Monthly News Archives: October 2012
22 October 2012 by Sam Murrant
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
This week, free speech and social media has again created a lot of online commentary, with UKHRB founder Adam Wagner chairing a panel discussion on the subject. Also hitting the blogosphere this week: the government’s proposal to opt out of 130 EU criminal law measures; the progress of the Azelle Rodney Inquiry; comments on the Gary McKinnon case and Prince Charles’ letters to government ministers.
Continue reading →
Like this:
Like Loading...
20 October 2012 by Alasdair Henderson
Black & Morgan v. Wilkinson (unreported, 18 October 2012, Slough County Court) – Read judgment
The Christian owner of a B&B in Berkshire was found to have discriminated against a gay couple by refusing to allow them stay in a double-bedded room because of her belief that all sexual activity outside of marriage is wrong.
Although a county court judgment, this case has been splashed all over the headlines, partly because of BNP leader Nick Griffin’s comments on Twitter (about which see more below) but also because it is so factually similar to the high-profile case of Bull v. Hall and Preddy which is currently before the Supreme Court (see our analysis of the Court of Appeal judgment here). This judgment has also come along at a time when the European Court of Human Rights’ decision is awaited in the four conjoined cases of Ladele, Eweida, Macfarlane and Chaplin, all of which involve issues of religious freedom and two of which involve the same potential conflict between the right not to be discriminated against on grounds of sexual orientation and the right to religious freedom (see our posts here, here and here). Moreover, Recorder Moulder’s comprehensive and careful judgment has helpfully been made available online (see link above), so it can be considered in detail.
Continue reading →
Like this:
Like Loading...
19 October 2012 by David Hart KC
Walton v. The Scottish Ministers, Supreme Court, 17 October 2012 read judgment
The outcome of this challenge to a road scheme near Aberdeen turned on abstruse points about environmental assessment – but the speeches from the Justices go right to the heart of two big questions in public law.
1. When can someone challenge an unlawful act – when do they have “standing” to do so?
2. If an unlawfulness is established, when can the courts exercise their discretion not to quash the unlawful act, particularly where the unlawfulness arises under EU law?
In the course of the standing issue Lord Hope talks about ospreys – hence my title, but a bit more context first. And we shall also see the views of the Court that standing and discretion are linked questions.
Continue reading →
Like this:
Like Loading...
19 October 2012 by Rosalind English
EM (Eritrea) and others v Secretary of State for the Home Department – read judgment
A member state was entitled to return a refugee to the EU state of first embarkation unless it is proved that there are “systematic deficiencies” in the asylum procedures of the receiving state.
These four cases raised one central question: was it arguable that to return any of the claimants to Italy, either as an asylum-seeker pursuant to the Dublin II Regulation or as a person already granted asylum there, would entail a real risk of inhuman or degrading treatment in violation of Article 3 of the ECHR? In determining that question, the evidence provided by the UN Refugee Agency was decisive for the court.
The Dublin II Regulation provides for a system whereby asylum claims are processed and acted on by the first member-state in which the asylum-seeker arrives. Under this Regulation asylum-seekers and refugees may be returned to that state if they then seek asylum or take refuge elsewhere in the EU. The assumption underlying this system is that every member state will comply with its international obligations under not only the 1951 Refugee Convention and the European Convention on Human Rights but also the Qualification Directive and the EU Charter.
Continue reading →
Like this:
Like Loading...
18 October 2012 by Guest Contributor
There has been much in the press recently about the UK Government being minded to opt out, and/or in, of EU criminal justice measures. The implications of this decision will be significant to the UK’s ability to investigate and prosecute crime. So what does it all mean?
Opting out of what?
The UK managed to negotiate the quite remarkable article 10 to protocol 36 of the Lisbon Treaty which allows for the UK to exercise a power that no other member state of the Union holds. The Lisbon Treaty finally incorporates EU criminal justice measures (which are referred to as the area of police and judicial cooperation in criminal matters) into the main body of treaty law.
In order to do so, it allowed a transitional period of five years (which expires in December 2014), at the end of which, all measures adopted under the earlier treaty provisions (in what was known as the third pillar) are ‘Lisbonised.’ What this means is they become directives rather than framework decisions (and various other equivalents). The difference between the two is that directives are enforceable before the Court of Justice of the European Union (CJEU) and decisions are not.
Continue reading →
Like this:
Like Loading...
