Mark Shaw QC

Mark has established his reputation in this area by regular appearances in the higher courts (especially the Administrative Court) and tribunals on behalf of an array of government departments and agencies, regulators, trade associations, companies and individuals.  He has a particular expertise in judicial review, statutory appeals and regulatory law in the fields of professional discipline, healthcare, transport, utilities, national security, environment, freedom of information, immigration, local government, media, health and safety, nature conservation, advertising standards, waste disposal, construction, tobacco regulation and licensing.  His Crown work involved numerous leading and high profile cases in the UK and Strasbourg, including the challenges by Myra Hindley and by the killers of James Bulger to their life sentences for murder as well as the applications to the Parole Board by the latter for release.  Early in 2010 he appeared as the Lead (Senior) Special Advocate representing an alleged terrorist who successfully resisted deportation to Algeria.  As regards his advisory work, much involves helping to establish or refine regulatory procedures, and to guide decision-making processes, capable of withstanding public law and human rights challenges. 

• Smartsource Drainage & Water Reports Limited v Information Commissioner FER 0265082 [Upper Tribunal] (2009-2010 and ongoing)
  Advising and appearing for 19 water and sewerage companies in a complaint to the Information Commissioner seeking disclosure of an array of property information under the Environmental Information Regulations 2004 for use in HIPs.  Issues include whether water and sewage companies are public authorities, whether the information sought is environmental information and the application of various exceptions (including national security).  The companies succeeded before the Information Commissioner but his decision is now under appeal to the Upper Tribunal.
• R (Transport for London) v Pension Protection Fund [Administrative Court] (2010 and ongoing)
  Advising and appearing for Transport for London (TfL) in a pending judicial review claim challenging the legality and application of the pension protection levy for 2008/09 and 2009/10 imposed by the Pension Protection Fund on TfL after it rescued the pension schemes of the defunct Metronet companies which used to modernise and maintain the London Tube network. Also acting for TfL in a pending parallel appeal to the Pensions Protection Fund Ombudsman.
• Liang v Secretary of State for the Home Department, Yan Bin Li v Secretary of State for the Home Department and Mirzalli v Secretary of State for the Home Department [various County Courts and Court of Appeal] (2008-2010 and ongoing)
  Advising and appearing for the Home Office on various appeals and aspects of the legality, application and enforcement of the civil penalty regime, under the Immigration, Asylum & Nationality Act 2006, for employers who employ of immigrants without properly checking that they are permitted to work in the UK.
• T (Boukhetache) v Secretary of State for the Home Department [Special Immigration Appeals Commission] SC/31/2005 (22 March 2010)
  Appeared as Lead (Senior) Special Advocate for an immigrant successfully appealing against his deportation to Algeria on national security grounds as an alleged terrorist.  Issues include the admissibility/treatment of evidence obtained by torture, the reliability of assurances of safety on return given by a foreign government, the disclosure of classified documents, bail and the right to family life.
• Van Gaalen v Network Rail [Court of Appeal] (October 2008)
  Successfully appeared for Network Rail in the Court of Appeal resisting an oral application for permission to appeal against the grant of a possession order by a County Court against a group of travellers/gypsies raising, primarily, the issue of whether Network Rail is a public authority under the Human Rights Act 1998.
• Secretary of State for the Home Department v KK [Administrative Court], (2007-2008)
  Appeared in the Administrative Court as Leading Special Advocate for an alleged terrorist challenging his “house arrest” on national security grounds under the Prevention of Terrorism Act 2005.  Issues included the compatibility of control order conditions with articles 5 and 6 of the ECHR, the admissibility/treatment of evidence possibly obtained by torture, the disclosure of classified documents and the extent of the risk to national security.   
• LighterLife v HMRC (2008)
  Advising LighterLife (a slimming company) on the legality of attempts by HMRC to recover VAT on retrospective supplies.

