Media By: Guest Contributor


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

19 July 2018 by

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

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

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

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

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

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

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

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

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

 

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 her 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

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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Legal personhood for non-human animals? The case of the Non-Human Rights Project — Dr Linda Roland Danil

26 April 2018 by

This guest article argues that it is time to consider seriously the case for granting legal personhood to certain classes of sentient animals.elephant.jpg

Introduction

This post is inspired by a larger project I have recently begun investigating – that of granting legal personhood to non-human animals. This guest post will focus on one of a number of cases initiated by the Non-Human Rights Project (NhRP), specifically in relation to the NhRP’s bid to have a number of chimpanzees in captivity relocated to a sanctuary – the case of Matter of Nonhuman Rights Project Inc. v Lavery (2017) (hereinafter ‘Lavery’).

Beginning in December 2013, the NhRP has filed petitions for writs of habeas corpus on behalf of four chimpanzees (as well as, at the time of writing, three elephants) held in captivity – two of the chimpanzees (Tommy and Kiko) are being held by private individuals, and the other two chimpanzees (Hercules and Leo) who were kept, until recently, by Stony Brook University for research into the evolution of human bipedalism. In order for this to be executed, however, the chimpanzees would have to be considered legal persons. It is important to note here that, as the NhRP itself argues, legal personhood is not synonymous with ‘human being’ – as most prominently exemplified by the fact that, for example, corporations have legal personhood. One of the aims of the NhRP is‘[…] change the common law status of great apes, elephants, dolphins, and whales from mere “things,” which lack the capacity to possess any legal right, to “legal persons,” who possess such fundamental rights as bodily liberty and bodily integrity.’ The NhRP is beginning with great apes, elephants, dolphins, and whales because they are members of species for whom there is considerable and robust scientific evidence of self-awareness and autonomy.

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Salvation outside the church? CJEU rules on religious discrimination in employment — Dr Ronan McCrea

20 April 2018 by

CJEU

The Court of Justice of the European Union has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.


Background


In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:


‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’



Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.


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Worboys’ release quashed — Jake Richards

3 April 2018 by

taxiOn 28th March 2018 a three-judge panel of the Divisional Court gave its decision in R (DSD and Ors) v The Parole Board of England and Wales [2018] EWHC 694 (Admin), ruling that the Parole Board’s decision to direct the release of John Worboys (the ‘black cab rapist’) should be quashed.

 

Background

On 21st April 2009, John Worboys (now under the name of John Radford) was convicted of 19 serious sexual offences, including rape and sexual assault, which were committed on victims aged between 19 and 33 between October 2006 and February 2008. He was given an indeterminate sentence for public protection – specifying a minimum term of imprisonment of 8 years after which Worboys would be eligible for release if the Parole Board was satisfied that it was no longer necessary for the protection of the public for him to be held in prison.

On 26th December 2017, the Parole Board determined that incarceration was no longer necessary and directed for Worboys to be released. After much public outcry, the decision was challenged by the Mayor of London, two victims and, on a discrete aspect of the decision, a media group.

A decision to release a prisoner by the Parole Board had never been the subject of judicial review before. This is because the only parties to a hearing before the Parole Board are the Secretary of State for Justice, the Parole Board themselves and the prisoner. The proceedings are held entirely in private. To that extent, unless the Secretary of State for Justice intervened to seek judicial review of a decision by another government body, the decision was effectively unchallengeable.

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New Zealand’s Parliament to consider assisted dying – David Seymour

28 March 2018 by

David Seymour is a New Zealand MP sponsoring a Bill in support of assisted dying.

Our liberal history can be briefly sketched out in two stages. Establishing a bundle of rights and then expanding them to include a wider range of people. In one sense, the right to assisted dying is a continuation of this movement and perhaps its final chapter.

In dark ages past people had few dimensions of freedom and little self-expression. Most people had one option for spiritual thinking with severe penalties for deviance.  As for choice in sexuality, the electoral franchise, freedom of speech, unless you fitted in exactly the right box, forget it.

In my maiden speech to parliament, I borrowed heavily from AC Grayling’s excellent Towards the Light of Liberty where from the Inquisition to the Reformation through the abolition of slavery, the liberation of women and expansion of the franchise, the black civil rights movement and finally the LGBTI movement, the sphere of liberty was expanded and then eventually included all people.

The British Commonwealth has long been an important institution for advancing these liberties. The Treaty of Waitangi, which established ‘the same rights and duties as citizens of England’ for all New Zealanders, was an extraordinary document for colonial times marred by arrogance and violence by colonisers. Today, the Commonwealth Charter sets out an admirable set of values that would make the world a better place if only they were universally followed. They include access to health: voluntary euthanasia is merely consistent with this value.
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