Monthly News Archives: November 2013


Will Marine “A” keep his anonymity? James Michael

18 November 2013 by

 

_70999958_70992440Five Royal Marines have lodged a challenge against a ruling that they can be named following the conviction of one of them for the murder of an injured insurgent in Afghanistan.

 

Identification of ‘Marine A’ and two other Marines was prohibited by order of the court-martial which convicted Marine A of murder. At the time of the trial this order was explained in the press as necessary to protect the three defendants from physical attacks.  On 8 November 2013, Judge ­Advocate General Jeff ­Blackett ruled that the names of the defendants and those of Marines D and E, should be identified publicly. The order was not lifted after Marine A’s conviction, and it is now reported that he will oppose any lifting of the order to protect the human right to life of him and his family. A hearing before the Court Martial Appeal Court in London is expected to be held next week. Will he succeed? 
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In South Africa, the not-so-quick and the dead.

13 November 2013 by

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There’s a crisis in South Africa’s mortuaries – in the investigation of death.

 This is due to a number of problems – incompetent staff who fail to gather forensic evidence, creaking and inadequate facilities, and the sheer number of dead bodies waiting to be processed. In a gripping but bleak documentary about Salt River Mortuary, which is responsible for processing cadavers in the Western Cape, the figures will make you gasp and stretch your eyes:

For the Western Cape alone, 3,000 bodies are handled by this Mortuary each year. Of this number, 65% are unnatural deaths (accidents, suicides, homicides). Of that number (approx 2,000) a staggering 80% are homicides – in other words, Salt River is responsible for providing the forensic evidence for reconstructing the crime scenes leading to 1,600 murders a year.

Watch the ten minute film here.
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Too little too late as Daily Mail “corrects” bogus human rights splash

12 November 2013 by

screen-shot-2013-10-12-at-21-11-11The Daily Mail has belatedly “corrected” its front page story on human rights damages, over a month after it appeared on 7 October 2013. Early last month I blogged on  the original bogus article, which was so poor it generated a response from the ordinarily placid Council of Europe.

I have quote-pincered “corrected” as despite the newspaper’s actions, the damage is already done. A month has passed, which in social media time might as well be million years. People have moved on. Another human rights myth is implanted in the collective consciousness, and no sad little correction is going to dislodge a front page headline.

And to make things worse, the story was amplified by a whole host of other newspapers which picked it up without bothering to check the facts, including the Telegraph (corrected) and Daily Star (as yet uncorrected).

What really rankles about this story is how wrong it was.

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Renewable energy ambitions of the Scottish Ministers “trounce the law of the land”

11 November 2013 by

march-image350The sequel to this Scottish judicial review decision in Sustainable Shetland, (Lady Clark of Calton, read judgment, and my post) is another unedifying example of executive government ignoring courts when it suits them.

In this case, the judge (a former Law Officer in Scotland) quashed the grant of a wind farm consent, for two reasons, the relevant one being that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which was a pre-condition for such an application. Readers will recall that Scottish Ministers had also resisted the highly controversial planning appeal being heard at public inquiry – or the Scottish equivalent.

If you are an ordinary citizen, and you get an adverse judgment, you can only do one thing – appeal it and wait for the decision on appeal. The Scottish Ministers plainly do not like the decision. They have sought to reverse it by a legislative amendment, which did not find favour in the House of Lords. But, rather less attractively, they are simply ignoring the decision pending that appeal on the basis that it is wrong. Judges, rather than ministers, might be thought to be a reasonable judge of that. But the Scottish Ministers think not.

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Miranda, Prisoner Votes & Judicial Review Myths – The Human Rights Roundup

11 November 2013 by

TrollWelcome back to the UK Human Rights Roundup, your regular unexpected sunny spell of human rights news and views. The full list of links can be found here. You can  find previous roundups herePost by Sarina Kidd, edited and links compiled by Adam Wagner.

This week, the Parliamentary Joint Committee on the draft Voting Eligibility (Prisoners) Bill took evidence , and there were notable comments from the Secretary General of the Council of Europe, the body which monitors compliance with the European Court of Human Rights. Meanwhile, Baroness Hale weighed in on the proposed judicial review changes and, continuing along the judicial review vein, David Miranda (pictured) began his claim on Wednesday.

