Monthly Archives: December 2010

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The Redfern Inquiry: the latest investigation into the removal and retention of human tissue

November saw the publication of the report of the Redfern Inquiry into human tissue analysis in UK nuclear facilities (read the report, here).

The inquiry was the latest in a number of investigations looking at the post mortem removal, retention and disposal of human body parts by medical and other bodies, and the extent to which the families of the deceased knew of and consented to such practices. The Inquiry chairman, Michael Redfern QC, also chaired the Royal Liverpool Children’s Hospital (Alder Hay) Inquiry.
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Criminals have human rights too, says Court of Appeal

Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor [2010] EWCA Civ 1443 (15 December 2010) – Read judgment

The Court of Appeal has ruled that the family of a drug smuggler who died after being poisoned by 116 swallowed cocaine packages can bring a human rights claim against the state, despite his criminal behaviour.

The decision will anger those who say that the Human Rights Act is no more than a villains’ charter, doing more to protect the rights of “asylum seeker death drivers” and the murderers of headmasters. However, the court has done no more than confirm the basic principle that human rights are for all, not just for people we like.

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Ireland abortion ruling – the aftermath

With the Pope giving his first “thought for the day” on this morning’s Today program, it seems a good opportunity to revisit the European Court of Human Right’s recent decision on abortion in Ireland. The emerging consensus is that the European court went no further than it needed to, and did little more than reasserting the status quo in Irish law.

The Pope, and the Roman Catholic Church which he heads, is against abortion. One of the effects of this is that states in which the Church is influential tend to have less liberal abortion laws. Ireland is such a state, and abortion is mostly illegal, except in certain very limited circumstances where the mother’s life is threatened.

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Defamation again: Mrs Clift wins in the Court of Appeal

Don't step on them

Last year I blogged about Mrs Clift winning a claim for defamation against Slough Borough Council. The facts are in the earlier post. Slough’s appeal was rejected by the Court of Appeal in Clift v Slough Borough Council [2010] EWCA Civ 1171.

While the point in issue was whether Slough could rely on a defence of qualified privilege against Mrs Clift’s claim, I think the decision has wider implications and is therefore relevant to housing practice. The court’s reasoning on Article 8 of the ECHR should be familiar to housing lawyers. In the court’s view, the publication of damaging allegations about Mrs Clift interfered with her rights under Article 8(1) and the council was therefore bound not to pass those allegations on unless in doing so Article 8(2) was satisfied – which it manifestly was not in Mrs Clift’s case. Via some relatively complex reasoning related to the ways in which qualified privilege has been analysed by the courts, this meant the council could not raise the defence and so their appeal was lost.

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Please release me

Stellato v Ministry of Justice  [2010] EWCA Civ 1435 – Read judgment

The court of appeal has ruled that when a court set a deadline for a prisoner’s release, that deadline could was not lawfully extended simply because a court needed time to hear an appeal against the decision to release him.

In other words, prisoners must be released on time unless a court explicitly rules otherwise. Absent such a ruling, any additional time spent in custody waiting for a hearing will be unlawful detention and could trigger damages.

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A welcome clarification for relatives of the dead

Legal Services Commission v Humberstone, R.( On the application of) [2010] EWCA Civ 1479 (21 December 2010) – Read judgment

The high court was right to quash the decision of the Legal Services Commission not to recommend public funding for a mother to be represented at the inquest into the death of her 10-year-old son. However, the court of appeal has ruled that the judge’s conclusions on when the state was obliged to conduct an expanded inquest into a death were confused.

The court of appeal has upheld the decision of Mr Justice Hickinbottom in the high court, although Lady Justice Smith came to her decision by a different route and criticised his reasoning. The case is important as it lays down guidelines for when legal representation for relatives of the dead should be funded at inquests, an often controversial issue, and how this fits with the state’s duties to investigate deaths under the European Convention on Human Rights. These duties have, partly as a result of Mr Justice Hickinbottom in this case, fallen into confusion, and the court of appeal has given a welcome clarification.

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“Asylum seeker death driver” case was misunderstood

The Secretary of State for the Home Department v Respondent [2010] UKUT B1 – Read judgment

There has been public outrage over the ruling of two Senior Immigration Judges that it would be unlawful to deport Aso Mohammed Ibrahim, an Iraqi Kurd, who has been labelled an “asylum seeker death driver”

The fury has not been limited to the lay public or the media, but “great anger” has also been expressed by high-profile figures such as Prime Minister David Cameron, a well-known critic of the Human Rights Act. The Government’s embarrassment over the decision has prompted Immigration Minister, Damian Green, to announce that the UK Border Agency (UKBA) will appeal the decision, and there have been more drastic calls from Tory MPs for the scrapping of the Human Rights Act.

