Monthly News Archives: January 2012


The god of free trade: why Austria cannot stop big lorries from using its motorways

21 January 2012 by

C-28/09, European Commission v. Austria, 21 December 2011 – read judgment 

Many countries in the EU are struggling to comply with its laws about air pollution. The UK is in continuing breach of its nitrogen dioxide emission limit: see my post just before Christmas. But one way a country can try to comply with these laws is by banning or limiting heavy traffic. And that is exactly what Austria did in respect of an important bit of its motorway network; it prohibited lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley. And just before Christmas, it paid the price.

The EU Court told Austria it was infringing EU law, in particular, Articles 28 and 29 of the EC Treaty (now Arts 34 and 35 of TFEU) which are the core provisions protecting free movement of goods. Why, given that it was trying to comply proactively with another requirement of EU law?

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Extradition of murder accused to US not breach of human rights

19 January 2012 by

HARKINS AND EDWARDS v. THE UNITED KINGDOM – 9146/07 [2012] ECHR 45 – Read judgment

The European Court of Human Rights has found that there would be no breach of Article 3 ECHR (prohibition of inhuman and degrading treatment) in extraditing two men accused of murder to the US.

The men argued that they face the death penalty or life imprisonment without parole if found guilty. The US had given assurances to the UK government that the death penalty would not be sought. The following summary is based on the Court’s press release (my abridgement):


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No deportation for Abu Qatada, but where are we now on torture evidence? – Professor Adam Tomkins

19 January 2012 by

OTHMAN (ABU QATADA) v. THE UNITED KINGDOM – 8139/09 [2012] ECHR 56 – Read judgment – updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110).

The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.

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Metropolitan Police succeed in G20 “kettling” appeal

19 January 2012 by

R (on the application of Hannah McClure and Joshua Moos) v The Commissioner of Police of the Metropolis [2012] EWCA Civ 12 – Read judgment 

The Metropolitan Police has succeeded in its appeal against a Divisional Court ruling (see previous post) that the use of crowd control measures – in this case, containment or “kettling” – against Climate Camp protesters did not constitute “lawful police operations”.

In reaching its decision, the Court of Appeal considered three issues: (i) whether the Divisional Court adopted the wrong approach to the question of whether a breach of the peace was imminent, (ii) whether Chief Superintendent Mr. Johnson’s apprehension that there was an imminent breach of the peace was reasonable, and (iii) whether, on Mr. Johnson’s own evidence, he should not have ordered containment of the Climate Camp.

by Wessen Jazrawi


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Occupy London to be evicted – full judgment

18 January 2012 by

The City of London has succeeded in its court High Court battle against the Occupy London movement which is currently occupying an area close to St Paul’s Cathedral. As things stand, subject to any appeals, the movement has been evicted.

The Judiciary website will be publishing the full judgment tomorrow morning, but for those seeking it before then, I have uploaded it here. Below is the very helpful summary of the judgment sent to me by the Judicial Office (with apologies for the numbering, which is a quirk of the blog formatting, not the summary).


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Everything’s free in America (copyrighted material not included)

18 January 2012 by

The Government of the United States of America -v- O’Dwyer, Westminster Magistrates’ Court – Read judgment

It seems appropriate, on the day when Wikipedia shut down for 24 hours to protest against US anti-piracy legislation, to talk about piracy (in the copyright sense) and what role human rights law has to play in the perpetual battle against it.

It is a topic that polarises, with some considering piracy to be no more moral than any other theft, and others seeing those who commit piracy offences as fighting for freedom of expression and liberal copyright laws. In the case of Richard O’Dwyer, a young man who is accused of setting up a website which breaches US copyright law and who is facing extradition to the US for trial, he attempted to block his extradition by relying on a combination of human rights and other objections relating to the manner and circumstances surrounding the request.


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Veterinary tribunal did not show bias

18 January 2012 by

Joseph Lennox Holmes (Appellant) v Royal College of Veterinary Surgeons (Respondent) [2011] UKPC 48 – read judgment

The disciplinary procedures of the Royal College of Veterinary Surgeons did not give rise to any appearance of bias so as to breach a practitioner’s right to a fair trial under Article 6.

Despite the fact that the membership of the committee dealing with the prosecution of charges was drawn from the College’s governing body, in whose name any charges were brought, and that the body dealing with the determination of charges was also drawn from the College’s governing body, in practice their procedures were fair.

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Gibson rendition and torture inquiry has been scrapped

18 January 2012 by

Canned

1 Crown Office Row’s Philippa Whipple QC was leading counsel to the Gibson Inquiry. She is not the writer of this post

 The Justice Secretary has told Parliament that the Gibson Inquiry tasked with considering whether Britain was “implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11” has been scrapped.

Ken Clarke announced that the police investigations into rendition, which were always to come before the formal start of the inquiry’s hearings, would take so long that the current inquiry could not continue. He said the Government remained committed to a judge-led inquiry, but presumably the current inquiry team could not be kept twiddling their collective thumbs for years longer.

The Crown Prosecution Service announced last week that it would not be bringing charges in relation to some of the historic allegations – particularly in relation to Binyam Mohammed and a 2002 incident at Bagram Air Base in Afghanistan. It would, however, begin to investigate more recent allegations in relation to Libya and “a number of further specific allegations of ill-treatment“. 
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Scots, Sumption and Secrets – The Human Rights Roundup

18 January 2012 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

3 European Court of Human Rights judgments

For the big news of yesterday from Strasbourg, see Adam Wagner’s post – L’Enfant terrible du Strasbourg

North of the border

Constitutional and international lawyers, behold! The issue of a referendum into whether Scotland should become independent from the UK is promising to give you plenty to read and talk about.