18 October 2012 by Adam Wagner
Last month I posted on the troubling case of Rachel Corrie, a 23-year-old protester killed by an Israeli military bulldozer in 2003. In August, an Israeli court ruled that the Israeli Defence Ministry bore no responsibility in civil law for her death.
I complained that the reporting of the ruling had been poor, despite a reasonably good summary in English produced by the court. One of the main problems undoubtedly was the lack of an English translation of the 73-page Hebrew ruling. Until now, that is. Through the magic of the internet – and a huge amount of work – Irène Solomon, a legal advisor at Ofgem and reader of this blog, has translated the judgment from Hebrew into English. She has taken on this mammoth task for free in her personal capacity and has given me permission to publish her work online as a UKHRB exclusive.
You can download the translation here (PDF) and it is also reproduced after the break below. I should emphasise that this is not an official translation, but it does appear to me to be a very good effort indeed.
Continue reading →
Like this:
Like Loading...
18 October 2012 by Rosalind English
I have posted previously on the logistical difficulties in legislating against genetic discrimination.
The prospect that genetic information not only affects insurance and employment opportunities is alarming enough. But it has many other implications: it could be used to deny financial backing or loan approval, educational opportunities, sports eligibility, military accession, or adoption eligibility. At the moment, the number of documented cases of discrimination on the basis of genetic test results is small. This is probably due to the relatively few conditions for which there are currently definitive genetic tests, coupled with the expense and difficulty of conducting these tests. But genetic discrimination is a time bomb waiting to be triggered and the implications of whole genome sequencing (WGS) are considered in a very interesting and readable report by the US Presidential Commission for the Study of Bioethical Issues Privacy and Progress in Whole Genome Sequencing.
Continue reading →
Like this:
Like Loading...
16 October 2012 by Adam Wagner
A short post to say that I was interviewed by Joshua Rozenberg for today’s Law in Action programme on BBC Radio 4. I was debating, with Nadine Dorries MP, a recent series of criminal prosecution (see my post from last week) brought against social media users. The debate centred on the implications for freedom of speech as protected by Article 10 of the European Convention on Human Rights.
The full programme can be listened to here (UK only, I think) – the social media section is from around 20 minutes in. You may have guessed from my post as well as this interview that I think the current state of the law under the Communications Act 2003 is causing very significant problems for freedom of expression.
Relatedly, I am chairing an interesting panel debate tomorrow (Wednesday) evening on this very topic. I understand the event is full but you can submit questions ahead of the event to or follow for live tweets @HumanRightsLawA ; #lawandtwittering
Enjoy the show, and be careful what you tweet.
Continue reading →
Like this:
Like Loading...
16 October 2012 by Rosalind English
R (on the application of the Metropolitan Police Service) v the Chairman of the Inquiry into the Death of Azelle Rodney and Interested Parties [2012] EWHA 2783 (Admin) – read judgment
The public inquiry into the death of Azelle Rodney, which commenced in 2010, was still under way when it was interrupted by the present dispute. It concerned the issue whether police surveillance footage taken from the air, showing Azelle Rodney’s movements in the two hours before his death, should be disclosed to the legal team representing his mother at the Inquiry.
The Chairman of the Inquiry decided to permit disclosure and the Metropolitan Police Service (MPS) took these proceedings to challenge the decision.
The footage was shot during a 2005 drug heist operation involving Mr Rodney, 25, who was shot six times at point-blank range after a car chase. One of the issues of importance to the deceased’s mother (Ms Alexander, the First Interested Party) was whether there had been a better opportunity to stop the car and its occupants at any time before the hard-stop which resulted in Mr Rodney’s death. This issue involved consideration by the Inquiry of the management of the surveillance/stop operation by senior officers. The officer in charge of the operation is due to give his evidence and to be questioned by Ms Alexander’s counsel.
Continue reading →
Like this:
Like Loading...
16 October 2012 by Guest Contributor
Building on Abu Qatada
There are three cases, among the many decided by the Court in the past few weeks, which I would like to highlight. They deal with testimony potentially obtained through torture, forced labour and extraordinary rendition respectively.
The first is the case of El Haski v. Belgium (available only in French). It deals with a terrorist suspect against whom evidence obtained in Morocco during legal proceedings there (following the 2003 Casablanca bombings) was used in court in Belgium. It was unclear whether such evidence was in fact obtained by means of torture. The Court held that it was sufficient for exclusion of such evidence from trial in an ECHR state party if a suspect could show that there was a “real risk” that such evidence had been obtained by treatment contrary to Article 3. The case builds on the recent Othman (Abu Qatada) v. the United Kingdom judgment, from January of this year. In this case, such a real risk existed. The refusal by Belgian courts to exclude the evidence thus led to a violation of the right to a fair trial (Article 6 ECHR).
