Monthly News Archives: September 2010


Calls for murder law reform may be ignored

14 September 2010 by

Keir Starmer

The Director of Public Prosecutions, Keir Starmer QC, has stated his support for a reform of the law of homicide that would see the introduction of different degrees of murder in this country.

Such a proposal was one of the principal recommendations contained in the Law Commission’s 2006 Report on Murder, Manslaughter and Infanticide (Law Com No 304). Mr Starmer’s predecessor, Sir Ken MacDonald, and the former Metropolitan Police Commissioner, Lord Blair, have also stated their support for the changes.

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Lord Bingham’s Legacy

13 September 2010 by

We have highlighted the obituaries and tributes to Lord Bingham yesterday and today.  For those interested in a more extensive review of his judicial contributions to the field of administrative law generally, and human rights law in particular, I would recommend an article published by Michael Fordham QC in Judicial Review last year:  [2009] JR 103.

This was a paper presented to the Hart Judicial Review Conference in December 2008.  As Fordham says:

There is no better way to illustrate and celebrate Lord Bingham’s contribution to administrative law than through his own words. What follows is a tapestry, no doubt just one from many, capable of being woven using strands of Lord Bingham’s judicial analysis, which will for decades to come guide and equip practitioners, academics and judges in the field of public law and human rights.

Lord Bingham tributes: ‘a passionate supporter of the Human Rights Act’

13 September 2010 by

We posted yesterday on the sad death at age 76 of Lord Bingham of Cornhill, former Lord Chief Justice, Master of the Rolls and law lord. There have been a number of tributes to the highly respected jurist:

Alex Bailin QC, on the UK Supreme Court Blog – this is well worth reading: “Despite having had a largely commercial practice at the Bar, his legal legacy will surely be grounded in the body of human rights jurisprudence which he created from 2000 until his retirement in 2008… Although his Opinions in human rights cases were generally measured in tone, he was undeniably a passionate supporter of the Human Rights Act.  In his address (when he was Lord Chief Justice) to the House of Lords during the passage of the Human Rights Bill, he famously quoted Milton’s Areopagitica in support of the proposed progressive reform: “Let not England forget her precedence of teaching nations how to live.”


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Lord Bingham of Cornhill dies, loss of eloquent advocate for individual rights

12 September 2010 by

Updated 13/09/10 | Lord Bingham of Cornhill, a leading judge and legal mind, died yesterday at age 76. He was a huge presence on the legal landscape, and his influence on the rule of law and human rights will be felt for years to come.

A commercial barrister by training, Thomas Bingham became a QC at the tender age of 38. He went on to act both as Master of the Rolls (1992 – 1996) and the Lord Chief Justice (1996 – 2000), as well as serving as a senior law lord from 2000 to 2008.

In a wide-ranging obituary in the Guardian, Philippe Sands says that Lord Bingham was “widely recognised as the greatest English judge since the second world war” and that

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“Don’t Ask, Don’t Tell” restriction on gays in US military is ruled unconstitutional

10 September 2010 by

A district court in California has ruled that the Pentagon’s “don’t ask, don’t tell” policy is unconstitutional, and has awarded the plaintiffs a permanent injunction barring further enforcement of the statute embodying the policy. Read judgment.

The Times reports today that  Judge Virginia Philips found that the policy  violated the plaintiffs’ rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and their rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment. 
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9/11 and the human rights ripple effects

10 September 2010 by

9/11 attack man accused gets compensationTomorrow is the 9th anniversary of the 11 September 2001 terrorist attacks, and it is worth considering some of the after effects which are still being felt in the UK courts.

Our posts on the human rights law relating to terrorism  can be found here. The fact that it is the blog’s largest legal category  is a reflection on the difficulties which the court have found in approaching anti-terrorism law. This relates to the previous government’s often controversial anti-terrorism policies, many of which have been successfully challenged in the courts, as well as the effects of the wars in Iraq and Afghanistan. Particular posts of interest are:

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Extradition to Lithuanian jail not a breach of human rights

9 September 2010 by

The Queen on the application of Arvdas Klimas v. Prosecutors General Office of Lithuania [2010] EWHC 2076 – Read judgment

We welcome this guest post by Michal Jorek

Will a court execute an extradition request if the prison conditions and treatment of prisoners in the requesting State are such that detention there would constitute torture, inhuman or degrading treatment or punishment?

This question was recently considered by the High Court in The Queen on the application of Arvdas Klimas v. Prosecutors General Office of Lithuania. Although the Court was clear in its pronouncement, it is arguable that aspects of its reasoning are at the very least questionable.

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Human rights roundup: Phone-hacking, family law wrangling and how to not represent yourself in court

8 September 2010 by

Hoovering up the human rights news

Some of this week’s human rights news, in bite-size form. The full list of our links can be found on the right sidebar or here:

7 Sep | Phone tapping row prompts surveillance law review – politics.co.uk: More on the phone-hacking scandal. The government say they will look at whether the law needs changing to make convictions easier. See our post here.

