sacral segments, loss of feeling in the vagina and loss of orgasmic sensation, bladder dysfunction causing incontinence, and anal sphincter difficulties causing some faecal incontinence ... She is continually aware of her back and suffers from pain, and occasional painful spasms, on her left side. She has aching in the middle of her back from the early afternoon and takes painkillers and Diazepam to prevent muscle spasm. During her monthly periods she takes Dextromeramide for severe pain, is bed bound and has an in-dwelling catheter. She cannot lie down flat and is unable to have children She has sleeping difficulties. She also suffers from depression, although this pre-existed her injuries. Her injury has placed considerable strain on her marriage. Socially she has lost confidence since her injury, finds herself bored with her life, unable to drive and incapable of cooking and other chores around the house ... The Claimant has suffered a loss of role and self esteem as a result of her injury ... her inability to continue nursing as a vocation represents a loss of congenial employment."
The legal framework human rights law
"1 Human dignity is inviolable. It must be respected and protected.
3(1) Everyone has the right to respect for his or her physical and mental integrity.
4 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
7 Everyone has the right to respect for his or her private and family life, home and communications.
20 Everyone is equal before the law.
21(1) Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
26 The Union recognises and respects the rights of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.
31(1) Every worker has the right to working conditions which respect his or her health, safety and dignity.
52(1) Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others."
"All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."
"Private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings."
"While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual".
"It remains to be determined whether the State should be held responsible, under Article 3, for the beating of the applicant by his stepfather. The Court considers that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals. Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity."
"The Court re-iterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge."
"The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim."
"The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In considering whether treatment is "degrading" within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3."
"It is relevant in the context of the present application to recall also that the authorities are under an obligation to protect the health of persons deprived of liberty. The lack of appropriate medical treatment may amount to treatment contrary to Article 3. In particular, the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment."
"There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3."
"It is obvious that restraining any non-disabled person to the applicant's level of ability to move and assist herself, for even a limited period of time, would amount to inhuman and degrading treatment possibly torture. In a civilised country like the United Kingdom, society considers it not only appropriate but a basic humane concern to try to ameliorate and compensate for the disabilities faced by a person in the applicant's situation. In my opinion, these compensatory measures come to form part of the disabled person's bodily integrity. It follows that, for example, to prevent the applicant, who lacks both ordinary legs and arms, from bringing with her the battery charger to her wheelchair when she is sent to prison for one week, or to leave her in unsuitable sleeping conditions so that she has to endure pain and cold the latter to the extent that eventually a doctor had to be called is in my opinion a violation of the applicant's right to bodily integrity. Other episodes in the prison amount to the same.
The applicant's disabilities are not hidden or easily overlooked. It requires no special qualification, only a minimum of ordinary human empathy, to appreciate her situation and to understand that to avoid unnecessary hardship that is, hardship not implicit in the imprisonment of an able-bodied person she has to be treated differently from other people because her situation is significantly different."
"The concept of cruelty is the same today as it was when the Bill of Rights 1688 (1 Will & Mary, sess 2, c 2) forbade the infliction of "cruel and unusual punishments" (section 10). But changes in social standards mean that punishments which would not have been regarded as cruel in 1688 will be so regarded today."
"as the protection of human rights improves, standards are becoming stricter and some of [the] earlier decisions may need to be reassessed."
"having regard to the fact that the Convention is a "living instrument which must be interpreted in the light of present-day conditions", the Court considers that certain acts which were classified in the past as "inhuman and degrading treatment" as opposed to "torture" could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies."
"The applicant complained, firstly, of impairment of his private life and the development of his personality resulting from the Italian State's failure to take appropriate measures to remedy the omissions imputable to the private bathing establishments of Lido degli Estensi (Comacchio), namely the lack of lavatories and ramps providing access to the sea for the use of disabled people. He relied on Article 8 of the Convention The applicant asserted that he was unable to enjoy a normal social life which would enable him to participate in the life of the community and to exercise essential rights, such as his non-pecuniary personal rights, not because of interference by the State but on account of its failure to discharge its positive obligations to adopt measures and to monitor compliance with domestic provisions relating to private beaches."
