Laura Hoyano

La gouvernance juridique et fiscale des organisations La gouvernance des organisations constitue un thème majeur porté en permanence par l'actualité. La notion même d'organisation est l'un des objets déterminants sur lesquels droit et gestion se focalisent. Riche d'implications, l' ...

a multi-jurisdictional analysis of how allegations of child abuse are investigated and tried in criminal and civil courts (family, tort, human rights) courts, together with an in-depth analysis of the liability rules. Compares law in England and Wales with 75 other jurisdictions (Scotland, Canada, USA, Australia, New Zealand, South Africa).

Published in [2017] Criminal Law Review 93-105, and available on Westlaw; unfortunately we are not allowed to upload the article. Abstract: Equality of arms for child and other vulnerable defendants, in particular access to the special measures routinely provided to prosecution witnesses with the same vulnerabilities, has been contentious since 1999. Much progress has been forced through court rulings concerned about such defendants’ capacity to cope with the demands of the adversarial trial. This progress appears to have been reversed by the April 2016 amending Criminal Practice Direction stating that the appointment of defendant intermediaries should be “rare” for the defendant’s testimony, and “extremely rare” for the entire trial. This article considers the legal options for challenging this retrograde step.

Comments on the judgment of the UK Supreme Court in Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, [2015] 3 WLR 1665 refusing to order a public inquiry into an alleged massacre of Malaysian villagers by British troops in 1948

Title: Straining the quality of justice for children and their families in public law cases Subject: CIVIL EVIDENCE - FAMILY LAW - HUMAN RIGHTS Keywords: CARE PROCEEDINGS : DELAY : EXPERT EVIDENCE : PARENTS : RIGHT TO FAIR TRIAL : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE Publication: Family Law Fam. Law (2014) No.44 May Pages 598-601 Date: 13/5/2014 Author: Laura Hoyano (Wadham College, Oxford) Summary: Comments on how the family law reforms can undermine parents' rights under the European Convention on Human Rights 1950 art.6 to procedural fairness in care proceedings. Discusses the 26-week rule in the Family Procedure Rules 2010 and use of a single expert, arguing that delay must be permitted in complex cases which require access to expertise. Gives examples of miscarriages of justice in the family justice system. Cases: W (Children), Re (2009) EWCA Civ 59; (2009) 2 All ER 1156 (CA (Civ Div)) : W v Oldham MBC (2005) EWCA Civ 1247; (2006) 1 FLR 543 (CA (Civ Div)) SIs: The Family Procedure Rules 2010 SI 2010/2955 International Legislation: European Convention on Human Rights 1950 art.6 : European Convention on Human Rights 1950 art.8 Document No.: AL1902091

Reports on some of the results of an empirical study commissioned by the Home Office into the admissibility and sufficiency of the evidence collected by investigators for the purpose of prosecuting child abuse. Considers the attitudes of police interviewers to their task in interviewing young witnesses, and the difficulties they experience in endeavouring to adduce admissible evidence at trial whilst for the first time attempting to discover from the child what if anything has occurred of a criminal nature, and the identity of the alleged perpetrator. Note that this study was conducted when the Memorandum of Good Practice was in use, which was replaced from 1999 by successive editions of Achieving Best Evidence.

Critical analysis of the reasoning of the Grand Chamber of the ECtHR in the hearsay case of Al-Khuwaja v UK concerning the analytical structure of Art 6, especially the interplay between the "minimum guarantees" in Art 6(3) and the general guarantee in Art 6(1). Argues that there is no antithesis between the rights of the defendant and the public interest, contrary to the ideology of the Grand Chamber and UK courts; rather there is a commonality of interest in ensuring rectitude of adjudication based on fairly and thoroughly tested evidence. In short, the defendant's rights are at the heart of, rather than extradited from, the public interest. Considers what is left of the "preservation of the essence of the right" and "sole and decisive evidence" doctrines developed by the ECtHR to evaluate incursion into the minimum guarantees, especially the defence right to challenge prosecution evidence under Art 6(3)(d).

Criticises the long awaited, and anaemic, report of the Child Witness Review, a working group convened within the Ministry of Justice to consider further reform of special measure directions and other reforms for handling child witnesses in court. Renews the call for implementation of section 28 of the Youth Justice and Criminal Evidence Act 1999, providing for video recorded pretrial cross examination of child witnesses and adult witnesses with cognitive impairments. This provision is likely to be implemented at last in 2015, after evaluation of pilots in three Crown Courts in 2014.

