Monthly News Archives: April 2012
17 April 2012 by Rosalind English
A fascinating perspective on how a city’s architecture may be altered and shaped by aggressive rights litigation has been provided by today’s New York Times, which leads with a story entitled “Lawyers find obstacles to the disabled, then find plaintiffs“.
We are familiar in this country with the decades-old complaint that various unfortunate trends such as ambulance chasing and the litigation culture have filtered over the Atlantic, infecting English public life with defensive practices and an obsession with health and safety. Whether the blame can be laid solely at the door US culture is moot, but certainly lessons can be drawn from the unintended consequences of high-minded rights legislation as they play out across the pond, particularly where similar laws in this country – largely consolidated in the Equality Act 2010 – have yet to make their impact.
Continue reading →
Like this:
Like Loading...
17 April 2012 by Rosalind English
R (on the application of Ian Shutt and John Tetley v Secretary of State for Justice (2012) [2012] EWHC 851 (Admin) – read judgment
Hard on the heels of MP comes another case on the unlawful restriction of discretion with regard to prison rules (see my post on that decision). This case concerned national policy relating to prison incentives and the earned privileges scheme (IEP). The scheme gave enhanced status to convicted sex offenders who had been assessed as unready for a sexual offences training programme.
Background
Both men were serving substantial determinate sentences in the Isle of Wight after having been convicted of serious sexual offences against children. Despite the fact that they had been assessed as suitable for the training programme under the national IEP policy, there was a points system under the local prison policy which meant that convicted sex offenders such as the claimants were considered unready for the programme by reason of continued denial of their offences. As the claimants refused to admit their guilt, they could not accrue enough points to attain enhanced status. The national IEP policy stated that unreadiness for such a programme “could” bar a prisoner from obtaining enhanced status. The issue was whether that amounted to a blanket ban, and if so, whether it was unlawful.
Continue reading →
Like this:
Like Loading...
17 April 2012 by Guest Contributor
This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the European Court of Human Rights (ECtHR) is taking an approach that looks like one of appeasement of certain signatory states.
Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconcilable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?
Continue reading →
Like this:
Like Loading...
16 April 2012 by Rosalind English
MP, R(on the application of) v the Secretary of State for Justice [2012] EWHC 214 (Admin) – read judgment
The prison authorities had acted unlawfully in restricting childcare resettlement leave to prisoners who were within two years of their release date and had been allocated to “open” conditions.
Two female prisoners applied for judicial review of decisions of the defendant secretary of state and prison governors to refuse them childcare resettlement leave (CRL). CRL is a type of temporary licence available to prisoners who have sole caring responsibility for a child under 16. CRL enables prisoners to spend up to three days at home (including nights), provided certain conditions are met. The principal issue in the claim was whether the secretary of state was acting lawfully in restricting CRL to female prisoners who have less than 2 years until their earliest release date.
Continue reading →
Like this:
Like Loading...
16 April 2012 by Guest Contributor
Department of Health v IC, Healey and Cecil(EA/2011/0286 & EA/2011/0287) – Read Decision
In a recent post, Panopticon brought you, hot-off-the-press, the Tribunal’s decision in the much-publicised case involving publication, under Freedom of Information Law, of the NHS Risk Register. Somewhat less hot-off-the-press are my observations. This is a very important decision, both for its engagement with the legislative process and for its analysis of the public interest with respect to section 35(1)(a) of Freedom of Information Act 2000 (formulation or development of government policy) – particularly the “chilling effect” argument. At the outset, it is important to be clear about what was being requested and when.
Risk registers in general
The DOH prepared two “risk registers” documenting the risks associated with implementing the “far-reaching and highly controversial” NHS reforms under what was then the Health and Social Care Bill. The Tribunal heard that risk registers are used widely across government for project planning. They provide snapshots (rather than detailed discussions) combining the probability of and outcomes from any given risk associated with the proposed reform; risks are then classified in red, amber or green terms. According to Lord Gus O’Donnell, who gave evidence in support of the DOH’s case, risk registers are the most important tool used across government to formulate and develop policy for risk management in advising ministers. John Healey MP, one of the requesters in this case, said that he was a minister for ten years and was never shown such a register.
Continue reading →
Like this:
Like Loading...