" The Court has held that a State has obligations of this type where it has found a direct and immediate link between the measures sought by an applicant and the latter's private and/or family life ...
 In the instant case, however, the right asserted by Mr Botta, namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerns interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant's private life."
"As the majority have recalled, although "the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities", thereby imposing primarily negative obligations on the Contracting States, this provision may nonetheless, in certain cases, impose on those States positive obligations inherent in an effective respect for private life. These positive obligations "may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves".
We believe this to be the case. Such positive obligations may exceptionally arise in the case of the handicapped in order to ensure that they are not deprived of the possibility of developing social relations with others and thereby developing their own personalities. In this regard, the Commission observes that there is no water-tight division separating the sphere of social and economic rights from the field covered by the Convention.
In the case of the physically handicapped, the abovementioned positive obligations require appropriate measures to be taken, to the greatest extent feasible, to ensure that they have access to essential economic and social activities and to an appropriate range of recreational and cultural activities. The precise aim and nature of the measures undertaken may vary from place to place, and according to the priorities of facilitating access to sanitary facilities, footpaths, transport, entrances to buildings, historical sites, areas of natural beauty and areas of recreational use. In the case of the mentally handicapped, the measures would necessarily be different. This is an area in which a wide discretion must inevitably be accorded to the national authorities. Nevertheless, the crucial factor is the extent to which a particular individual is so circumscribed and so isolated as to be deprived of the possibility of developing his personality.
In the present case, the Italian State adopted Law No. 13 of 9 January 1989 some three years before Recommendation No. R (92) 6 was adopted by the Committee of Ministers of the Council of Europe. Based on that Law, a decree was adopted on 14 June 1989 governing the facilities to be provided by persons running bathing establishments.
In 1990 and 1991, the applicant sought to gain access to the bathing establishments at Lido degli Estensi, but the abovementioned facilities had not yet been provided. Instead, he was permitted to use his private vehicle to obtain access to a public beach with no facilities. It appears that since then matters have improved in that a toilet and changing-hut for handicapped persons have been provided. However, no specially designed access-way enabling disabled persons to gain access to the beach and the sea has been provided.
However, in our view, this last omission in one specified place in Italy does not suffice to conclude that the respondent Government is in violation of the positive obligations under Article 8 of the Convention. The question of whether there has been a violation of the applicant's right to effective enjoyment of his right to develop social relations with others and to develop his own personality cannot depend on occasional lapses from the ideal recommended by Recommendation No. R (92) 6 of the Committee of Ministers or the norms laid down in domestic law. There is nothing to indicate that the applicant's life as a whole is so circumscribed and isolated that the occasional inconveniences and troubles he suffered in 1990 and 1991 amounted to a violation of his private life. Having regard to the margin of discretion which a State must enjoy in the field of positive obligations, and to the "progressive" nature of the measures required in this sphere, it follows that there has been no interference with the applicant's right to respect for his private life."
"However, not every act or measure which may be said to affect adversely the physical or moral integrity of a person necessarily gives rise to an interference with private life. The severity of the adverse effects for the individual's moral or physical integrity will determine whether the treatment is sufficiently serious to fall within the scope of Article 8."
"In X v Iceland (1976) 5 DR 86 however, the Commission expressed the view that the concept of 'private life' could not be extended indefinitely:
[T]he Commission cannot, however, accept that the protection afforded by Article 8 extends to relationships of the individual with his entire immediate surroundings, in so far as they do not involve human relationships and notwithstanding the desire of the individual to keep such relationships with?? the private sphere."
Moreover, private life rights are narrower when they come into contact with the public sphere or where they come into conflict with other protected interests."
"the keeping of dogs is by the very nature of that animal necessarily associated with certain interferences with the life of others and even with public life."