7 Sep | Plans to extend freedom of information – Ministry of Justice: This is not new news, but it good to hear the government is still looking to fulfil its post-election pledge to”extend the scope of the Freedom of Information Act to provide greater transparency” so that it is easier for the general public to get information from the government. See our posts here and here. The new government is placing great store in freedom of information as, in theory, better and easily accessible information will empower the ‘big society’ (that is, non-governmental organisations). Interestingly, Tony Blair has said in his new book that the Freedom of Information Act is one of his biggest regrets (see this FT blog).

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New independent legal think-tank launched

7 September 2010 by

This week sees the launch of the Halsbury’s Law Exchange, a new independent legal think-tank funded by LexisNexis.

The new organisation describes itself as “an independent and politically neutral think tank which contributes to the development of law and the legal sector“, aiming to “promote debate through papers, reports, events and media pieces.” The think-tank is chaired by legal journalist Joshua Rozenberg, who is joined by a number of eminent barristers and solicitors.

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Rooney, Coulson and Hague scandals reveal the need for more, not less, press protection

6 September 2010 by

What does Wayne Rooney’s alleged philandering have to do with human rights? In itself, not very much. But a recent spate of exposés in and of the press has exposed more than a footballer’s indiscretions.

The starting point from a human rights perspective is the fragile relationship between two articles of the European Convention on Human Rights; namely, the right to privacy and the right to freedom of expression. Article 8 provides that everyone has the “right to respect for his private and family life, his home and his correspondence.” This right is qualified, in the sense that it is possible for a state authority to breach privacy rights if it is (amongst other things) necessary in a democratic society.

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Extradition agreements review is victory for rights campaigners

3 September 2010 by

Updated, 3 Sep, 16:35 | The Home Office is to announce a review of UK extradition agreements with other countries, including the controversial and some say unbalanced agreement with the United States. This represents a provisional success for campaigners against certain extradition agreements.

According to reports, the review will include the Extradition Act 2003 which implemented into law the UK-United States extradition treaty. It will also consider the European Arrest Warrant, which was used for 50% more arrests last year. The review fulfils the pledge made in the coalition’s program for government to ”review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed”.

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Why the Sharon Shoesmith decision is good for access to justice (and it has nothing to do with the case)

2 September 2010 by

Yesterday, Sharon Shoesmith was given permission to appeal in the judicial review of her dismissal by Haringey council as a result of the Baby Peter scandal. The case itself is complex and fascinating, but the detail should not overshadow the open and forward-thinking way in which the case has been dealt with.

The case was always likely to be full of controversy, complexity as well as salacious detail. This is not in itself remarkable; public law is often the cutting edge of social and political issues. What is unusual is the manner in which Mr Justice Foskett (full disclosure: he is a former member of my chambers) approached his task by not just in looking inwards to the legal system, but also outwards to the general public.

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Human rights roundup: The FCO, Shoesmith, and local authorities taking over the world

2 September 2010 by

Some of this week’s human rights news, in bite-size form. The full list of our links can be found on the right sidebar or here:

FCO decision on human rights report ‘puts businesses at risk’ – The Law Gazette: The Foreign and Commonwealth Office (FCO) has threatened to cut back on its annual international human rights report. The President of the Law Society has said human rights are an “increasingly a prominent risk factor in business”, but it is not clear what this really means, beyond corporate social responsibility which is at most seems a peripheral business consideration. We questioned earlier this week (see post) whether foreign policy and human rights could or should mix.

Treasury attacked over equality impact of budget – The Law Gazette: More details of the Fawcett Society’s threatened judicial review of the budget, on the grounds that the Treasury did not carry out an appropriate equality impact assessment. Apparently, research by the House of Commons library has shown that 72& of the savings will come from women’s income. See our post on the disappearing Public Sector Equality Duty.

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Courts entitled to ignore European DNA and fingerprints ruling… for now

1 September 2010 by

R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment

Last month, Matt Hill posted on a case relating to the retention of DNA profiles and fingerprints by the police, for which the full judgment is finally available. Permission has been granted for an appeal directly to the Supreme Court, and the outcome of that appeal may have interesting implications for the status of European Court of Human Rights decisions in domestic law.

It is worth revisiting the decision in order to extract some of the principles, as although not novel, they do highlight the difficulties for claimants who have taken a case to the European Court of Human Rights and won, but who are still waiting for their decision to be implemented by the UK government.

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The limited human right to do business

1 September 2010 by

Prashant Modi v United Kingdom Border Agency [2010] EWHC 1996 – Read judgment

Mr Justice Burnett in the High Court has found that there was no breach of a man’s right to respect for private and family life (Article 8 of the European Convention on Human Rights) when he was refused entry to the UK for business purposes after conviction for a sexual offence. This interesting decision highlights the very limited nature of protection that Article 8 may give  in relation to business activities.

Mr Modi was an Indian businessman who was given multi-visit entry clearance for the UK in 2005. He regularly made business trips to the UK following this. In 2006 he committed a serious sexual offence in the UK and pleaded guilty to the charge. The Judge of the criminal court considered that the Appellant did not pose a serious risk to the public after the commission of the offence and made no recommendation for deportation.

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