Restrictions on books in prisons declared unlawful by the High Court

Cornerstone-bookshopR (on the application of Gordon-Jones) v Secretary of State for Justice and Governor of HM Prison Send [2014] EWHC 3997 (Admin)read judgment

Contrary to what some media reports would have us believe, Prison Service Instruction (“PSI”) 30/2013 did not impose an absolute ban on books in prisons. It did, however, impose severe restrictions on the possession or acquisition of books which a prisoner can treat as his or her own. The High Court has found that those restrictions could not be justified by the limited provision of prison library services and are therefore unlawful.

The Claimant is a prisoner serving an indefinite sentence for the protection of the public at HMP Send. She has a doctorate in English literature and a serious passion for reading. The books she wants to read are often not the sort which are required by fellow prisoners or readily available through the prison library (the Dialogues of Marcus Aurelius and Brewer’s Dictionary of Phrase and Fable, for example, crop up in the judgment) and she therefore relies on having books sent or brought to her by people outside the prison.

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Why domestic Aarhus rules are not wide enough to comply with the Convention

F_AarhusConventionSecretary of State for Communities and Local Government v. Venn, Court of Appeal, 27 November 2014  - read judgment  

Back to Aarhus and the constant problem we have in the UK making sure that the cost of planning and environmental litigation is not prohibitively expensive.

Article 9 of the Aarhus Convention (to which the EU has subscribed) says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. If this means nothing to you, you might want to limber up with my bluffers guide to Aarhus - here -not least on how to pronounce it and how it fits into domestic law.

Ms Venn wanted to stop the owner of land next door to her London property “garden-grabbing”, namely building another dwelling in his garden. The local authority had refused permission, the landowner successfully appealed to a planning inspector, and on further review, Ms Venn said that the inspector had failed to have regard to emerging planning policy in determining the appeal against her.

Lang J gave Ms Venn a protective costs order (PCO), limiting her costs exposure to £3,500 if she lost. The CA reversed this. As ever, the devil is in the detail. Had her appeal been by way of judicial review, she would have got an order in her favour. So why didn’t she?

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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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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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Housing, Article 8 and A1P1 in the Supreme Court

mapmainSims v Dacorum Borough Council [2014] UKSC 63 - read judgment 12 November 2014 and

R (ota ZH and CN) v. LB Newham et al [2014] UKSC 62 - read judgment 12 November 2014

A brace of cases showing the limited role which Article 8 and Article 1 of the 1st Protocol has to play in housing law, so heavily regulated by a combination of statute and contract law. The human right protections conferred, as we shall see, are mainly procedural.

The contract and property issues are well illustrated by the case of Sims. Mr and Mrs Sims had lived in a council property, until Mrs Sims left, she said as a result of her husband’s violence. For her own housing reasons she sought termination of their periodic secure joint tenancy by unilateral notice. Her husband, as the other joint tenant still living in the property, maintained in response to possession proceedings that he was entitled to remain there as a sole tenant; anything else was inconsistent with his Article 8 and A1P1 rights.

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Wind turbines, noise and public information

3844964938R (o.t.a Joicey) v. Northumberland County Council , 7 November 2014, Cranston J  read judgment

An interesting decision about a Council not supplying some key information about a wind turbine project to the public until very late in the day. Can an objector apply to set the grant of permission aside? Answer: yes, unless the Council can show that it would have inevitably have come to the same conclusion, even if the information had been made public earlier.

Mr Barber, a farmer, wanted to put up one turbine (47m to tip) on his land. The claimant was an objector, another farmer who lives 4km away, and who campaigns about subsidies for renewables – it is him in the pic. The planning application was complicated by the fact that an application for 6 turbines at Barmoor nearby had already been approved (where Mr Joicey is standing), and the rules on noise from wind turbines looks at the total noise affecting local people, not just from Mr Barber’s turbine.

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Control and restraint techniques used on people being removed from UK are lawful, says Court of Appeal

UK Border Agency officerR (on the application of FI) v Secretary of State for the Home Department [2014] EWCA Civ 1272 – read judgment

The Court of Appeal has held that the physical restraint of persons being removed from the UK by aircraft is subject to a sufficient framework of safeguards to fulfil the state’s obligations under Articles 2 and 3 of the European Convention on Human Rights. Further, the decision of the Home Secretary not to publish aspects of the applicable policy on the use of such control and restraint is lawful.

FI was restrained by detainee custody officers during an attempt to remove her from the UK in 2011, though the issues on this appeal did not turn on the specific circumstances of her case. In issue was the sufficiency of the framework of safeguards on the use of such restraint as contained predominantly within the Use of Force Training Manual (the “Manual”).

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