Monthly Archives: February 2012

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Analysis: Occupy London loses final eviction court challenge

The Mayor Commonality and Citizens of London – v - Samede, Barda, Ashman, Randle-Jolliffe, Moore and Persons Unknown [2012] EWCA Civ 160 – Read judgment

Members of the Occupy London Movement who have been occupying an area close to St Paul’s Cathedral have had their applications for  permission to appeal the decision of the lower court to evict them refused by the Court of Appeal.  The judgment of Mr Justice Lindbolm was deemed ’very full and careful’by the Master of the Rolls.  Shortly after midnight yesterday police began evicting occupants at the site.

In January we reported on the High Court battle between the City of London and the Occupy London Movement who had been occupying an area close to St Paul’s Cathedral. Mr Justice Lindbolm’s well-reasoned decision to grant possession, interlocutory and declaratory relief to the Mayor Commonality and Citizens of London meant that the Occupy Movement were to be evicted.

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My witness statement to the Leveson Inquiry – Part 1/2

Not me giving evidence

Last month I was asked to provide a witness statement to the Leveson Inquiry into Culture, Practice and Ethics of the Press. Yesterday it was “read into evidence”, which means I can now publish it. You can download the entire statement here, and I have reproduced (what I think are) the interesting bits below and in a follow-up post. The questions in bold are those asked by the Inquiry in their request. I have not been asked to give oral evidence.

The extent to which you consider what ethics can and should play a role in the blogosphere, and what you consider ‘ethics’ to mean in this context.

The definition of “blogging” is now extremely wide, so much so that the term “blog” has become in essence meaningless.

A blog can be a “web log” within the original meaning of the word, that is a “personal journey published on the World Wide Web consisting of discrete entries (“posts”)” (Wikipedia), but it can also be a news and comment website such as UKHRB, a photo-sharing website, a website promoting a business – practically any website can call itself a blog. Mainstream newspapers now produce “blogs” online and as such the boundary between traditional journalism and blogging has also become unclear.

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Judge releases court papers in hacking cases

Application by Guardian & Various Claimants v. NGN & Mulcaire- read judgment

A high court judge has allowed the media unrestricted access to documents submitted to the court for use in litigation by victims of phone hacking who have now reached settlements with News Group Newspapers (NGN).

Full disclosure of this material was resisted by the private investigator Glenn Mulcaire on the grounds that it would create a “substantial risk” that the course of justice in the criminal proceedings he faces will be seriously impeded or prejudiced. The Telegraph and other papers have now published passages of the documents which were previously censored following this order from Vos J, the judge who has presided over more than 50 hacking claims against NGN.

Mulcaire was jailed in 2007 together with Clive Goodman, the News of the World’s then royal editor, after police found they had hacked phones belonging to members of the Royal household. The Telegraph reports that a section of the documents released in these proceedings that had been previously redacted

alleges that from 1998, when Mulcaire first started working with the News of the World, he “entered into a conspiracy with senior executives of [NGN] including Clive Goodman and Journalists A,B,C,D and E whereby he would, on their behalf, obtain information about individuals of interest to [NGN] journalists and use electronic intelligence and eavesdropping in order to obtain this information. Continue reading →

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Draft declaration on British ECHR reform plans leaked – Antoine Buyse

Updated | The French translation of the draft of the so-called ‘Brighton Declaration’ (the seaside city where state parties to the ECHR will meet in April to discuss reforms of the Court and the Convention) has been leaked after the UK government refused to circulate the text publicly.

Last week, the draft was presented to the Ministers’ deputies of the Council of Europe. Amongst other, the draft suggests to include the principle of subsidiarity and the margin of appreciation explicitly in the Convention text – I am not sure what that would change to current practice, unless it becomes mandatory for the Court to give a margin of appreciation.

Also, the time to lodge complaints after all domestic remedies have been exhausted would possible be reduced from the current six months to two, three or four months. One of the most controversial aspects is that the Court would be barred from considering cases “identical in substance to a claim that has been considered by a national court”, according to BBC reporting, “”unless the national court “clearly erred” in its interpretation, or raises a serious question affecting the interpretation of the Convention” according to the Open Society Institute. This would carry in it the danger of almost completely taking away any substantive role for the European Court of Human Rights.