" The right to respect for private life is of such a scope as to secure to the individual a sphere within which he can freely pursue the development and fulfilment of his personality ...
 However, there are limits to the personal sphere. While a large proportion of the law existing in a given State has some immediate or remote effect on the individual's possibility of developing his personality by doing what he wants to do, not all of these can be considered to constitute an interference with private life in the sense of Article 8 of the Convention. In fact, as the earlier jurisprudence of the Commission has already shown, the claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life or into close connection with other protected interests."
"Laws adopted for the protection of individuals' safety will not necessarily affect private life. Thus the introduction of compulsory safety belts in cars was held not to give rise to an issue under Article 8".
"though it is true that much legislation has immediate or remote effects on the individual's capacity to develop his personality by exercising an activity not subject to control by the authorities, nonetheless, this legislation cannot be considered as a whole as infringing the right to private life within the meaning of Article 8 of the Convention.
In the Commission's opinion this is the case with regard to numerous measures which the authorities decide to take to protect the public from various dangers and as a consequence protect society against the harm which they involve.
This for example is the position with regard to the safety appliances which are compulsory for industrial undertakings and the obligation to use subways in the stations or pedestrian crossings and numerous other measures of individual or collective protection adopted in the public interest.
The compulsory wearing of safety belts by the drivers and passengers of motor-vehicles is a measure of this type. In the Commission's opinion they in no way affect a person's "private life", however broadly this expression is interpreted.
The present application is therefore outside the scope of Article 8 of the Convention".
A framework of principles
i) First, I am concerned here only with the particular context of care workers and personal assistants supporting disabled people in their own homes, where adaptations are possible. This is a context in which a small number of care workers or personal assistants work with the disabled person, can be trained for that very specific task and can build up relationships with, and knowledge of, the individual disabled person involved. In other contexts a somewhat different approach may be appropriate. This is, par excellence, an area of the law where "context is everything".
ii) Secondly, what follows is not intended to be exhaustive of all the principles in play: in that sense it is intended to be descriptive rather than prescriptive, illustrative rather than definitive.
i) Regulation 4 bites only on hazardous lifts, that is, those that involve a risk of injury to the care worker. For a lift to be hazardous there must be, in the sense in which the words were used by Hale LJ in Koonjul, a real risk of injury. Appropriately in the light of the evidence the parties accept that the lifts with which I am concerned in the present case are all hazardous.
ii) In relation to hazardous lifts, regulation 4 establishes a clear hierarchy of safety measures: (a) avoid hazardous lifts so far as is reasonable practicable; (b) having made a suitable and sufficient assessment of any hazardous lifts that cannot be avoided, reduce the risk of injury from those lifts so far as is reasonably practicable. It is to be emphasised that this is not a 'no risk' regime or a 'risk elimination' regime, nor is there an absolute prohibition on hazardous lifting: it is a 'risk reduction' or 'risk minimisation' regime. There is no absolute requirement to make the situation absolutely "safe" for workers. The employer's obligation is to avoid or minimise the risk so far as reasonably practicable.
iii) It follows that the task for the employer is to: (a) assess the lifts that are to be undertaken; (b) decide whether there is a real risk of injury; and (c) if there is such a risk (that is, if the lift is "hazardous") undertake an assessment, applying his mind to possible ways of avoiding or minimising the risk. The essential task here is to decide whether it is "reasonably practicable" either to avoid or, as the case may be, to minimise the risk.
i) Reasonable practicability is to be assessed on the basis of the 'cost-benefit' analysis described by Asquith LJ in Edwards but taking into account the needs of the disabled person and giving effect to their Convention (and Charter) rights in the 'cost-benefit' analysis.
ii) Thus the statutory regime is one which aims to avoid hazardous manual lifting so far as that is reasonably practicable and commensurate with the best interests of the disabled person, their dignity and the promotion of their independence and their Convention rights; but which also recognises (in relation to both risk avoidance and risk minimisation) that the needs of the disabled person may mean that it is not reasonably practicable to avoid a particular risk or to reduce it as much as might otherwise be appropriate.
