BEWARE statutory time limits to appeal: if you are late, you are out

Modaresi v. Secretary of State for Health & others [2011] EWCA Civ 1359, Court of Appeal

Any lawyer dealing with civil or criminal cases tends to think that, if there is a time limit for doing something in the case, then if that thing does not get done on time, the court may be lenient if there is good reason for extending time. The problem comes where the court is only given power to hear an appeal by a specific set of rules, and the rules say, for instance: you must appeal within 14 days of the decision. In the statutory context, that may mean precisely what it says. And the court, however sympathetically inclined, cannot do otherwise and allow a late appeal.

We see this from this mental health case. Ms Modaresi, who suffers from schizophrenia, was admitted to hospital on 20 December 2010 for assessment under section 2 of the Mental Health Act. Section 66 of the Act provides that where a patient is admitted to hospital in this way, “an application may be made to [the tribunal] within the relevant period” by the patient, and “the relevant period” means “14 days beginning with the day on which the patient is admitted”.

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Swearing, hacking and legal aid U-turns? – The Human Rights Roundup

Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

Phone-hacking

The Leveson Inquiry has had a star-studded parade of witnesses and phone hacking has dominated the headlines. This week’s highlights have been comprehensively covered by Inforrm’s Blog here, here and here.

David Allen Green, writing in the New Statesman, remarks that this Inquiry is a boost for democracy as it gives a voice to those who have been at the sharp end of press intrusion – normally all to easily ignored and silenced by papers. Freedom of expression, at least during the Inquiry, is not just the preserve of the press.

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Rights, responsibilities and the new Aids denialism

Ironically, during the week when South Africa’s notorious “Secrecy Bill” was making its speedy way through parliament, Helen Zille, Leader of the opposition Democratic Alliance party in South Africa, struck a blow for freedom of expression by tackling one of the  most sensitive subjects on the Southern Africa agenda – Aids.

In short, Zille has created a storm in the Twittersphere and many other places besides by questioning the softly-softly culturally sensitive approach to Aids prevention in South Africa and contrasting it with the greater emphasis placed on individual responsibility in other countries.

In her her piece in the Cape Times  she points out that in Europe, North America, Australia and New Zealand, deliberate infection of others with HIV is an imprisonable crime. Far from being a violation of HIV sufferers’ rights, she notes the high proportion of Council of Europe countries which have criminalised people for having unprotected sex, knowing they were HIV-positive, without disclosing their status. To us there is nothing controversial about these measures.

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Bratza bites back

I had intended to entitle this post “Bratza goes ballistic” which  would, for reasons I will explain, have been unfair. However, as reported by guardian.co.uk, the new British president of the European Court of Human Rights has pushed back strongly against the “vitriolic and – I am afraid to say, xenophobic – fury” of the reaction to recent rulings by the UK government and press, which he says is “unprecedented in my experience, as someone who has been involved with the Convention system for over 40 years.”

Safe to say, if anyone in the UK Government had been expecting an easy ride from the new, British born, president of the court, they will be disappointed by Bratza’s article in the European Human Rights Law Review. However, reading beyond the incendiary first few paragraphs, Bratza ends in a more conciliatory fashion, accepting many of the criticisms of the court and indeed offering suggestions for change.

I cannot link to the full text of The relationship between the UK courts and Strasbourg as it is only available on Westlaw, but I will quote some of the choice paragraphs.

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“Sons of Cadder” – Supreme Court rulings on legal advice during police interviews

Jude and others (Respondents) v Her Majesty’s Advocate (Scotand) [2011] UKSC 55 – read judgment;  McGowan (Procurator Fiscal, Edinburgh) (Appellant) v B (Respondent) [2011] UKSC 54 – read judgment

In these two cases the Supreme Court has considered whether  the failure to take up on  legal representation during police interview amounted to a waiver of the right of access to legal advice for the purposes of determining whether the trial had been fair.

Both cases involved detention of individuals which had taken place prior to the decision of this Court in Cadder v Her Majesty’s Advocate [2010] UKSC 43 (see our post)  and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials. Continue reading

Successful challenge to library closures: lip service not enough for equality duties

R (Green and others) v GLOUCESTERSHIRE COUNTY COUNCIL & SOMERSET COUNTY COUNCIL [2011] EWHC 2687 (Admin) – Read judgment

In the administrative court, the decisions of two local authorities to withdraw funding for library services were held to be unlawful. 

