Monthly News Archives: May 2014


Richard III: fairness and public interest litigation

28 May 2014 by

King_Richard_III__1666500aThe Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others [2014] EWHC 1662 (QB) 23 May 2014 – read judgment

Some 527 years after his death, Richard III’s skeleton was found beneath a car park in Leicester. The Plantagenet Alliance, a campaigning organisation representing a group of collateral descendants, sought judicial review of the decision taken by the Secretary of State to exhume and re-inter the monarch in Leicester Cathedral without consulting them and a wide audience.

The case had become a bit of a stalking horse for Lord Chancellor Grayling’s plans to reform judicial review: see my post here. Grayling may have backed off for the moment from his specific plans to reform standing rules, though he still has it in for campaigning bodies participating in judicial reviews. As we will see, counsel for MoJ had a go at saying that the Alliance had no standing, but to no avail.

But MoJ had better points, and was successful overall. And this is the moral of the story. You cannot sensibly justify the bringing of entirely meritless judicial review. But it is wrong to seek to defeat a meritorious claim by relying on standing points, without considering the public interest of the underlying case. As I pointed out in my post, the irony of the cases chosen by MoJ last year to make its case that the standing rules were all very awful were ones where government had been behaving unlawfully.

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Chagossians: Wikileaked cable admissible after all

26 May 2014 by

Diego_garcianBancoult v Secretary of State for Foreign and Commonwealth Affairs  [2014] EWCA Civ 708 – read judgment

Rosalind English (here) has summarised this unsuccessful appeal against the rejection of the Chagossians’ claims by the Divisional Court, and I have posted on this litigation arising out of the removal and subsequent exclusion of the population from the Chagos Archipelago in the British Indian Ocean Territory: see hereherehere and here. The photograph is from 1971 – the last coconut harvest for the Chagossians.

There were three remaining grounds alleged against the Foreign & Commonwealth Office in this judicial review

(i) its decision in favour of a Marine Protected Area  was actuated by an improper motive, namely an intention to prevent Chagossians and their descendants from resettling in the BIOT;

(ii) the consultation paper which preceded the decision failed to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands; and

(iii) it was in breach of the obligations imposed on the United Kingdom under article 4(3) of the Treaty of the European Union.

I want to look at (i), the improper purpose grounds, and (iii) the TEU/TFEU grounds, because in both respects the CA took a different course than the Divisional Court, even though the outcome was the same.

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Richard III and Chagossian judicial review claims all dismissed

23 May 2014 by

p180vajuda12ijjc57ac1qhh37s1The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others [2014] EWHC 1662 (QB) 23 May 2014 – read judgment

The facts of this application for judicial review were set out in David Hart QC’s post on the original permission hearing. To recap briefly, the Plantagenet Alliance, a campaigning organisation representing a group of collateral descendants of Richard III were given the go ahead to seek judicial review of the decision taken by the respondents – the Secretary of State, Leicester Council and Leicester University, regarding his re-interment at Leicester Cathedral without consulting them. More specifically, the claimant’s main case was that there was an obligation, principally on the part of the Ministry of Justice, to revisit or reconsider the licence once the remains had been conclusively identified as those of Richard III.

The Divisional Court (of three judges) unanimously rejected this argument on all grounds. It could not be said in public law terms that the Secretary of State failed to act as a reasonable or rational decision-maker when deciding not to revisit the exhumation licence in the light of the information which he already had. The Court hammered the final nail  on the consultation coffin by declaring that there was

no sensible basis for imposing a requirement for a general public consultation, with leaflets, on-line petitions, publicity campaigns, nor for advertisements trying to ascertain who is a relative and then weighing their views against the general public, when there are, in reality, only two possible contenders (Leicester and York)

A short summary of the decision in Bancoult follows.

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Operation Cotton, War Crime and the Right to be Forgotten – the Human Rights Roundup

22 May 2014 by

Right to be forgotten HRRWelcome back to the UK Human Rights Roundup, your regular lightening rod 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.

In recent human rights news, the ECJ finds against Internet giant Google, strengthening the so-called ‘right to be forgotten’. In other news, the UK awaits to see if it will be prosecuted before the ICC in relation to allegations of war crimes in Iraq, while the Court of Appeal confronts the issue of legal aid cuts in serious fraud cases as the Operation Cotton scandal continues.