Other recent work:

• Resisting extradition to Spain of a British citizen facing theft and fraud charges arising from commercial dealings in the Middle East in the 1980s.
• Advising Gambling Commission on the scope of its right to review the operating licences of companies in administration.
• Advising major utilities companies resisting disclosure requests under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004.
• Advising an array of police authorities resisting disclosure requests under the Audit Commission Act 1998.
• Advising a British citizen living abroad on his response to allegations being investigated by the CPS that many years ago he tortured prisoners in a foreign state while working there as a high-ranking police and security officer. Apart from the issues of universal jurisdiction (torture can be tried in the UK even if the alleged acts were committed abroad), the case raised issues of extradition, inferences to be drawn from silence and the admissibility of evidence.
• Advising the Health & Safety Executive on various aspects of its environmental regulatory work; such as licence conditions for nuclear sites, the incidence of the burden and the standard of proof under article 6 ECHR in prosecutions for breach of the Health and Safety at Work Act 1974, the approval of the rail safety case presented by London Underground prior to restructuring the Tube through the PPP scheme, the approval of the rail safety case presented by Railtrack after the Potter’s Bar rail crash.

• Q (Mihoubi) v Secretary of State for the Home Department [Administrative Court] (2007)
  Appeared as Lead (Senior) Special Advocate for an immigrant appealing against his control order and threatened deportation on national security grounds as an alleged terrorist.  Issues include the admissibility/treatment of evidence obtained by torture, the reliability of assurances of safety on return given by a foreign government, the disclosure of classified documents and bail.  Substantive appeal stayed pending possible voluntary return. 
• Martin v Exeter University Students’ Guild and Exeter University (12 July 2007)
  Independent adjudication (as visitor) for Exeter University mediating and deciding a challenge by the Christian Union to (1) its suspension from the Students’ Union for refusing to allow non-Christian members to become members or leaders and (2) the requirement for it to be renamed the Evangelical Christian Union.  A judicial review claim by the Christian Union under the Human Rights Act 1998 (articles 9, 10 & 11 of the ECHR), against the underlying decision and the adjudication, was stayed pending the adjudication, then revived and dismissed by the Administrative Court.  Adjudication published on www.exeter.ac.uk.
• Network Rail Limited v Information Commissioner [Information Tribunal] EA / 2006 / 0061-0062 (17 July 2007)
  Successfully advised and appeared for Network Rail in its two joined appeals before the Information Tribunal under the Environmental Information Regulations 2004 raising, primarily, the issue of whether Network Rail (as the monopoly owner and operator of the country’s railway infrastructure) is a public authority required to disclose environmental information to the public on request.
• R (Merseyside Passenger Transport Authority & Passenger Transport Executive) v Secretary of State for Transport [Administrative Court] [2006] EWHC 226 (Admin)
  Appeared for the Claimants (local transport bodies) in the Administrative Court in an urgent judicial review challenge to the Defendant’s decision to withdraw £170m in grant funding promised in 2002 for the construction of a new tram system on Merseyside.  Grounds based on breach of legitimate expectation and unreasonableness, given the costs incurred by the Claimants’ in reliance on the promise of funding.
• Henshall v GMC [Administrative Court and Court of Appeal] [2006] Lloyd’s Rep. Med. 103 and Times 9 January 2006.
  Judicial review concerning the extent to which natural justice and article 6 ECHR required the disclosure to a complainant of representations made by a doctor in response to a complaint.
• R (Green) v Police Complaints Authority & Secretary of State for the Home Department [House of Lords] [2004] 1 WLR 725 (HL), [2004] UKHL 6
  Appeared for the Home Secretary in the House of Lords appeal dealing with whether, under articles 2 & 3 ECHR, those making complaints against police officers are entitled to disclosure of eye-witness and experts witness statements produced during and internal investigation before any allied criminal trial or disciplinary proceedings (due to the risk of contamination of evidence).
• R (ProLife Alliance) v BBC [House of Lords] [2003] 2 WLR 1403 (HL)
  Compatibility with article 10 of the ECHR of the content restrictions imposed by the BBC on the Party Election Broadcast of the ProLife Alliance (an anti-abortion party) during the 2001 General Election.
• International Transport Roth GmbH v Home Office [Court of Appeal] [2002] 3 WLR 344 (CA) (leave to appeal to the HL granted to both sides but not pursued by either)
  Test case on the compatibility with EU law on free movement and with article 6 of the ECHR of the penalty regime introduced by the Immigration and Asylum Act 1999 (fines for lorry drivers and hauliers who transport clandestine entrants to the UK).  Declaration of incompatibility granted under the Human Rights Act 1998, but no inconsistency with EU law found.
• Thompson and Venables v Newsgroup Newspapers Limited [Family Division] [2001] 2 WLR 1038 (Fam)
  Restraint, under the ECHR and the law of confidence, on the publication of information about the new identities and whereabouts of the murderers of James Bulger.  Mark also appeared for the Home Secretary in allied (private) proceedings before the Parole Board deliberating on release in 2001.
• R (Bulger) v Lord Chief Justice and Secretary of State for the Home Department [Divisional Court] [2001] 3 All ER 449 (DC)
  Judicial review challenge to the tariff set by the Lord Chief Justice for the murderers of James Bulger: the relevant considerations to be taken into account and the standing of the victim’s father to bring the challenge.
• R v Secretary of State for the Home Department, ex parte Myra Hindley [Divisional Court, Court of Appeal and House of Lords] [1998] QB 751 (DC), [2000] 1 QB 152 (CA) and [2001] 1 AC 410 (HL)
  Judicial review of the whole life tariff of one of the "Moors Murderers": whether a tariff can be for life and whether a tariff can be changed if neither finally set nor communicated.
• R v Secretary of State for the Home Department, ex parte Thompson and Venables [House of Lords] [1998] AC 407 (HL) and T and V v United Kingdom [European Court of Human Rights] (2000) 30 EHRR 121 (ECtHR)
  Judicial review of the tariffs of, and trial procedures in relation to, the two boys who murdered James Bulger. Followed by a Strasbourg challenge under articles 3, 5 and 6 of the ECHR to the fairness of the domestic trial process and the tariffs set by the Home Secretary.

