Passive smoking in prison not a breach of human rights – Court of Appeal

Cigarette_smokeSmith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  [2014] EWCA Civ 380 – read judgment

This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.

The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.

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Irascible does not mean incapable – Court of Protection

brain-in-headWandsworth Clinical Commissioning Group v IA (By the Official Solicitor as his Litigation Friend) [2014] EWHC 990 (COP) 3 April 2014 – read judgment

This was a case about determination of mental capacity,  which both judge and counsel described as “particularly difficult and finely balanced”.  The judge was confronted with a great deal of conflicting evidence about the capabilities of the individual in question, but concluded in the end that

His capacity may be seen to have fluctuated in the past; this is in my judgment more likely to be attributable to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness … than the progression of symptoms of his acute brain injury.

Background

IA is a 60 year old man from a professional family and himself a physics graduate who once ran his own business. But his life has been eroded by extremely poor health, Type II Diabetes and related disabilities such as anaemia and partial blindness. Then in 2007 he was the subject of a violent criminal assault, being repeatedly kicked in the head, leaving him with a serious head injury, involving skull fractures, brain haemorrhage and contusions to the right frontal area of the brain.  Continue reading

Anonymity protection for under age defendants expires when they are 18: High Court

youth offencesJC and another v the Central Criminal Court [2014] EWHC 1041 (QB) (08 April 2014) – read judgment

This case raises the question whether an order made under s. 39 of the Children and Young Persons Act 1933 … prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age of 18 years. It has wide implications not only for young defendants but also for victims, witnesses, others concerned in proceedings and, of course, the media. [Sir Brian Leveson P, giving the judgment of the court , opening the case at para 1]

Background

On 15 November 2013, the claimants JC and RT, then 17 years of age, each pleaded guilty at the Central Criminal Court to an offence in early 2012 of joint possession of explosives. In both cases, the Crown accepted that they obtained this property without any intention of endangering life or causing serious injury to property.  Continue reading

“A gilded cage is still a cage” – Supreme Court on deprivation of liberty for the mentally incapacitated

bird503_mediumSurrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] UKSC 19  (March 19, 2014) – read judgment

Elizabeth-Anne Gumbel QCHenry Witcomb and Duncan Fairgrieve of 1 Crown Office Row represented the AIRE Centre, one of the intervening parties, in this case. None of them have anything to do with the writing of this post.

Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified. Continue reading

Bone marrow disorder appeal fails

298x232-dna_genetic_test-298x232_dna_genetic_testMeiklejohn v St George’s Healthcare NHS Trust and Another [2014] EWCA Civ 120 - read judgment

Richard Booth QC of 1 Crown Office Row represented the appellant in this case. He has nothing to do with the writing of this post.

This was an appeal against the finding by HHJ Robinson, sitting as a High Court Judge, that there was no duty of care owed to the appellant in respect of his rare genetic disorder ([2013] EWHC 469 (QB), [2013] Med. L.R. 191). See my previous post for the factual and medical background of the claim. Briefly, the appellant suffered from a rare genetic version of the platelet insufficiency disorder, aplastic anemia (AA), the disorder in question being known as Dyskeratosis Congenita (“DC”). Continue reading

International Court of Justice orders Japan to suspend its Antarctic whaling program

japan-whaling-e1270007253119The International Court of Justice has today upheld Australia’s bid to ban Japan’s Antarctic whaling program.

ICJ president Peter Tomka said the court concluded the scientific permits granted by Japan for its whaling program were not scientific research as defined under International Whaling Commission rules.  The Court had found, by a majority of twelve votes, that Japan had conducted a program for logistical and political considerations, rather than scientific research. There is of course no appeal against an ICJ ruling and Japan has officially said that it will comply with the ruling.

The following is based on the ICJ’s press release.

Findings of the Court

First, the Court dismissed Japan’s argument that the Court had no jurisdiction over the dispute, submitted by Australia. Continue reading

Gestational parents, non-genetic mothers, siblings with different mothers: family law in a quandary

Orig.src_.Susanne.Posel_.Daily_.News-dna_baby_wombG (Children), Re [2014] EWCA Civ 336 (25 March 2014) – read judgment

This interesting family dispute demonstrates the tension between legal parenthood and biological parenthood in times when both legislation and common law are struggling to keep up with the possibilities offered by reproductive medicine; where a child can be born with no biological relationship with its gestational parent, or, conversely, where children can be borne of two separate mothers and yet be full genetic siblings.