In the News
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There is a “right to be forgotten” by internet search engines – European Court of Justice

22 May 2014 by

google-sign-9Case C-131/12 Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González – read judgment

The CJEU has declined to follow Opinion of AG Jääskinen in this case involving a challenge under the 1995 Data Protection Directive by a lawyer who objected to a newspaper reference referring to old bankruptcy proceedings against him in a Google search. See my earlier post on the opinion. Lorna Woods’ excellent report on the CJEU’s reasoning can be found on Inforrm’s blog so I won’t replicate her effort here. Suffice it to say that the outpouring of indignation in the press, the references to “hundreds” of requests from celebrities and other people who want to stop harmful information about them appearing, suggests that this ruling has opened a can of worms, not to mention the byzantine difficulties of enforcing the ruling by requiring search companies to become their own data control regulators.

Seizure of worker’s wages breached Convention right – Strasbourg

20 May 2014 by

proceeds-of-crimePaulet v United Kingdom Paulet (application no. 6219/08) – read judgment

The Strasbourg Court has declared, by five votes to one, that the UK authorities had acted unlawfully by seizing the wages of an Ivorian worker who used a false passport to gain employment. The majority ruled that the UK courts should have balanced individual property rights against interests of the general public.

This case on the confiscation of the proceeds of crime raises many difficult legal questions such as the nature of the link between the crime and the proceeds and the distribution of the burden of proof in establishing this link. Mr Paulet complained that the confiscation order against him had been disproportionate as it amounted to the confiscation of his entire savings over nearly four years of genuine work, without any distinction being made between his case and those involving more serious criminal offences such as drug trafficking or organised crime. The Court found that the UK courts’ scope of review of Mr Paulet’s case had been too narrow. The majority objected to the fact that the domestic courts had simply found that the confiscation order against Mr Paulet had been in the public interest, without balancing that conclusion against his right to peaceful enjoyment of his possessions as required under the European Convention.
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Golf course judicial review case reversed on appeal

18 May 2014 by

22-ep-cherkley-court-2-W1200Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Court of Appeal, 7 May 2014 read judgment

 The Court of Appeal has reversed the robustly expressed view of Haddon-Cave J (see my post here)  that the grant of planning permission to a proposed “exclusive” golf club in Surrey should be quashed.

 The local planning authority had originally granted permission by the barest of majorities – 10-9, and against its planning officer’s recommendation. The judge had thought that the authority’s decision was irrational, and had misinterpreted or misapplied the concept of “need” in the applicable planning policies.

The Court of Appeal roundly disagreed with these and the other grounds on which the judge quashed the decision.

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Eastenders in Supreme Court: A1P1 filling in the gaps

15 May 2014 by


EastEnders_TitleBarnes v. The Eastenders Group [2014] UKSC 26 read judgment

Not Albert Square, but it could be. The Crown Prosecution Service suspect two individuals of a massive duty/VAT fraud in their cash and carry businesses. The CPS go to the Crown Court (in the absence of the individuals) and get an order to appoint a receiver (i.e. a paid manager) to run the affairs of companies (Eastenders) in which the individuals are involved, as well as a restraint order against the individuals. Both receivership and restraint orders are set aside some months later by the Court of Appeal, on the basis that the HMRC investigator’s statements were largely “broad and unsupported assertions”. Problem: by then the receiver had run up £772,547 in fees.

Simple issue. Who bears those fees? The receiver, the CPS or the companies against whom the order was made? And A1P1 (the right to possessions) made the difference.

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Bad and Very Bad judges

15 May 2014 by


9780854901418A recent, short (71 pages), and interesting book on the phenomenon of the bad judge, by Graeme Williams Q.C: details here.   You may not be surprised to read that, libel laws being what they are, all the subjects of Williams’ book are in their graves. But, as the author points out, the lessons derived from their badnesses live on.

A number of themes emerge.

The first is that bad judges are often clever judges, but people temperamentally ill-suited to listening patiently to other people – which is unsurprisingly a large part of their job.

The second is that some of the most disastrous appointments are truly political ones. Mercifully we now have a sophisticated system of judicial appointments which is currently divorced from the rough and tumble of politics – though with the politicisation of the office of the Lord Chancellor, and the shrilling-up of the press debate about “unelected judges etc etc” we need to keep a beady eye on that. We also have judicial training and all judges will have sat as part timers before they get appointed, so the worst instances of unsuitability get weeded out before they get the full-time job.

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Video: Human rights debate at NYU London

14 May 2014 by

On 28 April 2014 I debated Dr Lee Rotherham of the Taxpayers’ Alliance at NYU London. The motion was: This House believes the human rights agenda is promoting unfairness in the UK. I was against the motion (as you may have guessed).

The debate is now up on YouTube – enjoy!

