Media By: Guest Contributor


The Intricacies of Proportionality – Katherine Barnes

12 August 2018 by Guest Contributor

CRBR (AR) v Chief Constable of Greater Manchester Police  [2018] UKSC 47 – read judgment

The Supreme Court has given important guidance on the correct approach of the appellate courts to assessing proportionality under the ECHR. The main issue before the court was whether an Enhanced Criminal Record Certificate (“ECRC”) issued in respect of the appellant, AR, under s.113B of the Police Act 1997 is compatible with Article 8 of the Convention on Human Rights.

Background

AR was a married man with children, of good character, and a qualified teacher, and worked for a time as a taxi driver. It had been alleged that, in the early hours of 4 November 2009, he raped a 17 year old woman, who was a passenger in his taxi. AR’s defence was that there had never been sexual contact with the alleged victim. In January 2011 he was acquitted of rape by the Crown Court.

AR subsequently applied for an ECRC in connection with an application for a job as a lecturer. The police duly issued the ECRC which contained details of the rape charge for which AR had been acquitted. A second ECRC which also contained this information was later issued in respect of an application by AR to work as a private hire driver.

Having exhausted the various internal appeal mechanisms available to him, AR issued a claim for judicial review. Amongst other matters he argued that the inclusion in the ECRC of information concerning the rape charge and acquittal was procedurally unfair because it had been disclosed without consulting him. It was also said that the disclosure amounted to a substantive breach of Article 8.
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New balance of probabilities test for suicide verdict – Owain Thomas QC

28 July 2018 by Guest Contributor

31d3NghdjxL._SY445_QL70_R (Maughan) v HM Senior Coroner Oxfordshire and others  26 July 2018

The received wisdom, supported by all leading texts on coroner’s law is that in order for a Coroner or jury to return a verdict of suicide in an inquest, the fact that the deceased deliberately took his own life must be established beyond a reasonable doubt, or in other words, to the criminal standard of proof.

Jervis states:

At least since 1984 it has been consistently held in England that the standard of proof in suicide cases should be the same as in criminal prosecutions… although there is no crime involved and an inquest is not a criminal trial. The comparative difficulty in obtaining a conclusion of suicide may well mean that official statistics significantly underestimate the occurrence of suicide.

The Form 2 prescribed by the Rules for the purposes of recording the conclusion of the inquest itself specifies that the criminal standard of proof applies for unlawful killing and suicide conclusions. The Guidance issued by the Chief Coroner (at paragraph 56) says the same thing.

Maughan

In an important judgment of the Divisional Court in R (Maughan) v HM Senior Coroner Oxfordshire and others [2018] EWHC 1955 (Admin) that position has now changed. The Court, Leggatt LJ and Nicol J, has found that the standard of proof is the civil standard of proof, i.e. the balance of probabilities. There case may go as the Court gave permission to appeal.

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Cliff Richard and Private Investigations — Dr Richard Danbury

27 July 2018 by Guest Contributor

Sir CliffThis article was originally published by the UK Constitutional Law Association, and can be found here.

 

There is an old joke, in which a man is driving through the countryside, lost. He stops his car in a small village to ask a local for directions. The local responds by saying: ‘you want to get where? Oh, to get there, I wouldn’t start from here.’

 

It’s a joke my children wouldn’t get, from another era, from an age before satnav and Google maps. Perhaps it should be retired. But it remains of contemporary relevance at least as a way of understanding the recent judgment of Richard v BBC. This is because it highlights the issue of framing: the way one perceives an issue dictates, to some extent, the way one attempts to deal with it. Framing is well known in journalism, as the way a journalist perceives an event – frames it – influences the way she will report on it. It also can be helpful in law. The way an advocate persuades a tribunal to perceive an event – frames it – dictates, to some extent, the conclusion the tribunal will reach. Every advocate knows that to get to a particular destination, it’s important to get the judge or jury to start from the right place.

 

Reading the 454 paragraphs of Mann J’s clear prose in Richard v BBC, we are left with little doubt how he framed the case. A well-beloved celebrity, Sir Cliff Richard, was unfairly accused of a horrendous crime, and was investigated, as was only right, by the police. But the police told the BBC this private information, which they shouldn’t have done, because they were pressurised into doing so by the BBC. The BBC prepared a report, dispatched a helicopter to shoot video through Sir Cliff’s windows of policemen searching his flat, and then published this to the world. This harmed Sir Cliff, who sued the police for informing the BBC, and the BBC for informing the world. Justice was done to Sir Cliff when Mann J resolved the dilemmas with which he was presented in favour of Sir Cliff.

