Category: Case law
14 April 2010 by Adam Wagner
Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)
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It would seem that legal aid is the topic of the day. Mr Justice Hickinbottom in the High Court has quashed the decision of the Legal Services Commission (LSC) not to grant an applicant for Judicial Review, Mrs Humberson, legal aid for representation at the inquest enquiring into the death of her son, Dante Lee Kamara. The judge took the opportunity set out five criteria which the LSC should apply when considering future applications (listed after the page break below).
Dante died in hospital on 1 July 2008 after an asthma attack. He was aged 10. The judge criticised the LSC’s decision not to grant funding to his mother, saying:
95. I regard the failure of the Commission to take into account the true nature and seriousness of the allegations Miss Humberstone faces at the inquest as a particularly serious defect in the decision making process: one reason why this case is unusual and essentially exceptional is because of the serious allegations Miss Humberstone faces, at the instigation of the agents of state who, she suspects, may have caused or contributed to her son’s death. This case does not open up any floodgate. I do not demur from the view in the Lord Chancellor’s Guidance, which itself reflects comments in Khan, that “in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above). Given the nature of an inquest, and the specialist nature of coroners, that must be so.
Article 2(1) of the European Convention on Human Rights provides: “Everyone’s right to life shall be protected by law“. That primary obligation includes not only a duty on the state not to take life, but also a duty on the agents of the state to take appropriate legislative and administrative steps to protect individuals from threats to life when in their care. This also encompasses a duty, in some circumstances, to investigate a death, and if necessary, provide funding so that the investigation, including an inquest, functions properly.
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13 April 2010 by Adam Wagner
The conviction of the “Heathrow heist four” at the Old Bailey has raised serious concerns that the historic right to trial by jury may be slipping away.
For the first time in 350 years, the four men were convicted in the Crown Court by way of a trial without a jury. On March 31st each received long prison sentences for their part in the robbery.
Henry Porter, writing in The Guardian, has severely criticised the reforms which allowed the trial to proceed with no jury. He says:
A profound change has occurred in Britain where it is now possible for counsels and a judge to decide the fate of defendants without the involvement of 12 ordinary citizens – the fundamental guarantee against arbitrary state punishment represented so well by the use of the star chamber under King Charles I.
The right to trial by jury has been steadily eroded in recent years. Civil courts now operate almost entirely without juries, as do some lower-level criminal courts such as Magistrates’ courts, which are only able to impose custodial sentences up to a maximum length of one year.
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12 April 2010 by Isabel McArdle
SAMUEL KINGSFORD BUDU v THE BRITISH BROADCASTING CORPORATION [2010] EWHC 616 (QB), 23 March 2010
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A claim for libel in respect of three articles in a news website’s archive has been struck out in the Hight Court by Mrs Justice Sharp. When read in context, the articles were incapable of bearing the alleged defamatory meaning, the publisher had attached Loutchansky notices to them, and it would be a disproportionate interference with the publisher’s rights under ECHR Article 10 to allow the claim to proceed where it had been brought after four years had passed since the publication of the articles.
Summary
The Claimant brought proceedings in respect of three archived articles published by the BBC in mid 2004. They related to the decision of Cambridgeshire Constabulary to withdraw an oral job offer made to the Claimant after subsequently investigating the legality of his immigration status. Within weeks of first being published, the articles became accessible only in the archive, via search engines. The action related to the articles in the archive and the related Google snippets.
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8 April 2010 by Rosalind English
Sharon Shoesmith’s court action over her sacking by Haringey Council has once more brought to the fore the sorry account of neglect and mismanagement by police and local authorities of that led to the death of baby Peter Connelly (‘Baby P’). It has also, however, highlighted the increasingly significant role of courts in the UK and Europe in holding public and private authorities to account in claims involving allegations of child abuse.
It is not just local authorities that are under pressure. Allegations of sexual abuse by members of the Catholic church rumble on, occasionally erupting into well publicised court dramas. For example, the recent groundbreaking claim brought against a Catholic priest, Father Clonan, relating to events in Coventry in around 1976 (MAGA v The Trustees Of The Birmingham Archdiocese Of The Roman Catholic Church [2010] EWCA Civ 256).
The claimant (MAGA) was at the time a child of 12 with learning disabilities. The High Court had ruled that the Church was not liable for the abuse as MAGA was not a Roman Catholic, and as such Father Clonan had no business having any dealings with him and was not doing so in his capacity as a priest. MAGA succeeded on appeal because the Court of Appeal accepted that a priest’s duties are very wide, and involve him befriending non-Catholics, such as in the course of his evangelising role.