Continue reading →
Like this:
Like Loading...
15 October 2012 by Wessen Jazrawi
Updated |
Welcome back to the UK Human Rights Roundup, your weekly buffet 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.
Many of the articles in the blogosphere this week have concerned the conviction and jailing of Matthew Woods for offensive jokes made about the abducted five year old April Jones which came in the same week as a man was jailed for wearing an offensive t-shirt about police deaths. Lawyers, comedians and others have expressed their concern about the sentence and its implications for freedom of expression in this country. The other key news of the week is the statement by our new Minister for Justice, Chris Grayling, that householders will be allowed more leeway in the force used against burglars in their home. Meanwhile, the Attorney-General has come out in support of the European Convention of Human Rights.
by Wessen Jazrawi
Continue reading →
Like this:
Like Loading...
14 October 2012 by David Hart KC
Why do judges disagree and publish their disagreements when cases get decided? After all, the Cabinet does not do so (openly at least), and our FTSE-100 companies do not generally do so, when their executives propose a merger or launch a new product. Surely, judicial dissent is a recipe for diminishing the authority of the majority answer, and an invitation to self-indulgence on the part of the minority to re-fight lost and irrelevant battles.
Lord Kerr has given a very persuasive answer to both concerns in the Birkenhead lecture on 8 October 2012. But it is worth thinking about the alternative way of doing things, before making up your mind on whether the current way is the best way.
Continue reading →
Like this:
Like Loading...
12 October 2012 by Rosalind English
Wednesday’s debate on current key topics in the Court of Protection was a hard-hitting discussion on matters which elicit strong views, such as voluntary euthanasia, assisted suicide, the role of “dignity” and “sanctity of life”, and whether the latter two principles can ever be reconciled.
The fact that these are not essentially legal issues was underscored by the inclusion of ethics philosopher on the interventionist panel, Professor Anthony Grayling, who fielded the questions put to him alongside Philip Havers QC and Leigh Day solicitor Richard Stein. A video of the event will shortly be available on the 1 Crown Office Row website so I shall try to refrain from any spoilers, but here is a brief trailer to whet the appetite for a full recapitulation.
The evening started with a consideration of the Nicklinson and Martin cases, on voluntary euthanasia and assisted suicide respectively. There were a number of questions put to the panel which essentially rolled up into this:
Should voluntary euthanasia be a possible defence to murder, or can we justify action with a primary purpose of killing a person on the grounds of preventing that person’s harm or suffering?
The panel was broadly in agreement that it should. Richard Stein observed that the argument that there can never be adequate safeguards to protect the vulnerable is being used as a “smokescreen”, and, equally, the notion that disabled people cannot exercise their free will to die because it reduces the value of disabled lives is a “hugely patronising” one.
Continue reading →
Like this:
Like Loading...
11 October 2012 by Karwan Eskerie
G (Children), Re [2012] EWCA Civ 1233 – read judgment
If you received this article by email, it will have been attributed to Adam Wagner. It is in fact by Karwan Eskerie – apologies
What is happiness? If you thought this most philosophical inquiry was beyond the remit of the judicial system then you should read this case.
In Re G (Children), the estranged parents of five children disagreed over their education. Both parents belonged to the Chassidic or Chareidi community of ultra orthodox Jews. However, whilst the father wanted the children to attend ultra-orthodox schools which were unisex and where all the children complied with strict Chareidi practices, the mother preferred coeducational ‘Modern Orthodox’ schools where boys did not wear religious clothing and peyos (long hair at the sides), and children came from more liberal homes where for instance, television was taken for granted.
Continue reading →
Like this:
Like Loading...
10 October 2012 by Rosalind English
R.P. and others v United Kingdom (9 October 2012) – read judgment
The day before our seminar on the Court of Protection and the right to autonomy, the Strasbourg Court has ruled on a closely related issue in a fascinating challenge to the role of the Official Solicitor in making decisions on behalf of individuals who are for one reason or another unable to act for themselves.
The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. This particular case involved child care proceedings, but the question before the Court was the vital one that arises out of any situation where an individual is deemed to have lost capacity to represent his or her own interests in court. What the parties asked the Court to consider was whether
the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court.
Continue reading →
Like this:
Like Loading...
Recent comments