 

Indeed, Mann J seems to have resolved all the dilemmas with which he was faced in favour of Sir Cliff. Many of these findings might be challenged, and some are supported by stronger reasoning than others. The BBC has indicated that it is considering appealing. This blog concentrates on one finding that can be challenged, as it is one that potentially has the most impact on public interest journalism. This is Mann J’s conclusion in paragraph 248 that a person under police investigation has a prima faciereasonable expectation of privacy in respect of that fact. The blog argues that, while an understandable conclusion given Mann J’s framing of Sir Cliff’s case, this finding erects a significant and substantial hurdle for those undertaking public interest journalism. That is a problem.

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Nuisance by Knotweed – Jeremy Hyam QC

25 July 2018 by Guest Contributor

japanese-knotweed-1.jpgA radical problem determined by ‘straightforward application of established principles’? 

 Network Rail Infrastructure v. Stephen Williams (1) Robin Waistell (2) [2018] EWCA Civ 1514 – read judgment

Introduction

Hancock’s curse, monkey fungus, elephant ears, pea shooters, donkey rhubarb are all (bizarre) English names for Fallopia japonica or Japanese knotweed.  Although initially lauded for its beauty (it was so celebrated that in 1847 it was named by one Horticultural society as the ‘most interesting new ornamental plant of the year’) it is now well known as a fast growing and pernicious weed that is very difficult to eradicate. This is because it has a large underground network of roots (rhizomes). So bad is its destructive nature that since 2013 a seller of property is required to state whether Japanese knotweed is present on their property through a TA6 form – the property information form used for conveyancing.

Its destructive potential, and its potential for devaluation of property was at the heart of this recent decision of the Court of Appeal.

The appeal arose from the decision of Recorder Grubb sitting in Cardiff that the Appellant, Network Rail (‘NR’), was liable in nuisance by reason of the devaluation of the Claimant’s property due to the presence of knotweed on an embankment behind the Claimant’s property. The appeal raised a number of key issues as to what kinds of damage give rise to an actionable claim in the tort of private nuisance.

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Sir Cliff v BBC: A new era for police investigations? — Patricia Londono

19 July 2018 by Guest Contributor

Sir Cliff’s case against the BBC (Sir Cliff Richard OBE v (1) The British Broadcasting Corporation (2) Chief Constable of South Yorkshire Police ) following the raid on his home in August 2014 was billed as of  “enormous importance” in relation to whether the media are able to identify a suspect pre-charge, as well as having “massive implications” for the reporting of early phases of police investigations.  The first trial of its kind in this country, this article considers the ramifications of this High Court decision on the press reporting of those subject to police investigation.

On the morning of the 14 August 2014, the Berkshire home of Sir Cliff Richard was searched by South Yorkshire Police (‘SYP’) in connection with allegations of historic child sexual abuse.  The BBC broadcast the search more or less as it was taking place, giving it extensive coverage, including aerial shots by helicopter. The story was then picked up by other news media extending its coverage both in this country and aboard. Sir Cliff was not in the UK while his home was searched but viewed the broadcast.  He was subsequently questioned about the allegations but was neither arrested or charged and was told in 2016 that he was no longer under investigation.

At the heart of Sir Cliff’s claim was a challenge to media organisations in the reporting about those named by police as being subject to investigation for serious criminal offences.  In the face of increasing concern about the public naming of suspects questioned about historic sex offences, the Home Affairs Select Committee had recommended that those accused of such offences should be entitled to anonymity up to the point of charge (HC 962, Pre-Charge Bail, Seventeenth Report of Session 2014-15).

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The Belhaj finale: Exclusion of closed material procedure means less scrutiny of DPP decisions — Nicholas Clapham

5 July 2018 by Guest Contributor

supreme courtThe rendition to Libya in 2004 of Mr Belhaj and his wife, Mrs Boudchar has given rise to a series of important cases in the domestic courts. In Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another [2017] UKSC 3 the Supreme Court unanimously ruled that the doctrine of state immunity did not operate to bar claims against the Government arising from their detention (as discussed in these pages by Dominic Ruck Keene).

