Monthly News Archives: October 2018


Philip Green and non-disclosure agreements: do we have a right to know?

30 October 2018 by

The circumstances in which a court should prevent the press from reporting information about famous people has long provoked debate. The decision of the Court of Appeal in ABC & Ors v Telegraph Media Group Ltd [2018] EWCA Civ 2329 is no exception, attracting extensive press coverage and comment from the #MeToo movement.

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In a unanimous judgment, the Court of Appeal overturned the decision of Mr Justice Haddon-Cave in the High Court and granted an interim injunction to the Appellants/Claimants.

The decision had the effect of temporarily restraining publication of certain information which was alleged by the Claimants to be confidential and disclosed in breach of non-disclosure agreements – namely allegations of sexual and racial harassment made against a well-known (and at the time unidentified) leading businessman – pending a full trial.

However, Lord Hain then went on to disclose under Parliamentary privilege that the accused businessman was Sir Philip Green. He said that given the “serious and repeated” nature of the allegations he felt under a “duty” to name him, and publication of this information was “clearly in the public interest”.
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Supreme Court rules that parental misconduct irrelevant to whether child should leave UK — an extended look

29 October 2018 by

supreme courtOn 24th October 2018 the Supreme Court gave its judgment in the conjoined cases of KO (Nigeria); IT (Jamaica); NS (Sri Lanka) and others; Pereira v Secretary of State for the Home Department [2018] UKSC 53 — read judgment.

This is a major decision which clarifies the approach that the Immigration Tribunal should take to the question of whether a child and/or their parents should be removed from the UK in circumstances where it is claimed that this would constitute a disproportionate interference in their rights to private and family life.

In summary, the Court held that misconduct by the parents — be it criminal offending or immigration-related misdemeanours such as overstaying a visa — should not form part of the assessment of whether a child should be removed from the UK. As a result, it should also not form part of the assessment of whether Article 8 requires that the parent remain in the UK with the child.

However, the judgment is complicated and leaves some questions without clear answers. In this extended article, we will explore the reasoning of the Court and have a look at what has been clarified but also at what might now be plunged into confusion.

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The Round Up: Saudi Arabia, durable relationships, and the Telegraph judgment

29 October 2018 by

Conor Monighan brings us the latest updates in human rights law

Khashoggi

Credit: The Guardian

In the News:

Saudi Arabia has admitted that the Washington Post journalist Jamal Khashoggi is dead. The man was last seen entering the Saudi Arabian consulate in Istanbul.

At first Saudi Arabia refused to admit the journalist was dead, then claimed he was killed in a fist fight, before suggesting he was killed by a rogue operation. A man posing as Khashoggi left the consulate the same day and walked around the nearby area.

The country’s public prosecutor has launched an investigation. King Salman announced a restructuring of the kingdom’s intelligence services. He has also dismissed deputy intelligence chief Ahmed al Assiri and Crown Prince Mohammed bin Salman’s nearest adviser, Saud al-Qahtani. 18 other suspects have been arrested and remain under investigation. The location of the journalist’s remains is unclear.

Donald Trump called the Saudi’s response ‘credible’, and senior US officials met with the Crown Prince last week. Trump has promised a robust response, but has said he does not want to damage American jobs by cutting arms sales.

Much of the information was initially leaked by Turkey, which sees Saudi Arabia as a rival in the region. President Erdogan has claimed the murder was planned days in advance.
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Morrisons supermarkets liable for employee’s criminal publication of personal data

26 October 2018 by

morrisons-supermarketWM Morrison Supermarkets Plc v Various Claimants [2018] EWCA 2339 (22 October 2018) – read judgment

The Court of Appeal has ruled that the supermarket chain was vicariously liable for one of its employees’ unlawful disclosure of personal data belonging to other employees even though this act took place away from the workplace and the was part of a sequence of planned events leading to the commission of this wrongdoing.

The central issue before the Court was whether an employer is liable in damages to those of its current or former employees whose personal and confidential information has been misused by being disclosed on the web by the criminal act of another employee, who had a grudge against the employer, in breach of the Data Protection Act 1998, and in breach of that employee’s obligation of confidence.  The Court held that it did; the common law remedy of vicarious liability of an employer for its employee’s misuse of private information and breach of confidence was not expressly or impliedly excluded by the Data Protection Act 1998, notwithstanding that the Act itself excluded an employer’s liability for wrongful processing of personal data by an employee. 
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Criminal fine for discussion of Mohamed’s wives did not interfere with freedom of expression – Strasbourg

26 October 2018 by

europea_court_of_human_rights_big.pngE.S. v Austria (Application no. 38450/12) 25 October 2018 – read judgment

In a judgment which has received instant and worldwide publicity, the Strasbourg Court has ruled that the Austrian government did not violate an individual’s freedom of expression when she was fined for saying at a 2009 seminar she gave on Islam that Mohammed had married one of his wives, Aisha, at the age of six and had intercourse with her from the age of nine. Although this would be classified as paedophilia today, the Austrian criminal court found that the insinuation that Mohamed had paedophilic tendencies amounted to an unlawful disparagement of religious doctrines.   Because ,in modern society, paedophilia was behaviour which was ostracised by society and outlawed, it was evident that the applicant’s statements were capable of causing indignation. Defaming the prophet in this way went “beyond the permissible limits of an objective debate” and “could stir up prejudice and put at risk religious peace”. Thus her words had exceeded the permissible limits of freedom of expression.
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The right of appeal against refusal of a residence card: the latest developments

24 October 2018 by

CJEUAs discussed previously on the Blog, the rights of the family members of EEA nationals to reside in the UK is currently in a state of flux. One important issue concerns the appeal rights of an “extended family member” of an EEA national.

