Category: Case law
24 November 2011 by Shaheen Rahman
R (Green and others) v GLOUCESTERSHIRE COUNTY COUNCIL & SOMERSET COUNTY COUNCIL [2011] EWHC 2687 (Admin) – Read judgment
In the administrative court, the decisions of two local authorities to withdraw funding for library services were held to be unlawful.
The court held that the withdrawal of a local library might indirectly discriminate against people with physical disabilities, women and the elderly. Both councils had purported to carry out equality impact assessments but the mere fact that such an assessment had been conducted did not demonstrate that due regard had been given to the public sector equality duty.
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23 November 2011 by Rosalind English
Ali Zaki Mousa v Secretary of State for Defence & Anr [2011] EWCA Civ 133 – read judgment
Philip Havers QC of 1 Crown Office Row represented the respondent secretary of state in this case. He is not the author of this post.
The Court of Appeal has ruled that the Iraq Historic Allegations Team, set up to investigate allegations of ill-treatment of Iraqi detainees by members of the British armed forces, lacked the requisite independence to fulfil the investigatory obligation under Article 3 of the Convention.
The claimant was representative of a group of Iraqis numbering about 100 who brought judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces – see our post on the permission hearing.
The so-called “Iraq Historic Allegations Team” (IHAT) was set up to investigate these allegations. The IHAT included members of the General Police Duties Branch, the Special Investigation Branch and the Military Provost Staff. A separate panel, the Iraq Historic Allegations Panel (IHAP), was appointed to ensure the proper and effective handling of information concerning cases subject to investigation by the IHAT and to consider the results of the IHAT’s investigations, with a view to identifying any wider issues which should be brought to the attention of the Ministry of Defence or of ministers personally.
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21 November 2011 by Richard Mumford
This is a case in which Philip Havers QC of 1 Crown Office Row appeared for the General Dental Council; he is not the author of this post.
The General Dental Council v Savery and others [2011] EWHC 3011 (Admin) – Read judgment
Mr Justice Sales in the High Court has ruled that the General Dental Council’s (GDC) use and disclosure of the dental records of fourteen patients of a registered dentist who was the subject of investigation was lawful.
The court also offered general guidance about how the GDC may proceed (particularly by reference to Article 8 of the European Convention on Human Rights, the right to privacy and family life) when it wishes to investigate allegations against a dentist of impairment of fitness to practise by reference to confidential patient records in the absence of consent from the patients in question.
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17 November 2011 by hrupdateadmin
Chester West and Chester Council v. P (by his Litigation Friend the Official Solicitor) [2011] EWCA Civ 1257 – Read judgment / Lucy Series’ commentary
When assessing whether a patient’s care deprives him or her of their liberty, and thereby entitles them to the procedural protections under Article 5 (4) ECHR, the right to liberty, the Court of Appeal has ruled that the appropriate comparator is an individual with the same disabilities and difficulties who is not in care. The court also provided useful general guidance for deprivation of liberty cases.
P is a 39 year old man with Cerebral Palsy and Down’s Syndrome who lacks the capacity to make decisions about his care and residence arrangements as a result of his physical and learning disabilities.
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16 November 2011 by Karwan Eskerie
Sinclair v Information Commissioner and Department of Energy and Climate Change EA/2011/0052 (08 November 2011) – Read ruling
The Environmental Information Regulations 2004 (“EIR”) did not require the Department of Energy and Climate Change (“DECC”) to disclose information concerning the government’s analysis of the potential cost to the UK of strengthened climate change commitments by the EU, the First-tier Tribunal (General Regulatory Chamber, Information Rights) has held.
In March 2007, the EU announced a target to reduce emissions by 20 percent on 1990 levels by 2020 and increase it to 30 percent under certain conditions. The issue of whether the EU would accept the increased target was debated during the 2009 Copenhagen Conference, but not agreed upon. It therefore remains a live issue.