Text of a presentation to the Family Justice Council (England & Wales) in February 2014 arguing that the recent family justice reforms, implementing recommendations of the Norgrove Commission, risk infringement of the common human rights of children and their families in public law proceedings under the European Convention of Human Rights Articles 6 (fair trial) and 8 (private and family life). The interests of children and their parents are common in ensuring a fair adjudication of the issues based on the best medical and social evidence available. History shows that rushed justice may lead to miscarriages of justice discovered too late to unwind adoptions and permanent care orders.

Compares the reasoning in two judgments concerning wrongful conception from the House of Lords and the Australian High Court, with diametrically opposed results; the former invoking distributive justice to deny liability for the full, foreseeable and often foreseen consequences of a negligent sterilisation procedure resulting in the birth of a healthy child, and the other allowing that full range of liability based on corrective justice reasoning. Considers the causes and frequency of failed sterilisations in the UK and the deterrent effect on medical practice of imposing full liability for the consequences.

Evaluates currently debated radical reform proposals to displace the elements of the orthodox adversarial trial for witnesses deemed to be vulnerable, in particular by replacing cross-examination by counsel for the opposing party by some form of proxy examiner such as a police interviewer (as in Norway), an intermediary acting as interlocutor, or even by the trial judge (proposed by former DPP Sir Keir Starmer QC). Another proposal is to allow complainants separate legal representation. Argues that these proposals are misconceived, or at least very premature, as previous reforms have not yet become embedded in the criminal justice system. Argues for other reforms compatible with the adversarial trial, including: 'ticketing' of all advocates in cases involving child or vulnerable adult witnesses; appointing safeguarders for child witnesses and defendants, to protect their welfare throughout the proceedings; the creation of 'one stop' young witness advocacy centres, as...

In the last two decades of the twentieth century, the numerous controversies about the response of public agencies and the courts to allegations of child abuse, as well as campaigns to reform the treatment of child witnesses in adversarial trial systems, provided the impetus for legal ...

There are a number of features of British criminal appeals which differ from the Canadian justice system. This article explores these differences by reviewing the changes and customs adopted by the English Court of Appeal (Criminal Division).

Explains why it is usually necessary in the interests of justice to put the essence of the defence case to a vulnerable witness, in fairness to the witness and the jury. Provides examples of how to do this without calling the witness a liar and hence avoiding unncessary distress.

This constitutes the largest empirical study of the use of previous sexual behaviour evidence in sexual offence trials in the courts of England and Wales ever conducted. It is impossible to understand how such evidence is handled in trials merely from reading reported judgments, because these reflect only cases which the defence has appealed to the Court of Appeal on the basis that such evidence was wrongly excluded by the trial judge, since the prosecution does not have an equivalent right to seek leave to appeal. The data collected from criminal barristers examines, in depth, 377 cases involving 565 complainants, which proceeded to trial in 105 Crown Courts centres in the 24 months immediately prior to November 2017. This study is unique in collecting data on applications to use previous sexual behaviour evidence in respect of all sexual offences, not just rape, and without any restrictions on complainants as to gender or age. Many children and adolescents feature in the sample. So too do many historical complaints, and many cases involving multiple complainants. Perhaps most importantly, it is unique in eliciting information from the 140 anonymous barristers who were directly involved in prosecuting or defending these cases in the sample, and who know best what happened, not only in the public court room but also in the closed court room and in the robing room. They in turn are highly unusual in adversarial legal systems in ‘walking both sides of the street’, possible only due to the existence of the independent Bar, available to be instructed by the Crown Prosecution Service or by the defence in any case. They therefore have a uniquely balanced view of the criminal justice system.

This is the complete text of the commissioned Report. A refereed article entitled "Cross-examination of sexual assault complainants on previous sexual behaviour:
views from the barristers’ row" further analysing the results will be published in the Jan 2019 issue of the Criminal Law Review. The article will only be available on Westlaw to non-subscribers to the Crim LR.

Page 1. Electronic copy available at: http://ssrn.com/abstract=1234007 THE PROFIT PARADOX: PROTECTING LEGITIMATE EXPECTATIONS IN TORT Laura CH Hoyano* Oxford 363 ... Laura CH Hoyano, of the Alberta Bar; Fellow and Tutor in Law, Wadham College, Oxford. ...