Recently the parties in the Belhaj case have reached a mediated settlement and this action is at an end. Although the settlement was concluded without admission of liability, the Prime Minster issued an apology which included the following statement:

The UK Government’s actions contributed to your detention, rendition and suffering. The UK Government shared information about you with its international partners. We should have done more to reduce the risk that you would be mistreated. We accept this was a failing on our part.

 

The Remaining Case

Despite the end of those proceedings, a procedural argument remained extant which concerned the applicability of closed material proceedings to judicial review in certain cases. In Belhaj and another v Director of Public Prosecutions and another [2018] UKSC 33 (4 July 2018) the Appellants sought judicial review of a decision not to prosecute a person said to be a member of the British Secret intelligence Service.

Although the matter was then settled before judgment, the Court decided that this issue required authoritative determination in light of its importance.

The allegation was broadly one of connivance in the Appellant’s abduction, ‘rendition’ and maltreatment (although Her Majesty’s Government neither confirmed nor denied such involvement during the proceedings). The Crown Prosecution Service decision was made on the basis of 28,000 documents, none of which were disclosed to the Appellants due to their security classification.

The issue for the Court was whether this material could be received during judicial review proceedings using the closed material procedure by which the material is disclosed to the court and a special advocate but not the Appellants.

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How much of a groundbreaking decision is the CJEU’s judgment for transgender rights? – Thibault Lechevallier

3 July 2018 by Guest Contributor

European-Court-of-Justice

IMB v Secretary of State for Work and Pensions ,26 June 2018 

Weeks after ruling against certain sexual orientation tests for asylum seekers and finding that EU Member States must recognise the free movement rights of gay spouses, regardless of whether same-sex marriages are solemnised therein, the European Court of Justice (ECJ) held that the UK requirement for transgendered persons to be unmarried in order to qualify for a State pension at the retirement age of their current gender violated EU law.

Background facts

The claimant, identified as MB, is a male-to-female married transgendered person, i.e she was assigned the male sex at birth, but identifies as female. After being recognised as female on both passports and driving licenses issued by UK authorities, MB underwent sex reassignment surgery in 1995. She did not, however, obtain a Gender Recognition Certificate under the Gender Recognition Act 2004.
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Bars to the Bar: Diversity in the Legal Profession Before the Canadian Supreme Court – Michael Rhimes

21 June 2018 by Guest Contributor

On 15th June 2018 the Canadian Supreme Court handed down two interesting and closely related judgments involving Trinity Western University: Law Society of British Columbia v Trinity Western University and Brayden Volkenant 2018 SCC 32 and Trinity Western University and Brayden Volkenant v Law Society of Upper Canada 2018 SCC 32

Trinity Western University (TWU) is a Christian University – indeed, in its own words, it is “a distinctly Christian university” (here, page 2). It takes “the Bible as the divinely inspired, authoritative guide for personal and community life” (here, page 1) and seeks“to develop godly Christian leaders”.

Prospective TWU students must sign a ‘Community Covenant’. That Covenant requires them to commit to “reserve sexual expressions of intimacy for marriage” and abstain from“sexual intimacy that violates the sacredness of marriage between a man and a woman” (here, page 3). This rule applies both on and off campus(the Abstinence Rule, see paras [1] and [319]).

The Law Society of British Columbia (LSBC) refused to approve TWU’s faculty of Law because of the Abstinence Rule (I will call this the Decision). The question before the Supreme Court of Canada was whether this was lawful. The issue in Law Society of Upper Canada dealt with a similar decision of the Law Society of another province(Ontario)to approve the TWU law school.  
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Slamming the door on system failure in medical negligence inquests – Jeremy Hyam QC

19 June 2018 by Guest Contributor

R (Parkinson) v. HM Senior Coroner for Kent and Others – read judgment
If anyone had the lingering hope that the door to argue “system failure” in any but the most exceptional case of medical negligence remained ajar after the decision of the Grand Chamber in Lopes de Sousa, then the recent Divisional Court decision in Parkinson  shows the door has been well and truly slammed shut.
Background facts
On 9th January 2011 Mrs Kathleen Parkinson died at the A & E Department of Darent Valley Hospital. She was aged 91 and dying. She had been taken to hospital by her son. On arrival in A & E she was assessed by a nurse and then by a Dr Hijazi. Dr Hijazi formed the view that she was dying, that there was no useful treatment that could be given her, and that as she was in the last moments of life, doing anything would not have been beneficial to her.  Her son who, wanted her to be treated, became aggressive and eventually attempted to perform mouth to mouth resuscitation although advised against this by A and E staff. Mrs Parkinson deteriorated rapidly and died soon after arriving.
An inquest was convened and although Article 2 was kept under review throughout the inquest, the Coroner determined that it was not an Article 2 inquest.  He rejected the submission that he ought to enter a verdict of gross negligence manslaughter and found that Mrs Parkinson died of natural causes and that any additional treatment that could have been provided to her in the short time she was at the Darent Valley Hospital would have been ineffective given the advanced stage of dying she was in. He refused the request to provide a report on the prevention of future deaths under paragraph 7, Schedule 5 of the Coroners’ Justice Act 2009.