Press has no direct role in welfare proceedings in Court of Protection

12 May 2014 by

G (Adult), Re [2014]  (Associated Newspapers Limited intervening) EWCOP 1361 (1 May 2014) – read judgment

Sir James Munby, President of the Court of Protection has ruled that the Daily Mail has no standing to be joined as a party in welfare proceedings in relation to a vulnerable adult who has been declared by the courts as lacking capacity under the Mental Capacity Act. 

Background to the application

The court was concerned with a 94 year old woman, a British African Caribbean who  lives in her own home in London. G is 94 years old. G has never married and has no children. She has no family living in the UK.  She suffers from conditions that have limited her mobility; arthritis, rheumatism, a dislocation of her left knee and carpal tunnel syndrome. She also has high blood pressure and double incontinence. G rarely leaves home now, except for hospital appointments.
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Anonymity order compatible with Convention and common law – Supreme Court

9 May 2014 by

anonymity21A (Respondent) v British Broadcasting Corporation (Appellant) (Scotland)  [2014] UKSC 25 – read judgment

This appeal related to whether the Scottish Courts took the correct approach to prohibit the publication of a name or other matter in connection with court proceedings under section 11 of the Contempt of Court Act 1981, and whether the court’s discretion was properly exercised in this case.  The Supreme Court unanimously dismissed the appeal by the BBC.

The following report is based on the Supreme Court’s Press Summary.   References in square brackets are to paragraphs in the judgment.

Background 

A, a foreign national, arrived in the UK in 1991. He was later granted indefinite leave to remain, but in 1996 was sentenced to four years’ imprisonment for sexual offences against a child. In 1998, he was served by the Home Secretary with a notice to make a deportation order [4]. He appealed against the decision and protracted proceedings followed in which A cited risks due to his status as a known sex offender of death or ill-treatment (contrary to Articles 2 and 3 of the European Convention on Human Rights  should he be deported. A’s identity was withheld in the proceedings from 2001 onwards [5]-[9].
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UKHRB event: The Future of Human Rights – 21 May 2014

8 May 2014 by

Freedman-Failing-to-Protect-webI am delighted to announce that the UK Human Rights Blog in association with Hurst Publishers and Berwin Leighton Paisner are organising a fascinating panel debate, chaired by me, on Wed 21 May 2014. The panel is stellar.

It is a free event but places are strictly limited so you have to register here if you want to secure your place.

‘The Future of Human Rights’ on the occasion of the publication of Failing to Protect: the UN and the Politicisation of Human Rights by Dr Rosa Freedman
Date: Wednesday 21 May 2014
Time: 6.30pm for 7.00pm
Location: The Auditorium, Adelaide House, London Bridge, London EC4R 9HA (map)
Hurst Publishers, Berwin Leighton Paisner LLP and the UK Human Rights Blog are delighted to invite you to a panel discussion on ‘The Future of Human Rights’ on the occasion of the publication of Failing to Protect: the UN and the Politicisation of Human Rights by Dr Rosa Freedman.Chair

  • Adam Wagner – Barrister, 1 Crown Office Row and editor of the UK Human Rights Blog

Panel

  • Philippe Sands – Professor of International Law, University College London
  • Jane Connors – Chief of Special Procedures Branch of the Office of the High Commissioner for Human Rights
  • Marc Limon – Executive Director, Universal Rights Group
  • Professor Fiona de Londras, Durham University

Drinks will be served before and after the debate.

Please let us know if you will be attending the panel discussion by clicking here.

Serious fraud trial abandoned because of cuts to legal aid for defence representation

6 May 2014 by

blind justiceR v Scott Crawley and others – read judgement

A judge has halted a serious fraud trial after defendants claimed they could not get adequate representation because cuts to legal aid, and as a result they would not get a fair trial under common law or Article 6 of the Convention. This case could be the first of a number of  reversals following the government’s legal aid reforms with seven further trials due to start before September 2015 involving 28 defendants in similar positions.

The defendants were charged with offences of conspiracy to defraud, possessing criminal property and offences where the evidence was complex and substantial. The the case against the five men amounted to more than 46,000 pages of documents and the case summary itself covered 55 pages. In essence, the Crown alleged that the defendants had been involved in a fraudulent land selling scheme. Some purchasers were given good title, some were not, and some sub-plots were sold more than once. Various interventions by the FSA (as it then was) to stop the practices were subverted by transferring the fraudulent scheme to a new company.

Background

In July the Legal Aid Authority notified the parties that the case had been classified as a Very High Cost Case (VHCC).Shortly after this the Ministry of Justice (“MoJ”) announced their intention to cut fees paid to counsel by 30%. The Bar announced their dissatisfaction with this decision and their intention to undeem VHCC cases.