Background

The appellant and respondent had been in a lesbian relationship for some years.  Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins. Continue reading

John Redwood MP and David Hart QC debate environmental rules

talk_05Is environmental regulation unnecessary and is it crippling our economy? This was the debate which raged last Thursday between a senior Conservative backbencher and one of our regular 1 Crown Office Row contributors to the blog – thanks to the UK Environmental Law Association who organised it and city law firm Simmons & Simmons who hosted lunch. Stephen Tromans QC of 39 Essex Street ably chaired the debate.

The motion of the debate was a broad one which John Redwood narrowed down into an onslaught on climate change subsidies, which he said were pointless and damaging. To find out more about his case, and David’s response, listen to the audio file here.

talk_04

 

 

No maternity rights for commissioning mother in surrogacy case

Pregnant_woman_silhouette.pngCD v ST (judgment of the Court) [2014] EUECJ C-167/12 (18 March 2014) - read judgment

 Z v A Government Department and the Board of Management of a Community School C‑363/12 – read judgment

The European Court (CJEU) has now considered two requests for preliminary ruling made in proceedings between intended mothers (also referred to as a commissioning mother) who have had babies through a surrogacy arrangement, and their employers concerning the refusal to grant them paid leave following the birth of the babies. It has replied that EU law does not provide for commissioning mothers to be entitled to paid leave equivalent to maternity leave or adoption leave.

I reported on the AGs’ opinions in both cases here, noting that AG Kokott and AG Wahl took a completely different approach in their interpretation of the applicability of Directive 92/85 in surrogacy cases; the Court has clearly decided that granting maternity leave in these circumstances would be a step too far.

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No duty to investigate in respect of civilian deaths in Malaya in 1948

malayaKeyu and Others v Secretary of State for Foreign and Commonwealth Office and another [2014] EWCA Civ 312, 19 March 2014 – read judgment

After an interesting analysis of the time limits for claims under Convention in response to a claim made in relation to actions by British soldiers in Malaya in 1948, the Court of Appeal dismissed all their  human rights, customary international law and Wednesbury  arguments.  There was no obligation in domestic law for the state to hold an inquiry into the deaths of civilians killed by British soldiers  in colonial Malaya in 1948, even though the Strasbourg Court might well hold that such a duty ensued.

Background

After the defeat of Japan in WWII and their withdrawal from Malaysia, there ensued a bitter conflict between Malaysian civilians Chinese-backed communist insurgents. In 1948 Commonwealth forces got involved and there ensued a guerrilla war fought between Commonwealth armed forces and the Malayan National Liberation Army (MNLA), the military arm of the Malayan Communist Party (MCP), from until 1960. Continue reading

Anti-fracking protesters’ Convention rights against private landowners

MEN-Anti-Fracking-3701_7113391-6384253Manchester Ship Canal Developments v Persons Unknown [2014] EWHC  645  (Ch) – read judgment

The High Court has ruled that Convention rights may be engaged in disputes between private landowners and trespassers, thereby making it incumbent on the court under Section 6 of the Human Rights Act to balance the trespassers’ rights under Article 8 against the landowner’s rights under Article 1 Protocol 1. 

The claimants, who owned land adjacent to a single track road surrounded by farmland, sought a possession order against the defendant activists who had set up camp close to the road in protest at the drilling program being undertaken by a company to whom the claimants had granted a licence. The protest, which obstructed the road on a number of occasions, was intended to deter the controversial fracking process which the activists feared would ensue. Continue reading

Police bid to obtain journalistic material refused – Supreme Court

Met-police-Scotland-Yard-007R (on the application of British Sky Broadcasting Limited) (Respondent) v The Commissioner of Police of the Metropolis (Appellant) [2014] UKSC 17 – read judgment

This was an appeal from a ruling by the Administrative Court that it was procedurally unfair, and therefore unlawful, for BSkyB to have had a disclosure order made against it without full access to the evidence on which the police’s case was based and the opportunity to comment on or challenge that evidence.  The following report is based partly on the Supreme Court’s press summary (references in square brackets are to paragraphs in the judgment):

Factual background

Sam Kiley is a journalist who has for many years specialised in covering international affairs and homeland security. In 2008 he was an “embedded” journalist for a period of months within an air assault brigade in Afghanistan, where he was introduced to AB. CD was also serving in Helmand at the same time.  Continue reading

Police have “Osman” duty to investigate in date rape cases

Met-police-Scotland-Yard-007DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) - read judgment

The police have a duty to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. There had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so called “black cab rapist” amounting to a breach of the of the victims’ rights under Article 3 of the ECHR.

