More fossil fuel power stations in the news (see my previous post), and more struggling with which bits of Euro environmental law ordinary people are allowed to enforce, and which bits are for the Commission.
Various NGOs challenged the grant of permits to 3 new power stations in the Netherlands, because the state was exceeding its emission limits for sulphur dioxide (SO2) and nitrogen oxides (NOx) and the grant of permits would simply add to these exceedences. The case was referred to the CJEU. The Advocate-General thought that the exceedences were relevant to whether the permits should be granted – her opinion has been translated into virtually all Euro languages (including Maltese) but not English. Last week, the CJEU disagreed - in English.
The problem arose because the EU made two directives which didn’t talk to each other.
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here. Happy post Bank Holiday reading!
In the news:
Whilst the Neuberger Committee’s report is arguably the best place to kick-off any discussion on privacy, freedom of expression and Super-Injunctions, it is not, as Inforrm’s blog concludes, the “last word” on the matter. Indeed, this “overinflated topic” has been tackled with such gusto by the press and blogosphere that the High Court clearly gave a yellow card for “widespread disobedience“.
Updated x 2 | Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts. Part 1 is here.
Meanwhile, north of the border in Scotland, a more significant constitutional storm may be brewing following Wednesday’s decision of the UK Supreme Court in Fraser v Her Majesty’s Advocate. Rosalind English has already posted on the ruling, which related to a Scottish murder appeal. As Rosalind said,
this was a Scottish criminal case and the Supreme Court would normally have had no business dealing with it … The Supreme Court’s appellate jurisdiction extends only to a consideration of a “devolution issue” , including whether an exercise of a function by a member of the Scottish Executive is incompatible with any of the Convention rights.
Parliament, through Schedule 6 to the Scotland Act 1998, has given the Supreme Court jurisdiction in relation to devolution issues arising in criminal proceedings. It has been suggested that this was to ensure that a consistent and coherent view upon them could be given across the UK.
Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.
Starting with the Sharon Shoesmith decision
, which has been helpfully summarised by Obiter J
. The Spectator reports
that the Secretary of State for education Michael Gove intends to appeal the decision to the Supreme Court. The reported grounds of that appeal, gleaned from “Whitehall sources”, are interesting. Although Gove “recognises that Balls blundered in the way he dismissed her
he also believes that there are important constitutional principles at sake in this case about how Ministers make important and urgent decisions and what the role of the courts is in challenging such decisions. Gove wants the Supreme Court to consider these issues because of the huge importance of judicial reviews, which are being used repeatedly by opponents of the government to try and stymie its agenda.
What happens when the government changes its mind about an existing law but new law has not yet been enacted?
Easy, really. You have to follow the old law, whatever the government may currently think about it. But it gets more complicated when the area of law, like planning, has a wide area of policy-making and policy-following built into it. So now we have old law, and new policy announced but no new law yet to underpin that policy other than in the broadest sense.
Shoesmith, R (on the application of) v OFSTED & Ors  EWCA Civ 642 (27 May 2011) – Read judgment
In April 2005, Sharon Shoesmith was appointed as Director of Children’s Services at Haringey London Borough Council. The appointment by a Council of such an officer is a statutory requirement - Children Act 2004 s.18. “Baby P” – who was the subject of a Child Protection Plan put in place by Haringey Social Services – died on 3rd August 2007 aged 17 months.
Those directly responsible for his death were eventually all convicted under the Domestic Violence, Crime and Victims Act 2004 s.5. Their trial, at the Old Bailey, ended on 11th November 2008. To say the least, the trial was followed by a media hue and cry demanding that heads roll.
Fraser v Her Majesty’s Advocate  UKSC 24 (25 May 2011) - Read judgment
The Supreme Court has had to consider (for the second time in a month) the ticklish question of what constitutes a “miscarriage of justice”.
The business is rendered more ticklish because this was a case being handled by the High Court of Justiciary, the court of last resort in all criminal matters in Scotland.
Our previous post questioned whether the finding of a miscarriage of justice entitled the individual, whose conviction is quashed, to compensation for the slur on their innocence. Here the Court scrutinises the actual diagnosis of a miscarriage of justice. They had to do so in this case because their jurisdiction depended on it. This needs some explaining.