The court held that the withdrawal of a local library might indirectly discriminate against people with physical disabilities, women and the elderly.  Both councils had purported to carry out equality impact assessments but the mere fact that such an assessment had been conducted did not demonstrate that due regard had been given to the public sector equality duty.

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Free speech in trouble in South Africa

South Africa’s Protection of Information Bill is about to be transformed into a new secrecy law as it was pushed through parliament yesterday, Jan Raath reports in the Times. See our previous post on the details of the law’s scope and potential chilling effect on investigative journalism and whistleblowers.

In essence, if this bill becomes law it would allow any organ of state, from the largest government department down to the smallest municipality, to classify any document as secret and set out harsh penalties of up to 25 years in jail for whistleblowers.

Raath quotes Siyabonga Cwele, the Security Minister, as declaring last week that South Africa had been under

an increased threat of espionage since 1994 when it adopted a non-racial democratic Constitution. He denounced opponents of the Bill as “proxies of foreign spies”. Continue reading

Investigation team “lacks necessary independence” for MOD ill-treatment allegations

Ali Zaki Mousa v Secretary of State for Defence & Anr   [2011] EWCA Civ 133   - read judgment

Philip Havers QC of 1 Crown Office Row represented the respondent secretary of state in this case. He is not the author of this post.

The Court of Appeal has ruled that the Iraq Historic Allegations Team, set up to investigate allegations of ill-treatment of Iraqi detainees by members of the British armed forces, lacked the requisite independence to fulfil the investigatory obligation under Article 3  of the Convention.

The claimant was representative of a group of Iraqis numbering about 100 who brought judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces – see our post on the permission hearing.

The so-called “Iraq Historic Allegations Team” (IHAT) was set up to investigate these allegations. The IHAT included members of the General Police Duties Branch, the Special Investigation Branch and the Military Provost Staff. A separate panel, the Iraq Historic Allegations Panel (IHAP), was appointed to ensure the proper and effective handling of information concerning cases subject to investigation by the IHAT and to consider the results of the IHAT’s investigations, with a view to identifying any wider issues which should be brought to the attention of the Ministry of Defence or of ministers personally.

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Rights on the rocks: Some Bill of Rights Commission responses

Updated x 3 | One way or another, by the end of this Parliament, rights protections in the UK will look very different. If you could pull yourself away from the spectacle of actor Hugh Grant giving evidence to the Leveson Inquiry into phone hacking, the main event in yesterday’s live legal transmission bonanza was the second debate on the Legal Aid and Sentencing of Offenders Bill in the House of Lords.

Although the bill is likely to pass, it is likely to do so in slightly revised form – knowledgable tweeters were predicting that the domestic violence and clinical negligence provisions were most likely to be affected.

Meanwhile, over at the Commission on a Bill of Rights, the somewhat dysfunctional committee will be combing through responses to its recently closed consultation. I have collated some of the responses below, mainly from people who have sent them to me. What follows is an entirely unscientific summary.

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How private are patients’ dental records?

This is a case in which Philip Havers QC of 1 Crown Office Row appeared for the General Dental Council; he is not the author of this post.

The General Dental Council v Savery and others [2011] EWHC 3011 (Admin) – Read judgment

Mr Justice Sales in the High Court has ruled that the General Dental Council’s (GDC) use and disclosure of the dental records of fourteen patients of a registered dentist who was the subject of investigation was lawful.

The court also offered general guidance about how the GDC may proceed (particularly by reference to Article 8 of the European Convention on Human Rights, the right to privacy and family life) when it wishes to investigate allegations against a dentist of impairment of fitness to practise by reference to confidential patient records in the absence of consent from the patients in question.

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Hacking, secret justice and access to it – the Human Rights Roundup


Welcome back to the human rights roundup. Our full list of links can be found 
here. You can also find our table of human rights cases here and previous roundups here.

In the news

The Leveson Inquiry begins

Last week saw the start of the Inquiry into the culture, practices and ethics of the press, headed by Lord Justice Leveson. Proceedings can be followed via the Inquiry’s website, where you can either watch live hearings or videos of past hearings, a move welcomed by Adam Wagner as a “minor landmark for open justice.” Hugh Grant (pictured) as well as other celebrities and victims will be appearing this week to give evidence.