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The democratic legitimacy of human rights

Why should we bother with the European Convention on Human Rights? Many of those that would never contemplate leaving the ECHR still question whether we should abide by controversial decisions such as those on prisoners’ voting rights or deportation. UCL’s Professor Richard Bellamy attempted to answer this question at the Statute Law Society’s talk on Monday evening. He said that the UK should abide by the ECHR, which gains its legitimacy by being the best way for democratic states regulate their relationships and protect their citizens’ rights.

The talk was entitled ‘The Democratic Legitimacy of International Human Rights Conventions’ (IHRCs). Although perhaps not in such terms, this is a topic that exercises many every week: from those questioning who exactly decides which human rights are the ones that count, to those asking why ‘unelected judges’ in Europe can tell a democracy how to govern itself. Professor Bellamy started by noting that mature democracies are generally less keen on IHRCs; at the post-war inception of the ECHR, he said it was Germany and Italy showing most enthusiasm. Even now, many ‘democratising’ countries show less opposition to Europe’s human rights structures.

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Boat owners, bullying and the British Waterways Board

Moore v British Waterways Board [2012] EWHC 182 (Ch) – read judgment

From time to time, the courts are called upon to explain who holds the power to order people about, and why they have it. In Roger Deakin’s classic celebration of swimming the wild waterways of Britain, his one grouse is against the officiousness and overweening behaviour of the government bodies in charge of this country’s network of streams and rivers.  If Deakin had been alive today he would have applauded the dedication of Mr Moore, a scholarly litigant in person whose challenge to the British Waterways Board elicited from Hildyard J this massively detailed and scrupulous analysis of the source of the BWB’s powers.

The appropriately-named Mr Moore’s primary claim was that the BWB simply lacked the power to issue notices of intended removal of his boats moored on the Grand Union Canal. His argument, that BWB’s actions were unlawful and unenforceable,  required not only a “ trawl through numerous statutes affecting the GUC since the Act which authorised the construction of the canal, the Grand Junction Canal Act 1793″ , but a deep consideration of all the ancient pre-existing water rights that may or may not have been extinguished by that and later acts of parliament. Continue reading →

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Legal claims can now be served via Facebook, rules High Court

Social networking sites may now be used to serve claims where there are difficulties in locating one of the parties.  

In a commercial case involving claims against a broker for overcharging commission, the claimants were not sure of the broker’s last known address. They served a claim at this address but also sought permission from Teare J to serve via the broker’s Facebook address, after providing evidence of the account being updated. The judge extended the time for the defendant to respond to the claim because of uncertainty as to how frequently he checks his Facebook account.

The Telegraph reports that Facebook “is routinely used to serve claims in Australia and New Zealand, and has been used a handful of times in Britain.”

In 2009 Lewison J allowed an injunction to be served via Twitter in a case where the defendant was only known by his Twitter-handle and could not easily be identified another way. But this is the first time that a claim (as distinct from an order) has been permitted at such a high level to be served in this way.

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Student fees, access to justice and Leveson Part II – The Human Rights Roundup

Welcome back to the human rights roundup, your weekly buffet of human rights news. The 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

Legal aid reforms

The proposed reforms to legal aid are divisive: they are either necessary to combat a society of blame and litigation, or a disastrous reduction of access to justice for those who can’t afford legal fees. The subject is given in-depth treatment on BBC Law in Action with Joshua Rozenberg. The podcast, discusses what effects the reform bill will have on lawyers, claimants and defendants. This post on The Justice Gap, by Alice Forbes, explores some of the more specific effects the reforms will have on the type of advice (and more importantly, legal remedies) available to claimants.

UKHRB news

In exciting news for this blog, UKHRB editor Adam Wagner has been appointed to the Attorney-General’s C panel of Counsel. See here for more detail on what this involves.

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Italy lose in Europe over asylum seeker boat interception – Henry Oliver

Hirsi Jamaar and Others v. Italy (Application no. 27765/09) – Read judgment

The European Court of Human Rights has held that a group of Somalian and Eritrean nationals who were intercepted by Italian Customs boats and returned to Libya fell within the jurisdiction of Italy for the purposes of Article 1 of the European Convention on Human Rights . The return involved a violation of Article 3 (Anti-torture and inhumane treatment), Article 4 of Protocol 4 (collective expulsion of aliens), and  Article 13 (right to an effective remedy). The patrols that returned migrants to Libya were in breach of the non-refoulement principle.

The applicants were eleven Somalian nationals and thirteen Eritrean nationals who were part of a group of two hundred migrants who left Libya in order to reach the Italian coast. On 6th May 2009 Italian ships intercepted them 35 miles south of Lampedusa and returned them to Triploi, in Libya. During the voyage the migrants were not told where they were going (they assumed they were being taken to Italy), nor were they identified.

