Monthly News Archives: March 2012


No extradition for Shrien Dewani – for now

31 March 2012 by

The Government of the Republic of South Africa v Shrien Dewani- Read decision

The extradition to South Africa of Shrien Dewani, the man accused of murdering his wife on honeymoon there in 2010, has been delayed pending an improvement in his mental health.

The case made headlines in 2010, when the story broke of a honeymooning couple who had been ambushed in the township of Gugulethu, South Africa. Mr Dewani told police he had been travelling in a taxi which was ambushed by two men. He described being forced from the car at gunpoint and the car driving away with his wife still inside. She was found dead shortly after.  However, evidence emerged which led the South African authorities to believe that Mr Dewani had initiated a conspiracy with the taxi driver and the men who ambushed the taxi to murder his new wife. Consequently, they sought his extradition from the UK, to which he had returned, to face a trial for murder.

In an appeal to the High Court from a decision by a Senior District Judge that Mr Dewani could be extradited, Mr Dewani made two arguments:
1.    Prison conditions in South Africa were such that his Articles 2 (right to life) and 3 (prohibition on torture, inhuman and degrading treatment) Convention rights would be violated if he were extradited;

2.    His mental health and risk of suicide were such that his should not be extradited.
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All by myself: segregation, prisons and Article 6

30 March 2012 by

Bourgass and others v Secretary of State for Justice [2012] EWCA Civ 376 Read decision

The ability to interact with other prisoners is a major part of prison life, and not one many prisoners would give up willingly. But there are circumstances where prisoners have to be segregated from the rest of the prison population, such as where they are posing a violent threat to another prisoner or planning an escape. The Court of Appeal has recently looked into the question of how decisions to segregate are made, including the initial decision, the review of the decision and ultimately judicial review, in a human rights context.

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From County Court Strike Out to Strasbourg Success

30 March 2012 by

Reynolds v United Kingdom [2012] ECHR 437 – read judgment

What – if anything – can a claimant do when she suspects that the domestic law is not only out of kilter with Strasbourg jurisprudence but is also denying her even an opportunity to bring a claim? Taking arms against a whole legal system may be an heroic ideal, but the mundane reality is a strike out under CPR rule 3.4 by a district judge in the County Court. It is a long way from there to the European Court of Human Rights.

This was the position in which Patricia Reynolds and her daughter Catherine King found themselves following the sad death of (respectively) their son and brother. David Reynolds suffered from schizophrenia. On 16 March 2005 he contacted his NHS Care Co-ordinator and told him that he was hearing voices telling him to kill himself. There were no beds available in the local psychiatric unit, so Mr Reynolds was placed in a Council run intensive support unit. His room was on the sixth floor and at about 10.30 that night Mr Reynolds broke his (non-reinforced) window and fell to his death.
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Cornish waste incinerator case reversed- expectation not legitimate after all

30 March 2012 by

R (o.t.a Cornwall Waste Forum, St Dennis Branch) v Secretary of State for Communities and Local Government, Court of Appeal, 29 March 2012, read judgment

The CA has just held that Collins J was wrong to hold (per my previous post) that the local NGO had a legitimate expectation that the Secretary of State would decide an air pollution issue, rather than  leave it to the Environment Agency. In a nutshell, the Inspector (and hence the Secretary of State) was entitled to change his mind on this issue. So the expectation crumbled, and so did this judicial review to quash a decision to allow a waste incinerator to proceed.

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Suspected terrorist regains British citizenship

29 March 2012 by

Hilal Abdul-Razzaq  Ali Al‐Jedda v Secretary of State for the Home Department March 29 – read judgment

The Court of Appeal has allowed the suspected terrorist Al‐Jedda’s appeal against the Home Secretary’s decision to deprive him of his British nationality.

The appellant, an Iraqi refugee, was granted British nationality in 2000. Four years later however he was detained by British forces in Iraq on grounds of suspected terrorist activities. At the end of  2007 he was released from detention without charge, but just prior to his release, on 14 December 2007, the Secretary of State for the Home Department made an order under the British Nationality Act 1981 depriving him of his British nationality. As a consequence of this order the appellant has not been able to return from Turkey to the United Kingdom. His appeal against this order has been upheld on the basis that he had not regained Iraqi nationality when his British nationality was revoked. He thus requalifies for citizenship in this country.
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Promptness yet again in judicial review: It’s Complicated

29 March 2012 by

Berky, R (on the application of) v. Newport City Council, Court of Appeal, 29 March 2012, read judgment

 Two first-instance cases last year (Buglife, and Broads) considered whether a defendant to a judicial review involving a European point can complain that the proceedings were not commenced “promptly” even though they were commenced within the 3 month time limit. Both judges decided that this argument could not be advanced, even though the wording in CPR rule 54.5(1) reads  “promptly and in any event not later than 3 months.”  The Court of Appeal has now (by a whisker) approved these cases, though there was a vigorous dissent on one important  point from Carnwath LJ. The point was in one sense academic, because the Court thought there was no merit in the underlying proceedings, but the ruling is still important.

