Monthly News Archives: February 2015


Court of Appeal rules on police duty to suspects in detention – Diarmuid Laffan

27 February 2015 by

man_in_prisonZenati v Commissioner of Police of the Metropolis and another [2015] EWCA Civ 80 – read judgment

Matthew Donmall appeared for the Crown Prosecution Service in this case. He had nothing to do with the writing of this post.

In a recent judgment, the Court of Appeal held that where a criminal suspect is remanded in custody, Article 5 of the Convention requires the police to notify the court as soon as possible if there is no longer a reasonable basis for suspecting them. It also held that the police and CPS must aid the court in observing its duty to show ‘special diligence’ in managing a suspect’s detention, by investigating the case conscientiously and by promptly bringing relevant material to the court’s attention.
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The Big Fat Gypsy Judicial Review

26 February 2015 by

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Traveller Movement v Ofcom and Channel 4, [2015] EWHC 406 (Admin), 20 February 2015 – read judgment

One of the nation’s great televisual fascinations last week became the unlikely subject of an Administrative Court judgment that demonstrates the limits of common law standards of fairness, as well as the lightness of touch applied by the courts when reviewing the decision-making of the media regulator.

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One more day to nominate the human rights cases absolutely everyone should know about

26 February 2015 by

PrintNominations close tomorrow (Friday) at 5pm for the human rights cases which absolutely everyone should know about.

Full guidelines below – please feel free to nominate as many as 50 or as few as 1 case. The more people who contribute, the better the final list will be. I have already had some brilliant entries.

Here are the criteria: 
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Supreme Court – the right to be on the beach

25 February 2015 by

_50586770__49414358_2b0a52bb-7425-4bca-b5ff-2253df1dc7fa-1The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council  [2015] SC 7 25 February 2015- read judgment

Late February is not necessarily the best time of year for a bit of UK sea swimming. But the Supreme Court has just come out with interesting judgments about whether there is a right to go to the beach and swim from it. For reasons I shall explain, they were anxious not to decide the point, but there are some strong hints, particularly in the judgment of Lord Carnwath as to what the right answer is, though some hesitation as to how to arrive at that answer. 

It arose in a most curious setting – East Sussex’s desire to register West Beach, Newhaven as a village green under the Commons Act 2006. But a beach cannot be a village green, you may say. But it is, said the Court of Appeal (see Rosalind English’s post here), and the Supreme Court did not hear argument on that point.

Now to the background for the present decision.

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“Keep our kids safe from predators” FB page on the rampage again

25 February 2015 by

Facebook-from-the-GuardianCG v Facebook Ireland & Another [2015] NIQB 11 (20 February 2015) – read judgment

The plaintiff was a former sex offender who had been identified on a Facebook page run by the second defendant called “Keep Our Kids Safe From Predators 2”. He had been released on licence and he was apprehensive about his safety upon his return to the community.

He resides with his father, who is disabled, and with his adult children one of whom is also disabled. He was particularly fearful of the reactions of others to his conduct in the light of the fact that his name had been published on the internet. I have posted on an earlier case where another former sex offender won an injunction against Facebook Ireland Limited in respect of the original KOKSFP, which was subsequently taken down  (XY v Facebook Ireland Ltd [2012] NIQB 96). 
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No entitlement to human rights damages after ‘caste discrimination’ case collapse

25 February 2015 by

Photo via Guardian.co.uk

Photo via Guardian.co.uk

Begraj v Secretary of State for Justice [2015] EWHC 250 (QB) – Read judgment

Adam Wagner acted for the Secretary of State in this case. He is not the author of  this post.

The High Court has ruled that when long-running employment tribunal hearing collapsed as the result of the judge’s recusal due to apparent bias the claimants in the action could not obtain damages for wasted costs under section 6 of the Human Rights Act (HRA) 1998 (specifically Article 6, the right to a fair trial) or the EU Charter.

The High Court confirmed that the County Court had acted lawfully in striking out the claim for having no reasonable prospects of success and for being an abuse of process. The state immunity for judicial acts in section 9(3) HRA 1998 applied, and in any event there had been no breach of Article 6 as the judge’s recusal preserved the parties’ Article 6 rights. 
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President of Family Division inveighs against social engineering in adoption proceedings – Marina Wheeler

25 February 2015 by

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In the matter of A (A Child) v Darlington Borough Council and (1) M (2) F (3) GM and GF and (4) A (by his children’s guardian) [2015] EWFC 11 (“Re A”) – read judgment

In a scathing judgment, the president of the Family Division has condemned as “social engineering” a local authority’s application to remove a baby boy permanently from the care of his father and place him for adoption.

The case was, he said,

an object lesson in, almost textbook example of, how not to embark upon and pursue a care case.

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Joshua Rozenberg resigned Telegraph post after editors sexed up human rights story

19 February 2015 by

Screen Shot 2015-02-19 at 21.56.47On yesterday’s Newsnight (from 7 minutes 20 seconds in), Britain’s foremost legal commentator Joshua Rozenberg revealed that he resigned as the Telegraph’s legal editor in 2007 after the news desk sexed up a human rights story with false information. 

The story is still on the Telegraph’s website here. It was a report of the 2007 House of Lords decision in Secretary of State for Defence v Al-Skeini & Ors [2007] UKHL, a case about whether the Human Rights Act applied to actions of the British Army in Iraq. The House of Lords ruled that the Act did apply in British detention facilities, but that it did not apply in the streets of occupied Basra. There is an excellent summary of the case by Rozenberg here.

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CA supports anonymity orders in personal injury approval hearings

19 February 2015 by

baby-birth-injuryJX MX (by her mother and litigation friend AX MX) v. Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, 17 February 2015 – read judgment

Elizabeth Anne Gumbel QC and Henry Whitcomb of 1COR (instructed by Mark Bowman of Fieldfisher) all appeared pro bono for the successful appellant in this case. They have played no part in the writing of this post.

