Monthly News Archives: October 2010
19 October 2010 by Kate Beattie
In August we commented on the risk that long-awaited reform of the coronial system would be shelved by the Ministry of Justice, arguing that the wait for promised reforms had left relatives of the dead in legal limbo.
To the dismay of campaigners, the new office of the Chief Coroner for England and Wales has fallen victim to the “bonfire of the quangos“.
The post was created by the Coroners and Justice Act 2009, which the Ministry of Justice said aimed “to deliver more effective, transparent and responsive justice and coroner services for victims, witnesses, bereaved families and the wider public”. In February, the previous Government heralded the post:
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18 October 2010 by Rosalind English
An injunction sought against the publication of certain information has been granted by the High Court in Northern Ireland under Article 2 (the right to life). The claimant also invoked the Prevention of Harassment (NI) Order and sought damages for misuse of private information. The Article 8 claim was only partially successful and the harassment claim was dismissed.
The claimant, who had been accused and subsequently cleared of murdering a journalist working for the defendant newspaper sought to prevent the publication of details relating to his address, his partner, his wedding plans and other personal information and photographs. The judge held that the publication of this information, in the light of threats from loyalist paramilitaries and dissident republican paramilitaries, would result in a “real and immediate risk” to the claimant’s life.
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18 October 2010 by Alasdair Henderson
A (a minor) and B (a minor) v. A Health and Social Services Trust, [2010] NIQB 108 – Read judgment
In a fascinating case involving IVF treatment, the High Court in Northern Ireland has held that no duty of care is owed to human cells and that having a skin colour different to that intended cannot be considered legally recognisable loss and damage.
Professor Robert Edwards, the British scientist who pioneered in vitro fertilisation, was recently awarded the Nobel Prize for Medicine. But while Professor Edwards’ achievements have changed the lives of millions of infertile couples around the world, they have also given rise to a whole host of thorny ethical and legal questions. A recent decision by Mr Justice Gillen in an extremely unusual case has attempted to wrestle with some of these issues, and in particular with the rights (if any) of human cells.
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18 October 2010 by Matthew Hill
No victory this time
R (British Gurkha Welfare Society and ors) v Ministry of Defence [2010] EWCA Civ 1098 – read judgment
The Court of Appeal has rejected a fresh attempt, based on Article 14 of the European Convention on Human rights (anti-discrimination), to obtain equal pension rights for Gurkhas who served in the British Army before 1997.
The long-running campaign for Gurkha rights has been highly publicised and successful, but it has not ensured equality of treatment in respect of pensions. The MoD continues to calculate accrued pension rights at a lower rates for Gurkhas than for other soldiers in respect of service performed before 1997, the date on which the majority of Gurkhas ceased to be based in Hong Kong and were instead moved to the UK.
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15 October 2010 by Rosalind English
Communications from an accountant giving legal advice do not attract legal professional privilege. The rule is only available if the advice is sought from a lawyer.
Notices under the Taxes Management Act 1970 (“Section 20 notices”) were served on the appellant company by the Revenue with a view to investigating a commercially marketed tax avoidance scheme. The appellant asserted that the notices required production of documents by which they sought or received legal advice on tax matters, in some cases from counsel and foreign lawyers, and in others from accountants.
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14 October 2010 by Rosalind English
Full body scanners are to become the only security option for people flying out of Manchester Airport, the BBC reports today. The excessive amount of coverage given to the disapproval expressed by civil liberties groups has now been counterbalanced by passengers’ attitudes, since it appears that people actually prefer the scanners to the full body pat down, and have been voting with their feet.
According to Manchester Airport, 95% of travellers prefer the scanners and queuing times have been radically reduced. It takes 2 minutes to undergo a pat down, but a mere 27 seconds to pass through a scanner.
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11 October 2010 by Adam Wagner
Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.
Interestingly, two crucial aspects of open justice have been reinforced as a result of a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.
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8 October 2010 by Rosalind English
In his speech to the Conservative party conference, The foreign secretary William Hague has outlined the government’s plans for securing the sovereignty of parliament against the pressure of the European Union. He said:
A sovereignty clause on EU law will place on the statute book this eternal truth: what a sovereign parliament can do, a sovereign parliament can also undo … this clause will enshrine this key principle in the law of the land.
One commentator notes: “Tories plan fresh attacks on human and workers’ rights”. Another that there would be “subtle legal perils”.