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8 April 2010 by Adam Wagner
A high profile panel has been formed to review ‘super injunctions’, which have recently been used with varying success to halt media coverage of controversial legal disputes.
Super injunction applications have seen two competing European Convention rights fighting it out; Article 8 (right to privacy) versus Article 10 (freedom of expression).
We have previously posted on the super injunction which was imposed and then swiftly lifted in relation to press coverage of Chelsea footballer and England Captain John Terry’s extra-marital affair.
The committee is to be led by Lord Neuberger, the Master of the Rolls, and will be composed of legal and media experts. One notable absence, as Joshua Rozenberg blogs, is Mr Justice Eady, who has been responsible for many of the more controversial super injunctions.
According to the Judicial Communications Office, The Master of the Rolls has set up the committee following the recent report by the Culture, Media and Sport Committee’s report on press standards, privacy and libel and concerns expressed to the judiciary.
Read more:
- Mr Justice Tugendhat decision in the John Terry case
- The Judicial Communication Office announcement (including the names of the committee members)
- Commentary from Liberty Central in The Guardian
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7 April 2010 by Adam Wagner
Shirley Chaplin, an NHS nurse who was moved to a desk job for wearing a crucifix at work, has lost her employment discrimination claim against the NHS.
The Employment Tribunal judgment is not available at present, but The Times reports:
John Hollow, the tribunal chairman, ruled that the Royal Devon and Exeter Hospital had acted reasonably in trying to reach a compromise. It had argued that the objection to the crucifix, which Mrs Chaplin, from Kenn, near Exeter, had worn for 30 years, was based on health and safety concerns about patients grabbing the necklace, not religion.
According to the Christian Legal Centre (CLC), which strongly supports Ms. Chaplin’s case, the Tribunal held that Mrs Chaplin had not been indirectly discriminated against by the application of the uniform policy because she could not prove she was part of a group affected by the policy.
The Tribunal applied the reasoning in the previous case of Nadia Eweida v British Airways [2009] EWCA Civ 1025. Ms Ewieda’s claim also involved her being banned from wearing a Christian cross at work, in that case at British Airways. The Court of Appeal made clear that in an indirect discrimination cases brought under Reg. 3(1) of the Employment Equality (Religion or Belief) Regulations 2003, it was necessary to show that there had to be evidence of a “group disadvantage”, i.e. that more than one person had been affected by the policy. Ms Eweida could not establish a ‘group’ and as such her case failed.
The CLC claim that “the Tribunal has now decided that a group must be more than two people as well—leaving the law in a ludicrous level of uncertainty”. Ms Chaplin has already said she plans to appeal the decision.
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2 April 2010 by Rosalind English
AD and OD v United Kingdom (Application No 28680/06), 2 April 2010
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The European Court of Human Rights (ECtHR) has ruled unanimously that a local authority’s failure to conduct a risk assessment, which resulted in a child being placed with foster parents, breached the right to respect for family life under Article 8 of the Convention. It also concluded that the mother should have had available to her a means of claiming that the local authority’s handling of the procedures was responsible for any damage which she suffered and obtaining compensation for that damage. As such redress was not available to her, the Court held that she had suffered a violation of Article 13.
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1 April 2010 by Adam Wagner
British Chiropractic Association v Dr Singh [2010] EWCA Civ 350
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Dr Simon Singh has won the first battle in the libel action, brought by the British Chiropractic Association (BCA), in the Court of Appeal. Dr Singh was sued by the BCA in respect of an article he wrote in The Guardian in April 2008, in which he said there was not enough evidence to prove that chiropractic treatment is effective against certain childhood conditions including colic and asthma.
Mr Justice Eady ruled against Dr Singh in May 2009 in relation to two important preliminary issues. Dr Singh appealed to the Court of Appeal, and Lord Judge, Lord Neuberger and Lord Justice Sedley were asked to rule on the preliminary points relating to possible defences.
The Court has used the opportunity to mount a robust and somewhat lyrical defence of the right to freedom of expression.
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1 April 2010 by Adam Wagner
Allen v. The United Kingdom (Application no. 18837/06), Date of judgment: 30 March 2010
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The European Court of Human Rights (ECtHR) has ruled that, in the circumstances, it was a breach of the applicant Susan Allen’s rights under article 5(4) of the European Convention on Human Rights (ECHR) for a Deputy District Judge to refuse her permission to attend an appeal against the grant of her bail.