i) In assessing reasonable practicability the approach is as follows:
a) the possible methods of avoiding or minimising the risk must be considered (in practice the only alternative to manual lifting in a case such as this is likely to be a hoist);
b) the context the frequency and duration of the manoeuvres must be considered: the assessment must be based on the pattern of lifting over a period (typically a day), not on an individual lift basis a particular lift might be done manually if done only once a day but not if required frequently during the day;
c) the risks to the employee in question associated with each of the possible methods must be assessed: there must be an analysis of (1) the likelihood of any injury to the employee, and (2) the severity of any injury to the employee;
d) the impact upon the disabled person, physical, emotional, psychological or social, of each of the possible methods of avoiding manual lifting must be examined: there must be an analysis of:
i) the physical and mental personality and characteristics of the person and their personality this necessarily includes the nature and degree of disablement;
ii) the wishes and feelings of the disabled person: any evinced negative reaction in the nature of dislike, reluctance, fear, refusal or other manifestation of negative attitude is relevant, though not of course determinative;
iii) the effect upon the disabled person's dignity and rights, including in particular their rights (protected by article 8) to physical and psychological integrity, to respect for their privacy, to develop their personality and to go out into the community and meet others and their right (protected by article 3) to be free from inhuman or degrading treatment.
ii) These considerations will necessarily involve assessing the impact upon the disabled person of carrying out a manoeuvre other than a manual lift in terms of considerations of personal dignity or the amount of respect afforded to their persons, their quality of life generally their ability to spend their time in activities other than merely performing bodily functions and, importantly, matters such as their access to the community.
iii) The assessment must be focussed on the particular circumstances of the individual case. Just as context is everything, so the individual assessment is all. Thus, for example:
a) the assessment must take into account the particular disabled person's personal physical and mental characteristics, be 'user focussed' and 'user led' and should be part of the wider care-planning process for that particular individual;
b) there must be an assessment of the particular disabled person's autonomy interests;
c) the assessment must be based on the particular workers involved (not workers in the abstract);
d) the assessment must be based on the pattern of lifting in the particular case.
i) When the assessment of the "impact" on both the carer and the disabled person of the range of alternatives has been made (assuming there is a range), the employer must balance the two impact assessments one against the other.
ii) As Miss Foster correctly concedes, this is not a situation in which the disabled person's rights 'trump' those of the carer, though equally, I should emphasise, the carer's rights do not 'trump' those of the disabled person. So the conflict between the competing interests has to be resolved by the device which is conventionally, if sometimes unhelpfully, referred to as a balancing exercise. (Unhelpful because often, and the present is just such a case, the essential task is to evaluate balance what are in truth incommensurables: see the comments of Lord Wilberforce in Science Research Council v Nasse  AC 1028 at 1067D and of Lord Hoffmann in In re B (A Minor) (Adoption Order: Nationality)  2 AC 136 at 141F.)
iii) Though in the present context the starting point for this balancing exercise is, no doubt, Asquith LJ's analysis in Edwards, the exercise is now, of course, informed by the Convention. Within the context of article 8, the balance between conflicting or competing rights is to be resolved by inquiring of each claimant whether the interference with his right required if the other claimant's right is to be respected is such as to be "necessary in a democratic society for the protection of the rights and freedoms of" the other. And well-known Convention jurisprudence adopts the concept of proportionality (which, it may be noted, is referred to expressly in article 52(1) of the Charter) as the appropriate tool for resolving this question.
iv) Local policies and individual assessments must draw on relevant guidance. The most up to date and appropriate guidance in this context is HSG225. Guidance prepared for other circumstances, such as the RCN guidance, which is focussed primarily, though not exclusively, on nurses in hospitals, is not necessarily an entirely safe guide in this context.
i) Once the balance has been struck, if it comes down in favour of manual handling, then the employer must make appropriate assessments and take all appropriate steps to minimise the risks that exist.
