Monthly News Archives: December 2011

The solar power subsidies case : when can you judicially review a proposal?

29 December 2011 by

R (on the application of (1) Homesun Holdings (2) Solar Century Holdings (3) Friends of the Earth) v Secretary of State for Energy and Climate Change 

Admin. Ct, Mitting J, 21 December 2011, extempore judgment, so no transcript available

This successful challenge to a proposal to modify subsidies for solar power arose out of the decision by the climate change Department to amend the rules under which the subsidies were to be payable. The essential questions were whether DECC could do this whilst a statutory consultation period was running, and further whether judicial review lay against a proposal to change the system, as distinct from a challenge to the change itself.

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Dr Naik, hate speech and the principle of expectation

29 December 2011 by

The Queen on the application of Naik v Secretary of State for the Home Department [2011] EWCA Civ 1546 – read judgment

The Court of Appeal has confirmed that the exclusion of an Indian Muslim public speaker  from the United Kingdom after making statements which breached the Home Office’s “unacceptable behaviours policy” was lawful,  and that any interference with his rights was justified.

We posted previously on the original exclusion of Dr Naik from the United Kingdom, and reported on his subsequent address by sattelite link to the Oxford Union.

The appellant had regularly visited the UK since 1990 on public lecture tours. In 2008 he was granted a five-year multiple entry visitor visa. In 2010, two days before he was due to arrive in the UK on a lecture tour, the secretary of state excluded him and revoked his visa. She considered that he had made a number of statements which were supportive of terrorists, such as Osama Bin Laden, and breached the “unacceptable behaviours policy” for exclusion from the UK.

The decision was based on the fact that several of his statements fell within the Home Office’s “Unacceptable Behaviour Policy”, an indicative guide to types of behaviour which would normally result in grounds for exclusion, and that his presence would not be conducive to the public good.The Administrative Court dismissed Dr Naik’s application for judicial review of this decision, holding that the Secretary of State’s responsibility for the protection of national security is a central constitutional role, and encompasses a duty owed to the public at large. It could not be overridden by reference to any representation or practice relating to an individual entrant.
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The ECJ on Aslyum, Greece; the UK Protocol on the EU Charter – Dr Cian Murphy

28 December 2011 by

Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title.

The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law.

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UK’s EU failure on air pollution: who enforces?

22 December 2011 by

R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD &  RURAL AFFAIRS (2011), QBD (Admin) Mitting J, 13 December 2011, extempore so transcript not available.

For some time now, the United Kingdom has known that it is in trouble under EU legislation, Directive 2008/50, limiting the amount of nitrogen dioxide in the air we breathe. The date for meeting these levels was 1 January 2010. ClientEarth, an environmental NGO, brought proceedings to enforce this obligation. They failed, despite an admitted breach by the UK. Why?

ClientEarth  sought a declaration and mandatory orders against the Government for failing to comply with the levels set out in Article 13 of the Directive. Only 3 out of 43 areas and conglomerates in the UK met that target. Under Article 22, it was possible to extend the time for compliance with the limits by a maximum of five years. Recital nine to the 2008 Directive stated that where the objectives were not met, Member States were required to take steps to ensure compliance. In particular Articles 22 and 23 said that where an extension to the compliance time was sought, a Member State should publish an air quality plan indicating how compliance with the limits would be reached.

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Terrorist asset-freezing: an intrusion too far – Dr Cian Murphy

21 December 2011 by


One could be forgiven, amidst the furore over the European Court of Human Rights’ Al-Khawaja judgment last Thursday, for missing the first report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorist Asset-Freezing etc Act 2010. The Report runs to over 100 pages and is the most comprehensive account of UK terrorist asset freezing in print.

It is the third report of the current Independent Reviewer, David Anderson Q.C., since he took up the post in February. Asset freezing is something of a speciality of his, as he has appeared in litigation in both EU and UK courts on the matter. It is therefore unsurprising that the Report exhibits the same attention to detail that made the Anderson’s previous two efforts essential reading.

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Human rights not a cash milchcow for groundless claims

21 December 2011 by

We posted previously on  Grant and Gleaves v MOD , giving a summary of the claims and the circumstances of the claimants. This case is interesting chiefly in the judge’s approach to the interpretative obligation of UK Courts under Section 2 of the Human Rights Act, which enjoins them to “take account” of Strasbourg rulings. Mr Justice Hickinbottom made it very clear at the outset that he did not consider this to be a command to follow slavishly every decision made by the European Court of Human Rights to the letter:

in considering an issue involving a Convention right, Section 2 of the Human Rights Act 1998 requires a domestic court to “take account of” the judgments of the European Court of Human Rights in Strasbourg (“the Strasbourg court”). On its face, that does not bind a domestic court to follow Strasbourg cases: it is simply an obligation to take them into account, so far as they are relevant.

