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:
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
R (on the application of R) v Chief Constable  EWHC 2864 (Admin) 24 September 2013 – read judgment
The High Court has ruled that it is not a breach of the right to private life to request DNA samples from those who were convicted of serious offences before it became commonplace to take samples for the production of DNA profiles for the investigation of crime.
The claimant was asked, by reason of his previous convictions, to provide a DNA sample under the Police and Criminal Evidence Act to enable the police compare the his DNA profile with those held by the police in connection with unsolved crime. He refused to give the sample when it was sought initially, so he was sent a letter requiring him to attend at a police station to provide the sample on pain of arrest. He applied for judicial review of this requirement, arguing that it was an unlawful incursion on his right to privacy under Article 8. Continue reading
Wright v Commissioner of Police for the Metropolis  EWHC 2739 (QB) – Read Judgment
Image via Richard Millett’s Blog
The High Court has found that the containment of a protester in a designated protesting pen for seventy five minutes was not unlawful at common law, nor under the Human Rights Act 1998.
On 30th March 2011, a seminar marking sixty years of British-Israeli diplomatic relations took place in Chatham House in St James’ Square, London. The Israeli President, Mr Shimon Peres, was to be in attendance, and a group of protesters from the Palestinian Solidarity Campaign took the opportunity to demonstrate outside the seminar venue.
R (on the application of) Christopher Prothero v Secretary of State for the Home Department  EWHC 2830 (Admin) 18 September 2013 – read judgment
This was a challenge to regulations introduced in 2012 under the Sexual Offences Act 2003 which require a person on the Sex Offenders Register to provide details of bank, debit or credit card accounts held by him. The claimant sought a declaration that this particular regulation was incompatible with his right to respect for private life under Article 8 of the European Convention on Human Rights.
The last time the notification requirements under the 2003 Act came under attack, the Supreme court held that they were capable of causing significant interference with the Article 8 rights of an offender on the register (R (F)(a Child)) v The Secretary of State for the Home Department  UKSC 17) – see our post on that case and its consequences.
The Queen v. D (R) – Ruling available here.
The ruling by HHJ Murphy in Blackfriars Crown Court this Monday that a defendant in a criminal trial should not be allowed to wear a niqaab (face veil) whilst giving her evidence has prompted calls for a public debate about the wearing of face veils in public more generally. Adam Wagner has already commented on the case here. A summary and analysis of the decision follows below.
The defendant in this case, D, is a woman who is charged with a single count of witness intimidation. When the judge asked D to remove her veil in order to be formally identified for the court’s purposes at a plea and case management hearing, D refused because she believes she should not reveal her face in the presence of men who are not members of her immediate family. As a result, HHJ Murphy listed a special hearing to consider what orders should be made about the wearing of a niqaab during the rest of the proceedings, describing the issue as ‘the elephant in the court room’ which needed to be dealt with early on.
Fish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water (Case C-279/12) – read Opinion of AG Cruz Villalon
In this most recent case concerning access by private individuals to environmental information held by public authorities, the AG grasps the nettlish question of what precisely a public authority is. The issue was a subject of debate because the request for information had been addressed to private companies which manage a public service relating to the environment. The question therefore was whether, even though the companies concerned are private, they may be regarded as “public authorities” for the purposes of the Directive governing access to environmental information (Directive 2003/4).
Clearly the definition of the concept of “public authority” is an issue of importance not just in relation to access to information, but across the board, whether involving EU law or the application of the Human Rights Act 1998 and judicial review in domestic law. Continue reading
Re A (a child)  EWCA Civ 1104 – read judgment
Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8. Whilst this particular appeal was not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”, McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.
The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start. As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. Nevertheless, as the Court of Appeal points out, ”substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.” Continue reading
CM, Re Judicial Review  CSOH 143 – read judgment
The Scottish Court of Session has ruled that the prohibition of smoking and possession of tobacco products by patients at a mental hospital was unlawful. Whilst being careful to emphasise that this ruling did not spell out a specific right to smoke, the Court considered that the ban infringed the patients’ right to respect for home under Article 8.
