This week’s newspapers have highlighted the plight of the thousands of British homeowners who face demolition orders over their Spanish properties because they have been built without proper planning permission. Permits granted by town mayors during the property boom turn out not to be worth the paper they were written on, and since the regional authorities have overturned most of these permits, the buildings are condemned to destruction. Compensation from the developers and public officials who made these transactions possible is not forthcoming; as the Times leader points out
In a few cases, the courts have ordered that developers or town halls should compensate those who have lost their homes. Yet the former invariably opt for bankruptcy, instead, and even the latter seem markedly reluctant to pay out. Owners, often now back in Britain, face daunting and bewildering battles in foreign courts. (Tuesday 29 October, behind paywall)
Now one couple, Terry and Christine Haycock, are testing how far the Strasbourg Court will go to protect their property rights in this fracas (which would be under Article 1 Protocol 1). Continue reading
Fagan, R (on the application of) v Times Newspapers Ltd and others  EWCA Civ 1275 - read judgment
Only “clear and cogent evidence” that it was strictly necessary to keep an offender’s identity confidential would lead a court to derogate from the principle of open justice. The possibility of a media campaign that might affect the offender’s resettlement could not work as a justification for banning reporting about that offender, even though a prominent and inaccurate report about him had already led to harassment of his family.
This was an appeal by a serving prisoner, SF, against the dismissal of his application for anonymity and reporting restrictions in judicial review proceedings. Continue reading
X Local Authority v Trimega Laboratories and others  EWCC 6 (Fam) – read judgment
Technical evidence can sometimes be crucial to judicial decisions and this case shows how dramatic the consequences are for a family if evidence is unreliable. If the respondent in this case had not put probity before its commercial interests, a mother would have been deprived of the care of her child. Hence the importance of publishing the judgment.
The case arose out applications by the parents, a child and the child’s guardian to care proceedings for wasted costs orders against Trimega Laboratories. In short, the care proceedings had been brought for a number of reasons foremost of which was the mother’s “excessive drinking”. In March 2013 the mother said she had been abstinent from alcohol since August 2012. But in July 2013 a blood alcohol test report from Trimega suggested that she had been drinking. Her abstinence was a crucial factor in the plan for rehabilitation of the child to her care, and had it not been for this test result a final order would have been made on 25 July 2013 and the child returned to her. Continue reading
R v Gul (Appellant)  UKSC 64, 23 October 2013 - read judgment
It is a platitude that one man’s terrorist is another man’s freedom fighter. It is for precisely this reason that the international community has not been able to agree on a definition of terrorism to be embedded in international law.
The issue in this appeal was whether the definition of ‘terrorism’ in the UK Terrorism Act 2000 includes military attacks by non-state armed groups against national or international armed forces in a non-international armed conflict.
The following is taken from the Supreme Court’s press summary. References in square brackets are to paragraphs in the judgment. Continue reading
There have been many interesting contributions to the debate triggered by Geraldine van Beuren’s fascinating guest post on the right to food.
But one comment deserves prominence in a post of its own. It comes from veteran blogger 1923thebook and he has this to say:
Growing up in the North of England in the 1920s and 1930s, I knew hunger as did my ancestors who despite the “charter of the forest” lived miserable, hungry, short lives while Britain’s ruling classes grew fat on the spoils of Empire. What I experienced as a lad along with the rest of my working class generation was famine and despite recent news reports, we are not experiencing the wide spread hunger that occurred in my youth when there was no social welfare state.
This is not to say that there is not hunger in today’s Britain because as joblessness increases poverty creeps back into this nation’s villages and cities like an ebb tide. But malnutrition today is not caused by want of food but the type food on offer to the poor which is empty of nutrition but rich in fat, sodium and chemicals that only a food scientist without a moral conscience could devise. Continue reading
The proposed new extension to the six week badger cull has been defended on the basis that insufficient numbers of the animals in Gloucestershire have presented themselves to the marskmen’s bullets.
This proposal is now under attack from two directions. The chief scientific adviser for Natural England, the body responsible for licensing the cull, has called upon the government to stop the badger cull immediately. According to Damien Carrington writing in the Guardian,
The intervention by David Macdonald, chair of NE’s science advisory committee and one of the UK’s most eminent wildlife biologists, is a heavy blow for the environment secretary, Owen Paterson, and the National Farmers’ Union, who argue that killing badgers to curb tuberculosis in cattle is scientifically justified and necessary.
The Badger Trust is also sharpening its knives for fresh legal challenge. Its lawyers at Bindmans have written to Natural England and DEFRA, pointing out that the policy that DEFRA successfully defended in the Trust’s original judicial review , was based on “effectiveness”: Continue reading
F v F  EWHC 2683 (Fam) – read judgment
The High Court has ruled that two sisters must receive the MMR vaccine against their wishes and the wishes of their mother.
This was an application by the father for a declaration and a specific issue order concerning his daughters both receive the MMR vaccination. This was opposed by their mother.
