Undercover police officers: how far does their legal liability go?

TBS v Metropolitan Police Commissioner [2017] EWHC 3094 – read judgment

The High Court has refused an application to strike out a claim in negligence and misfeasance in public office taken by someone born as a result of a liaison between an activist in the animal liberation movement and a man who subsequently turned out to be an undercover police officer.

Although this is not a full trial of the merits, the ruling from Nicol J triangulates on very interesting questions relating to “wrongful life” claims, legal duties owed by people in public office, and the predictability of harm as well as the identity of potential victims. It also touches on the character of psychiatric harm, and how difficult it is to identify the point at which it can legitimately be said to arise. Whatever the results of the ultimate litigation, the arguments here raise sharp questions of public policy as to who, and what, should be compensated from the public purse. There is also a deep philosophical question underlying the whole argument which is known as the “non-identity problem”. Can you harm somebody by bringing them into existence? Continue reading

When can a Closed Material Procedure be used?

padlockBelhaj and Boudchar v. Director of Public Prosecutions (Foreign Secretary intervening) [2017] EWHC 3056 (Admin) – read judgment here.

The Justice and Security Act 2013 introduced the idea of Closed Material Proceedings (CMP) to civil litigation in a significant way for the first time. This is a procedure (which had previously only used in a small number of specialist tribunals) whereby all or part of a claim can be heard in closed proceedings in order for the court to consider material which, if disclosed publicly, would risk harming national security. These hearings exclude even the claimant, who is represented instead by a Special Advocate who takes instructions and then is unable to speak to his or her client again once they have seen the sensitive material.

This system is obviously far from ideal. Indeed it is a major deviation from the usual (and very important) principle that justice must not only be done, but be seen to be done. It was introduced because the alternative in some cases involving national security matters was no justice at all. But it must be used sparingly. In particular, the 2013 Act allows its use only in civil litigation and not in “proceedings in a criminal cause or matter” (section 6(11)). The question that the Divisional Court had to consider in this case is how wide that exception for criminal matters should be.

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Supreme Court rules on time limitation for claims under the Human Rights Act

O’Connor (Appellant) v Bar Standards Board (Respondent) [2017] UKSC 78  – read judgment

The Supreme Court has ruled that a barrister’s claim against the Bar Standards Board for discrimination should not be time barred under the one year limit prescribed by the Human Rights Act. In her case, the Court said,  the time limit for bringing proceedings only started running when she successfully appealed against disciplinary action taken against her. The decision to bring disciplinary proceedings and the subsequent hearings were part of a single process, not a series of disparate acts which set the time limitation period running.

The Court also concluded that the High Court judge was correct to conclude that the appellant’s claim of indirect discrimination in respect of her right to be treated equally under the law (Articles 14 and Article 6) did have a real prospect of success.

The following report is based on a combination of the full judgment and the Supreme Court’s press summary.

 

Background facts and law

Ms O’Connor is a practising barrister who faced a number of disciplinary charges brought against her by the Bar Standards Board in 2010. In May 2011, the Disciplinary Tribunal found most of these charges proved. The appellant, who is black, appealed to the Visitors of the Inns of Court and in August 2012 her appeal was allowed on the basis that none of the alleged conduct involved any breach of the Bar Code of Conduct.

In February 2013, the appellant issued the present proceedings, which included an allegation of violation of Article 14 of the ECHR together with Article 6. She claimed that the BSB, by bringing the disciplinary proceedings. had discriminated against her on racial or ethnic grounds. In particular, she alleged that the respondent had infringed her right to a fair trail on grounds of race.

Since this was a claim under section 6 of the Human Rights Act 1998 the limitation provisions under that Act applied. The BSB maintained that this claim was time – barred under section 7(5)(a) of the 1998 Act which provides that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place.

Shortly afterwards the respondent sought to strike out the case on the basis that none of the appellant’s had any real prospect of success and, in any event, there was a complete defence under section 7(5)(a) . Although the strike out was initially successful, on appeal Warby J in the High Court held that there was a sufficiently pleaded case that the respondent had indirectly discriminated against the appellant. However, he also held that the claim was indeed time – barred under the Human Rights Act.
The Court of Appeal held that the limitation period under section 7(5)(a) had started to run when the Disciplinary Tribunal had found the charges against the appellant proved and so had expired before she had issued her claim.
The appeal essentially turned on one question: when the ‘prosecution’ of the appellant commenced .  If it started with the decision to bring proceedings was taken in 2010 then the one – year time limit had expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB’s ‘prosecution’ of the appellant was considered to be a continuing state of affairs up to the tribunal decision, time under section 7 only expired in May 2012, which meant that her discrimination claim was in time.
It was argued on behalf of the respondent that the decision to refer the appellant to a disciplinary tribunal, even if indirectly discriminatory, was a one – off act with potentially continuing consequences rather than a continuing violation.

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The Current Situation in Cambodia — Rajkiran Barhey

cambodia image

On 5th December 2017, an event exploring the current political situation in Cambodia was held at Chatham House. The discussion was led by Sam Rainsy, a key member of Cambodia’s recently dissolved opposition party, the Cambodian National Rescue Party (CNRP). The discussion touched on a plethora of issues relevant to politics and human rights in Cambodia, ranging from the impact on Cambodia of China’s dam-building project to the Khmer Rouge Tribunal.

 

This article will provide a brief history of Cambodia before reviewing four topics which were considered at the event: (1) the influence of China; (2) the power of the army; (3) sanctions and aid; and (4) the 2018 election.

 

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Polluter Pays Principle: in Tobago, in the EU/UK, and in UK post-Brexit

Fishermen & Friends of the Sea v. The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37, 27 November 2017 – read judgment

A vignette of where

(1) Trinidad and Tobago is,

(2) the EU/UK is,

(3) where Michael Gove may wish us to be post-Brexit,

on the Polluter Pays Principle (PPP), a key environmental principle.

As we shall see, in legal terms, the expansiveness of (1) and (2) contrasts with the potential parsimony of (3).

Now (3) may be better than nothing, as per the European Union (Withdrawal) Bill, i.e, no enforceable environmental principles at all. But that does not mean we should not aspire for more. After all, as we shall see, the PPP is hardly a racy new entrant into environmental law.

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The long shadow of the Yugoslav Wars – Part 2: The rulers of the ‘Croatian Republic of Herzeg-Bosnia’

 

ICTY

On 29th November 2017, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague delivered its judgment on six appeals by Croatian officials and military officers against their convictions for their actions during the Bosnian War of 1992-95.

 

These crimes, which included grave breaches of the Geneva Conventions and crimes against humanity, arose out of a joint criminal enterprise aimed at creating a Croatian entity in the territory of Bosnia and Herzegovina, known as the ‘Croatian Republic of Herzeg-Bosnia’. This was backed by the government of Franjo Tuđman, President of Croatia at the time.

 

Following the decision, Slobodan Praljak, one of the appellants, shouted out that he rejected the verdict and drank a vial of poison, dying later that day.

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The long shadow of the Yugoslav Wars – Part 1: Ratko Mladić

Ratko Mladić was one of the most notorious figures of the war in Bosnia.

He was Commander of the Main Staff of the Bosnian Serb Army between 1992 and 1995. He was indicted in 1996, arrested in 2011 and tried between 2012 and 2016.

Last week the International Criminal Tribunal for the former Yugoslavia delivered its judgement. Mladic was found guilty of genocide in Srebrenica, crimes against humanity for ethnic cleansing of Bosnian towns and the siege of Sarajevo, and war crimes for the hostage taking of UN staff to stop NATO intervention.

yugoslav ethnic map

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