Mark has a very well-established and growing practice, both as an advocate and adviser, in professional disciplinary and regulatory proceedings.  Extensive work for the GMC lies at the core.  It has instructed him regularly and frequently for many years, as a junior and in silk.  Other regulatory clients include the Nursing and Midwifery Council, the General Social Care Council, the Federation of Opthalmic and Dispensing Opticians, the Royal Pharmaceutical Society, the Metropolitan Police Authority and the Accountancy and Actuarial Discipline Board.  Mark is not generally involved in the routine prosecution work.  Instead, he appears in statutory tribunals, the Administrative Court and the appellate courts (in judicial review claims and statutory appeals by registrants and the CHRE) when cases raise public law and human rights issues with implications beyond a single instance.  He also regularly advises a range of public authorities and professional, teaching and regulatory organisations on the application of the Human Rights Act 1998 (especially article 6 of the ECHR) to their procedures both as regards general restructuring and specific issues.  This has recently included advising the Metropolitan Police Authority regarding disclosure of the IPCC’s two reports on the shooting of Jean Charles de Menezes at Stockwell tube station and regarding the decision whether to bring disciplinary proceedings against senior officers. 

• R (McNicholas) v (1) GMC (2) Dr Murphy (3) Dr Khaleeli [Administrative Court and disciplinary tribunals] (2005-2010 and ongoing)
  Appeared for the GMC in the Administrative Court in a various judicial review challenges to decisions of its Preliminary Proceedings Committee raising an array of issues: in particular, what test applies to the initial filtering of complaints against doctors, what standard of proof applies at the final disciplinary hearing and the extent of the duty to give reasons.  Further fitness to practise proceedings are continuing.
• R (AvMA) v GMC [Administrative Court] [2009] EWHC 2522 (Admin) (24 February 2009 (permission) and 16 October 2009 (protective costs))
  Appeared for the GMC in the Administrative Court in a judicial review brought by a medical charity against the GMC’s refusal to entertain a complaint against a group of doctors regarding events in 1990, and seeking a protective costs order.  The claim concerns the proper legal approach to the five year time limit for complaints.  Permission was granted at an oral hearing in February 2009 but the claim was withdrawn in early 2010 after a protective costs order was refused.
• Accountancy & Actuarial Discipline Board (2010 and ongoing)
  Advising on, and drafting, the guidelines governing the substance and procedure for referral by the AABD’s investigator of allegations against accountants to the AADB’s disciplinary tribunal.
• Haywood v NMC [Administrative Court] (2009)
  Advised the NMC in an appeal brought in the Administrative Court by Margaret Haywood, a nurse who used covert filming of elderly patients to expose sub-standard care in a hospital in Brighton in a BBC Panorama documentary entitled Undercover Nurse.  She challenged various disciplinary findings of fact, a finding of impaired fitness to practise and a sanction of erasure from the nursing register.  The claim concerned the proper legal approach to health care workers who breach patient confidentiality in the public interest.  The appeal was settled by consent just before it was due to be heard in October 2009.