Abstract: This article analysed the Special Measures Directions introduced by the Youth Justice and Criminal Evidence Act 1999, and was published shortly before many of the provisions were implemented. The problems with the previous statutory regime for child witnesses ...

analyses the trend in Canada and some other Commonwealth jurisdictions of founding liability for professional negligence, negligent misstatement, and child abuse in fiduciary law, either concurrently with or in place of tort liability. Argues that this is largely misconceived as a response to the shortcomings of tort law, which should be rectified within tort law rather than stretching the fiduciary concept beyond recognition. There is one exception to this position: where a person in a position of trust, such as a physician , abuses a vulnerable person for his or her own gratification or gain.

argues that the common law standard of care imposed on educators in relation to children in their care to see that they do not sustain physical injury, which is equated to that of the "prudent parent" is not fit for its purpose, and should be replaced by a professional standard of care which is more reflective of the risks to which teachers may expose children, such as injury in a chemistry lab, which are unknown in the family environment. This article is widely used in teacher training materials in Canada.

Argues the case for repeal and replacement of section 1 of the Children and Young Persons Act 1933, which dates back to 1868 and has not been reviewed since 1933. This legislation in antiquated terms crimjinalises "wilful neglect", abandonment, and other forms of physical cruelty. It does not cover emotional abuse nor emotional neglect due to the ruling of the House of Lords in Sheppard [1981] AC 394, yet neuroscience shows that this is the most damaging (and common) form of abuse affecting brain and behavioural developement. This article is part of an ongoing campaign by the authors and Action for Children to have the offence updated and reformulated to cover all forms of child maltreatment, to reflect modern understanding of its forms and the damage it inflicts. The Coalition Government has accepted the case for including emotional abuse but thus far has not agreed that the rest of the offence requires clarification (especially the oxymoron "wilful neglect") an...

Comments on the judgment of the EWCA holding that children aged 17 are entitled to be treated as children whilst in custody, including the rights to have their parents or carers notified of their detention, and the right to have an appropriate adult (in addition to a legal advisor) present during questioning to safeguard their welfare.

Describes the measures put in place to ensure the best of evidence of child and other vulnerable witnesses, including complainants of sexual assault, and intimidated witnesses. Considers witness anonymity orders and their compliance with fair trial guarantees under ECHR Art 6 and the Human Rights Act 1998. A separate section elsewhere in the volume discusses investigation anonymity orders, established to combat community silence in the face of gangs using offensive weapons such as knives to cause death. The sections are updated annually in the main volume, and in supplements throughout the year.

Page 1. Electronic copy available at: http://ssrn.com/abstract=1234007 THE PROFIT PARADOX: PROTECTING LEGITIMATE EXPECTATIONS IN TORT Laura CH Hoyano* Oxford 363 ... Laura CH Hoyano, of the Alberta Bar; Fellow and Tutor in Law, Wadham College, Oxford. ...

Abstract: This article analysed the Special Measures Directions introduced by the Youth Justice and Criminal Evidence Act 1999, and was published shortly before many of the provisions were implemented. The problems with the previous statutory regime for child witnesses ...

It has become fashionable to decry the adversarial system as being incapable of
delivering justice in trials involving vulnerable witnesses. Some critics ignore the plight of vulnerable
defendants, and downplay the highly significant advances since 2009 in the courts’ management of
child witnesses. This article evaluates some radical proposals, including excluding counsel from
cross-examination; requiring prior approval by a non-judicial figure for every question in
cross-examination; and allowing independent legal representation for the complainant, fully
participating in the trial. These proposals encounter serious difficulties, especially for equality of arms and effective participation by the defendant. The article sets out an alternative package of more modest proposals to preserve the adversarial mode of trial and protect vulnerable witnesses. The article was published in the February issue of [2015] Crim LR 107, available on Westlaw. Unfortunately due to restrictions of the publisher cannot be uploaded to this site.