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Home Office to pay damages for detention of immigrant claimant

18 June 2018 by Guest Contributor

R (on the application of Jollah) v Secretary of State for the Home Department [2018] EWCA Civ 1260 – read judgment

The Court of Appeal has upheld an award of damages for false imprisonment in the context of immigration detention.  The Court found that an unlawful curfew which required residence at a specific address between specific hours each day and which was backed by the threat of criminal sanctions and electronic tagging gave rise to the tort of false imprisonment.

Background law and facts

The claimant was released from prison in 2013 and then detained in an immigration centre.  He was then released on bail which came with restrictions on where he could live.  When the bail period ended, the secretary of state tried to maintain these residence restrictions.  She purported to use her powers under the Immigration Act 1971 Schedule 3 Paragraph 2(5) to impose a curfew on the claimant which required him to stay at his home address between 11pm and 7am every day.  The claimant was fitted with an electronic tag and told that he would face a fine or imprisonment if a court found that he did not comply with the terms of the curfew.  This curfew was in place for two and a half years, from February 2014 until July 2016.
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The “gay marriage” case that never was: Three thoughts on Coman, Part 2 – Michael Rhimes

6 June 2018 by Guest Contributor

Michael Rhimes is the fourth référendaire to Judge Vajda at the Court of Justice of the European Union. He was not involved in the Coman case. This blog post is written in a purely personal capacity and reflects only the author’s views.

 

I have three points on the judgment, which is summarised in part 1.

1. A narrow judgment: A free movement case, not a gay marriage one.

The judgment is a narrow one. On a basic level, for the “Coman” rule to be engaged, a number of conditions must be satisfied:

    1. At least one of the parties to the marriage must be a Union national;
    2. One of the Union nationals in question must have exercised their free movement rights (otherwise Article 21 TFEU will not be engaged, see C-434/09 McCarthy, paras 49 to 55)
    3. The couple must be married in a Member State that solemnises same-sex marriage.

In addition, the reasoning of the Court focuses on the right to free movement in Article 21 TFEU. The Coman judgment is not one that is predicated upon the growing recognition of same-sex marriage within the EU (on this, see my third comment, and para 56 to 58 of the Opinion) or, indeed, on fundamental rights (on this, see my second comment). Member States have to recognise the third country same-sex spouse of a Union citizen, but only so that Union citizen may freely exercise their free movement rights.
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A Judicial Masterpiece? US Supreme Court rules on ‘gay cake’ case — Robert Ward

6 June 2018 by Guest Contributor

US Supreme Court.jpgThis week the US Supreme Court handed down judgment in Masterpiece Cakeshop et al v Colorado Civil Rights Commission et al. This is a decision which is of interest in the UK for its factual similarity with the case of Lee v Ashers Baking Company, otherwise colloquially known as the “gay cake” case which is currently being considered by the UK Supreme Court (and which has been discussed previously on this blog).

In both cases Christian bakery owners refused to create certain cakes for customers on the basis that it would contravene their religious objection to gay marriage. The judgments in Masterpiece may foreshadow some of the arguments to be discussed in the upcoming UK decision.

In this case, the US Supreme Court held that the Colorado Civil Rights Commission failed to approach the matter in accordance with its obligation of religious neutrality. The baker’s appeal was therefore upheld — but only on technical grounds.

 

Background

The owner of Masterpiece, Jack Phillips, refused to create a wedding cake for a same-sex marriage ceremony between two of his potential customers, Charlie Craig and Dave Mullins. He did, however, say that he would be prepared to make birthday cakes or other products. His stated reason for refusing to make a wedding cake was that to do so would have been a personal endorsement and participation in a ceremony and relationship which contravened his deep and sincerely held religious beliefs.