• R (Pal) v GMC [Administrative Court] [2009] EWHC 1061 (Admin)
  Appeared for the GMC in the Administrative Court successfully defeating a substantive judicial review challenge to the GMC’s initial acceptance of a complaint by two members of the public against a doctor.  The Court ruled on the proper legal approach to be taken to the initial acceptance of a complaint before any investigation or assessment of its merits is carried out: the components of a valid complaint.  Permission to appeal has recently been refused.
• Cheatle v GMC [Administrative Court] [2009] EWHC 645 (Admin)
  Appeared for the GMC in the Administrative Court in a doctor’s appeal against disciplinary findings of fact, a finding of impaired fitness to practise and a sanction of suspension.  The Court ruled on the proper legal approach to be taken to all those issues, and to the giving of reasons, by a disciplinary panel.
• Federation of Ophthalmic and Dispensing Opticians & The General Optical Council (2009)
  Advising the Federation of Ophthalmic and Dispensing Opticians on the existence and intensity of a statutory requirement that the dispensing of spectacles and contact lenses by retail sale to the public by mail order and over the internet be supervised by a registered optician.
• Jean Charles de Menezes/Stockwell I & II reports (2007-2009)
  Advising the Metropolitan Police Authority (the professional disciplinary body for senior police officers in London) on various issues arising from the two reports written by the Independent Police Complaints Commission on the shooting of Jean Charles de Menezes at Stockwell tube station with a view to preventing any judicial review claim, in particular:
  -  the strengthens and weaknesses of possible disciplinary charges against particular officers; and
  -  the procedures that needed to be adopted when considering such charges; and
  -  the legality of disclosing the reports to interested third parties.
  No challenge to the proceedings or process was ever brought.
• General Social Care Council v Lisa Arthurworrey [Administrative Court] (2008)
  Appeal (not, ultimately, pursued) against the GSCC’s disciplinary findings in respect of the fitness to practise of the social worker allocated to Victoria Climbie before her death.
• Martin v Exeter University Students’ Guild and Exeter University (12 July 2007)
  Independent adjudication (as visitor) for Exeter University mediating and deciding a challenge by the Christian Union to (1) its suspension from the Students’ Union for refusing to allow non-Christian members to become members or leaders and (2) the requirement for it to be renamed the Evangelical Christian Union.  A judicial review claim by the Christian Union under the Human Rights Act 1998 (articles 9, 10 & 11 of the ECHR), against the underlying decision and the adjudication, was stayed pending the adjudication, then revived and dismissed by the Administrative Court.  Adjudication published on www.exeter.ac.uk.
• Appearing and advising in numerous other recent GMC judicial review claims and statutory appeals including R (Varma) v GMC, R (Haward and Green) v GMC, R (Jackson) v GMC, R (Davies) v GMC, R (Al-Ruby) v GMC, R (Rahman) v GMC, R (Pal) v GMC, R (Thompson) v GMC, R (Colman) v GMC, R (Abraham George) v GMC, Southall v GMC, Kane v GMC, Uruakpa v GMC, R (Shah) v GMC, R (Ubani) v GMC, Brown v GMC, R (Cohen) v GMC,  Igboaka v GMC, R (Mousa) v GMC, R (Tate) v GMC, Macklin v GMC, R (Hemming) v GMC, Paul v GMC, Gopakumar v GMC, Shanker v GMC, R (Ratcliffe) v GMC, Calhaem v GMC and Wakefield v GMC.

