Monthly News Archives: January 2014


Barristers tell Parliament that some GCHQ mass surveillance is illegal

29 January 2014 by

Edward Snowden.Two barristers have advised a Parliamentary committee that some mass surveillance allegedly undertaken by the UK’s security services is probably illegal. Jemima Stratford QC and Tim Johnston’s advice (PDF) was commissioned by the chair of the All Party Parliamentary Group on Drones

You may ask why an Parliamentary group on drones is getting involved in the GCHQ surveillance debate, itself kickstarted by the revelations by Edward Snowden (pictured). The slightly tangential answer is that the committee is concerned about the legality of data being passed to the United States for use in drone strikes.

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Council acted unlawfully in refusing tenancy

29 January 2014 by

Enterprise centreTrafford v Blackpool Borough Council [2014] EWHC 85 – read judgment

The High Court has held that a local authority had abused its powers by refusing to offer a solicitor a new lease of the claimant’s office premises.

The claimant solicitor was aggrieved by the fact that the stated reason for the defendant’s refusal was that her firm had brought claims against the Council on behalf of clients seeking compensation for injuries alleged to have been caused by the negligence of the Council, predominantly in highways “tripping” type claims.

HHJ Davies held that the Council had exercised its “wide discretion” under Section 123 of the Local Government Act 1912 for an improper purpose and was “fundamentally tainted by illegality” on that basis. The Council’s refusal was both Wednesbury unreasonable and procedurally unfair.

Public versus private

The interesting question central to this case was whether or not a public body, acting under statutory powers in deciding whether or not to renew or terminate a contract, was acting under public law duties, and therefore amenable to judicial review, or whether  the relationship between the claimant and the defendant was one governed exclusively by private law, where judicial review has no part to play .
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Drones, “Ex-Gay” Bus Advert and Train Track Constitutionalism – the Human Rights Roundup

27 January 2014 by

HRR ex-gay advertWelcome back to the UK Human Rights Roundup, your regular bountiful burst of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Celia Rooney. 

This week, the pragmatic, political and constitutional ramifications of the Supreme Court’s decision in the HS2 case are up for debate.  Meanwhile, the European Court considers whether the Charter of Rights applies in private disputes, while the domestic courts take on the tricky issue of the justiciability of US drones strikes in Pakistan. And the Court of Appeal rules on TfL’s bus advert ban.

An unashamed plug: A few tickets still left for this Thursday’s event featuring Adam Wagner amongst others – Human Rights Behind the Headlines


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Taj Mahal Hotel injury claim allowed to proceed in English courts

24 January 2014 by

IndiaTajMahalhotel081129_432Pike and Doyle v Indian Hotel Companies Ltd [2013] EWHC 4096 (QB) – read judgment

Philip Havers QC and Peter Skelton of 1 Crown Office Row represented the claimants in this case. They have nothing to do with the writing of this post.

This sad case arose out of the 2006 terrorist attack on the Taj Mahal Palace, Mumbai, India. The claimants, who had spent 15 days backpacking around Goa, decided to treat themselves to one night of luxury at the hotel before they were due to fly home from Mumbai. Shortly after the attack began the claimants hid in their room, locked the door and turned off the lights. Some hours later they tried to escape through the window. Their room was on the third floor of the tower part of the hotel. They tied together sheets, curtains and towels to make a rope. They hung it outside their room and the first claimant went first. The “rope” came apart and he fell to the ground suffering serious spinal injuries which have left him paraplegic. The second claimant was rescued subsequently. She did not suffer physical injuries but claims for continuing psychiatric consequences.
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New Year, new tort of misuse of private information

23 January 2014 by

google-sign-9Vidal Hall and Ors v Google Inc [2014] EWHC 13 (QB) – read judgment

A group of UK Google users called ‘Safari Users Against Google’s Secret Tracking’ have claimed that the tracking and collation of information about of their internet usage by Google amounts to misuse of personal information, and a breach of the Data Protection Act 1998The Judge confirmed that misuse of personal information was a distinct tort. He also held that the English courts had jurisdiction to try the claims. 