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8 October 2010 by Isabel McArdle
(1)A Chief Constable, (2) AA v (1)YK, (2)RB, (3)ZS, (4)SI, (5)AK, (6)MH, [2010] EWHC 2438 (Fam) – Read judgment
The High Court has given guidance on the role which special advocates may play in forced marriage and honour violence cases. The controversial special advocates system has been used in anti-terrorism trials to prevent national secrets being revealed to terrorist subjects. However, recently the courts have roundly rejected attempts for the advocates to be used in non-criminal scenarios, on the basis that open justice is a fundamental legal right.
Forced marriage cases often involve information which it is in the public interest not to disclose because to do so would, for example, endanger police informants. Special advocates are not normally needed, because the legislation in question allows the courts to make orders to prevent forced marriages without those suspected of attempting to force a marriage from being notified at all.
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8 October 2010 by Adam Wagner
Ain't no sovereignty clause
Some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here.
Speeches: “The English Law of Privacy: An Evolving Human Right” – Lord Walker – UKSC blog: Supreme Court Justice Lord Walker of Gestingthorpe gave a speech to Anglo-Australasian Lawyers Society on the subject of privacy. The lecture contains an interesting overview of the current law of privacy, particularly in relation to the media.
Kenneth Clarke reveals what cuts will mean for the courts – Joshua Rozenberg: The Ministry of Justice has to make £2bn cuts from its £9bn budget (see our post on where the cuts are likely to come from). According the justice ministers’ Tory conference speech, legal aid is in line for a “total review” – no surprises there – and that popular panacea, alternative dispute resolution, will be encouraged and court discouraged. Rozenberg concludes: “Things are not going to get better and nobody should pretend otherwise. All we can hope for is the best publicly funded legal system that we can afford.” Difficult times ahead for access to justice.
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7 October 2010 by Adam Wagner
Updated | George Bathurst-Norman, the judge at the centre of the controversial acquittal of five activists against the 2008/9 Gaza war, has been officially reprimanded by the Office for Judicial Complaints.
The news was reported on Joshua Rozenberg’s Standpoint blog. The OJC press release says:
At short notice, the judge assigned to try a politically sensitive trial at Hove Crown Court on 28 and 29 June 2010 was unable to sit. To avoid an adjournment, His Honour Bathurst-Norman agreed to replace to him.
A number of complaints were made about some of the observations he made during the trial and summing up. An investigation found that a number of these observations did not arise directly from the evidence at trial and could be seen as an expression of the judge’s personal views on a political question. This was an error.
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7 October 2010 by Adam Wagner
Ghailani
The New York Times reports that those prosecuting Ahmed Khalfan Ghailani in the first civilian trial of a man held at Guantanamo Bay have suffered a setback: “just as the trial was to begin on Wednesday, Judge Kaplan ruled that he would not allow [a man who was to testify that Ghailani sold weapons to him] to testify. … the government had acknowledged that it had identified and located the witness through interrogation of Mr. Ghailani when he was earlier held in a secret overseas jail run by the Central Intelligence Agency. His lawyers have said he was tortured there.” The judge said:
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7 October 2010 by Maria Roche
Kevin O’Dowd v UK (application no. 7390/07) [2010] ECHR 1324 (21 September 2010) – Read judgment
The European Court of Human Rights has ruled that a man’s pre-trial detention did not breach his right to liberty. Mr O’Dowd, who had a previous conviction for rape, was denied bail despite the maximum custody time limit having expired.
Kevin O’Dowd was charged with rape, false imprisonment and indecent assault in early December 2001. He had a prior conviction for rape which brought him within the provisions of Section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) that bail should only be granted if there are exceptional circumstances justifying it.
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6 October 2010 by Adam Wagner
Updated Gamu Nhengu, a popular former-contestant on the X Factor TV series, has been ordered to leave Britain. In a recent human rights ruling, the Court of Appeal said that ‘value to the community’ can be taken into account in immigration cases. Could having the ‘X factor’ amount to value to the community?
Ms Nhengu, originally from poverty-stricken Zimbabwe, was rejected from the show’s final audition round, apparently as a result of her immigration status rather than her talent. The Daily Telegraph reports:
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6 October 2010 by Adam Wagner
Two prominent public law barristers spoke last night on the future of the Human Rights Act at the annual seminar organised by the Constitutional and Administrative Bar Association.
The seminar had a special significance as the HRA has just celebrated its 10th birthday. Both speakers looked to the future of the act in light of the coming budget cuts and economic austerity policies.
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In August we commented on the risk that long-awaited reform of the coronial system would be shelved by the Ministry of Justice, arguing that the wait for promised reforms had left relatives of the dead in legal limbo.
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