16 April 2012 by Wessen Jazrawi
Welcome back to the UK Human Rights Roundup, your weekly dose 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
This week, the debate about extradition rages on following the Strasbourg Court’s decision in the Abu Hamza case,which raises a number of interesting legal and political questions. Also in the news this week, the issue of access to information has arisen in a variety of forms. And the flagship event of the UK’s chairmanship of the Council of Europe is about to begin in Brighton, with the future of the European Court of Human Rights at stake.
Brighton Conference begins
The Brighton Conference on European Court of Human Rights reform, due to take place on 18-20 April, begins on Wednesday. As noted by the ECHR blog, its program is now available online here, although it is of limited interest given that it sheds little light on what will be discussed. Meanwhile, a group of 11 Non Governmental Organisations have released a joint statement welcoming positive reforms of the Court but urging “all delegations to the negotiations to refrain from endorsing measures which would amend the Convention so as to codify, or seek to prioritise, the principles of subsidiarity and the margin of appreciation or to add new admissibility requirements.”
by Wessen Jazrawi
Continue reading →
Like this:
Like Loading...
15 April 2012 by Isabel McArdle
Balogun v UK [2012] ECHR 614 – Read judgment
It has been a week of victories for the UK government in deportation cases in the European Court of Human Rights. On the same day as the ECtHR found that Abu Hamza and four others could be extradited to the US on terrorism charges, it also rejected a case of a man facing deportation despite having lived in the UK since the age of three.
The applicant, born in 1986, had a number of criminal convictions. The Court accepted that he had been in the UK since the age of three, although he had only acquired indefinite leave to remain in December 2003. In 2007 he pleaded guilty to possession of Class A drugs with intent to supply. He was jailed for three years and later in 2007, he was given notice that the Secretary of State intended to have him deported to Nigeria, as he is a Nigerian national.
Continue reading →
Like this:
Like Loading...
15 April 2012 by Daniel Sokol
Photo credit: cas.sk
Stübing v Germany (no. 43547/08), 12 April 2012 – Read judgment
The European Court of Human Rights (fifth section) has ruled unanimously that Germany did not violate Article 8 of the European Convention on Human Rights (right to respect for private and family life) by convicting Patrick Stübing of incest
Professor Jonathan Haidt, a well-known social psychologist, presented this scenario as part of a study:
Julie and Mark, who are brother and sister, are traveling together in France. They are both on summer vacation from college. One night they are staying alone in a cabin near the beach. They decide that it would be interesting and fun if they tried making love. At very least it would be a new experience for each of them. Julie was already taking birth control pills, but Mark uses a condom too, just to be safe. They both enjoy it, but they decide not to do it again. They keep that night as a special secret between them, which makes them feel even closer to each other. So what do you think about this? Was it wrong for them to have sex?
Most people answered with a resounding yes, supporting their “yuck” response with reasons. Yet, Professor Haidt noticed that many respondents ignored elements of the story.
Continue reading →
Like this:
Like Loading...
12 April 2012 by Rachit Buch
Free speech is under attack. Or so it seems. The last few weeks have been abuzz with stories to do with free speech: a Supreme Court ruling on the Reynolds defence to libel; contempt of court proceedings against an MP for comments made in a book and the latest in a growing line of criminal trials for Twitter offences. The diversity of media at the heart of these stories – print news, traditional books and online ‘micro-blogging’ – indicates the difficulty of the task for the legal system.
Flood v Times: how does this affect calls for libel reform?
On 21 March, the Supreme Court affirmed the Times newspaper’s reliance on the Reynolds defence to libel – often referred to as Reynolds privilege or the responsible journalism defence – to a claim by a detective sergeant in the Metropolitan Police.
Continue reading →
Like this:
Like Loading...
12 April 2012 by Guest Contributor
Today was one of striking parallels between the USA and the UK in terms of litigation concerned with access to information.
APPGER and security bodies
First, one of The Independent‘s main stories this morning concerned a case brought in the US by the UK’s All Party Parliamentary Group on Extraordinary Rendition (APPGER). Readers will recall that in the UK, APPGER was partially successful before the Upper Tribunal last year; the decision of the First-Tier Tribunal in a second case (the hearing of which concluded in February 2012) is awaited.
Continue reading →
Like this:
Like Loading...