ii) The assessment must be properly documented and lead to clear protocols which cover all situations, including foreseeable emergencies and, in the case of patients such as A and B, events such as episodes of spasm and distress which might arise. As I have already remarked, in the present case this has not yet been done: Mrs Bosley's draft protocols are incomplete.
i) A rough "dictionary" should be drawn up, stating what the closest carers (in a case such as this, parents and family, here X and Y) understand by the various non verbal communications, based on their intimate long term experience of the person. Thus with familiarisation and "interpretation" the carers can accustom themselves to the variety of feelings and modes of expression and learn to recognise what is being communicated.
ii) Where the relatives are present with the carers and an occasion of "interpretation" arises, great weight must be accorded to the relatives' "translation".
iii) As I commented in Re S  1 FLR 292 at 306 (para ):
"the devoted parent who has spent years caring for a disabled child is likely to be much better able than any social worker, however skilled, or any judge, however compassionate, to 'read' his child, to understand his personality and to interpret the wishes and feelings which he lacks the ability to express."
iv) That said, in the final analysis the task of deciding whether, in truth, there is a refusal or fear or other negative reaction to being lifted must, as Miss Foster properly concedes, fall on the carer, for the duty to act within the framework given by the employer falls upon the employee. Were the patient not incapacitated, there could be no suggestion that the relative's views are other than a factor to be considered. Because of the lack of capacity and the extraordinary circumstances in a case such as this, the views of the relatives are of very great importance, but they are not determinative.
How is the balance to be struck?
"In a civilised country like the United Kingdom, society considers it not only appropriate but a basic humane concern to try to ameliorate and compensate for the disabilities faced by a person in the applicant's situation. In my opinion, these compensatory measures come to form part of the disabled person's bodily integrity."
Striking the balance
i) The situation is one in which some manual handling at least is an inherent an inescapable feature of the very task for which those who care for A and B are employed. Thus it is simply not reasonably practicable for ESCC to avoid the need for their employees to undertake manual handling of A and B altogether.
ii) A lifting policy is most unlikely to be lawful which either on its face or in its application:
a) imposes a blanket proscription of all manual lifting, or
b) imposes a blanket proscription of manual lifting save in circumstances where life is in issue, or
c) imposes a blanket proscription of manual lifting save where any other means are a physical impossibility.
iii) In the case of hazardous lifts, manual lifting will probably be the exception but
iv) The fact that a hazardous lift can be performed by hoisting does not mean that it must be performed by hoisting and
v) There may be circumstances where a disabled person's needs are such that it is not reasonably practicable for a hazardous lift to be carried out by hoisting, so that manual lifting is required.
vi) Where the health and safety of the disabled person would otherwise be under threat, manual lifts which might otherwise not be acceptable may be required.
vii) All lifts required for maintaining the client's dignity, comfort and quality of life must be performed somehow (by exceptional manual lifting if necessary, for example where there is prolonged resistance or great and obvious distress).
viii) There are certain circumstances where the carer would be obliged to lift A and B manually. They are probably essentially the cases that are obvious 999 situations of necessity where the risk to the person of not being lifted is patently an overriding factor that would trump the carer's ordinary health and safety concerns.
ix) In the case of the lifts which take place as part of A and B's normal daily routine within the house one would expect that the balance would come down in most instances against manual handling and in favour of using hoists.
x) But even in relation to lifts which would normally be carried out using hoists it is likely to be unlawful for carers, for example in the kinds of incidents which took place on 20 and 26 September 2002 or if A or B become distressed or refuse to be moved in the usual way, to:
a) allow them to remain sitting in the bath for any really appreciable time without lifting them out, or
b) leave them sitting on the lavatory for a long time, or
c) leave them in a chair or elsewhere with the risk that bedsores will develop, or
d) fail to pick them up if they fall and remain lying particularly in a public place, or
e) leave them sitting in bodily waste for any appreciable time.
xi) A and B's rights to participate in the life of the community and to have access to an appropriate range of recreational and cultural activities are so important that a significant amount of manual handling may be required. Thus it is likely to be unlawful for a carer:
a) to fail to take them out of the house (for example for a swim) merely because a power cut means that the hoist is not working, or
b) to restrict the time available for access to such activities as shopping, swimming and horse-riding because manual lifting would otherwise be required, or
c) to fail to take them swimming one or twice a week because the swimming baths do not have a hoist, or
d) to fail to take them shopping because changing their incontinence pads requires manually lifting them.