Other recent work:

• The Construction Industry Training Board and the imposition of a levy on the construction industry.
• Gambling Commission’s right to review the operating licences of companies in administration.
• A jockey challenging a decision of the Jockey Club.
• A solicitor challenging various decisions of the Solicitor’s Disciplinary Tribunal.
• End of Life Guidance for the medical profession.
• Transfer of the disciplinary adjudicatory function from various professional regulators to the independent Office of the Health Professions Adjudicator (“OHPA”), recently abolished.
• A barrister challenging a disciplinary decision.
• The legal relationship between the Independent Safeguarding Authority (established after the Soham murders to protect children and vulnerable adults from abuse) and the GMC.
• A broadcaster challenging a decision of Ofcom.
• A major pharmaceutical company successfully challenging, on appeal, the NICE assessment of the clinical and cost effectiveness of a new medical device for NHS use. 

Mark became a CEDR accredited mediator in October 2008.  Since then he has participated in mediations arising from contract, tort, costs and public procurement disputes.  His strong background in public law and human rights gives him an unusual depth of insight into the legal, presentational, financial, personnel and policy issues which often tax public and regulatory bodies.  This experience extends to central and local government bodies, professional disciplinary and regulatory agencies, police authorities, utilities and media organisations. 

In July 2007, before accreditation, Mark acted as a hybrid mediator / adjudicator / visitor for Exeter University dealing with a challenge by the Christian Union to (1) its suspension from the Students’ Union for refusing to allow non-Christian members to become members or leaders and (2) the requirement for it to be renamed the Evangelical Christian Union.  A judicial review claim by the Christian Union under the Human Rights Act 1998 (articles 9, 10 & 11 of the ECHR), against the underlying decision and the adjudication, was stayed pending the mediation/adjudication, then revived and dismissed by the Administrative Court.  Adjudication published on www.exeter.ac.uk.

Previous Professional Experience

• 1991: Pegasus (Inner Temple) Scholarship to Mallesons Stephen Jaques, a large firm of solicitors based in Melbourne (dealing with various aspects of commercial and public law, particularly public utilities, planning and freedom of information).
• 1988: Began practice at the Bar (in current Chambers).
• 1987-88: Pupillage (in current Chambers).
• 1986-87: Legal Department of Bournemouth Borough Council.
• 1986: European Parliament "stage" (scholarship) within the Human Rights Unit based in Luxembourg, Strasbourg and Brussels.
• 1985-86: Legal Department of Bournemouth Borough Council.
• 1981-85: Double first in law (BA and LLM) at Durham and Cambridge Universities.

Professional Appointments, Attainments and Memberships

• ARDL (Association of Regulatory & Disciplinary Lawyers): committee member.
• ALBA (Constitutional & Administrative Law Bar Association): former committee member.
• Justice.

Publications:

• Human Rights Law & Practice (contributor) Butterworths, 1999 and (supplement) 2000.
• Halsbury’s Laws of England: Immigration and Nationality, volume 4(2) reissue, (co-author) Butterworths, 1992.
• The Primary Purpose Rule: A Rule with No Purpose (co-author) Justice, 1993.
• JR, quarterly journal, (member of Advisory Board) Hart, since 1996.
• Costs at the Leave Stage [1996] JR 8.
• Costs against Magistrates [1996] JR 133.
• Costs and Multiple Representation [1997] JR 4.
• Discovery in JR (co-author) [1998] JR 12.

Interests and Activities

• Golf (Honorary Secretary & Treasurer of the Bar Golfing Society from 1999 to 2003)
• The Athenaeum: wine committee member and former member of most other committees.
• Running
• Scuba diving
• Italy