11 April 2012 by Rosalind English
Waking up in New York this morning, I find the newspapers are much exercised by the recent decision of the Strasbourg Court to allow the extradition of certain terror suspects to the US, as discussed in Isabel McArdle’s post. The colourful New York Post declares unambiguously that “Thugs face Extradition” (April 11), following its banner headline of yesterday “UK can extradite hook-handed clerk, 4 other terrorists to US”. And just in case any passing reader failed to get the point, the strapline says
Britain can extradite a one-eyed, hook-handed radical Muslim cleric and four other suspects to the United States to face terrorism charges, Europe’s human rights court ruled today.
Giving rather more detail by way of background, today’s edition of The New York Times explains that Britain
has struggled to balance civil liberties and domestic security in the face of entrenched Islamic extremism and repeated terrorist attacks, and has sought to deport some of the dozens of subjects it has detained in scores of possible plots over a decade
According to the NY Times, the director of the national prison project for the American Civil Liberties Union found the ruling “disappointing”, and showed that the Strasbourg Court seemed willing to accept “dubious” assurances from the United States.
Continue reading →
Like this:
Like Loading...
10 April 2012 by David Hart KC
R (o.t.a Guardian Newspapers) v. City of Westminster Magistrates Court, USA as Interested Party, 3 April 2012, Court of Appeal: read judgment
No, not a case about secret trials, but about the way in which newspapers can get hold of court papers in open oral hearings. And, as we shall see, it led to a ringing endorsement of the principle of open justice from the Court of Appeal, leading to production of the documents to the Guardian.
Bribery allegations against a London solicitor and a former executive of a Halliburton company, and extradition sought by the USA and keenly challenged by the defendants. Some lack of clarity as to why the Serious Fraud Office was not prosecuting the defendants. All in all, a tasty morsel for the Guardian to get its teeth into. It was allowed into the hearing, but then not allowed critical documents provided to the courts, including the written arguments submitted by the USA and the defendants, affidavits supporting the extradition, and various other letters and documents put before the court.
Why not?
Continue reading →
Like this:
Like Loading...
10 April 2012 by Wessen Jazrawi
Welcome back to the UK Human Rights Roundup, your weekly helping 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
The big news of today is that Abu Hamza, Babar Ahmad and 3 others are highly likely to be extradited to the USA to face terrorism charges, following a ruling in the European Court of Human Rights – see Isabel McArdle’s post on the ruling. This aside, the main topics in the news this week have been the response by the Parliamentary Committee on Human Rights (the Joint Committee on Human Rights or the “JCHR”) to the Government’s Justice and Security Green Paper and the leaks that the Government plans to introduce “real time” monitoring of how we use the internet in the interests of national security.
by Wessen Jazrawi
Continue reading →
Like this:
Like Loading...
10 April 2012 by Isabel McArdle
BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM – 24027/07 [2012] ECHR 609 – Read judgment / press release
The European Court of Human Rights (Fourth Section), sitting as a Chamber, has found that five men accused of serious terrorist activities can be extradited from the UK to the US to face trial.
They had argued that their article 3 rights (article 3 prohibits torture, inhuman and degrading treatment) would be violated if they were extradited and convicted. A sixth man’s case has been adjourned pending further submissions from the parties to the proceedings.
Continue reading →
Like this:
Like Loading...
8 April 2012 by David Hart KC
A long saga with a very new twist which should make even the most strident critic of international courts think again.
On 12 December 1999, the Erika sank some 60 nautical miles off the Brittany coast, spilling some 20,000 tonnes of heavy fuel which in due course polluted some 400 km of the French coastline. On 24 May 2012, the Cour de Cassation is due to rule on whether Total is criminally liable for the spill. Previous courts (the Criminal Court of First Instance, and the Court of Appeal in Paris) had said that it was. But now Advocate-General Boccon-Gibod has recently advised the Cour de Cassation that Total has no criminal liability. The problem, as often with international environmental issues, particularly criminal ones, is the jurisdiction for the offence charged – can, in this instance, the French prosecute this crime, even though someone can also do so somewhere else? What better reason for the founding of an international environmental court – a forum where one tribunal can seek to enforce common rules against those responsible for major pollution, wherever the pollution occurs and wherever the parties may be resident.
Continue reading →
Like this:
Like Loading...
A fascinating perspective on how a city’s architecture may be altered and shaped by aggressive rights litigation has been provided by today’s New York Times, which leads with a story entitled “Lawyers find obstacles to the disabled, then find plaintiffs“.
Recent comments