Mr Justice Tugendhat’s decision was on the basis that (1) there was a distinct tort of the misuse of private information (2) there was a serious issue to be tried on the merits in respect of the claims for misuse and for breach of the DPA; (3) the claims were made in tort and damage had been sustained in the jurisdiction and (4) England was clearly therefore the most appropriate forum for the trial.


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High speed rail, Parliament, and the EU Courts

22 January 2014 by

World war one tankR (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, [2014] UKSC 3 – read judgments

So the challenge to the way in which the Government wished to push the HS2 project through Parliament has failed before the Supreme Court, though not without clarifying the way in which key EU environmental provisions are meant to work. And we will also see a further flexing of the Court’s muscles against a too straightforward reading of the supremacy of EU law when seen against our constitutional principles.  

The objectors said the command paper which preceded the Parliamentary hybrid bill, in which the Government set out its proposals for HS2, fell within the scope of the  Strategic Environmental Assessment Directive 2001/42/EC and that an SEA ought therefore to have been carried out. The directive applies to plans or programmes which set a “framework” (Art.3(2)(a)) for future decisions whether to grant development consent for projects, and it was said that the command paper set the framework for the decision whether to grant consent for HS2.

Secondly, the objectors said that the legislative procedure in Parliament does not meet the requirements of the  Environmental Impact Assessment Directive 2011/92/EU. The EU Court of Justice has interpreted that directive as imposing a number of requirements, including that the legislature must have available to it the information required by the directive, and a requirement that national courts must be able to verify that the requirements of the directive have been satisfied, taking account of the entire legislative process, including the preparatory documents and the parliamentary debates.
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Does the EU Rights Charter apply to private disputes? Sometimes, sometimes not…

22 January 2014 by

European-Union-Flag_1Association de médiation sociale v Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT), Case C‑176/12 – read judgement

The Grand Chamber of the Court of Justice of the European Union has ruled on whether the Charter of Fundamental Rights of the European Union can apply in a dispute between private parties, although it is not quite clear what its conclusion implies.

This was a request for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), received by the CJEU in April last year.
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State Immunity, Atheist Asylum and Children’s Views – the Human Rights Roundup

20 January 2014 by

Atheist bus campaignWelcome back to the UK Human Rights Roundup, your regular bustling bonanza of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Sarina Kidd. 

After a long wait, the European Court of Human Rights delivered its judgment on state immunity in civil proceedings in Jones and Others v UK. Meanwhile, an atheist has been granted asylum on religious grounds and the Supreme Court ruled that a child’s views are relevant to the evaluation of their habitual residence.


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Trains, pains and allegations: fairness in medical misconduct cases – Richard Booth QC

19 January 2014 by

785px-Doctors_stethoscope_1West London Mental Health NHS Trust (Respondent) v Chhabra (Appellant) [2013] UKSC 80 – read judgment

It is not unknown for lawyers or doctors to speak on a mobile phone about confidential details of a case while travelling by train. Some of you may even have left case papers out on your seat or table while you hunt down a bacon baguette from the Travelling Chef (formerly known as “Toastie Geoff” prior to rebranding). If so, read on, for this is a cautionary tale…

This appeal by Dr Chhabra was concerned with the roles of the case investigator and the case manager when handling concerns about a doctor’s performance under the disciplinary procedures introduced over eight years ago for doctors and dentists in the National Health Service. The national policy framework is known as ‘Maintaining High Professional Standards in the Modern NHS’ (MHPS), which the Trust had implemented through its own policies.

The factual summary below is derived from the Supreme Court Press Summary


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State immunity upheld against human rights challenges in Strasbourg

18 January 2014 by

Saudi_mapJones and Others v. the United Kingdom (application nos. 34356/06 and 40528/06) – read judgement

The Strasbourg Court has ruled that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach the Convention.  The Court held that a “grant of immunity to the state officials in the present case reflected generally recognised rules of public international law”  and that there had been no violation of  Article 6 (right of access to court).