Blogger Obiter J reported that Lord Justice Leveson gave an interesting warning to journalists against unjustified coverage of the Inquiry proceedings. Such unjustified and hostile coverage, said Lord Justice Leveson, might lead to the “conclusion that these vital rights are being abused which would itself give evidence of culture, practice and ethics which could be relevant to my ultimate recommendations.” The warning, remarks Obiter J, may be perceived as the imposition of restriction on the media. The Inquiry’s opening day has been described as “dramatic”, particularly due to the powerful submissions made by Robert Jay QC, counsel for the Inquiry. Mr Jay QC, in a long speech, set out the purposes and concerns of the Inquiry and referred to evidence which may indicate that the practice of phone hacking at News International was a systematic one.

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Freedom of information – no longer the Cinderella of rights

BUAV v Information Commissioner and Newcastle University (EA/2010/0064) – read judgment

There is no doubt that freedom of expression plays a starring role in the human rights fairy tale. While she is carried aloft on the soaring rhetoric of citizens’ rights from the newsrooms to protesters’ rallies, the right to information, her shy stepsister, is rarely allowed out. How can that be? Surely we can’t have the one without the other?

The key lies in the Strasbourg Court’s traditionally restrictive interpretation of  the relevant part of Article 10 - “the freedom to … to receive and impart information” (10(1)). Although the right to information is explicit (unlike many of the other rights the Court has conjured from the Convention), it does not entitle a citizen a right of access to government-held information about his personal position, nor does it embody an obligation on the government to impart such information to the individual (Leander v Sweden (1987) 9 EHRR 433). This approach is changing, particularly in relation to press applicants. But the culture remains hostile; as the Court says  “it is difficult to derive from the Convention a general right of access to administrative data and documents” (Loiseau v. France (dec.), no. 46809/99, ECHR 2003-XII – a self-serving statement if ever there was one, given that it is not the Convention but the Court’s own case law that has been so tight-fisted in the past.

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Severely disabled man’s care plan not a deprivation of liberty – Court of Appeal

Chester West and Chester Council v. P (by his Litigation Friend the Official Solicitor) [2011] EWCA Civ 1257 – Read judgment / Lucy Series’ commentary

When assessing whether a patient’s care deprives him or her of their liberty, and thereby entitles them to the procedural protections under Article 5 (4) ECHR, the right to liberty, the Court of Appeal has ruled that the appropriate comparator is an individual with the same disabilities and difficulties who is not in care. The court also provided useful general guidance for deprivation of liberty cases.

P is a 39 year old man with Cerebral Palsy and Down’s Syndrome who lacks the capacity to make decisions about his care and residence arrangements as a result of his physical and learning disabilities.

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Climate change: No right to know effect of new EU rules

Sinclair v Information Commissioner and Department of Energy and Climate Change EA/2011/0052 (08 November 2011) – Read ruling

The Environmental Information Regulations 2004 (“EIR”) did not require the Department of Energy and Climate Change (“DECC”) to disclose information concerning the government’s analysis of the potential cost to the UK of strengthened climate change commitments by the EU, the First-tier Tribunal (General Regulatory Chamber, Information Rights) has held.

In March 2007, the EU announced a target to reduce emissions by 20 percent on 1990 levels by 2020 and increase it to 30 percent under certain conditions. The issue of whether the EU would accept the increased target was debated during the 2009 Copenhagen Conference, but not agreed upon. It therefore remains a live issue.

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Freemen of the dangerous nonsense

Updated x 2 | Today, guardian.co.uk’s Comment is Free (CIF) was “taken over” by the Occupy London movement. This has led to two particularly worrying articles being published. Both purport to offer legal advice which, if followed, could lead you straight to prison.

For that reason, Guardian CIF goes straight to the legal naughty step, where it can share a tent with the Occupy London movement. I understand that the Guardian’s online legal editors had nothing to do with the commissioning of the articles, and I also realise that “comment is free“. But there has to be a limit, and there is a huge difference between a controversial but plausible point of view and quackery. As C. P. Scott’s phrase continues “… comment is free but facts are sacred“.

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