The role of the court
"everyone concerned has pressed ahead without I believe having analysed at all closely just what it is the court is being required to do."
"The Administrative Court nowadays has to deal with many issues which even in the comparatively recent past would not have troubled the courts at all and which would probably have been thought by many to be simply non-justiciable. That is an entirely wholesome development. But making every allowance for this, the fact remains that the courts including the Administrative Court exist to resolve real problems and not disputes of merely academic significance. Judges do not sit as umpires on controversies in the Academy. Nor is it the task of a judge when sitting judicially even in the Administrative Court to set out to write a textbook or practice manual or to give advisory opinions."
"This brings me to another matter on which there was a consensus between counsel and which, I believe, needs now to be judicially recognised. The doctrine of 'margin of appreciation' is a familiar part of the jurisprudence of the European Court of Human Rights. The European Court has acknowledged that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court ... This doctrine is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The question which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.
In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that this is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection."
"it is plain on European and domestic authority alike that, when in any given case the court's duty is to decide whether a legislative measure or administrative decision is in truth proportionate to the aim in view, the judge does not stand in the shoes of the first decision maker and retake the decision for himself on the merits. Rather he will exercise a secondary judgment, there being a margin of discretion in the original decision maker which the court respects: indeed the court confers it."
"Accordingly, the function of the court in a case such as this is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests of Mr Samaroo's right to respect for his family life on the one hand and the prevention of crime and disorder on the other. In reaching its decision, the court must recognise and allow to the Secretary of State a discretionary area of judgment. In considering the particular factors to which the court will have regard in deciding to what extent (if at all) to defer to the opinion of the Secretary of State, I have been assisted by the discussion at paragraph 3.26 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill QC and David Pannick QC are the general editors. They identify the following factors: (a) The nature of the Convention right: is the right absolute or (as in the case of Article 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter; (b) The extent to which the issues require consideration of social, economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable; (c) The extent to which the court has special expertise, for example in relation to criminal matters; (d) Where the rights claimed are of especial importance, a "high degree of constitutional protection" will be appropriate. The European Court of Human Rights has recognised as being of especial importance rights to freedom of expression and access to the courts."
"In my judgment, in a case such as this, the court should undoubtedly give a significant margin of discretion to the decision of the Secretary of State. The Convention right engaged is not absolute. The right to respect for family life is not regarded as a right which requires a high degree of constitutional protection. It is true that the issues are not technical as economic and social issues often are. But the court does not have expertise in judging how effective a deterrent is a policy of deporting foreign nationals who have been convicted of serious drug trafficking offences once they have served their sentences."
"In my judgment, it is not incumbent on the Secretary of State to prove that the witholding of a deportation order in any particular case would seriously undermine his policy of deterring crime and disorder. That would be to ask the impossible. Proof is not required. The subject matter is such that proof is usually impossible. What is required is that the Secretary of State justify a derogation from a Convention right, and that the justification be "convincingly established": Barthold v Germany (1985) 7 EHRR 383, 403. In asking whether the justification has been convincingly established, the domestic court (as indeed the court in Strasbourg) should consider the matter in a realistic manner, and always keep in mind that the decision-maker is entitled to a significant margin of discretion. The Secretary of State must show that he has struck a fair balance between the individual's right to respect for family life and the prevention of crime and disorder. How much weight he gives to each factor will be the subject of careful scrutiny by the court. The court will interfere with the weight accorded by the decision-maker if, despite an allowance for the appropriate margin of discretion, it concludes that the weight accorded was unfair and unreasonable. In this respect, the level of scrutiny is undoubtedly more intense than it is when a decision is subject to review on traditional Wednesbury grounds, where the court usually refuses to examine the weight accorded by the decision-maker to the various relevant factors."
