JR65’s Application
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 16 March 2016 |
| Neutral Citation | [2016] NICA 20 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 16 March 2016 |
1
Neutral Citation No: [2016] NICA 20 Ref:
MOR9923
WEI9922
Judgment: approved by the Court for handing down
Delivered
16/3/2016
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY JR 65 FOR JUDICIAL REVIEW
Before: Morgan LCJ, Gillen LJ and Weir LJ
________
MORGAN LCJ
[1] The respondent in this appeal judicially reviewed the Department of Health,
Social Services and Public Safety (“the Department”) in respect of the maintenance
by it of a lifetime ban on males who have had sex with other males (“MSM”)
donating blood. He also challenged the decision by the Minister with responsibility
for the Department (“the Minister”) not to alter the ban so as to adopt a position
consonant with that which now applies throughout the rest of the United Kingdom
where MSM are subject to a one-year deferral period.
[2] In his judgment dated 11 October 2013 Treacy J allowed the application for
judicial review after concluding:
(i) As the competent authority for the purposes of Directive 2002/98/EEC and as
designated by the Blood Safety and Quality Regulations 2005 (the 2005
Regulations) the Secretary of State for Health (“the Secretary of State”) is
responsible for the determination of the appropriate deferral periods in
Northern Ireland and whether to maintain or not the impugned lifetime ban.
Accordingly the Minister was not empowered to give any directions in
relation to the implementation or interpretation of the Directives;
2
(ii) Paragraph 38 of Schedule 3 to the Northern Ireland Act 1998 provides that
technical standards and requirements in relation to products in pursuance of
an obligation under Community law are reserved matters. Under Article 29
(d) of the 2002 Directive deferral criteria are included as a technical
requirement. By virtue of Section 24 (1) of the 1998 Act the Minister has no
power to act incompatibly with Community law;
(iii) The lifetime ban is both controversial (it has generated much publicity and
public debate, and views on the issue are highly polarised) and crosscutting
(it is acknowledged in the Advisory Committee on the Safety of Blood,
Tissues and Organs (“SaBTO”) report that it touches on equality issues, it
further deals with the implementation of EU Directives) and as such the
Minister had no authority to act without bringing it to the attention of the
Executive Committee which he failed to do. In doing so the Minister breached
the Ministerial Code and by virtue of Section 28A (10) of the 1998 Act he had
no legal authority to take a decision in breach of the Ministerial Code;
(iv) The decision of the Minister was irrational.
[3] This court remitted to Treacy J the contention on behalf of the respondent that
the Minister’s decision was infected with apparent bias. In a judgment delivered on 8
January 2015 the learned trial judge so held. The Minister and the Department now
appeal against the findings made against them and the Secretary Of State as Notice
Party submits that he was not responsible for the determination of the appropriate
deferral periods in Northern Ireland. The respondent cross appeals against the
failure of the learned trial judge to deal with his claim that the imposition of a
lifetime deferral for MSM is disproportionate and in breach of EU law. The Attorney
General appeared with Ms Gray for the appellants, Dr McGleenan QC and
Mr McLaughlin appeared on behalf of the Secretary of State and Mr Scoffield QC
and Mr Atchison appeared for the respondent. We are grateful to all counsel for
their helpful written and oral submissions.
Background
[4] Following the emergence of HIV, MSM were permanently deferred from
donating blood in the UK in 1985. Individuals who had ever accepted money or
drugs in exchange for sex were also permanently deferred from donating blood.
These deferrals were because of the high risk of serious blood-borne infections, such
as HIV, hepatitis B and hepatitis C viruses and syphilis among these groups.
[5] The UK Blood Services use a number of strategies to maintain safe supplies of
blood and blood components. These combine deferral from donation from groups
that are known to have increased prevalence and incidence of specific transfusion
transmitted infections (TTIs) with testing for selected TTIs. A number of such current
deferral criteria relate to specific sexual behaviours. A major review of blood donor
3
deferral criteria in relation to sexual behaviour took place in 2001, when the available
evidence did not support a change to the lifetime deferral for MSM. Since then the
combination of donor deferral and improvements in testing, particularly the
introduction of highly sensitive and specific nucleic acid tests, has dramatically
reduced the number of TTIs. There has not been a confirmed case of blood-borne
viral transmission since 2005. Further, active global surveillance mechanisms are
much improved and help to identify emerging new threats to the blood supply and
enable appropriate risk reduction measures to be implemented.
[6] (SaBTO advises the four UK Health Departments on blood donor deferral. It
established a Blood Donor Selection Steering Group (the Steering Group) to examine
in particular the evidence in relation to the donation of blood by MSM and
commercial sex workers. The Steering Group reported in April 2011. It concluded
that the evidence supported a change from a lifetime ban to a 12 month deferral
period for men after their last oral or anal sex with another man, even if a condom or
other protected method was used and recommended accordingly. The research
examined in particular the risk of HIV infectious donations being released into the
blood supply. It was not disputed that the risks of other blood borne infections were
no higher in MSM. Taking into account the average of 64,000 donations of blood per
annum in Northern Ireland the estimated increase in risk assuming the same level of
compliance by donors was 1 infection every 15,500 years. The Steering Group further
concluded that communications should include a focus on the importance of
ensuring compliance with this and other deferral policies. It noted the results of a
study which suggested that a shorter deferral period would lead to increased
compliance thereby further reducing the risk below that which presently applies. It
also took the view that the lifetime deferral for commercial sex workers should be
replaced by a 12 month deferral period.
[7] SaBTO considered the recommendation from the Steering Group at its
meeting on 3 May 2011. Dr Liz Reaney, Senior Medical Officer in the Department of
Health, Social Services and Public Safety, was present at that meeting as an observer.
SaBTO agreed that the available evidence supported the introduction of a 12 month
deferral period for men after their last oral or anal sex with another man, even if a
condom or other protective was used and recommended a change in the deferral
period to the four UK Health Departments. It considered that there was a lack of
robust data on compliance and a relative paucity of data on blood borne infection
rates in commercial sex workers and this was insufficient to justify the
recommendation to remove the lifetime ban on such proposed donors.
[8] Work then began on a submission to the Minister to approve SaBTO’s
recommendation in this jurisdiction. The submission was based on a similar
submission by the Department of Health in London to the Secretary of State. Dr
Reaney confirmed that she recommended acceptance of the SaBTO advice. She
liaised with Dr Joanne Murdoch who was the medical director of the Northern
Ireland Blood Transfusion Service (“the NIBTS”) which is responsible for organising
To continue reading
Request your trial
1 cases
-
R (Miller and Another) v Secretary of State for Exiting the European Union; Re McCord's application
...basis that they are in breach of EU law. A recent example of the exercise of such a right is found in the case of Re JR65's Application [2016] NICA 20, where the lifetime ban on men who have had sex with other men from giving blood in Northern Ireland was challenged as being contrary to EU ......
1 books & journal articles
-
Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court
...Re JR65’s Application [2013] NIQB 101; [2015] NIQB 1; [2016] NICA 20.166 In 2016, for example, the AGNI ‘acted for the Department of Culture Arts and Leisure in anapplication for judicial review brought by the Minister of Justice in relation to a decision tomake the draft Court Files Privil......