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9 November 2011 by Rachit Buch
JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011) – Read judgment
Elizabeth Anne-Gumbel QC and Justin Levinson of One Crown Office Row acted for the Claimant in this case. They did not write this post.
A Roman Catholic diocese can be held liable for the negligent acts of a priest it has appointed, the High Court has ruled. The ruling is a preliminary issue in the Claimant’s proceedings against alleged sexual abuse and rape at a children’s home. The trial of these allegations are to follow.
The Claimant, a 47-year-old woman, is suing the Portsmouth Roman Catholic diocese for the injury she alleges she suffered from abuse and rape while living at a children’s home run by the diocese in the early 1970s. The priest involved, Father Baldwin, is now dead. The High Court was asked to determine, before the trial of the allegation, whether the diocese – that is, the district under supervision of the Bishop – could be held liable for Father Baldwin’s acts; whether the principle of vicarious liability applies to a diocesan bishop for the acts of a priest he has appointed.
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8 November 2011 by Rosalind English
David Thomas Howarth v Commissioner of Police of Police of the Metropolis [2011] EWHC 2818 (QB) – read judgment
Protestors have to put up with “sensible and good natured” controls by the authorities as a limitation on their rights to free expression and assembly, the Divisional Court has ruled.
A claim for judicial review brought by an environmental protestor (“Mr Howarth”) against the Commissioner of Police of the Metropolis, challenging the lawfulness of a personal search of Mr Howarth carried out by a Metropolitan Police officer on 16 October 2010. The search was carried out on a railway train on which Mr Howarth was travelling in order to reach a site of intended public protest against an oil company. On the day in question Mr Howarth travelled with four friends from his home in the West Midlands to London to attend a demonstration organised by a body of persons calling themselves “Crude Awakening”, whose principal object is to campaign against the activities of those involved in the oil industry. The officer who conducted the search stated that he was looking for articles such as chalk, spray paint or highlighters that had been used in similar protests. He found no relevant articles.
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6 November 2011 by Matthew Flinn
Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – Read Judgment
1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.
The First-Tier Tribunal (Asylum and Immigration Chamber), has upheld the decision of the Home Secretary to deport Raed Mahajna, who had come to the UK to attend a number of meetings and speaking engagements.
Mr. Mahajna (also known as Raed Saleh) was born in Israel in 1968. He is however of Palestinian origin and has been a vocal critic of the Government of Israel. Aware of his intention to travel to the UK, the Home Secretary issued an exclusion order against him on the basis that he had publicly expressed views that fostered hatred which might lead to inter-community violence in the UK. However, this order was never served upon him, and he entered the UK on 25th June 2011. He was subsequently arrested on 27th June and detained until released on bail on 18th July.
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6 November 2011 by David Hart KC
Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182) 3 November 2011. This significant decision of the First Tier Tribunal (FTT) is well described on 11 KBW’s Panopticon blog. So just a few thoughts on a case which has the hallmarks of going to appeal.
The underlying question was whether the Duchy of Cornwall had to answer Michael Bruton’s requests for information about the Duchy’s oyster farm, and in particular whether the farm had undergone environmental assessment before it commenced operation. Bruton’s concerns were that the Duchy’s oysters were non-native Pacific oysters, and he wanted to know whether the Duchy had considered whether the establishment of such a fishery affected existing oysters or had other effects upon the environment. In many regards, the case is round 2 of a battle started by Bruton in 2009 challenging the original grant of a licence by the Duchy to the oyster fisherman: see the 2009 decision by Burton J granting permission for this challenge. In the present case, the Information Commissioner said that the Duchy was not obliged to provide the information. The FTT disagreed.
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2 November 2011 by Adam Wagner
Julian Assange -v- Swedish Prosecution Authority – Read judgment / summary
Julian Assange, founder of the whistle-blowing website Wikileaks, has lost his High Court appeal against extradition to Sweden. He lost on all four grounds of appeal.
