Naked rambler gets no help from European Court of Human Rights – Diarmuid Laffan

Naked-Rambler-Stephen-Gou-008Gough v UK (Application no. 49327/11), 28 October 2014 – Read judgment

The applicant in this case has been repeatedly arrested, convicted and imprisoned for breaching the peace by walking around naked in public. In a judgment handed down recently, the European Court of Human Rights found the UK authorities’ restriction of his rights under Articles 10 and 8 of the Convention, proportionate to the legitimate aim of preventing disorder and crime.

Stephen Gough has a strong conviction that there is nothing inherently offensive about the human body, and that he harms no-one by walking around naked. A really, really strong conviction. Since he set off on a naked walk from Land’s End to John O’Groats in 2003, he has been nicknamed the ‘naked rambler’ and has spent most of the last eight years in prison, and most of that time solitary confinement.

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A spectacularly Misleading Case – nested in a real one

Alastair Sim  'Misleading Cases' (1971)Islamic Investment Co v. Symphony Gems & Mehta, 19 November 2014, Hamblen J - judgment here

Hamblen J observed that “the facts…are so extraordinary that they could have come from one of A.P. Herbert’s “Misleading Cases”. Yes indeed. A solicitor decided to make up three years of litigation, writing some fake judgments, pretending to instruct barristers, and churning out fictitious correspondence.

Why? It is not clear from the judgment, though one or two clues  are given. 

The fraud surfaced in a long-running dispute between a claimant finance company seeking repayment of a loan, and the first defendant, diamond traders, and the second and third defendant guarantors. The defendants now owe the claimant $14m. The defendants do not want to pay $14m, and have taken every point in resisting the claimant’s attempts to secure its money – so much so that in October 2010 David Steel J decided that the second defendant, Mr Rajesh Mehta go to prison for his refusal to explain where his assets were, by activating a previously suspended committal order.

The current application was Mr Mehta’s application to set aside all adverse court orders. His reasons – my solicitor had acted against me, and was deliberately trying to prejudice me in my affairs in making up all this litigation.

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Magna Carta and its progeny

National Archives Displays An Original Copy Of Magna CartaMagna Carta Uncovered, Hart Publishing, October 2014 - details here

Two old friends, Lord Judge (former Lord Chief Justice) and Anthony Arlidge QC have written a compelling and scholarly account of the 1215 political settlement known as the Magna Carta. This instrument has become something of a missile in the dust-up over  the European Convention versus “rights brought home”.

The authors have taken on the task of tracing the way in which the Magna Carta has played a part in political challenges since its inception, critically in 17th century clashes between King and Parliament (think the Five Knights and Ship Money cases and the 1689 Bill of Rights). And the Charter then formed the background for the US Bill of Rights and many constitutional settlements since. 

Magna Carta (strictly the first Magna Carta, as others followed in 1216, 1217 and 1225, to similar effect) was “granted” by King John in June 1215. Initial negotiations about the monarch’s relationship with the Church concluded on 23 November 1214 (800 years today) within the Temple in London – our authors are past and current Treasurers of the Middle Temple. The “grant” was not really that. John had been forced to make peace with his rebel barons, and the liberties forced out of the king were unwillingly conferred.

We know or think we know what Magna Carta says. But this book strips off some of the varnish which later thinkers have imposed upon it.

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Information even unlawfully obtained is admissible to the GMC – Joanna Glynn QC

785px-Doctors_stethoscope_1R (on the application of Nakash) v Metropolitan Police Service and General Medical Council [2014] EWHC 3810 (Admin) – read judgment

The High Court has ruled that although information obtained unlawfully by the police is admissible in regulatory proceedings (even if not in criminal proceedings), it  “carries little weight” in the assessment of competing interests required by Article 8(2). 

The General Medical Council [“GMC”] has wide powers under section 35A Medical Act 1983 to require disclosure of information which appears relevant to the discharge of the Council’s statutory functions in respect of a practitioner’s fitness to practise.

Where the police are in possession of confidential material that they are reasonably persuaded is of some relevance to an investigation being conducted by the GMC, a doctor’s rights under Article 8 of the ECHR are not breached by the police disclosing that information, even where it was unlawfully obtained. However, the police must undertake the careful scrutiny and balancing exercise required by Article 8 before the decision as to disclosure is made. Continue reading

Have we lost sight of J.S. Mill’s concept of the right to liberty? Article 5 in the Court of Protection

Rochdale Metropolitan Borough Council v KW (by her litigation friend Celia Walsh)   [2014] EWCOP 45 – read judgment

JohnStuartMillMostyn J has pulled no punches in rejecting an application for a declaration that an incapacitated person, being looked after in her own home, has been deprived of her liberty contrary to Article 5. There is a very full account of the judgment on the Mental Capacity Law and Policy blog so I will keep this summary short.

The first respondent, KW, is a 52 year old woman who is severely mentally incapacitated. She suffered brain damage while undergoing surgery to correct arteriovenous malformation in 1996. This resulted in a subarachnoid haemorrhage and long term brain damage. She was left with cognitive and mental health problems, epilepsy and physical disability. She was discharged from hospital into a rehabilitation unit and thence to her own home, a bungalow in Middleton, with 24/7 support. Physically, KW is just about ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). As Mostyn J says,

Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7 [who] attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back.

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Irish Supreme Court struggles with outcome of surrogacy arrangements

orig-src_-susanne-posel_-daily_-news-dna_baby_womb

M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors [2014] IESC 60 (7 November 2014) – read judgment

The definition of a mother, whether she is “genetic” or “gestational” for the purpose of registration laws was a matter for parliament, not the courts, the Irish Supreme Court has ruled.

At the core of the case was the question whether a mother whose donated ova had resulted in twin children born by a surrogacy arrangement should be registered as their parent, as opposed to the gestational mother who had borne the twins.

The genetic mother and father sought her registration as “mother” under the Civil Registration Act, 2004, along with a declaration that she was entitled to have the particulars of her maternity entered on the Certificate of Birth, and that the twins were entitled to have their relationship to the fourth named respondent recorded on their Certificates of Birth. Continue reading

Ping pong: CJEU air pollution ruling – back to the Supreme Court


NO2_PicR (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs , CJEU, 19 November 2014 – read C404-13 

In May 2013, the UK Supreme Court (here) was sufficiently concerned about the UK’s lack of compliance  with EU legislation, Directive 2008/50 (nitrogen dioxide etc in air)  to refer various issues to the CJEU in Luxembourg.

The UK has been in breach of Article 13 the Directive since 1 January 2010, because 40 “zones and agglomerations”  had nitrogen dioxide at concentrations greater than the limit values set out in the Directive. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and, given the admission, the first instance judge and the Court of Appeal said that there was no point in granting any declaratory relief. It was for the EU Commission, if it wished, to take infraction proceedings. And those lower courts disagreed with ClientEarth’s interpretation of the Directive, which, as we shall see, has now for the first time been upheld by the CJEU.

The Supreme Court went rather further; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning of the Directive to the CJEU.

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