At the moment, if a “family member” of an EEA national resident in the UK, that is, a spouse, direct descendant (including a stepchild) who is dependent or under 21, or a dependent in the direct ascending line, applies for a residence card under the Immigration (European Economic Area) Regulations 2016 and is refused by the Home Office, they have a right of appeal to the First-tier Tribunal in the normal way.

However, if an “extended family member”, that is, a non-married partner or other dependent relative (e.g. grown-up child) of the EEA national applies for a residence card, but is refused, regulation 2 of the Immigration (European Economic Area) Regulations 2016 operates to preclude a right of appeal to the First-tier Tribunal. Therefore, only judicial review is available to challenge such a decision.

In my last article, we saw that one such “extended family member”, Ms Rozanne Banger (I am reliably informed that her surname is pronounced “Banjer” with a soft “g”), fought a case at the Upper Tribunal in part concerning the issue of whether the denial of a right of appeal to a person in her position was compatible with EU law, specifically Article 3(2) of Directive 2004/38 (known as the “Citizens Directive”). The Upper Tribunal decided that it needed to ask the Court of Justice of the European Union to clarify the matter.

But on 12th July 2018, the Court of Justice gave its decision.

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The Round-Up: Damages for Unlawful Detention of Trafficking Victim, Excessive Sentence Quashed for Fracking Protesters, and Discriminatory Housing Policy?

22 October 2018 by

Yarl’s Wood immigration removal centre

Yarl’s Wood detention centre. Image Credit: Guardian

ZV, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 2725 (Admin): The High Court has ruled that a Lithuanian victim of trafficking, who was detained at Yarl’s Wood for five months pending deportation, is entitled to damages for 45 days’ unlawful detention.

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Split Court of Appeal rules detention of asylum seekers unlawful — Part 1

17 October 2018 by

 

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States applying Dublin III are the 28 EU Member States (blue), plus four associate countries (red and green)

R (on the application of Hemmati and Others) v The Secretary of State for the Home Department [2018] EWCA Civ 2122

 

The Court of Appeal has concluded, by a 2-1 majority, that the detention of five asylum seekers pending their removal to another country where they should first have claimed asylum had been unlawful, and that they were entitled to damages. This article (the first of two) will unpick the reasons behind this legally complex appeal.

 

Background to the case

The case concerned five individuals who had entered the EU via countries in Eastern Europe and eventually made their way to the UK illegally. All five claimed asylum in the UK.

The Dublin III Regulation – an EU-wide Regulation – creates a system which determines where a person should claim asylum. The key principle is that a person must claim asylum in the first Dublin country they reach, where they should stay.

However, as one example in this case, Mr Hemmati entered Bulgaria and claimed asylum, but then left and entered the UK illegally, where he claimed asylum. The UK therefore asked Bulgaria to take back Mr Hemmati. Bulgaria accepted and Mr Hemmati was detained before removal.

Article 28(1) of Dublin III says that a person cannot be detained if the only reason they are being held is because they are subject to ‘the procedure established by this Regulation.’ The ‘procedure’ is the process whereby a country determines the ‘right’ country where a person’s asylum claim should be determined, in this case when the UK asked Bulgaria to take Mr Hemmati back, and Bulgaria agreed. In plain English, Dublin III prohibited the UK from holding Mr Hemmati in detention if their only justification was that they were submitting a take back request to Bulgaria and waiting for Bulgaria to reply.

However, Article 28(2) says that if there is a significant risk that the person will abscond, then a Member State may detain the person.

Moreover, Article 2(n) defines the phrase “risk of absconding” in Article 28 as meaning “the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third country national or a stateless person who is subject to a transfer procedure may abscond.” This creates an important safeguard regarding the exercise of the power under Article 28(2).

The key point is that in an Article 28 case, i.e. a person who is going through the Dublin III procedure, the only ground for detention is if there is a ‘significant risk of absconding‘, which is defined as reasons based on objective criteria defined by law.

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Interview with Philip Havers QC

16 October 2018 by

Philip-Havers-QC- cropped.pngAfter 12 years as Head of Chambers at One Crown Office Row, during which Chambers grew steadily and the number of silks almost doubled, Philip Havers QC this month handed over the reins to his successor, Richard Booth QC.

Philip’s career so far has ranged over a great breadth of work, encompassing public and human rights law, clinical negligence, public inquiries and high profile inquests.

