Monthly News Archives: July 2013


Part 82: The worrying new rules of the Secret Court – Angela Patrick

12 July 2013 by

RCJ restricted accessWhile MPs were dreaming of the imminent long summer break and a possible pay hike, in mid-June the Government produced the draft amendments to the Civil Procedure Rules (“CPR”) necessary to bring Part 2 of the Justice and Security Act 2013 (“JSA”) into force.  Many – including JUSTICE – consider the Act’s introduction of closed material procedures (“CMP”) into civil proceedings unfair, unnecessary and unjustified.  

That one party will present their case unchallenged to the judge in the absence of the other party and their lawyers is inconsistent with the common law tradition of civil justice where proceedings are open, adversarial and equal.   This blog has spent many pages dissecting the constitutional implications of the expansion of CMP in the JSA and its controversial passage through both Houses of Parliament.

Perhaps in a bid to avoid similar controversy, the draft Rules were dropped quietly into the libraries at the Houses of Parliament without fanfare.  Less than two weeks later and without significant change, the Rules were tabled.

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Sea fishing, quotas and A1P1: “no-one owns the sea”

11 July 2013 by

carouselThe UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, Cranston J,  10 July 2013  read judgment 

Interesting alignment of parties in this challenge to Defra’s new system of allocating fish quota brought by an industry body (UKAFPO), in practice representing the larger fishing fleet – vessels over 10 metres in length –  Defra was supported by Greenpeace (how often does that happen?), and by the New Under Ten Fishermen’s Association. And this was because Defra had transferred some fishing quota from the larger to the smaller fishing fleet, namely those under 10 metres in length who fish inshore waters.

The first claim was that UKAFPO had a substantive legitimate expectation in their favour which was unlawfully frustrated by Defra’s change of policy. The second was that there was a breach of Article 1 of Protocol 1 (A1P1) of ECHR, or its EU analogue, Article 17 of the Charter. The third was that UKAFPO was being discriminated against unlawfully – comparable situations must not be treated differently under EU law, and only English fishermen who were members of English fish producers organisations were affected.

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NOT AGAIN! ‘EU Judges’ Behind ‘Victory For Evil’, Says Sun

10 July 2013 by

the_sun_gotcha21Updated – headline now corrected | Remember when The Sun was reprimanded by the Press Complaints Commission for muddling up the European Union and our local Court of Appeal in a story about a human rights judgment? You probably should because it happened just two weeks ago.

Well, despite telling the PCC that they would incorporate the issue into its staff training programme, The Sun has been at it again following yesterday’s European Court of Human Rights ruling on whole life sentences. The politics section of its website currently shows this on the sidebar:

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Damning indictment of police actions surrounding death of Azelle Rodney

10 July 2013 by

Azelle RodneyOn 5th July 2013, the report of the inquiry into the death of Azelle Rodney was published. Mr Rodney was a 24-year-old man who was shot dead by a Metropolitan Police officer on 30th April 2005. Mr Rodney was the rear seat passenger in a vehicle driven by an acquaintance of his and was unarmed.

After the Metropolitan Police had brought the vehicle to a halt, a firearms officer, described as ‘E7’ in the inquiry’s report, shot Mr Rodney 6 times without warning with a Heckler & Koch assault rifle. The fifth and sixth of these shots were a military-style ‘double tap’ to Mr Rodney’s head and would have been fatal. E7 then briefly paused before shooting Mr Rodney a further two times in the head. These shots would also have been fatal.

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So we cannot see Prince Charles’ advocacy letters after all

9 July 2013 by

Prince CharlesR (o.t.a Rob Evans) v. Attorney-General,  Information Commissioner Interested Party, 9 July 2013 – read judgment

As we all know, the Prince of Wales has his own opinions. And he has shared those opinions with various government departments. Our claimant, a Guardian journalist, thought it would be interesting and important for the rest of us to see those opinions. So he made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents.