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First they came for the journalists…

News of the deaths of Sunday Times reporter Marie Colvin and French photographer Remi Ochlik and the serious injuries of photographer Paul Conroy and Edith Bouvier, a freelance journalist reporting for Le Figaro, from a mortar shell that hit the building in Homs, Syria that they were using as makeshift media centre has saddened and shocked reporters and readers. So does a sobering list of more than fifteen of their professional colleagues who have also died reporting the Arab Spring.  Worse still are reports that the journalists may have been deliberately targeted by the Syrian government forces.  It is a reminder that journalists are offered too little protection by international law.

It is clear from the many tributes to her that Ms Colvin was an extraordinary person:  a woman of verve, replete with humanity, she was fearless in the face of carefully assessed and weighed risk.  In 2001 after losing an eye in a grenade attack by a Sri Lankan government soldier whilst reporting on the Tamil Tigers, she wrote:

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Poor not singled out by rise in university fees, rules court

Hurley and Moore v Secretary of State for Business, Innovation and Skills [2012] EWHC 201- read judgment

This judgment, the latest in an expanding list of decisions on challenges to the Coalition government’s spending cuts, is an interesting example of judicial restraint and deference to the government on issues of macro-policy, at a time when the extent of judicial intervention into political decision-making is the subject of much debate in the legal profession and academia, thanks to Lord Sumption’s  FA Mann Lecture  on the subject late last year (see our post) and its recent rebuttal by Sir Stephen Sedley (discussed here).

The High Court (Elias LJ and King J) dismissed an application by two sixth form students for a quashing order against the regulations implementing the Government’s decision to raise the statutory cap on University tuition fees to £6,000 per year generally and £9,000 per year for qualifying courses. It did, however, grant a declaration that in reaching that decision, the Secretary of State for Business, Innovation and Skills had failed fully to comply with his public sector equality duties. Continue reading →

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Crimes committed by victims of human trafficking – should they be prosecuted?

R v N; R v LE [2012] EWCA Crim 189 – read judgment

This was the first occasion when the Court of Appeal has considered the problem of child trafficking for labour exploitation. It has not previously been subject to any close analysis following the coming into force in 2005 of the  European Convention on Action against Trafficking in Human Beings . In this particular case the Court concluded that the Crown Prosecution Service was entitled to prosecute foreign national youths with drug offences, despite the UK Border Agency accepting that they may have been smuggled or trafficked into the UK. But it sets out clear principles and authorities for the application of the protective mechanism of the Trafficking Convention for future prosecutions where there is evidence of human trafficking. Continue reading →

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Michael Gove’s full letter on homophobic teaching materials in schools

The Trade Union Congress have sent me the full letter (download here) which Education Secretary Michael Gove sent to its leader Brendan Barber in relation to a complaint about seemingly homophobic booklets distributed to Roman Catholic schools in Lancashire. The letter which Mr Barber sent to Mr Gove is here.

I complained in this post that the excerpt of the response published by The Observer appeared to misunderstand the provisions of the Equality Act which apply to schools. I also said that the quote in the article could have been out of context. In short, it was. Here is the full paragraph, which presents a much fairer representation of the law:

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Keeping it controversial: Religion, deportation and open justice – The Human Rights Roundup

Welcome back to the human rights roundup, your recommended weekly dose of human rights news. The 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

Religion and the State

Following on from last week’s ruling from the High Court that Christian prayers held before a council meeting were unlawful, the Court of Appeal this week upheld a ruling that two Christian hotel owners had discriminated against gay clients by not offering them a double room.

In yet other news, the Education Secretary Michael Gove is embroiled in a row concerning the distribution in schools of a booklet containing homophobic material. In response to complaints, Gove has insisted that the education provisions of the Equality Act 2010 do not extend to the content of the curriculum. For an analysis of why Gove is incorrect on this score, see Adam Wagner’s post.

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Belgium bitten by Aarhus – again

Solvay, CJEU, 16 February 2012 read judgment

This case is a sequel to C-128/09 Boxus, CJEU, 18 October 2011, for which see my post. Boxus was a reference from the Belgian Conseil d’Etat. Solvay was a reference from the Belgian Constitutional Court, with a wide set of questions asking, in effect, whether ratification by the Walloon Parliament of various airport and railway projects got round various challenges set by the Aarhus Convention, the EIA Directive, as amended, and the Habitats Directive.

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