This is a chapter from Herring & Goold, eds, Landmark Cases in Medical Law (Hart, 2015) (forthcoming). It compares two judgments, from the House of Lords and from the Australian High Court, reaching opposite results where negligent medical errors in the control of human fertility by public health services resulted in the unwanted conception of healthy babies. The causes and frequency of failed sterilisation are described, and the options open to the courts for the identification of the actionable harm to complete the cause of action in negligence, and consequential harm are critically analysed. The invocation of corrective justice, distributive justice and retributive justice by various judges on the two courts is also subjected to critical analysis. This analysis concludes that corrective justice, reflected by the judgment of the majority in Cattanach v Melchior, is a model which has a good fit with medical negligence: by requiring compensation of patients, it compels health professionals and the system within which they work to take responsibility for their errors and the consequences for patients, and provides an economic incentive to scrutinise and adjust procedures to avert further adverse incidents. The peculiar hybrid of corrective and distributive justice produced by McFarlane, Parkinson and Rees fails to meet the objectives of either model. Under the current mélange, where the loss falls as a consequence of the negligent medical services is usually a matter of chance. This is the only area of medical negligence law where a proven breach of the standard of care, resulting in proven foreseeable damage, leaves most of the loss to fall on the patient. The current arbitrary line-drawing represented by McFarlane and Parkinson arguably provides inadequate deterrence and incentivising of risk avoidance. It
is noteworthy that the medical literature in the UK in 2007, eight years after McFarlane, still pointed to simple measures which needed to be taken in the NHS not only to prevent failed
sterilisations through precautionary procedures in the operating theatre, but also to identify, record and explain them to reduce their incidence. Moreover, the model of distributive justice invoked in McFarlane fits ill with the corrective
justice model applied so rigidly by the majority in Chester v Afshar. In both cases the autonomy of the patient to make choices about her bodily integrity was infringed by the
negligence. The chapter concludes that McFarlane should not be treated as a landmark case for medical law as
a whole, but rather an outlier, consigned to be buffeted by the stormy seas of Rockall, whilst Cattanach has been wiped off the most populated parts of the map of Australia through legislation introduced to reverse the judgment as a consequence of a vigorous lobby by the medical profession.

Title: Straining the quality of justice for children and their families in public law cases Subject: CIVIL EVIDENCE - FAMILY LAW - HUMAN RIGHTS
Keywords: CARE PROCEEDINGS : DELAY : EXPERT EVIDENCE : PARENTS : RIGHT TO FAIR TRIAL : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
Publication: Family Law Fam. Law (2014) No.44 May Pages 598-601
Date: 13/5/2014
Author: Laura Hoyano (Wadham College, Oxford)
Summary: Comments on how the family law reforms can undermine parents' rights under the European Convention on Human Rights 1950 art.6 to procedural fairness in care proceedings. Discusses the 26-week rule in the Family Procedure Rules 2010 and use of a single expert, arguing that delay must be permitted in complex cases which require access to expertise. Gives examples of miscarriages of justice in the family justice system.
Cases: W (Children), Re (2009) EWCA Civ 59; (2009) 2 All ER 1156 (CA (Civ Div)) : W v Oldham MBC (2005) EWCA Civ 1247; (2006) 1 FLR 543 (CA (Civ Div))
SIs: The Family Procedure Rules 2010 SI 2010/2955 International Legislation: European Convention on Human Rights 1950 art.6
: European Convention on Human Rights 1950 art.8 Document No.: AL1902091

The very concept of trial fairness is deeply theoretical but highly practical. This article explores the recent predilection for balancing the defendant's right to a fair trial against expediency (juridical and political) in the administration of justice. It argues that balancing has no place in the concept of a fair trial because there is no antithesis between the interests in play. Instead, the right to a fair trial is a common good enjoyed by the defendant, the complainant, all other participants in the trial and the community at large. The article challenges the authenticity of the UK concept of balancing within Article 6 of the ECHR and deplores its infiltration into jurisprudence of the European Court Of Human Rights through Al-Khawaja v UK (Grand Chamber 2012). It probes the  'essence of the right' principle underpinning the ECHR guarantees, and discusses how the ECtHR's 'sole or decisive' rule had acted as a bulwark of the protection of the essence of the right to challenge witnesses under Article 6(3)(d). It discusses the perplexing disappearance of the essence of the right concept in Al-Khawaja. It analyses the different approaches taken to quashing convictions under English, Scots and ECtHR law for breach of Article 6, and contends that, contrary to UK case law, where a trial has been found to be unfair as a whole, that necessarily means that the conviction must be quashed as not having been conducted in accordance with the rule of law, and a retrial ordered if feasible. Finally the article ventures a reconfiguration of the fair trial right under ECHR Article 6(1) and (3).Unfortunately Sweet & Maxwell will not allow the article to be uploaded, but it is available on Westlaw.

This is the report of an independent advisory group of experts chaired by Laura Hoyano examining the prevalence of child neglect in the UK, the findings of neuroscientists about the impact of neglect on child brain development, and the shortcomings of the current criminal offence in the Children and Young Persons Act 1933 section 1. The proposed replacement statutory offence will be introduced in second reading of the Crime & Courts Bil lin the House of Commons as a private member's amendment., in March 2013.