No joy, says the Administrative Court. Yes, a tribunal had ordered production of the letters, but that order had been overridden by the Attorney-General. What, says anybody used to the idea that courts do their bit, and the government does its bit – that’s unfair, government cannot override what the courts say.

The complication, as we shall see, is that the override is built into FOIA.

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Radical but risky changes afoot at the European Court of Human Rights – Andrew Tickell

9 July 2013 by

Strasbourg_ECHR-300x297

Brought to you by Andrew Tickell

Radical changes are afoot in Strasbourg. Protocol No. 15, whose outlines were agreed at the Brighton Conference of 2012, is primed for ratification, while at the start of 2014, new Rules of Court will come into effect.  Both have the potential to have a wide-ranging impact on applicants.  Protocol 15 rewrites the Convention’s preamble, emphasising the Court’s “subsidiary” role in the protection of human rights.

It also modifies two of the admissibility criteria for petitions, pairing back the safeguard clauses initially erected around Protocol 14’s new criteria of “no significant disadvantage” and trimming the time available for applicants to lodge their cases from six months to four.


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Convicted murderers win Article 3 case against whole life sentences in Strasbourg

9 July 2013 by

jeremy-bamber-204680133Vinter and Others v. the United Kingdom  (Grand Chamber: application nos. 66069/09, 130/10 and 3896/10) – read judgment

The Strasbourg Court has upheld three applicants’ complaint that their imprisonment for life amounted to inhuman and degrading treatment as they have no hope of release.

The following is a very brief summary of the judgment. A full analysis of the case will follow shortly.

Principal facts

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 sentences of life imprisonment for murder. Bamber murdered five members of his family brought the case along with serial killer Peter Moore and double murderer Douglas Vinter.
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Guerilla gardening in unlawfully occupied property did not give rise to Article 8 rights

8 July 2013 by

GrowHeathrowMalik v Fassenfelt and others [2013] EWCA Civ 798 – read judgment

A common law rule that the court had no jurisdiction to extend time to a trespasser could no longer stand against the Article 8 requirement that a trespasser be given some time before being required to vacate:

The idea that an Englishman’s home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it. But what if the invaders occupy for long enough to establish their home within the keep? Whose castle is it now? Whose home must the law now protect?

This was the question before the Court of Appeal in a challenge to a possession order requiring the removal of squatters from private land.

Although there is now some doubt as to whether the leading authority on landowners’ rights against squatters is still good law, Article 8 still does not entitle a trespasser to stay on the land for ever. At its highest it does no more than give the trespasser an entitlement to more time to arrange his affairs and move out.

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Bye Bye Abu Qatada, Secret Trials Are Here & A Legal Aid U-Turn – The Human Rights Roundup

7 July 2013 by

Human rights roundup (Abu Q)Welcome back to the UK Human Rights Roundup, your regular Wimbledon Tennis Championship of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.

This week, Chris Grayling made a concession, the closed material procedure for evidence in civil trials came into effect, and to Theresa May’s delight, Abu Qatada finally left the country.


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Public interest environmental litigation in Strasbourg

7 July 2013 by

zimbabwe_environmental_law_association_(zela)Public Interest Environmental Litigation and the European Court of Human Rights: No love at first sight, by Riccardo Pavoni – read article 

Thanks to this link on the ECHR blog, a fascinating account of the twists and turns of Strasbourg environmental case law from Professor Pavoni, of the University of Siena. It is 30 closely-argued pages, so I shall try and give a flavour of the debates Pavoni covers, as well as chucking in my own penn’orth. 