In 1991 US band Salt-n-Pepa reached number 2 in the UK charts with Let’s Talk About Sex. It is difficult to imagine now, 20 years on, why such an inoffensive and gently educational song generated huge controversy.
That difficulty highlights how much less prudish we are about sex now than we were then. Salt-n-Pepa talked about sex on the “radio and video shows“. Now the song would include Twitter, YouTube and Facebook too. In the post-internet age, sex is everywhere. So why are judges and politicians still making decisions about whose sex the public can or cannot talk about?
The Supreme Court has delivered three judgments this morning, all of which are of interest from a human rights perspective. We will cover them in more detail soon, but for now, a brief summary.
First, murder. In 2003 Nat Fraser was convicted of murdering his wife and sentenced to 25 years in prison. In Fraser (Appellant) v Her Majesty’s Advocate (Respondent)  UKSC 24, the court unanimously decided to quash his conviction send back to a Scottish appeal court the question of whether a new prosecution should be brought.
Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis  EWHC 1314 (Admin) (23 May 2011) - Read judgment
The police may have a duty under article 8 of the European Convention on Human Rights (the right to privacy) to inform members of the public that their phone calls have been intercepted.
This was only a judicial review permission hearing, which means that the full “substantive” judicial review will still have to be argued at a later date. In short, the case is the latest in the long-running News of the World phone hacking affair (see this post and this one on Inforrm’s Blog for the latest developments).
AP (Trinidad & Tobago) v Secretary of State for the Home Department  EWCA Civ 551 Read Judgment
In the ongoing controversy over the deportation of foreign offenders, the Court of Appeal has decided that the Immigration Tribunal had not made a mistake of law in deciding that a foreign citizen who had lived in the UK since the age of 4 and had been convicted and sentenced to 18 months imprisonment for a drugs offence, following a string of other offences, should not be deported.
The Court of Appeal also commented on the interaction between the Tribunal and appellate courts and a potential distinction between ‘foreign criminals‘ as defined by the UK Borders Act 2007 and other foreign offenders.
Lots of lawyers are blogging and tweeting. Should they be?
I spoke last Thursday at the second #lawblogs event, kindly hosted in the grand (not to mention establishment) surrounding of The Law Society. The event was attended by around 75 people, most of whom had a passion for legal blogging and tweeting. You can read the Twitter feed of the event here, or reviews by James Wilson, Mike Scutt, James Dean of The Times (paywall) and The Guardian’s Siobhain Butterworth .
One issue which I tried to explore was the professional ethics of lawyers blogging and tweeting. There are a number of questions which lawyers could, and probably should, ask themselves before making their social media debut . Is it right for lawyers to comment publicly on the law? What about on their own cases? And might there be a positive ethical duty to explain the law to the general public?
We reported last week the Supreme Court ruling in R (on the application of GC) (FC) (Appellants) v The Commissioner of Police of the Metropolis (Respondent) in which the majority found that they could interpret the DNA retention provision in the Police and Criminal Evidence Act (PACE) in such a way that it would be compatible with article 8 of the ECHR.
Not only that; the Court concluded that such a reading could still promote the statutory purposes: ” Those purposes can be achieved by a proportionate scheme.”
John Hemming MP has somewhat predictably “revealed” the name of a footballer who has been trying to keep his alleged affair with a reality TV contestant private, and breached the traditional “sub judice” rule in the process. Does this mean that the privacy injunction in question is now effectively defunct?
Hemming made his move just hours after Mr Justice Eady in the High Court maintained the injunction against an application by News Group International, despite the fact that many users of Twitter have apparently revealed his name. Eady took a principled stance:
Should the court buckle every time one of its orders meets widespread disobedience or defiance? In a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.
Buglife, R (on the application of) v Natural England  EWHC 746 (Admin) – Read judgment
All public lawyers know that judicial review must be commenced “promptly and in any event not later than 3 months” after the public act complained of, failing which a claimant is at the mercy of the court as to whether to extend time.
And the word “promptly” in that context means that one can bowl out a claim even if it is commenced within those 3 months: see the Court of Appeal in Finn-Kelcey.
Or perhaps not. A recent environmental case, Buglife, grapples with this problem, and decides that, on the contrary, a claimant has an “unqualified entitlement to a period of up to three months before it must file its claim.” Hence the decision is of real practical importance, and there are big questions about its “reach”. Continue reading