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The CJEU said yes! Partners in same sex marriage are “spouses” Part 1 – Michael Rhimes

5 June 2018 by Guest Contributor

Coman and others, Case C‑673/16,  5 June 2018 – read judgment

Can the term “spouse” in Article 2(2)(a) of the Citizenship Directive (Directive) refer to a spouse of the same sex as the other party to the marriage (same-sex spouse)?

This (fairly dry) question was at the heart of the Coman case. Of course, as the Advocate General recognised in his Opinion, para. 2 it touched on other (more juicy) questions of dignity and the diverging understandings of marriage in the 28 Member States.

In this post I will present the facts and reasoning in the judgment. My following post will offer three comments on it. 

Background Facts

Mr Coman, a dual national of Romania and the US, met Mr Clabourn Hamilton, a US national, in New York in 2002. They married in Brussels (Belgium) in 2010. In 2012, Mr Clabourn Hamilton asked the Romanian authorities to provide him with the documents to allow him to stay in Romania, with Mr Coman, as his spouse, for longer than three months.

The request was denied.
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Legal personhood for non-human animals: Part II — Dr Linda Roland Danil

1 June 2018 by Guest Contributor

 

The second part of this guest contribution argues that it is time to consider seriously the case for granting legal personhood to certain classes of sentient animals. Part I can be found here.

1920px-Humpback_stellwagen_edit.jpg

Introduction

On December 26, 2017, the Connecticut Superior Court dismissed a petition for a writ of habeas corpus filed by the Non-Human Rights Project (NhRP) – which I introduced in an earlier post – on behalf of three elephants that the NhRP argued are illegally confined in Goshen, Connecticut. The issue, similarly to previous cases involving four chimpanzees, was whether the court should grant the petition for a writ of habeas corpus because the elephants are ‘persons’ entitled to liberty and equality. The court dismissed the argument and held that the ‘petition is wholly frivolous on its face.’

Discussion

One of the things that is implied in the refusal to grant personhood to non-human animals, in my view, is the strong aversion to the notion that one day a human being may find his or rights trumped by those of a non-human animal.

In my earlier post, I argued that we are also animals, but different – and by this I further elaborated that we are different insofar as we have disavowed our animal nature in order to properly construct and enter the socio-symbolic order and human culture – through what, for example, Freud called a process of ‘organic repression’ in Civilization and Its Discontents, or what Joanne Faulkner has described as ‘an abandonment of the animal within.’

By no means is this meant to be construed as a bad thing – it is who we are – but being different does not necessarily always mean better. To argue that human beings are better would be to ignore the ways in which other animals are unique in their own way.

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Court of Appeal upholds Birmingham gang injunction

31 May 2018 by Guest Contributor

the-royal-courts-of-justice-1648944_1280

Jones v Birmingham City Council [2018] EWCA Civ 1189 (23 May 2018)

The Court of Appeal has upheld a ‘gang injunction’ restricting the actions and movement of 18 members of a Birmingham gang. One of the men affected, Jerome Jones, unsuccessfully challenged the injunction, arguing that the proceedings by which it was made properly required proof to the criminal standard, and that the application of the civil standard violated his right to a fair trial under Article 6 ECHR.

 

Background

The appellant was said to be a member of the Guns and Money Gang (GMG), affiliated with Birmingham’s notorious Johnson Crew. Named after Johnson’s café, the gang’s erstwhile fast-food hangout, the Johnson Crew have been engaged in often violent turf war with the rival Burger Bar Boys since the 1980s. They both attempt to lay claim to various areas of the city, particularly between Handsworth and Aston.

The violent climate was brought to the nation’s attention with the tragic murder of Charlene Ellis and Letisha Shakespeare, two innocent teenage students gunned down in Aston while leaving a party in the early hours of 2 January 2003. Four associates of the Burgers, imprisoned for the murders, had apparently intended to target a Johnson member as revenge for the earlier execution-style killing of Burger Bar Boy Yohanne Martin. While this particularly bloody period gained attention for claiming the lives of a number of gang members and mere bystanders, the violence has not abated. A Birmingham police officer in the proceedings gave evidence of ongoing gang violence, with innocent members of the public at risk of being caught up in crossfire [7].

 

Gang injunctions

For many years, Birmingham City Council (‘the City’) has sought to use various powers to disrupt and discourage gang-related behaviour, including injunctions against named people said to be involved in violence. By injunction, individuals can be prevented from entering certain areas, or from doing things associated with gang violence.

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