Modaresi v. Secretary of State for Health & others  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”.
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 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.
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.
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.
Jude and others (Respondents) v Her Majesty’s Advocate (Scotand)  UKSC 55 – read judgment; McGowan (Procurator Fiscal, Edinburgh) (Appellant) v B (Respondent)  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  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
R (Green and others) v GLOUCESTERSHIRE COUNTY COUNCIL & SOMERSET COUNTY COUNCIL  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.
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