During this same period the MoJ and the Bar were negotiating over proposed reductions in graduated fees. The Public Defender Service (“PDS”), a department of the LAA, began actively to recruit a pool of employed advocates to take on work that might otherwise have been done by independent advocate.

At a hearing on 14th November 2013 the defence raised concerns that they would not have counsel for the trial and that there was insufficient time for any counsel who might now be instructed to be ready by April 2014. By the end of November all counsel had returned their briefs.

In this hearing Alex Cameron QC appeared bro bono to advance the argument on behalf of the defendants that Leonard HHJ should stay the proceedings because they are unrepresented through no fault of their own and that he should not grant an adjournment because the possibility that at some unknown date in the future an adequately funded advocate may become available is no basis on which to grant an adjournment. The Crown accepted that involuntary lack of representation would be inconsistent with the European Convention on Human Rights and common law rights and they acknowledged that a fair trial could not be held now. But they submitted that there was a reasonable prospect that advocates would be available to represent the defendants in the future and that the judge should adjourn the trial to a future date rather than staying the indictment. A stay as an abuse of process is an exceptional remedy, but nor should the defendants in this case become “victims of a dispute between the Bar and the government” (para 24):

my decision on how to proceed in this case is taken without regard to the continuing dispute between the Bar and the MoJ. I am only concerned with the merits of the arguments put before me and to ensure that a trial is only held if it can be conducted fairly in accordance with the principles long established in this country and which are, additionally, enshrined in Article 6 of the European Convention on Human Rights.

The efforts to find representation included contact with 70 sets of chambers with barristers who hold themselves out as competent to undertake this sort of work in and outside London. By 15th January 2014 there was one silk who put himself forward as willing to accept instructions. He withdrew on 16th January. Enquiries were made without success with the Bar of Northern Ireland and the Faculty of Advocates in Edinburgh.

The efforts put in by the defence to find trial advocates had been, in the judge’s words, “very substantial indeed” and in the end, unsuccessful. There was no compromise solution in this case:

Criminal trials of this complexity rely on the skills of highly competent and experienced advocates on both sides to reduce issues, make matters understandable to a jury and keep trials to a reasonable length.

The judge was referred to Croissant v. Germany (1993) 16 E.H.R.R. 135 in respect of the right to a choice of representation where the state pays for legal assistance.In that case it was considered sufficient that the court appoints a lawyer to defend and individual; the right of a defendant to choose his own counsel cannot be considered absolute. In the present case the judge was of the view that the defendants could not hold out for independent counsel of their choice to become available.

In determining whether he should grant an adjournment rather than the more drastic remedy of a stay, Leonard HHJ had to consider a number of factors:

  1. Failure to grant an adjournment will deprive the victims of crime of the opportunity to see those that they judge responsible prosecuted.To deny them that opportunity should not be lightly taken.
  2. Against that,  there are other methods available to the victims to recover their losses civilly and there are other regulatory offences which could be brought against the defendants which may not meet the gravamen of the conduct alleged but which could mark out their alleged misconduct and prevent them from being able to take a rôle in corporate activity in the future.
  3. On the other hand, the responsibility to provide adequate representation at public expense is also the responsibility of the State. I have considered whether the State should in those circumstances be entitled to benefit from its own failure by being granted an adjournment.
  4. An adjournment of the trial would involve an additional stress on the State’s provision of resources to try crime.

In view of the availability of barristers and the preparation time required the judge was not satisfied that sufficient advocates would be available to assist these defendants at trail, nor did he have any reason to think that there was a realistic prospect tha the Bar would accept contracts in VHCC cases on the present MOJ terms.

Having considered all these matters he was compelled to conclude that, to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place now amounts to a violation of the process of this court. He further found that there was no realistic prospect that sufficient advocates would be available for this case to be tried in January 2015 from any of the sources available to the defence, including the PDS.

Speaking to The Independent, a spokesman for the Ministry of Justice said: “Barristers have refused to work on this case – and a number of other Very High Cost Court Cases – because they do not agree with savings the Government is making to legal aid.

Even after the savings, if a QC picked up a case like this one, they could expect to receive around £100,000 for working on it, with a junior barrister receiving around £60,000.

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Judicial Review, Legal Aid and Operation Cotton – the Human Rights Roundup

6 May 2014 by

alex-cameron-qcWelcome back to the UK Human Rights Roundup, your regular spring bouquet 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.

In the News

Legal aid, judicial review and the role of the Lord Chancellor dominated the headlines last week – with the Operation Cotton case and the Joint Committee on Human Right’s report on judicial review putting increasing pressure on the Government’s reforms. 

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