For some years there has been debate between the judges about whether anonymity orders should be made when very seriously injured people’s claims are settled and the court is asked to approve the settlement. This welcome decision of the Court of Appeal means that anonymity orders will normally be made in cases involving protected parties. 

This is why the CA reached its decision.

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Help me find the 50 human rights cases absolutely everyone needs to know about

17 February 2015 by

PrintFollowers of the blog will know I am developing a new initiative, the Human Rights Information Project (HRIP). The aim is to radically rethink the way we communicate about human rights.

I need some help from you. I want to crowd-source data from readers of this blog about the 50 human rights cases absolutely everyone needs to know about. All contributors  will be attributed on the HRIP site and I will publish the text of the best nominations.

This data is going to be a central the project so I would really appreciate you taking the time to help out.

Here are the criteria:

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Slaves, animals and Lord Mansfield

16 February 2015 by

tumblr_my6p9rVBx11ssmm02o7_r1_500A fascinating riff has been playing around the London Review of Books since Stephen Sedley (erstwhile Sedley LJ) reviewed a biography of the 18th century judge Lord Mansfield – here – part £, but the excellent letters of response are open access.

Mansfield is perhaps best known by commercial lawyers for injecting into the hitherto archaic English commercial law some element of rationality. But he also ended up trying cases involving the ownership of slaves, and had therefore to decide how ownership fitted in with things like habeas corpus. 

But first a bit of historical background about our man, and some indications of the differing times in which he lived – much of it thanks to Sedley’s review.

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Sir Robert Francis’ Review of Whistleblowing Processes in the NHS – Joanna Glynn QC

16 February 2015 by

stream_imgIt has long been recognised that enabling healthcare professionals to speak up about concerns at work is a key element of the promotion of patient safety. The Final Report of the Freedom to Speak Up review of whistleblowing processes in the NHS was published on 11 February 2015.

Sir Robert Francis recommends the implementation of twenty “Principles” and “Actions” by organisations which provide NHS healthcare and by professional and systems regulators. These measures are to address “an urgent need for system wide action,” in spite of some positive developments in the handling of whistleblowing processes since the February 2013 report of the public inquiry into the failings at the Mid Staffordshire NHS Foundation Trust.

The Principles and Actions appear under five “overarching themes” which are addressed at chapters 5-9 of the 222 page report, each chapter describing the Principles that should be followed to bring about the change required, and the Actions which follow from each. Annex A to the report is a summary of good practice which cross refers to the Principles.
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The Investigatory Powers Tribunal and the rule of law – Natasha Simonsen

16 February 2015 by

gchqLiberty & Ors v GCHQ [2015] UKIPTrib 13_77-H (6 February 2015) – read judgment

Despite being hailed as an ‘historic victory in the age-old battle for the right to privacy and free expression’, closer examination of a recent ruling by the Investigatory Powers Tribunal (‘IPT’)  reveals it to have been a hollow victory.

The case arose from the Snowden leaks, which unveiled a vast communications interception program led by the US National Security Agency (‘NSA’). Intercepted communications can include the content of emails as well as ‘metadata’, and can extend to purely internal communications as well as communications with a US connection. For example, an email exchange between Leeds and London may be liable to interception by the NSA simply because it happens to be routed through a US server at some stage along the line. The Regulation of Investigatory Powers Act 2000 (‘RIPA’) establishes a framework for interception of communications by UK authorities, but of course those provisions don’t apply to interceptions by foreign state authorities in their own territory. Once intercepted by the NSA, mutual intelligence sharing arrangements can lead the same Leeds-London email to be handed over to the UK authorities, notwithstanding that the UK authorities would have needed a RIPA warrant had they wished to conduct the interception themselves.
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Critics of Islam prevented from entering UK to attend Lee Rigby rally

15 February 2015 by

rigby-mother_2659292bGeller and another, R (on the application of) v  The Secretary of State for the Home Department [2015] EWCA Civ – read judgment

This short case involves the old dilemma of public order law: whether it is right to shut down speech when the speaker himself does not intend to incite violence, but whose presence it is said may lead third parties to commit violence. Indeed the facts of this particular case go further than that , because the applicants had no plans to make any public address during their proposed visit to Britain. It was their presence alone which was feared would inflame “community tensions”.

The applicants were two well-known US writers whose critical views of Islam led to them being prevented from entering the country in May 2013, to speak at a rally  in the aftermath of the terrorist murder of Drummer Lee Rigby.  An exclusion order was issued against them on grounds of public order, of which they sought judicial review. This was their appeal against the Immigration Tribunal’s refusal to allow them to proceed with the judicial review claim.
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Court of Appeal strikes down state immunity rules that prevent embassy employees seeking justice – Diarmuid Laffan

15 February 2015 by

SudanBenkharbouche & Anor v Embassy of the Republic of Sudan [2015] EWCA Civ 33, 5th February 2015 – read judgment

This judgment concerned the conjoined appeals of Ms. Benkharbouche and Ms. Janah which arose from employment law claims brought against, respectively, the Sudanese and Libyan embassies. Certain of their claims, such as those for unfair dismissal, were founded on domestic law. Others, such as those under the Working Time Regulations 1998, fell within the scope of EU law. All were met with pleas of state immunity under the State Immunity Act 1978.

The Court of Appeal’s judgment provides a neat illustration of the relative remedial potency, on the one hand of human rights claims based on the European Convention on Human Rights by way of the Human Rights Act 1998, and on the other, those based on the EU Charter of Fundamental Rights via the doctrine of ‘horizontal direct effect’.
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