That does not stop him from considering carefully all the Strasbourg jurisprudence canvassed before him. In general, however, most of the cases were ultimately unfavourable to the litigants in this case.
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No human right to an hour’s minimum in the open air for “lifer” – Court of Appeal

20 December 2011 by

Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538 – Read Judgment

The Court of Appeal has decided that a failure to provide a life sentence prisoner with a minimum of one hour in the open air each day did not constitute a breach of his human rights under Article 8 of the European Convention of Human Rights (“ECHR”).

Oliver Sanders of 1 Crown Office Row represented the Secretary of State in this case. He is not the author of this post.

Between 26 April and 2 October 2007, a period of 159 days, Mr Leslie Malcolm was detained in the Segregation Unit at HMP Frankland. During that time, he was provided with an average of 30 minutes in the open air each day. However, paragraph 2(ii) of Prison Service Order 4275 (“PSO 4275”), which contained policy guidance for prison officers operating under the Prison Rules 1999, stated that he should have had the opportunity to have at least one hour each day in the open air.

When Mr Malcolm first brought his claim, he complained that not only had his human rights under the ECHR been infringed, but also that the prison officers at HMP Frankland were liable for misfeasance in a public office. Both aspects of the claim were rejected by Sweeney J at first instance, and it was only the human rights question that was considered on appeal.

The judgment of Richards LJ, in leading a unanimous Court of Appeal, is an elucidating one insofar as it breaks down and draws attention to the various questions which need to be addressed when a human rights claim under Article 8 is brought.
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Slopping out regime in prison not in breach of human rights, judge rules

20 December 2011 by

Desmond Grant and Roger Charles Gleaves v Ministry of Justice High Court (Queen’s Bench Division) 19 December 2011 – read judgment

The High Court (Mr Justice Hickinbottom) has today dismissed claims by two prisoners that their rights under Articles 3 and 8 of the European Convention on Human Rights were violated by the prison conditions in which they were detained.

The following is based on the High Court’s summary of the case.

About 360 long term prisoners, who were at HMP Albany between 2004 and 2011, brought claims that their right not to be subjected to inhuman or degrading treatment or punishment under Article 3 and their right to respect for private and life under Article 8  had been violated by the regime under which they were detained in that prison, which included the use of a bucket for toilet purposes when they were in a locked cell and the later emptying of the bucket at a sluice (“slopping out”). Five lead claims were selected, of which two reached trial.
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Release of Pakistani detainee ordered by Court of Appeal

20 December 2011 by

Rahmatullah v Secretary of State for the Foreign and Commonwealth Office and the Secretary of State for Defence  [2011] EWCA Civ 1540  – read judgment

A Pakistani detainee was sufficiently in the control of the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence to support the issue of a writ of habeas corpus, and it should not be withheld on any grounds concerned with diplomatic relations.

“Habeas corpus” is a legal action through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence. The original Latin designation simply means the initiation of a process requiring a person to be brought before a judge.  It is a fundamental principle of English law that, where an individual is detained against his will, it is for the detainer to show that the detention is lawful, not for the detainee to show that his detention is unlawful.

In this case the appellant (R), a Pakistani national, had been captured by British forces in Iraq in 2004, handed to United States forces and transferred to a US airbase in Afghanistan as a suspected member of a proscribed organisation with links to Al-Qaeda. There he continued to be detained without trial. He sought the issue of a writ of habeas corpus, relying on a 2003 memorandum of understanding (MoU) between the United Kingdom, the US and Australia, active at the time of R’s capture, under which the UK retained full rights of access to any UK-detained prisoners of war and a right to request their return.
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Hearsay’s OK! Sort of – The Human Rights Roundup

18 December 2011 by

Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Melinda Padron

In the news

Will Detainee Inquiry hearings broadcast? Have your say

The Detainee Inquiry Panel has shown its commitment to carrying out an inquiry that is as open and inclusive as possible by inviting comments on their broadcasting proposal, before making a final decision. The Panel welcomes views on this issue from the media, potential witnesses, NGOs and any other groups or individuals who are interested in the Inquiry’s work. You may submit comments via email by 7th January 2012. You can find more details here.

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Christmas elf….and safety!