" for many patients like the claimants accommodation provided by a health authority frequently constitutes their only home. Article 8 includes "a person's physical and psychological integrity" (Botta v Italy (1998) 26 EHRR 24). In my judgment it is plain that a health authority having the responsibility for the long term care of mental patients and their placement in appropriate accommodation are required to act compatibly with Article 8.
 I accept the submission that Article 8(1) protects both substantive and procedural rights. In consequence the Trust, in accordance with the principle of proportionality, had to strike a fair balance between the interference with the claimants' Convention's rights in connection with Harefield Lodge and the requirements of other patients for whom the Trust is responsible and to involve the claimants in the process of making the decision so that it was sensitive to the needs of the claimants. In striking the balance consideration of the claimants' rights necessarily required considerable weight to be given to the claimants' clinical needs. In my judgment the necessary consequence of the engagement of Article 8(1) in circumstances such as these is that the claimants' rights are inextricably bound up with the primary obligation to provide medical care from which the provision of a home arises. The proposed changes are considered by the Trust to be desirable for the benefit of the claimants and have been reached in accordance with the Trust's duty to provide for the claimants.
 The decision to refurbish Harefield Lodge when implemented will confer benefits on other members of the community to whom the Trust owes a duty and who enjoy rights and freedoms which the Trust must respect. The Trust has carried out assessments and has involved the claimants in discussion about their future placements. Further assessments and discussions will have to be carried out. I have considered all the material in this case with great care. I am entirely satisfied that the Trust has acted throughout, honestly, reasonably and in an attempt to provide suitable accommodation and a suitable package of care for each of the claimants."
"to take such steps as it considers appropriate with a view to encouraging good practice in the treatment of disabled persons".
"I would add this general observation. Although I recognise that the DRC, established by the Disability Rights Commission Act 1999, has important statutory duties to work towards the elimination of disability discrimination, to promote equal opportunities for disabled persons, to take steps to encourage good practice in the treatment of disabled persons and to keep under review the working of the 1995 Act, those duties do not entitle the DRC, as such, to make representations to a tribunal or court in cases to which it is not a party. It is only in exceptional circumstances that a tribunal or court will consider it appropriate to receive representations from the DRC."
"The final decision lies with the court which can allow or refuse the Commission's application to intervene, invite or not ask for help from the Commission as amicus curiae. The provision that the Commission shall promote understanding of human rights law has thus to be read in this context subject to the court's control of its procedure. If the court wants or is willing to have such submissions the Commission has the capacity to make them as part of the function of promoting the understanding of human rights law, particularly if reference has to be made to some of the many decisions of the European Court of Human Rights. I am not troubled by the floodgates argument. The Commission must exercise caution in deciding whether a case is important enough to justify intervention or assistance; and whether there is a risk of particular parties or one party feeling that it is unfair that the Commission should come down on one side rather than the other in the legal argument. It is in the end for the court to decide these matters. The courts will only allow or invite assistance when they feel it necessary or helpful; with increasing knowledge particularly of cases in the European Court of Human Rights they may find it less necessary but this capacity to give assistance to the court is potentially valuable in achieving the purpose of the legislation In my view the existence of that capacity is reasonably incidental to its main express powers."
"The practice of allowing third persons to intervene in proceedings brought by and against other persons which do not directly involve the person seeking to intervene has become more common in recent years but it is still a relatively a rare event. The intervention is always subject to the control of the court and whether the third person is allowed by the court to intervene is usually dependent upon the court's judgment as to whether the interests of justice will be promoted by allowing the intervention. Frequently the answer will depend upon whether the intervention will assist the court itself to perform the role upon which it is engaged. The court has always to balance the benefits which are to be derived from the intervention as against the inconvenience, delay and expense which an intervention by a third person can cause to the existing parties."