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Can a homosexual person adopt his or her partner’s child? The case of Gas and Dubois v France.

29 March 2012 by

Gas and Dubois v France (2012) (application no 25951/07).  Read judgment (in French).

The French government did not violate articles 8 (right to respect for private and family life) and 14 ECHR (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms) in not allowing one partner in a homosexual couple to adopt the child of the other.  And the Daily Mail goes off on another frolic of its own.

Ms Valerie Gas and Ms Nathalie Dubois, now in their 50s, lived together as a lesbian couple, obtaining the French equivalent of a civil partnership (the pacte civil de solidarité, or PACS) in 2002.  Ms Dubois, through artificial insemination in Belgium using an anonymous sperm donor, gave birth to a girl in September 2000.  Together, they took care of the child and, in 2006 , Ms Gas, applied to adopt the girl with the consent of her partner, Ms Dubois. 
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Press regulation on a sinking ship

28 March 2012 by

Cairns v Modi [2012] EWHC 756 – read judgment 

It was coincidental that this cricket libel case and Lady Justice Arden’s speech on media intrusion and human rights “Striking the Balance” came out on the same day.

Non-followers of cricket and non-followers of Twitter are equally bemused by the vastly frothed story about  match-fixing allegations, but this was the first social networking libel to hit the law reports in this country.  Despite this, the case has all the trappings of an old fashioned defamation case –  strong public figures, ready to come forward to defend their reputation/publication; a long lead time between publication and identification of the libel, protracted cross examination, sheaves of evidence going to both justification and claimant. The claimant is a famous New Zealand cricketer with a reputation to defend. Nothing new there. The novelty was that the defendant, one time chairman of the hugely popular Indian Premier cricket league, posted a line on his Twitter profile implying that the claimant had cheated by fixing matches. It was serendipitous that the author of the tweet, Mr Modi, is both a well known figure, resident in England, and ready to come forward. The justification defence fell apart and the claimant was awarded £75,000, with another £15K for aggravated damages. End of story. Or is it?
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Police manhandled autistic boy at swimming pool – Lucy Series

28 March 2012 by

ZH v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB) – read judgment

The Mental Capacity Act 2005 (MCA) was long awaited; it took nearly two decades for the Law Commission’s proposals for codification of the common law on mental capacity to make their way onto the statute books. The MCA is generally considered to be quite progressive and I often hear it described as ‘empowering’ and granting people ‘rights to autonomy’.

I can see why this is said, but it actually belies an important aspect of the unique way in which the Act functions. Rather than granting ‘claim rights’ to autonomy, the MCA in fact sets out those circumstances when a person’s ordinary rights to self-determination may be infringed (see ss1-6 MCA). It does this by supplying a ‘general defence’ for those whose actions might trespass upon or violate a person’s ordinary legal rights.
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A robust restatement of the principles of nuisance

27 March 2012 by

Barr v. Biffa, CA, 19 March 2012, read judgment

The reverse suffered by the claimants in the noisy motor racing case case before the Court of Appeal last month was something of a body blow to common lawyers and environmentalists. So this latest development in nuisance litigation should be welcome news.

As David Hart’s report  suggests, the Court of Appeal pulls no punches in its critique of the High Court judgment which dismissed the claims of 152 households on the basis that a landfill operator had abided by the terms of its permit. Reasserting the private law rights of individuals in nuisance actions, Carnwath LJ observes that this case has been

a sad illustration of what can happen when apparently unlimited resources, financial and intellectual, are thrown at an apparently simple dispute such as one about nuisance by escaping smells. The fundamental principles of law were settled by the end of the 19th century and have remained resilient and effective since then.

The common law, he notes, is best when it is simple. And in this judgement he returns nuisance to the simple statement of reciprocity and neighbourliness where it belongs.