18 December 2011 by

Dufosse v Melbury Events Ltd  CA (Civ Div) (Rix LJ, McFarlane LJ, Sir Mark Potter) December 14, 2011 (extemporare judgment)

Christmas is full of hazards for the unwary and nowhere is more dangerous it seems than Santa’s grotto, even where there is no sign of a freeze and the only icicles are plastic ones…

Poor Santa. Heavily chaperoned in his gift-dispensing activities lest there be any whiff of inappropriate behaviour near children, now it seems his benevolent insistence on a wintry wonderland is under threat.  An elderly woman visited his grotto with five members of her family  at a well-known department store in London. She tripped over a plastic icicle and injured her leg, and took proceedings against the event management group responsible for running the grotto.

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What price unfair dismissal, in times of austerity?

17 December 2011 by

Edwards v Chesterfield Royal Hospital and Botham (FC) v Ministry of Defence [2011] UKSC 58 – read judgment.

Although not strictly speaking a human rights case, the Supreme Court handed down an important employment law decision this week which has significant impact on employees’ ability to claim damages if they are sacked unfairly or if an internal disciplinary process isn’t properly followed by their employer.

Both cases, which had been conjoined for the purposes of the appeal, dealt with situations where an employee had a contractual right to a particular disciplinary procedure but the procedure was not properly followed. The employees argued that as a result of the flawed disciplinary process, incorrect and highly damaging findings of fact were made against them, which prevented them from finding future employment. In both cases the incorrect findings of fact concerned allegations of inappropriate sexual conduct, in the case of Mr Edwards (a surgeon) with patients and in the case of Mr Botham (a youth worker) with teenage girls in his care, so the employees’ upset is readily understandable.

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What does it mean, to “take account” of Strasbourg judgments?

17 December 2011 by

Case C-53/10 Land Hessen v Franz Mücksch OHG – read opinion; read judgment

There may not appear at first sight to be much common ground between a dispute in the European Court of Justice (CJEU) over hazardous premises and planning permission, and the relationship between the Strasbourg Court and domestic courts in their interpretation of the provisions of the Human Rights Convention. But one innocent-sounding phrase in the Human Rights Act which requires national courts to  “take account of” the rulings of the Strasbourg Court has been causing so much trouble lately that it is worth casting around for any elucidation of its meaning, and some very welcome light has been thrown on it by AG Sharpston in the CJEU, albeit in a completely different context.

The dispute

Following the accidents at Bhopal and Mexico City, the EU introduced a Directive (“Seveso II“) to limit the consequences of incidents involving hazardous substances. Under Article 12 of the Directive, member states are obliged to keep a “suitable distance” between residential or environmentally sensitive areas and establishments presenting such hazards are sited.
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European Court of Human Rights defers to traditional UK common law

16 December 2011 by

OBG Ltd et al v. United Kingdom, 29 November 2011

We have become quite used to the Strasbourg Court having a serious go at bits of our statutory law, whether it be prisoners’ rights, anti-terrorist legislation or housing law. A lot of this statute enables the state to do things to private citizens which may or may not offend the Convention. But what is rather rarer in Strasbourg is the case where an applicant challenges judge-made law or common law, and does so where the dispute is between two private parties. Perhaps the best known example is the MGN/Naomi Campbell case in which privacy and costs issues got an intense scrutiny from the Strasbourg Court.

OBG sounds much less glamorous and more obscure, but is nonetheless interesting. The human rights of companies which have been injured by the wrongful exercise of administrative receivership powers have not been minutely examined in the case law, to say the least. But if this case sounds dry, and likely to hoist me by my own petard (should lawyers get named and shamed for being boring?), bear with me. Because it is actually quite a sad story of people being dealt an unjust result – for which neither domestic  nor Strasbourg courts felt able to fashion a suitable remedy.

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Use of hearsay evidence does not automatically prevent a fair trial, rules Strasbourg

15 December 2011 by

Al-Khawaja and Tahery v United Kingdom (15 December 2011) – read judgment

The Grand Chamber of the European Court of Human Rights has ruled today that convictions based on statements from witnesses who could not be cross examined in court did not violate the applicants’ rights under Article 6(3) (d) to obtain attendance and examination of witnesses  fair trial.

This latest predicted clash between Strasbourg and UK courts has therefore not come about, as the Court has essentially agreed with the domestic courts that a conviction based solely or decisively on the statement of an absent witness does not automatically result in a breach of Article 6.

It should be noted at the outset that the principle against hearsay and the relevant provisions against Article 6 apply to criminal trials only. There is no difficulty with the use of hearsay evidence in civil trials, which represent the vast majority of cases litigated.

A brief account of the facts was given in Joshua Rozenberg’s post published earlier. The following detailed summary is based on the Court’s press release.
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