The claimants were among the victims of the so called “black cab rapist” (W), who over a six year period between 2002 and 2008 had committed more than 100 drug and alcohol assisted rapes and sexual assaults on women whom he had been carrying in his cab. Both DSD and NVB complained to the police, who commenced investigations, but failed to bring W to justice until 2009. Under the common law the police do not owe a duty of care in negligence in relation to the investigation of crime: See Hill v Chief Constable of West Yorkshire [1989] AC 53 per Lord Keith at pp. 63A-64A and per Lord Templeman at p. 65C-E; Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495; and Smith v Chief Constable of Sussex [2009] 1 AC 225.

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Cap on housing benefit is lawful, says Court of Appeal

Money purse - WalletSG and others, R (on the application of) v Secretary of State for Work and Pensions, 21 February 2014  [2014] EWCA Civ 156 – read judgment

The Court of Appeal has rejected on all grounds a claim that the cap on housing benefit amounted to unlawful discrimination against women.

The appellants were single mothers who claimed that the regulations capping housing benefit discriminated against women generally, and particularly those who were victims of domestic violence. The Divisional Court had dismissed their application for an annulment of the Benefit Cap (Housing Benefit) Regulations 2012 on the basis that the regulations were in breach of Article 14 of the ECHR read with Article 8, and the same Article read with the right to peaceful enjoyment of possessions under Article 1 Protocol 1. The court below had also rejected their submission that the regulations infringed the UN Convention on the Rights of the Child, or that they were unlawful on grounds of irrationality. In essence, the Divisional Court upheld the Secretary of State’s arguments that the aim of the benefit cap was primarily to bring about a change in culture by giving people some incentive to work, thereby reducing what the Government believes is the debilitating effect of long term dependency on benefits. It also accepted the government’s contention that the cap struck a fairer balance between the interests of taxpaying working households and those on benefits. Any interference with family life and any discriminatory impact of the benefit cap on women generally (and female victims of domestic violence who flee from their homes in particular) was therefore said to be justified and lawful.

The appellants’ appeal against that ruling was dismissed. Continue reading

David Miranda challenge dismissed in High Court

David Miranda

David Miranda v Secretary of State for the Home Department, the Commissioner of Police for the Metropolis and three interveners [2014] EWHC 255 (Admin) – read judgment

The High Court has rejected all the arguments supporting David Miranda’s application for judicial review of his detention at Heathrow Airport in August last year. In a highly readable and pungent judgment, Laws LJ has some robust things to say about the vaunting of journalistic interests over public security in the guise of Article 10, and the ‘mission creep’ of requirements demanded by the courts for state action to be considered “proportionate”.

This is the long-awaited conclusion to the substantive hearing since judicial review proceedings were initiated seven months ago; see our posts on previous stages of this saga here, here and here.  It will be remembered that Mr Miranda was detained and questioned by police officers under the Terrorism Act 2000,  and various items in his possession, notably encrypted storage devices, were taken from him. Miranda claims that all this was done without any legal authority.

The claim, which was supported by numerous civil liberties interveners, raised three questions:

  1. Did paragraph 2(1) of Schedule 7 to the Terrorism Act 2000 empower the police to stop and question  the claimant for the purpose of determining whether he appeared to be “concerned in the commission, preparation or instigation of acts of terrorism”?
  2. Even if it did, was the use of the power proportionate to the legitimate aim?
  3. Is the paragraph 2(1) power repugnant to the right of freedom of expression guaranteed by Article 10 of the ECHR?

Laws LJ, giving judgment for the three judge panel, answered the first two in the affirmative, and said a firm “no” to last.