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Watch that Charter

8 November 2013 by

mapeuropeAB, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin) – read judgment

Here unfolds a story of sophisticated abuse of the asylum system in this country by an individual skilfully shamming persecution. Nor did the security agents who escorted the claimant on his departure come up smelling of roses: it emerged during the course of these proceedings that they had falsified a room clearance certificate to boost the defence case.

The judgment also points up the potentially far-reaching effect of the Charter of Fundamental Rights of the European Union and how this might render all the handwringing about the European Convention on Human Rights  irrelevant, and a home grown Bill of Rights otiose.

Factual background

The claimant, whom Mostyn J describes as “a highly intelligent, manipulative, unscrupulous and deceitful person”, arrived  in this country in 2005, was refused asylum and was deported in 2010. He sought judicial review of the Home Secretary’s decision to refuse his claim and return him to his state of embarkation, “Country A” (so designated because there was a reporting restriction order made in the original proceedings anonymising both the claimant, his country of origin, and the political organisation of which he claimed to be a member. Mostyn J “reluctantly” went along with that order in this proceedings, since neither of the parties applied to have it reviewed.)

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Hospital closures and the rule of law

8 November 2013 by

lewisham-dont-keep-calm-posterTrust Special Administrator appointed to South London Healthcare NHS Trust v. LB Lewisham & Save Lewisham Hospital Campaign [2013] EWCA Civ 1409, 8 November 2013  – read judgment

Jeremy Hyam of 1 Crown Office Row acted for Save Lewisham Hospital Campaign. He was not involved in the writing of this post.

It takes a bit of time to close a hospital or make major changes to it. This is because you must go through a complicated set of consultations with all those likely to be affected before action can be taken. Many, if not most, people say this is a good thing, and Parliament has embedded these duties of consultation in the law.

In this case, the Department of Health said it could close the A&E Department of Lewisham Hospital, as well as limiting maternity services to midwives alone and reducing paediatric services – without going through the formal consultation process. The Borough of Lewisham, and a local campaigning group, said that the DoH had no power in law to do this.

The judge, Silber J, agreed with them, and so now does the Court of Appeal. It dismissed Jeremy Hunt’s appeal 10 days ago, and published its reasons today.

If Mr Grayling has his way, it seems unlikely that the Save Lewisham Hospital Campaign would have had “standing” to bring this claim, however meritorious in law it may have been: see my post on this. I dare say this lesson will not be lost on him, though, sadly, many think that such wins against the government make it more rather than less likely that he will implement his changes to the rules in judicial review.

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The “uneasy” co-existence of public interest immunity and closed material procedure

7 November 2013 by

blind justiceCF v Security Service and others and Mohamed v Foreign and Commonwealth Office and others [[2013] EWHC 3402 (QB) – read judgment

The High Court has today made the first court ruling on the use of the Justice and Security Act 2013 in a civil claim for damages.

In a ruling on preliminary issues, Irwin J made a declaration that the government can make a closed material application to the court in this case. The Court also ruled on PII. The following summary is based on the Court’s press release.

Factual background

CF and Mohammed Ahmed Mohamed are both British citizens of Somali descent. CF left the United Kingdom in 2009, Mohammed Ahmed Mohamed having left in 2007. They were both detained by the Somaliland Authorities on 14 January 2011. They were then detained until removal to the UK on 14 March 2011. Each claims that they were unlawfully detained, tortured and mistreated during the period of detention in Somaliland.
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Sexual liaisons by undercover police officers could be authorised by RIPA

6 November 2013 by

DocumentThumbnail.aspxAJA and others v Commissioner of Police for the Metropolis  [2013] EWCA Civ 1342 – read judgment

The words “personal or other relationship” in the section 26(8)(a) Regulation of Investigatory Powers Act 2000 included intimate sexual relationships so that the Investigatory Powers Tribunal had jurisdiction to hear the appellants’ claims that their human rights had been violated by undercover police officers who had allegedly had sexual relationships with them