There are already a number of pieces on the subject matter, with some of the most interesting ones featuring in the UKCLG Blog and the UKSC Blog. For example, Nick Barber, writing for the UKCLG Blog, discussed whether it should be the UK Parliament or the Scottish Parliament who should hold the referendum, and what role should the UK Parliament play in the process to enable a negotiated transition into independence, should that be the outcome of the vote.

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Strasbourg: L’enfant terrible

18 January 2012 by

A bit like news of a wayward celebrity, judgments from the European Court of Human Rights are now awaited with a mixture of trepidation and excitement. Whatever are those crazy unelected judges going to do next? Will this be the latest “Judgment day” for the enfant terrible of Strasbourg?

Yesterday the court released three judgments involving the United Kingdom. All three were about controversial issues: extradition, murder sentencing and terrorist deportation. The UK triumphed in the first two but failed in the third, although for surprising reasons. None of the judgments are “final”, in that the parties can still attempt an appeal to the court’s Grand Chamber if they wish. The rulings were:

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Small solar systems on tenterhooks: Court of Appeal deliberates

17 January 2012 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 , Mitting J, 21 December 2011, hearing in the CA 13 & 16 January 2012 

Avid readers of this blog (posted unpromisingly between Christmas and New Year) may recall this successful challenge to a proposal to modify solar power subsidies for small photovoltaic proposals (called by the judge, charmingly, “small solar systems”). At that stage, all I had was a short summary of the decision. Now a full transcript is available, albeit from behind a paywall. As importantly, the case has already bounded its way to the Court of Appeal, who have just finished hearing it, and are due to give judgment in February. I shall therefore not deal with the basis upon which the judge ruled that the change of policy was unlawful, but the broader point in my last post –  when can you challenge a proposal?

The judgment is pithy and helpful for those tussling with such a problem. The Minister contended that he could consult on any proposal, and provided he had not made up his mind, he could not be judicially reviewed whilst this process was happening. Yes, said Mitting J, I agree with all that…

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Suspected terrorist may not be deported to Jordan – Strasbourg rules

17 January 2012 by

Othman (Abu Qatada) v United Kingdom – read judgment | updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

The Strasbourg Court has ruled today that whilst diplomatic assurances may protect a suspected terrorist from torture, he cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him.

The following summary is based on the Court’s press release.

The applicant, Omar Othman (Abu Qatada), is a Jordanian national, currently detained in Long Lartin prison. He is suspected of having links with al-Qaeda.He arrived in the United Kingdom in September 1993 and made a successful application for asylum, in particular on the basis that he had been detained and tortured by the Jordanian authorities in 1988 and 1990-1. He was recognised as a refugee in 1994, being granted leave to remain until June 1998.

While his subsequent application for indefinite leave to remain was pending, he was detained in October 2002 under the Anti-Terrorism, Crime and Security Act. When that Act was repealed in March 2005, he was released on bail and made subject to a control order under the Prevention of Terrorism Act. While his appeal against the control order was still pending, in August 2005 he was served with a notice of intention to deport him to Jordan.
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“Whole life” sentences for murder not in breach of Convention, says Strasbourg

17 January 2012 by

Vinter and others v United Kingdom (application nos. 66069/09, 130/10 and 3896/10) – read judgment 

The Strasbourg Court has found three British murderers’ imprisonment for life is not inhuman or degrading and therefore not in violation of Article 3The following summary is based on the Strasbourg Court’s press release:

The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are British nationals who were born in 1969, 1961 and 1946 respectively. All three men are currently serving mandatory sentences of life imprisonment for murder.

Background

Mr Vinter was convicted of stabbing his wife in February 2008. While still on parole for a first murder offence (he killed a work colleague), he followed his wife – from whom he was estranged – to a public house, forced her into his car and drove off. When the police telephoned her, Mr Vinter forced her to tell them that she was fine. He also later called the police to tell them that she was alive and well. However, some hours later he gave himself up and confessed that he had killed her. The post-mortem revealed that his wife had a broken nose, strangulation marks around her neck and four stab wounds.
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Youth restraint challenge rejected by High Court

16 January 2012 by

The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd  and Serco plc [2012] EWHC 8 (Admin) – read judgment

Although certain restraining measures had been taken unlawfully against young people in secure training centres for a number of years, the court had no jurisdiction to grant an order that the victims of this activity be identified and advised of their rights.

The claimant charity alleged that children and young persons held in one or other of the four Secure Training Centres in the UK had been unlawfully restrained under rules which approved certain techniques of discipline. It sought an order requiring the defendant to provide information, to the victims or their carers on the unlawful nature of restraint techniques used in Secure Training Centres (“STCs”) and their consequential legal rights.


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Terrorist suspect BBC interview can be shown, rules High Court

15 January 2012 by

British Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad (Rev 1) [2012] EWHC 13 (Admin) – Read judgment

The High Court  ruled  that the Justice Secretary’s refusal to grant the BBC permission to have and to broadcast a face-to-face interview with terrorism suspect Babar Ahmad was unlawful.

The BBC and one of its home affairs correspondents, Dominic Casciani, had applied for permission to conduct the interview with Mr Ahmad, who is currently detained at HMP Long Lartin, and is fighting extradition to the USA. The BBC also wished to broadcast the interview. The Justice Secretary refused the permission, which refusal the BBC challenged in a judicial review claim.


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