Factual background

The claimant is a Brazilian citizen and the spouse of Glenn Greenwald, a journalist who at the material time was working for the Guardian newspaper. Some months after an initial contact made in late 2012 Mr Greenwald met Edward Snowden, who provided him with encrypted data which had been stolen from the National Security Agency  of the United States. The data included UK intelligence material. Some of it formed the basis of articles in the Guardian on 6 and 7 June 2013 and on later dates. On 12 August 2013 the claimant travelled from Rio de Janeiro to Berlin in order to meet the other journalist involved, Laura Poitras. He was carrying encrypted material derived from the data obtained by Mr Snowden and he was travelling to collect computer drives containing further such material to assist in the journalistic activity of Mr Greenwald. He was stopped at 0805 on Sunday 18 August 2013 at Heathrow on his way back to Rio de Janeiro.

A series of Port Circulation Sheets (PCS) were circulated to counter-terrorism police alerting them that the claimant was  “likely to be involved in espionage activity which has the potential to act against the interests of UK national security”, and requesting them to establish the nature of his activity, assess the risk that he posed to UK national security and to mitigate as appropriate.  A PCS essentially triggers the powers of the police under certain circumstances to carry out a ports stop against a named individual.

The claimant was detained for approximately 9 hours.  According to a statement from the Intelligence, Security and Resilience in the Cabinet Office, the encrypted data contained in the external hard drive taken from the claimant contained approximately 58,000 highly classified UK intelligence documents. Many were classified SECRET or TOP SECRET.

Judicial review proceedings started shortly afterwards, and in November 2013, after various interlocutory hearings, the substantive hearing came before the High Court.

The Court’s Decision: Improper purpose

The Schedule 7 purpose – determining whether [the subject] appears to be a person who “has been concerned in the commission, preparation or instigation of acts of terrorism” – must be the purpose for which the officers execute the stop if it is to be lawful. It doesn’t make the stop unlawful if there is a subsidiary purpose – “killing two birds with one stone” – but the permitted purpose must be the “true and dominant purpose behind the act” (R v Southwark Crown Court ex p. Bowles [1998] AC 641, [1998] UKHL 16].

The fact that the police officers in question had not been given sufficient information about the intelligence did not mean that they had not executed their instructions in good faith:

Given the context – the possible apprehension of terrorism – Parliament must have enacted Schedule 7 in the knowledge that there might be very good reasons why the examining officers … should not be privy to the whole story. (para 21)

The purpose of the stop thus disclosed was to “ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination”. Moreover, the proper exercise of the Schedule 7 power did not require that the examining officer have any grounds whatever for suspecting that a person was connected with terrorism within Act’s definition. The Schedule 7 purpose was not to determine whether the subject is, but only whether he “appears to be” a terrorist.  The Schedule 7 power was created by Parliament in order to provide “a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2)”.

Given the facts stated in the last PCS and the National Security Justification, Laws LJ for the Court concluded that the purpose of the stop – to ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination – “fell properly within Schedule 7 of the 2000 Act on the latter’s true construction.”

Proportionality

The classic three step proportionality test – was the objective important enough to justify limiting a right, was the measure connected to that objective, and was the measure no more intrusive than other necessary – has been elaborated over the past decade, most recently by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) 3 WLR 170, [2013] UKSC 39. This adds a fourth question, which is to ask whether,  even if the measure in question is not particularly intrusive, did it nevertheless fail to strike a fair balance has been struck between the rights of the individual and the interests of the community? Laws LJ pondered on the implications of such a requirement, and found it not to his liking:

It appears to require the court, in a case where the impugned measure passes muster on points (i) – (iii), to decide whether the measure, though it has a justified purpose and is no more intrusive than necessary, is nevertheless offensive because it fails to strike the right balance between private right and public interest; and the court is the judge of where the balance should lie. I think there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government. If it is properly within the judicial sphere, it must be on the footing that there is a plain case.

Free Speech and the Protection of Journalistic Expression

Laws LJ commenced his consideration of this element of the claim with a brisk dismissal of all the Strasbourg case law on the matter. The idea of free speech has received sufficient emphasis in the law of England -

I do not therefore think it necessary, on this part of the case, to place any reliance on the jurisprudence of the European Court of Human Rights; the common law is a sufficient arena for the debate.