The petitioner, a patient in a high security psychiatric hospital, sought judicial review of the policy adopted by the State Hospitals Board to ban smoking not just inside the hospital but also in the hospital grounds. He claimed that the ban amounted to a breach of his right to respect for private life and home under Article 8, both as a stand‑alone claim and in combination with Article 14 (enjoyment of Convention rights without discrimination). He also argued that the ban constituted an unlawful and discriminatory infringement of his right to peaceful enjoyment of possessions under Article 1 Protocol 1.
The petitioner further based his position on compassionate grounds, pointing out that there are few diversions available in the State Hospital; that he derived pleasure from smoking; and that as an individual with relatively few liberties the removal of his ability to smoke had had a disproportionately large impact on him. Continue reading
Ignaoua, R (On the Application of) v Secretary of State for the Home Department  EWHC 2512 (Admin) – read judgment
The Government’s termination of existing judicial review proceedings via certification under the Justice and Security Act was “troubling” but lawful. Parliament’s intention was clear, even though there were no new rules in force yet.
The claimant was challenging her exclusion from the UK on national security grounds in proceedings commenced in 2010. The proceedings were terminated under special powers conferred by the Act. The challenge could proceed instead before the Special Immigration and Appeals Commission (SIAC), which has all the powers of the divisional court to conduct a judicial review of his exclusion.
The question before the court was whether the certificate had been lawfully made and not an abuse of process. Continue reading
MA and others (on the application of) v Secretary of State for Work and Pensions & Ors  EWHC 2213 (QB) (30 July 2013) – read judgment
The High Court has unanimously dismissed an application for a declaration that the so-called “bedroom tax” discriminates unlawfully against disabled claimants.
This was a challenge by way of judicial review to regulations that came into force last year, reducing the amount of housing benefits by reference to the number of bedrooms permitted by the relevant statute (the Social Security Contributions and Benefits Act 1992 ). These new rules, which have applied to claimants of housing benefit since April 2013, restrict housing benefit to allow for one bedroom for each person or couple living as part of the household. Discretionary housing payments are available for certain qualifying individuals to mitigate the effect of the new rules, in particular the effects on disabled people and those with foster caring responsibilities. Continue reading
R (on the application of) Nicklinson and Lamb v Ministry of Justice  EWCA Civ 961 - read judgment
The Court of Appeal has today unanimously dismissed appeals by Jane Nicklinson and Paul Lamb challenging the legal ban on voluntary euthanasia.
We have posted previously on the Hight Court ruling in the Nicklinson case, here and here. The following is based on the Court’s press summary. An analysis of this case will follow shortly.
Summary of the facts and the ruling
These appeals concern two individuals who suffer from permanent and catastrophic physical disabilities. Both are of sound mind and acutely conscious of their predicament. They have each expressed a settled wish to end their life at a time of their own choosing in order to alleviate suffering and to die with dignity. Continue reading
Neumanns v. Adronikou  EWCA (Civ) 916, 24 July 2013 read judgment
This time of year, high court and appellate judges will have been trying to clear their desks – to stop the complex half-finished judgment from skulking around in their minds and spoiling their holidays.
So they must relish this advice from Mummery LJ, a long-standing member of the Court of Appeal, about brevity – in particular, what to do when the CA is dismissing an appeal from an immaculate judgement below:
What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.
But Mummery LJ did a little more than this in an attempt to stifle down at least some of the words pouring out from the courts, as we shall see.
Black and Morgan v. Wilkinson  EWCA Civ 820 – read judgment here.
The Court of Appeal recently dismissed an appeal by a Christian bed and breakfast owner, upholding the decision that she unlawfully discriminated against a gay couple by refusing to provide them with a double bedroom. However, the Master of the Rolls (head of the civil justice system) Lord Dyson expressed doubt about whether the previous binding decision of the Court of Appeal in the very similar case of Hall and Preddy v. Bull and Bull  EWCA Civ 83, was correct, and the Court granted permission to appeal to the Supreme Court.
This decision is the latest in a line of cases which have grappled with the ‘conflict of equalities’, many of which have concerned the potential clash between religious freedom and the prohibition on discrimination on grounds of sexual orientation. It raises difficult questions about how to reconcile competing rights or ‘protected characteristics’ under discrimination law, and it will be very interesting to see how the Supreme Court deals with this and the Preddy case when they are heard together in the autumn.