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Bite-size human rights case law

Lots of judgements are being released this week as judges tie up their business in time for the holidays. Here is a quick roundup of human rights cases.

More trouble for the LSC tender process

  • Hereward & Foster Llp & Anor v The Legal Services Commission [2010] EWHC 3370 (Admin) (21 December 2010) A number of different organisations have attempted to judicially review the much criticised Legal Services Commission tender of publicly funded work, initially the Community Law Partnership and most notably (and successfully), the Law Society. In this case a solicitor has had its permission application refused regarding the LSC’s immigration tender as it was out of time, but the court  did find that the “supervisor attendance criteria” imposed by the LSC indirectly discriminated against women as in privileging round-the-clock service, it prejudiced part-time over full-time workers (see para 62 for a summary of the judge’s conclusions). So a partial (moral) victory for the solicitors, with the immigration tender process looking in trouble and vulnerable to future challenges on indirect discrimination grounds.
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United Nations restores sexual orientation clause to extrajudicial killings resolution

Updated | The reference to sexual orientation in a resolution on extrajudicial, summary and arbitrary executions has been restored. The General Assembly voted 93 in favour of the US proposal, with 55 countries voting against and 27 abstaining, with some 16 delegations taking the floor to explain their position.

As previously reported, for the first time since 1999 the resolution would not have expressly condemned such killings on the grounds of sexual orientation following an amendment by the African Group and the Organization of the Islamic Conference.

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Enemy of the people – what price water information?

Smartsource v Information Commissioner + 19 other parties [2010] UKUT 415 (AAC) 23rd November 2010 – read judgment

Ibsen’s Enemy of the People has Dr Stockmann complaining to his Norwegian municipality about contamination of its water supply. We think that these sorts of disputes are part of a modern problem, so it is striking to find Ibsen being invoked, judicially, in this far from 19th century fight about environmental information.

The question was the less than dramatic one as to whether information about water and wastewater billing etc was environmental information, and that in turn involved deciding whether water companies and sewage undertakers were “public authorities”. Ibsen might not have found that answer too difficult to provide: what local authorities used to do in the 19th century and much of the 20th century, here, in Norway, and elsewhere, included supplying you with clean water and taking away your foul water. Continue reading →

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Unjustified Delay in Parole Hearing Breached Prisoner’s Human Rights

R (on the application of Daniel Faulkner) v Secretary of State for Justice and Anor [2010] EWCA Civ 1434 – Read Judgment

The Court of Appeal has upheld the appeal of prisoner who spent 10 more months in prison than he should have, due to unjustified delay in having his case heard by the Parole Board. The court found that there had been an infringement of his rights under Article 5(4) of the European Convention on Human Rights (ECHR).

In 2001 Daniel Faulkner was convicted of causing grievous bodily harm with intent (an offence under section 18 of the Offences Against the Person Act 1861). As this was his second offence of this nature, he was sentenced to custody for life, with the minimum period he had to spend in custody being set at two years, eight and a half months. That period expired on 18th April 2004 and he became eligible for parole.

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Permission to tweet in court to be decided on case by case basis

The Lord Chief Justice has issued interim guidance on the use of live text-based forms of communication, including Twitter, from court for the purpose of fair and accurate reporting.

For the time being, it will be possible to apply to a judge for permission to turn on one’s mobile phone or computer in order to tweet. Judges must consider whether the application “may interfere with the proper administration of justice“. The most obvious purpose for permitting the use of live, text-based communications “would be to enable the media to produce fair and accurate reports of the proceedings.”

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Slow but steady on access to environmental justice from supreme court

R (on the application of Edwards and another) (Appellant) v Environment Agency & others(Respondents) [2010] UKSC 57 – Read judgment

The development of the principles of access to justice in environmental cases moves on apace.

This case arose out of a failed attempt to seek judicial review of the Environment Agency’s decision to issue a permit for the operation of a cement works. The application was made under the Environmental Impact Assessment Directive 85/337/EC and the Intergrated Pollution Prevention and control Directive 96/61/EC, both of which incorporate Article 9 of the Aarhus Convention, which requires that costs for environmental proceedings should not be prohibitively expensive.

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US ten years behind Britain on gay soldiers

Updated | Following the US Senate’s vote to repeal the ban on gay soldiers serving in the US military, it is interesting to compare the situation in the British Army, where gay soldiers have been allowed to serve since 2000.

The UK government was in fact forced to change its policy following a series of court rulings, as the US government might have been if the “don’t ask, don’t tell” policy had made it to the Supreme Court, which was looking inevitable before the Senate vote.

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