In any event, much of the law on free speech in journalism was of no relevance here since it concerned protection of sources. No such issue arose here. The source was no secret: “Mr Snowden stole the material, and the claimant (however indirectly) got it from Mr Snowden.” (para 48).

Furthermore, the mistaken idea seems to have taken hold that the essential justification of free expression as a fundamental value is the promotion or betterment of democratic government. Freedom of speech may indeed be “the lifeblood of democracy”; but that is not the same thing.

The perception of free expression as a servant of democracy, however, would tend to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government … This would fuel what is anyway one of exuberant democracy’s weaknesses, namely the intolerance of minorities. Everyone, even democracy’s enemy, must surely be allowed his say provided he advocates no crime nor violates the rights of others. The reason is that free thought, which is a condition of every man’s flourishing, needs free expression; and this is every person’s birthright, in whatever polity he has to live. There are of course undemocratic societies in which free speech is an idle hope. But free speech is not a creature of democracy; if anything, the converse. The critics of democracy may keep democracy on its toes. (para 45)

Turning to the matter in hand, Laws LJ observed that this privileging of political speech over other forms of expression has a distorting effect on the proportionality debate. The claimant, in other words, was seeking a heightened protection for himself, or at least the material he was carrying) on account of his association with the journalist Mr Greenwald. There was no basis for the court to extend such protection:

the application of requirement (iv) in the toll of proportionality – “whether… a fair balance has been struck between the rights of the individual and the interests of the community” – needs at least to be modified. The contrast is not between private right and public interest. The journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience. If there is a balance to be struck, it is between two aspects of the public interest.

The sting of the claimant’s challenge was that the defendants did not believe that the claimant’s possession of the material presented any real danger to national security or risk of loss of life. Whilst acknowledging the limits of evidence not cross-examined, Laws LJ could find “no perceptible foundation” for such a suggestion. The truth of  it was that the claimant’s broader argument on proportionality – that the use of Schedule 7 was in any event unjustified – did not in fact depend on the categorisation of the GCHQ documents as journalistic material. The claimant was trying to make out a case that he had been assisting in the conduct of responsible journalism, and the law’s duty to protect that activity meant that interference with it by the summary and unsupervised process of Schedule 7 was disproportionate and unlawful whether or not any intercepted documents strictly fell within the statutory definition of “journalistic material”:

… given the substantial, often insuperable, difficulty a journalist faces in seeking to determine what classified material may be safely published and what may not (paragraph 58 above), the notion of “responsible journalism” throws little light on the proportionality issue.

The claimant’s essential argument rested on three propositions:

  1. Journalists, “like judges”, have a role in a democratic State to scrutinise action by government.
  2. The function of the free press is inhibited by an insistence that anything (in the security field) which the journalist seeks to publish must be stifled because it may be part of the “jigsaw” from which a knowing terrorist may draw harmful inferences.
  3. There is a balance to be struck, again in the security field, between the responsibility of government and the responsibility of journalists.

But nobody had satisfied the court that there was any constitutional basis for any of these propositions, which would confer on the journalists’ profession a constitutional status which it does not possess:

They suggest … that journalists share with government the responsibility of measuring what is required by way of withholding publication for the protection of national security. Journalists have no such constitutional responsibility. They have, of course, a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish. But that is not an adequate safeguard for lives and security, because of the “jigsaw” quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament. The constitutional responsibility for the protection of national security lies with elected government: see, amongst much other authority, Binyam Mohamed[2011] QB 218per Lord Neuberger MR at paragraph 131.

He concluded, therefore, that the Schedule 7 stop was a proportionate measure in the circumstances. Its objective was not only legitimate, but “very pressing”.

In a press freedom case, the fourth requirement in the catalogue of proportionality involves as I have said the striking of a balance between two aspects of the public interest: press freedom itself on one hand, and on the other whatever is sought to justify the interference: here national security. On the facts of this case, the balance is plainly in favour of the latter. (para 73)

For similar reasons the Court rejected the claimant’s and intervenors’ related submission, that the Schedule 7 power is over-broad or arbitrary, and for that reason not “prescribed by law” under Article 10(2).

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