Following the breakdown of their parents’ marriage, the girls (aged 11 and 15 respectively) lived with their mother, and the father had contact every alternate weekend and half the school holidays. After publication of the now discredited paper published by Dr Andrew Wakefield in the Lancet connecting the MMR vaccine with autism, both parents agreed not to have a booster arranged for the older daughter (who had been inoculated against MMR at birth) and to forego a vaccination for the other daughter completely. Continue reading
R (on the application of Maya Evans) v Secretary of State for Defence, with Associated Press intervening  EWHC 3068 (Admin) – read judgment
In ”Evans (No. 1)”, a 2010 case concerning the transfer of suspected insurgents for questioning in certain military centres in Afghanistan, the High Court had ruled, partly in an open judgment, partly in closed proceedings, that UK transfers to NDS Kandahar and NDS Lashkar Gah could proceed without risk of ill treatment (which is contrary to UK policy), but that it would be a breach of the policy and therefore unlawful for transfers to be made to NDS Kabul. It was subsequently discovered that there had not been jurisdiction to follow a closed procedure in that case, but what was done could not be undone, so the confidentiality agreements and the closed judgment remained in force. Continue reading
Benkharbouche v Embassy of the Republic of Sudan (Jurisdictional Points: State Immunity)  UKEAT 0401_12_0410 4 October 2013 – read judgment
These appeals, heard at the same time, raise the question whether someone employed in the UK by a foreign diplomatic mission as a member of its domestic staff may bring a claim to assert employment rights against the country whose mission it is, despite being met by an assertion of State Immunity under the State Immunity Act 1978. The EAT regarded itself bound by the supremacy of EU law to disapply the SIA, despite the fact that it had no jurisdiction to do so under the 1998 Human Rights Act.
This is the first time that the full force of the rights contained in the EU Charter of Fundamental Rights and Freedoms has made itself felt in a domestic dispute between private parties (although the embassies themselves are state institutions, as an employment dispute the matter is one of private law only). If upheld on appeal, this ruling will have consequences that extend far beyond the somewhat esoteric area of the immunity of diplomatic missions, and will make the effect of the Human Rights Act look puny by comparison (as pointed out by Joshua Rozenberg in his post on this case). Continue reading
Delfi AS v Estonia (Application no. 64569/09) 10 October 2013 – read judgment
This case concerned the liability of an Internet news portal for offensive comments that were posted by readers below one of its online news articles. The following summary is based on the Strasbourg Court’s press release.
The applicant company owns one of the largest internet news sites in Estonia. In January 2006, Delfi published an article on its webpage about a ferry company. It discussed the company’s decision to change the route its ferries took to certain islands. This had caused ice to break where ice roads could have been made in the near future. As a result, the opening of these roads – a cheaper and faster connection to the islands compared to the ferry services – was postponed for several weeks. Below the article, readers were able to access the comments of other users of the site. Many readers had written highly offensive or threatening posts about the ferry operator and its owner. Continue reading
Cossey, R (on the application of) v Secretary of State for Justice  EWHC 3029 (Admin) – read judgment
The High Court has dismissed an “absolutely meritless” claim by a prisoner that, in serving the non-tariff part of his sentence, he should be afforded all the Convention rights enjoyed by prisoners on remand or those serving time for civil offences such as contempt of court. As he had been deprived of the full panoply of rights, he said, he was a victim of discrimination contrary to Article 14.
This, said Mostyn J, was
The sort of claim that gives the Convention, incorporated into our domestic law by the Human Rights Act 1998, a bad name and which furnishes its critics with ammunition to shoot it down.
Were the key architect of the Convention, Lord Kilmuir, alive today, continued the judge, “he would be amazed to be told that a claim for violation of Article 14 was being advanced on the facts of this case.” Continue reading
MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192 – read judgment
In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A were introduced into the Immigration Rules HC 395. I have posted previously on the interpretation of these rules here and here.
The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and the individual right to family life:
Mousa and others, R(on the application of) v Secretary of State for Defence  EWHC 2941 (Admin) - read judgment
Earlier this year, the High Court ordered that an approach based upon a coroner’s inquest would be the most appropriate form of inquiry under Article 2 EHCR into claims of ill treatment or killings of civilians by the British armed forces in Iraq (see Adam Wagner’s post on this decision). Here the President of the Queen’s Bench sets out the Court’s views as to the form such inquiries should take.
- A designated Judge, Leggatt J, has been appointed to oversee the conduct of the inquiry.
- An inquiry ought to be commenced as soon as it is clear that there will be no prosecution in cases to which the Article 2 obligation to hold an inquiry attaches
- To ensure that the Inspector is able to determine how each death occurred, it should be open to the inquiry to have powers of compulsion over military personnel to give evidence and produce documents. Continue reading
C-363/12: A Government Department and the Board of Management of a Community School – read AG Wahl’s opinion
Case C‑167/12 : C.D. v S.T. - read AG Kokott’s opinion
Two opinions from Luxembourg on exactly the same issue, with diametrically opposed conclusions. AG Wahl (male) says, in brief, that the Pregnancy Workers Directive does what it says on the tin. It does not apply to non-pregnant employees, even though one of these might be an “intended mother” i.e. a woman who for medical reasons cannot carry a pregnancy to term, who has commissioned a surrogacy. AG Kokott (female) concludes firmly that the Pregnancy Workers Directive was designed to protect the relationship between mothers and their unborn or newborn, whether naturally produced or arranged by surrogacy. These opinions were published on the same day, with no mention in either of the other case. We can only conclude that the AGs read each other’s drafts, and decided to go to press with them together, leaving the CJEU to reconcile them in some way or another.
M (Children)  EWCA Civ 1147, 20 September 2013 – read judgement
The Court of Appeal has taken the unusual step of reversing a denial of contact order, by reviewing the question of the proportionality of the order in relation to the children’s right to family life under Article 8.
The appellant father appealed against the refusal of his application for contact with his three young sons. He had a history of violence and previous criminal convictions all but one of which, though distant in time, related to violent behaviour, including causing grievous bodily harm with intent. Following repeated episodes of abuse, which was often witnessed by the boys, the mother had left the family home with the children and had taken up accommodation in a women’s refuge. She voiced fears of their abduction out of the jurisdiction and her own personal safety to the extent of “honour based” violence and death at the hands or instigation of the father. When he applied for contact Cushing J found that the father had minimised his behaviour and blamed the mother as the victim of his violence. She concluded that he had failed to show any lasting benefit from therapy and his behaviour was likely to destabilise the children’s home and security, which was provided by the mother. Continue reading