The claimants argued that there there was emerging support for a special exception to this immunity in cases concerning civil claims for torture lodged against foreign State officials. But the Court took the view that the bulk of the authority was to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead. The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity.
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Transparency in the Family Courts and the Court of Protection – Inforrm

17 January 2014 by

MUNBY_2629027bThe President of the Family Division, Sir James Munby, has today issued important new guidance on “Transparency in the Family Courts: Publication of Judgments” [pdf] and “Transparency in the Court of Protection: Publication of Judgments” [pdf].

These two documents are intended “to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection”.

Both documents say that:

In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form [2].
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Rendition to Libya an “act of state” and therefore non-justiciable

14 January 2014 by

gaddafi_2036309cBelhaj and another v Straw and Others [2013] EWHC 4111 (QB) 20 December 2013 – read judgment

Peter Skelton of 1 Crown Office Row acted for the defendants in this case. He has nothing to do with the writing of this post.

The High Court has struck out claims against British establishment defendants for “unlawful rendition”.  The doctrine of immunity attaching to an act of state is  total bar to that such claims and is not limited by the gravity of the alleged violation of rights.

Factual background

The first claimant, an opponent of the Gaddafi regime, and his wife, the second claimant, had been apprehended in Bangkok in 2004 whilst trying to travel from Beijing to the UK to claim asylum. They were held in a detention centre in Kuala Lumpur for two weeks and whilst they were there the UK authorities, along with the US, the Malaysians and the Chinese, worked together to secure their extradition to Libya (this was a time when friendly relations were maintained between the UK and the Libyan government).   After another journey to Bangkok, where they were detained in a US “black site”, they were flown to Tripoli  and transported to Tajoura prison, a detention facility operated by the Libyan intelligence services. The second claimant was released later in 2004, but the first claimant was transferred to another prison and held until 2010.
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War Crimes, Annoyance Injunctions, and the Whole Life Tariff Saga – The Human Rights Roundup

13 January 2014 by

ICC HRRWelcome back to the UK Human Rights Roundup, your regular delectable dossier of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Celia Rooney. 

This week, the International Criminal Court has received a dossier detailing the UK’s involvement in abuse in Iraq.  Meanwhile, the House of Lords has put up a fight over the so-called ‘annoyance injunctions’, while the Government has sought to find a solution to the European Court of Human Rights’ ruling on whole life tariffs.


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Hands off our courts’ relationship with the European Court of Human Rights – Paul Harvey

9 January 2014 by

OLYMPUS DIGITAL CAMERAThe glass foyer of the Palais de Droits de l’Homme in Strasbourg (pictured) is not to everyone’s taste.  Some find it inspiring, others – often advocates appearing for the first time – are simply too nervous to notice. Typically, Rumpole on his triumphant visit takes a much more down-to-earth approach, comparing the building to the boiler of a ship.

Whatever one makes of it, the foyer of the Court is designed to remind visitors of two things: the Court’s accessibility and its openness. That is not always apparent from the Court’s procedures or from the language it sometimes uses to express itself, but it is beyond question that the Court is open to the different legal traditions of its member States.  Most influential among those traditions must surely be the common law.

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Reporting restrictions at courts martial: the need for a structured approach – Simon McKay

8 January 2014 by

Royal-Marine-video-012Marines A & Ors v Guardian News and Media & Other Media [2013] EWCA Crim 2367 – read judgment

On 15 September 2011 a patrol of Royal Marine Commandos were involved in an incident, which resulted in one of them, referred to as “Soldier A”, shooting dead an armed but seriously wounded Taliban fighter. Evidence of the shooting emerged later and five members of the patrol were eventually charged with murder. The charges against two of them were later dropped but the three remaining marines were tried for murder before the Court Martial. On 8 November 2013, Soldier A was found guilty of murder.

Quite apart from this extraordinary facts, the trial was unusual for another reason: publication of the identity of each of the defendants was prohibited at the commencement of the proceedings by an assistant Judge Advocate and later the Judge Advocate General (each of the judge’s in the court martial who considered the issue are referred to throughout as “judge”). The Court Martial Appeal Court (essentially the Court of Appeal Criminal Division sitting under a different name) was later invited to review the orders in respect of reporting restrictions. This was linked to the release of video footage and photographs relied on by the prosecution during the case.


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