The starting point, as I see it, is that public interest environmental litigation is a square peg in the round hole of Strasbourg case law. The Convention and the case law are concerned with victims of human rights abuses. Environmental degradation affects everyone, but not necessarily in a way which makes them a a Strasbourg victim. Take loss of biodiversity, say the decline in UK songbirds, or the peace of a remote moorland affected by 150m high wind turbines. Who is the potential victim in those cases when judged by human rights? Pavoni argues that if the Strasbourg Court were to assert jurisdiction over environmental cases as a common good, alongside adverse impacts on private victims, this would not result in a major overhaul of the Court’s current principles – not too much expansion of the hole needed to fit the square peg in snugly. How does he reach that position?

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Sparks fly in the Ukraine

4 July 2013 by

electrical-discharge-in-multiple-sparks-from-prongs-pins-of-uk-electric-mains-plug-3-prong-fuse-carrier-in-base-rescan-rescan-rescan-ajhdKirovogradoblenergo, Pat v Ukraine (Application no. 35088/07) 27 June 2013 – read judgment 

Shortly after the break up of the Soviet Union, the Ukraine introduced an interesting piece of legislation called the Status of Judges Act.

Being a judge behind the Iron Curtain couldn’t have been much fun, and rendering the profession more attractive once society had opened up somewhat was probably one of the more pressing challenges facing the new regime. One of the chief provisions in the SoJA was to spare members of the judiciary from paying half their electricity bills. What this tells us about the status of judges before and shortly after the dissolution of communism is itself an interesting subject, but outside the scope of this post.
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Legal aid and ideology: the new basis for Government reform? – Angela Patrick

4 July 2013 by

UK human rigths blog lipmanIn a famous advert from the 80s, Maureen Lipman picked up the phone to caution her distraught grandson that he could never be a failure if he had an “ology”.  It was perhaps in memory of that fine advice that the Lord Chancellor appeared before the House of Commons Justice Select Committee on Wednesday morning.   For the first time, the language of ideology was openly placed at the heart of the Government’s approach to the reform of legal aid. 

Most of the legal profession is familiar with the controversy of the Government’s latest raft of suggestions for reform of legal aid, in the Transforming Legal Aid consultation paper.  JUSTICE and many others have raised substantial concerns about the Government’s approach. The changes proposed to the provision of criminal legal aid will drastically limit the ability of people accused of crimes by the State to access quality legal advice that they can trust. This will increase the likelihood of miscarriages of justice and may make the criminal justice system as a whole more expensive, and less fair, as more people attempt to represent themselves.

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High level Parliamentary committee asks whether mental capacity laws are working

3 July 2013 by

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Updated | The House of Lords ad hoc Select Committee on the Mental Capacity Act 2005 has now heard three sessions of evidence, and is currently calling for written evidence (deadline 3 September – details here).

The Committee, chaired by Lord Hardie (former Lord Advocate) and including such heavy-hitters as Lord Faulks (Ed Faulks QC as was) and Baroness Hollins (former President of the Royal College of Psychiatrists and current President of the BMA), aims to “scrutinise the legislation to see if it is working as Parliament intended” and to examined “whether the Government’s implementation programme was effective in embedding the guiding principles of the Act in every day practice, and whether there has been a noticeable change in the culture of care.”

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Brain-damaged claimant fails in Article 8 claim against Council

2 July 2013 by

7c70bb7581834f77a7ca9f20e4dc6253Bedford v. Bedfordshire County Council, 21 June 2013, Jay J – read judgment

On 29 May 2004, Bradley Bedford, then aged 13, was beaten senseless by one AH, then 15, whom he had the misfortune to encounter entirely by chance near the seaside in Torbay. AH was in a children’s home there which was contracted to the Defendant Council; AH was a “looked after” child under section 20 of the Children Act 1989. Bradley sued the Council for failing to protect him. His claim was limited to one under the Human Rights Act, and Article 8 ECHR in particular.

Jay J dismissed the claim on the grounds that (a) it was brought too late; (b) there was not a real and immediate risk of harm to Bradley of which the Council should have been aware; (c) even if there was, the local authority took reasonable steps to eliminate or substantially reduce any risk. All these rulings are of some interest.

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