Naïve intentions, inferred imputations – The Human Rights Roundup

13 November 2011 by Graeme Hall

Sumption

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.

by Graeme Hall

In the news

Last Friday was the deadline for submissions to the Commission on a Bill of Rights consultation – please send your submissions to 1crownofficerow@gmail.com and we will publish them in a roundup later this week.

Is my presumed intention inferred from a fair imputation? How naïve!

Domestically, Jonathan Sumption QC, an at-some-time-in-the-future Supreme Court Justice, has been described by Joshua Rozenberg as demonstrating a certain ‘naivety’ when, in delivering the FA Mann Lecture, he argued that judges are too interventionist in policy decisions, and that parliamentary scrutiny is generally a sufficient safeguard to protect ‘the public interest’.

However, as seen by the Supreme Court’s decision in Jones v Kernott, criticism is something Mr. Sumption QC will have to get used to. The Supreme Court has ruled that where cohabitees purchase property in joint names, there is a presumption that they own it jointly unless an alternative intention between the parties can be inferred from the evidence or, where no intention can be inferred, an alternative intention can be ‘imputed’ by the judge.

There was disagreement amongst the Justices about how and whether an imputation can be made. Bloggers Lucy Reed, ObiterJ and nearlylegal are in agreement that the law remains unclear. The best advice, it would seem, would be to write down your intentions at the time of purchase and any subsequent changes to your intentions.

Abundant criticism this week for the European Court of Human Rights and the Supreme Court. Which one’s worse? You decide…

A British invasion of Strasbourg?

Strasbourg continues to dominate the headlines and, if you’ve missed anything, Dr. Ed Bates gives a thorough background to the Bill of Rights Commission, reform of the European Court and the UK taking the 6 months’ chairmanship at the Council of Europe.

The timing of the UK chairmanship coincides with a Brit, Sir Nicolas Bratza, taking over the presidency of the European Court. Despite a strong British presence within the Council of Europe institutions, this will not necessarily mean, as Adam Wagner has remarked, that the UK will be able to drive through a British agenda. Nonetheless, as The Economist notes, ‘6 months of hard diplomacy’ could result in a win-win situation  – greater efficiency at the European Court and the suspicious attitude with which human rights are regarded at home, improved.

Whilst in broad agreement with these conclusions, Joshua Rozenberg notes that the UK will most probably fail in its interventions to overturn the Court’s prisoner voting rights decision. The Attorney General’s appeals to the principle of subsidiarity (a legal doctrine seemingly adopted from EU Law), and/or to affording Member States a wide margin of appreciation in politically and socially sensitive matters, will not prevail in this instance.

Yet, the Court’s application of the margin of appreciation has also been criticised for being too wide. The Grand Chamber’s recent decision finding no violation of the Convention regarding Austria’s ban on sperm and ova donation for in vitro fertilisation has been convincingly condemned by Rosalind English. As Rosalind observes, it is difficult to reconcile why the Court has afforded States a wide margin in medical matters, but not in social policy matters. It also doesn’t sit well with previous decisions of the Court, including the ruling that prisoners have a right to artificial insemination.

For those who are itching to see some tangible changes at the European Court, a paper by the Robert Schuman Foundation discusses the progress being made over the European Union’s accession to the European Convention.

Other roundups

Lawthinks’ Latest human rights developments in the UK is a staple for human rights news; listen to David Green and Charon QC discuss all the recent legal news including Grieve, Assange, LASPO and legal aid on the Without prejudice special podcast; BBC Radio 4’s Law in Action discusses the Human Rights Act, the Commission and the European Court of Human Rights.

Case law commentaries from across the blogosphere

• Omotunde (best interests – Zambrano applied – Razgar) Nigeria [2011] UKUT 00247 (IAC), Free Movement Blog. Proportionality key when considering the deportation of foreign criminal who has a British citizen child.
• Aggregation and Article 10 in the First-tier Tribunal: Neither Needed, Robin Hopkins, Panopticon blog. FTT decision that Art 10 of the Convention does not include a right to request and access official information.
• Case Preview: Rabone & Anor v Pennine Care NHS Trust, Kirsten Sjvoll, UKSC blog. Examination of whether the operational duty to protect life under Art 2 of the European Convention is in play for informal mental health patients. Case heard by Supreme Court on 7^th November 2011.

In the courts

•  JM & NT, R (on the application of) v Isle of Wight Council [2011] EWHC 2911 (Admin). Isle of Wight council’s cuts in care for vulnerable adults were unlawful. Changes in eligibility criteria failed to pay due regard to needs of disabled under DDA.

• Cheshire West and Chester Council v P [2011] EWCA Civ 1257. Treatment of severely disabled, occasionally aggressive man was not deprivation of liberty – Court of Appeal provides useful guidance on DOL cases (para 102).

• Burnley Training College Ltd, R (on the application of) v Secretary of State for the Home … Admin Court: Refusal of licence for Burnley college under Home Secretary’s policy to prevent abuse by overseas students was unlawful.

• Jones v Kernott [2011] UKSC 53. Although under Stack v Dowden principle presumption is that when a family home was purchased in joint names they also intend to own it jointly in equity, this could be rebutted by evidence that this was not, or ceased to be, the parties’ intention. See: Cohabitees’ property rights: still as clear as mud, Lucy Reed, theguardian; Cohabitation: what about the house? Part 2, ObiterJ, Law and Lawyers blog; Jones v Kernott: ending the big debate?, nearlylegal.

• B, R (on the application of) v Derbyshire Constabulary [2011] EWHC 2362 (Admin). Reissue of Enhanced Criminal Record Certificate without chance to make representations did not breach art 6,8 ECHR, although original issue (not part of claim) would have.

• JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB). High Court rules Bishop of Portsmouth can be held vicariously liable for alleged sex abuse/rape by priest. See: Catholic church can be held responsible for wrongdoing by priests, Riazat Butt, theguardian; Bishop can be vicariously liable for priest’s sex abuse, rules High Court, Rachit Buch, UK HRB.

• Royal Brompton & Harefield NHS Foundation Trust v Joint Committee of Primary Care Trusts &…. High Court: Joint Committee of Primary Care Trust’s consultation on reconfiguration of paediatric congenital cardiac services was flawed and unlawful.

• Franzen-Ashwood & Ors v Letchworth Garden City Council [2011] Unreported. Local authority’s refusal to pay the enhanced notice periods to its employees amounted to a violation of Art 1 Prot 1 of European Convention on Human Rights.

…and don’t forget to take a look at our recent posts:

• A blueprint for a simpler, fairer justice system November 11, 2011 Adam Wagner
• Ban on fertility treatment does not breach Convention, says Strasbourg November 10, 2011 Rosalind English
• Listen to Northern Ireland’s advice on a UK bill of rights – Colin Harvey November 10, 2011 1 Crown Office Row
• Bishop can be vicariously liable for priest’s sex abuse, rules High Court November 9, 2011 Rachit Buch
• The law should not become “over precious” about human rights, says the Divisional Court November 8, 2011Rosalind English
• Social Services have both statutory and common law duty to protect children from abuse November 8, 2011Rosalind English
• 3 days to say whether you want a UK Bill of Rights November 8, 2011 Adam Wagner
• Be careful what you wish for? UK takes over in Strasbourg November 7, 2011 Adam Wagner