In October 2005 Ms Allen was charged with two offences of conspiracy to supply Class A drugs. She was produced at Liverpool City Magistrates’ Court. Following a contested bail application she was granted bail by the Deputy District Judge, and the prosecution subsequently appealed. Her counsel requested that the judge allow her to be present at the appeal. The judge declined the request, reasoning that the applicant could be given a full report of what had happened from her counsel. Moreover, her attendance would be undesirable as one of the applicant’s co-accused had not been present at the hearing of the appeal against the grant of bail to him, and it would therefore be unfair to treat the applicant more favourably.
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29 March 2010 by Rosalind English
R (on the application of LG) (Appellant) v Independent Appeal Panel for Tom Hood School (Respondent) & Secretary of State for the Department for Children, Schools and Families (Interested Party) [2010] EWCA Civ 142
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CA (Civ Div) (Rix LJ, Wilson LJ, Sir Scott Baker) February 26 2010
An exclusion hearing by a school does not engage the pupil’s Article 6 of the Convention since there is no “civil right” to education recognized as such either by the Convention or by domestic law.
Summary
The appellant pupil (VG) had been involved in a fight at the school. He was accused of having a knife, which he denied. The school permanently excluded VG and he appealed. The panel, in accordance with the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 reg.7A, found on the balance of probabilities that he had carried a knife, and upheld his exclusion. VG appealed against a decision ((2009) EWHC 369 (Admin), (2009) BLGR 691) to refuse his application for judicial review of the decision of the respondent panel to uphold a decision to permanently exclude him from a school. He argued that his right to a fair hearing under Article 6 was engaged, either on the basis that the panel had determined his civil right not to be excluded from the school without good reason, or on the basis that the panel had determined a criminal charge against him, and that right had been infringed by the decision to exclude him having been based on allegations established against him on the balance of probabilities rather than on the criminal standard of proof. He also contended that regulation 7A(c), although purportedly made pursuant to the Education Act 2002 s.52, was ultra vires in that a rule about standard of proof was one of evidence and not procedure as permitted by s.52(3)(d).
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28 March 2010 by Adam Wagner
Carson and Others v The United Kingdom (Application no. 42184/05)
The European Court of Human Rights has rejected a claim by British pensioners living abroad that their pension payments should be uplifted to take into account inflation. The case was supported by Pension Parity UK, a pressure group. The majority in the Court held that the pensions system was not a breach of ECHR Article 14 (non discrimination), saying at [86]:
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20 March 2010 by Guest Contributor
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19 March 2010 by Adam Wagner
Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales (Equality and Human Rights Commission intervening) [2010] EWHC 520 (Ch)
The High Court have found that a Roman Catholic adoption agency (Catholic Care) could rely on regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007 in refusing same-sex couples adoption services.
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5 March 2010 by Rosalind English
Norris v United States [2010] UKSC 9
SC (Lord Phillips, Lord Hope, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Judge, Lord Collins, Lord Kerr) 24 February 2010
In determining whether interference with an individual’s right to a family life was justified to achieve the aim of extradition, the court should not consider whether the circumstances were exceptional but should consider whether the consequences were exceptionally serious
SUMMARY
The appellant had recently retired from his job as CEO of a company that had been involved in price fixing. He had successfully resisted an extradition order sought by the United States on the grounds that price-fixing in the UK was not illegal (Norris v United States (2008) UKHL 16, (2008) 1 AC 920). However, the court held that the other charge against him – obstructing justice – justified extradition and his case was remitted to a district judge. The district judge decided that he should be extradited. His decision was upheld by the divisional court, which concluded that the obstruction of justice charges were very grave and that a high threshold would have to be reached before the appellant’s rights under Article 8 could outweigh the public interest in extradition ((2009) EWHC Admin 995, (2009) Lloyd’s Rep FC 475).
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5 March 2010 by Adam Wagner
Re W (Children) [2010] UKSC 12 [On appeal from [2010] EWCA Civ 57]
The Supreme Court has ruled that refusing an application for a child to give evidence in a trial may contravene Article 6 of the European Convention on Human Rights (ECHR).
At issue in this case is the care of five children. All the children were taken into foster care and the four younger children are having supervised contact with both parents. The father has since been charged with 13 criminal offences and is currently on bail awaiting trial.
In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. In November 2009 the judge decided to refuse the father’s application for her to be called. Instead, she would rely on the other evidence, including a video-recorded interview with the child.
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Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)
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