There are a few propositions – not many – in Carnwath LJ’s judgment which will serve as a clear, short checklist for the viability of a nuisance action.
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Flooding claims from Vladivostok get to Strasbourg – and win

27 March 2012 by

Kolyadenko v. Russia

EHCtR, 28 February 2012 

This was the scene in the riverbed lying below a large reservoir near Vladivostok. There had been very heavy rain, causing the managers of the reservoir to let water through into that riverbed for fear that the reservoir might collapse. But the channel beneath was not exactly clear of obstructions, as the image shows. 6 flooded applicants obtained no redress in the Russian Courts, and had to go to Strasbourg to get damages – nearly 11 years after the flood in August 2001.

It might be thought that similar claimants here would not go uncompensated. But that is far from clear, as English law on flooding liabilities is by no means straightforward. Hence, the interest of the case, in which claims under Articles 2 (right to life), 8 (right to private and home life) and Article 1 Protocol 1 (right to possessions) were successful.

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Is a school responsible for assault on foreign expedition?

26 March 2012 by

XVW and YZA v Gravesend Grammar School for Girls and Adventure Lifesigns PLC [2012] EWHC 575 (QB) – read judgment

In 2005 a group of schoolgirls were taken on a school trip to Belize. While working on a resort, three girls, aged between 15 and 17, were violently raped by the manager of the site.

The question before the High Court was this: were the school or travel company responsible for the actions of someone they had not employed, abroad, on a school expedition where decisions had to be made about unforeseen contingencies when the party had arrived at their destination?

Background facts

The school had arranged an expedition through the travel company ‘ALS’. The twelve pupils were accompanied by a teacher and two experienced employees of the travel company. The group initially arrived in Mexico but could not proceed with the itinerary because of a hurricane. The teacher and travel guides, in looking for alternative itineraries, were recommended a project called Maya Walks, run by Jimmy Juan and his son Aaron. It was agreed that the group would help construct buildings at the farm resort owned by Jimmy and Aaron and in exchange they received free accommodation.
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Free expression, privacy injunctions and gay marriage – The Human Rights Roundup

26 March 2012 by

Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

It’s been an interesting week for freedom of expression issues, and its Article 10 ECHR counterpart, freedom of information, with judgments from the Court of Appeal and the High Court.  The Independent Reviewer of Terrorism Legislation has also produced his first (and last) report on the operation of Control Orders. In other news, the NGO community commented on the UK’s Draft Brighton Declaration on reform of the European Court of Human Rights, the closed-material procedures received a rare show of support and the Government issued a consultation on same-sex marriage.

by Wessen Jazrawi


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Don’t try for me, Argentina

23 March 2012 by

Wright v Argentina [2012] EWHC 669 (Admin) – read judgment

The Administrative Court has just found that a British citizen cannot be extradited to Argentina to be tried for a drug smuggling offence because she would face inhuman and degrading treatment in the Argentinian prison system contrary to her Article 3 rights under ECHR.

Background

The appellant was apprehended at the airport in Buenos Aires with cocaine in her luggage.  She was remanded into preventative detention and questioned, but eventually she was granted bail.  In breach of her bail conditions, she fled the Argentinean jurisdiction and returned to the United Kingdom via Brazil. The Argentinian government  issued a request for the appellant’s extradition to Argentina through diplomatic channels so that she could face a drug smuggling charge. The appellant was subsequently arrested and brought before the magistrate’s court where she argued that extradition would breach her rights under Article 8. The District Judge did not accept that argument and an extradition order was consequently issued.
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When their Lordships open their mouths extra-judicially …

23 March 2012 by

Do Lord Phillips, Baroness Hale and other members of the judiciary have the right to say what they think? At first glance that seems like a ridiculous question. Firstly, it is their job to express their views on the legal disputes coming before them on an almost daily basis. Secondly, to look at it from an entirely different perspective, they enjoy the same protections granted by article 10 of the European Convention of Human Rights (ECHR) as the rest of us. Of course they have the right to say what they think.

But what about when they are acting in a non-judicial capacity – when they are giving speeches or participating in conferences or being interviewed? What about when the topic of discussion is not a narrowly defined legal point but a more politically charged issue of public debate? The answer must be the same. They have the right to express their views, but whether or not they should is a more nuanced question. This was the topic selected by the Lord Neuberger MR in his Presidential Address to the Holdsworth Club on 2 March 2012.

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