Unless he is granted permission to appeal to the Supreme Court under Section 32 of the Extradition Act 2003, he must now face charges of sexual assault and rape in Sweden. Appeals to the Supreme Court will only be allowed in cases where there is a “point of law of general public importance involved in the decision”.
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31 October 2011 by David Hart KC
C-128/09 Boxus, CJEU, 18 October 2011
Belgium and its airports seem to have been skirmishing with the European Union Courts for some time now. First, in 2008, the ECJ in Abraham decided that a major and well-established expansion of Liege-Bierset airport required Environmental Impact Assessment (EIA), contrary to the contentions of the airport and its operators. Our case, Boxus, concerns a raft of challenges to consents for that airport expansion, and to similar projects affecting Charleroi airport and railways. These challenges ended up in front of the Court of Justice of the European Union on more EIA issues. This time, it appears that the Walloon Region of Belgium had become impatient with continuing court challenges – so it resorted to Parliamentary Decree, in which Parliament “ratified” the various planning consents.
Hey, presto, the Region thought, any defects in previous procedures are solved, and the court proceedings will fall away – or will they? Enter, on a white charger, the Aarhus Convention to the aid of the challengers.
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28 October 2011 by David Hart KC
R (o.t.a Cornwall Waste Forum, St Dennis Branch) v Secretary of State for Communities and Local Government [2011] EWHC 2761 (Admin) Collins J, 13 October 2011
I did a recent post on this case based upon a very short report; the full transcript of the judgment is now available. The case concerns who is to decide issues of air quality in a planning case about incinerators/energy-from-waste plants.
The headlines are as before – but there is a good deal in this judgment, particularly for those interested in conservation issues, as well as that vexed question of when a legitimate expectation may arise in the course of a hearing. Sadly, the judgment is still not available on an open access website such as Bailli – bless it, per Adam Wagner’s post– but I hope that will change soon.
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25 October 2011 by Rachit Buch
Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor [2011] EWHC 2705 (QB) (24 October 2011) – Read judgment.
Mr Justice Tugendhat has held that, with restrictions, The Times Newspapers Ltd (TNL) should be allowed to use information from leaked documents in its defence to a libel claim brought by the Metropolitan Police Service and the Serious Organised Crime Agency (SOCA). However, proportionality limited the reach of this judgment to the next stage in the libel claim, after which reassessment may be necessary.
It was held that restrictions in the order made did not interfere with TNL’s right to a fair trial in the libel case nor offend its right to freedom of expression. Decisions on specific documents was dealt with in a closed judgment because of the sensitivity of the subject matter.
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20 October 2011 by Shaheen Rahman
Updated | Bailey & Others v London Borough of Brent Council [2011] EWHC 2572 (Admin) – Read judgment
Every Wednesday my daughter looks forward to the arrival of the mobile library at her nursery. Two by two the children go into the little world of books and emerge holding a new story they have chosen for themselves.
Not for long. Despite the well-documented advantages of exposing children to the joys of reading at an early age – before the attractions of TV, video games and looting shops take hold – library services across the land are being targeted for cuts.
The duty to provide library services for children was one of the key arguments advanced by campaigners in Brent challenging the council’s decision to close 6 of its 12 libraries. Reliance was placed upon section 7 of the Public Libraries and Museums Act 1964. This requires local authorities to provide a comprehensive and efficient library service.
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17 October 2011 by David Hart KC
Cornwall Waste Forum, St Dennis Branch v Secretary of State for Communities and Local Government (2011) QBD (Admin, CO/6088/2011), Collins J, 13 October 2011
An interesting case about who is to decide issues of air quality in a planning case about incinerators/energy-from-waste plants – that choice of terminology depends on whether you are objecting to or applying for permission to construct. Because the judgment is extempore, it is very shortly reported at the moment (on Lawtel for those who have access to this subscription service), though some extracts are to be found on the claimants’ website.
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