He regularly appears in landmark cases in the appellate courts. He recently acted as counsel to a prisoner who tried to persuade the Supreme Court that the prison authorities had to enforce the ban on smoking in public places, successfully defended the Crown Prosecution Service in the Supreme Court against a claim that a decision to prosecute a Somalian asylum seeker had been a breach of her Article 8 rights, and last week the Supreme Court gave judgment in a case of his involving an A&E receptionist who gave negligent advice to a patient about how long he would have to wait to be seen by a nurse (covered on this Blog here). He also appeared this summer in the Privy Council representing the Chief Justice of Trinidad and Tobago in a case concerning whether the constitution prevented the Law Bar Association of Trinidad and Tobago from inquiring into allegations of misconduct made against him.

Outside court he is a music lover, with a particular devotion to Tom Petty and the Traveling Wilburys. He is also a tennis fan, a wine connoisseur, and a keen gardener.

He sat down to answer a few of our questions about his career at the Bar and what he has learned.

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Three new podcasts: NHS, Brexit and Brexit

15 October 2018 by

LawPodlogo.jpgThe Supreme Court’s judgment on the liability of hospitals for the actions and misstatements of their non-medical staff is an important line in the sand for the NHS. Owain Thomas QC  discusses the implications of this ruling with Rosalind English on Law Pod UK here, following his widely read post on the UK Human Rights Blog.

And as part of our repodcast arrangements with Catherine Barnard of Cambridge University, we have posted two new episodes on the Brexit negotiations, here and here. In Episode 46 of Law Pod UK Professor Barnard features an exclusive interview with Sir Ivan Rogers, the former UK Ambassador to the EU, following his speech to Trinity College Cambridge last week: “Brexit as a revolution”.

Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast. 

Conscience and cake: the final chapter

15 October 2018 by

gay cake.jpg

The cake at the centre of the controversy — Image: The Guardian

Lee v. Ashers Baking Company Ltd – read judgment here.

On Wednesday the Supreme Court handed down its much-anticipated judgment in the ‘gay cake’ case. The Court unanimously held that it was not direct discrimination on grounds of sexual orientation or political opinion for the owners of a Northern Irish bakery to refuse to bake a cake with the message ‘Support Gay Marriage’ on it, when to do so would have been contrary to their sincerely held religious beliefs.

The judgment is a significant and welcome affirmation of the fundamental importance of freedom of conscience and freedom of speech. The Court emphasised that refusing to provide a good or service to someone because they are gay (or because of any other protected characteristic) is unlawful discrimination — this judgment should not give anyone the idea that discrimination is now acceptable. However, the Court made clear that the purpose of equality law is to protect people, not ideas, and that no-one should ever be compelled by law to make a statement or express a message with which they do not agree.

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The Weekly Round up: cakes, emergency services and legal advice all in the limelight

14 October 2018 by

pexels-photo-1038711.jpeg

Baking takes up supreme court time on both sides of the Atlantic, the United Nations High Commissioner for Refugees makes an appearance in the Court of Appeal, Unexplained Wealth Orders make an entrance and more…

The biggest news of the week arguably came out of Northern Ireland. However, mercifully this blog can ignore the ongoing speculation regarding a Brexit settlement, the attitude of DUP MPs, the potential presence of border infrastructure and whether or not veterinary inspections and customs checks are of loose equivalence (well, at least for now…).
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Climate change human rights claim wins in the Dutch courts

14 October 2018 by

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State of Netherlands v. Urgenda Foundation, The Hague Court of Appeal, 9 October 2018, read judgment here

The Hague Court of Appeal has just upheld a decision by the District Court that the Dutch State had failed to do enough to combat climate change. In response to a claim by an NGO, Urgenda and 886 co-claimants, the Court ordered the State to reduce its emissions by at least 25% by the end of 2020 (benchmarked against 1990 emissions).

The case raises a mass of interesting issues, not least the various unsuccessful attempts by the State to avoid liability.

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Supreme Court rules that hospital receptionist owes a duty of care to a patient — Owain Thomas QC

11 October 2018 by

A&E Croydon.jpgThe Supreme Court has unanimously allowed the appeal of Michael Darnley in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, holding that a hospital receptionist owed a duty of care to a patient at A&E, which was breached by providing him with incorrect information as to how long he was likely to have to wait before being seen or triaged.

The case raised questions as to the existence and scope of the duty of care owed by hospitals to patients who attend and are dealt with non-medical staff. The decision has potential implications for all those who are booked in to A&E even if no-one has professionally assessed their need for care.

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No compensation for Google data breaches

10 October 2018 by

black samsung tablet display google browser on screen

Lloyd v Google LLC [2018] EWHC 2599 (QB) 8 October 2018 – read judgment

This is a novel form of action, but everything was new once (Warby J para 100)

 

Already today we are becoming tiny chips inside a giant data-processing system that nobody really understands. (Yuval Noah Harari, 21 Lessons for the 21st Century, p. 36)

 

Do people want privacy? Because they seem to put everything on the internet. (Elon Musk, interview on Joe Rogan podcast #1169 at 1.49)

Most of us resignedly consent to the use of cookies in order to use internet sites, vaguely aware that these collect information about our browsing habits in order to target us with advertisements. It’s annoying, but does it do us any harm? That is the question that came up before Warby J in a preliminary application for a representative claim last week.
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