There were two groups of claimants in this case. The first three were represented by Birnberg Pierce & Partners (referred to as “the Birnberg claimants”). The second three were represented by Tuckers (referred to as “the Tuckers claimants”). Both groups alleged that they had suffered violations of their rights under Articles 3 and 5 by the officers for whom the respondents were responsible and that such conduct was contrary to the Human Rights Act 1998 s.6(1). They appealed against a decision that the Investigatory Powers Tribunal had jurisdiction to decide their human rights claims and that High Court proceedings should be stayed pending the IPT’s determination.
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Tax avoiders don’t have human rights – Philippa Whipple QC

6 November 2013 by

film_movie_tape_0_1R (on the application of Ingenious Media Holdings plc and Patrick McKenna v Her Majesty’s Revenue and Customs [2013] EWHC 3258 (Admin) –  read judgment 

Sales J has rejected an application for judicial review by Ingenious Media Holdings plc and Patrick McKenna, who complained that senior officials in HMRC had identified them in “off the record” briefings.

Ingenious Media is an investment and advisory group which promotes film investment schemes which allow participators to take advantage of certain tax reliefs and exemptions.  HMRC has long been fighting to close down these “film schemes”, with some success (see the Eclipse 35 appeal).
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Limiting the scope of injunctions in family cases – Hugh Tomlinson QC

5 November 2013 by

Child_in_court-300x200Re J (A Child) ([2013] EWHC 2694 (Fam) – read judgment

In this case  the President of the Family Division, Sir James Munby, considered an application for a contra mundum injunction by Staffordshire County Council. He emphasised that the only proper purpose of such an injunction was to protect the child and refused to make an order in the wide terms sought by the Council. As a result, he allowed the publication of video footage and photographs of a baby being removed from its parents.
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Government Losses, HRA Repeal & Secular Courts – The Human Rights Roundup

4 November 2013 by

Iain Duncan SmithWelcome back to the UK Human Rights Roundup, your regular great bright firework display of human rights news and views. The full list of links can be found here. You can  find previous roundups herePost by Daniel Isenberg, edited and links compiled by Adam Wagner.

Some crucial judgments were handed down this week in the sphere of judicial review, with mixed results for the government.  Elsewhere discussions continued about the future of human rights under a Tory government in 2015, as well as religious rights within the family courts.  Keep an eye out for the upcoming Grand Chamber hearing on the full-face veil, as well as the open government consultation on the Balance of Competences Fundamental Rights Review.

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Supreme Court weighs in on patient’s best interests and the meaning of futility

3 November 2013 by

Surgeons-007Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 – Read judgment / press summary

The Supreme Court has given judgment in the first case to come before it under the Mental Capacity Act 2005.  The sole judgment was given by Lady Hale (Deputy President of the Court), with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes.

The case concerned best interests decisions in the case of a patient lacking capacity.  The patient, David James, had been admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure.  He was admitted to the critical care unit and placed on a ventilator.

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Al Quaida list and the use of prerogative powers

1 November 2013 by

15113_1Youssef v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 1302, 29 October 2013 – read judgment

There was nothing unlawful in the Foreign Secretary’s decision to allow a UK resident to be added to the UN’s Consolidated List of members of Al-Quaida and its associates .

This was an appeal against the Administrative Court’s dismissal of the appellant’s claim for judicial review of the secretary of state’s decision to allow him to be added to a list of persons subject to sanctions under UN Security Council Resolution 1617. This Resolution required UN member states to freeze the assets on those named on the Consolidated List of members of Al-Qaida and its associates. The relevant UN committee was asked to add the name of the appellant, an Egyptian national resident in the UK, to the list. The secretary of state placed a hold on the appellant’s designation so the UK could consider whether he met the criteria for designation. The Foreign Secretary subsequently accepted that he did meet the criteria and released the hold, which meant that he was added to the list. Once a designation is made, it lasts until all members of the Security Council can be persuaded that it should be lifted.

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The difference between public and private law – on a beach near me

1 November 2013 by

article-2228546-001DDD4300000258-451_634x411More naturism and the law, in the light of Mr Gough’s travails: see my post of yesterday.

For many years, the beautiful beach upon which Ms Paltrow was seen in Shakespeare in Love (my pic) has been a haven for naturists, even on the chilliest of days when the wind whips in from the north-east. However, things have changed this year. Initially, naturism was banned from the beach completely. The ban has now been lifted for the area of sand below the mean high water mark, but remains in place for the sand dunes.

How so?

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