On Friday 6 January 2012, a historic case came to a conclusion in Courtroom 7 of Southwark Crown Court. Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.
Peacock had been charged under the Obscene Publications Act 1959 for allegedly distributing ‘obscene’ ‘gay’ DVDs, which featured fisting, urolagnia (‘watersports’) and BDSM.
Denry Okpor v London Borough of Lewisham, Bromley County Court 25 October 2011 [Transcript not publicly available]
Adam Wagner represented Mr Okpor in this case. He is not the author of this post.
This was a rolled up permission to appeal and appeal hearing (on which more later) for appeal to a Circuit Judge from a possession order made by a District Judge at Bromley. At issue was whether the District Judge was wrong to reject a) a proportionality defence and b) a gateway B public law defence arising from Lewisham’s failure to follow its own policy. It is interesting as an example of proportionality/gateway B defences in action in the County Court, but also somewhat frustrating, for reasons which will become clear.
Mr Okpor was the secure tenant of Lewisham. At the age of 15 he had been taken into care by Lewisham following abuse. He left care aged 18 in 2006. In 2009, aged 21, he was given the secure tenancy. Mr O went into full time higher education later that year and has remained in full time higher education. This meant that the relevant Children Act 1989 provisions for care leavers continued to apply and would do until he was 24, if still in full time higher education. Mr O was receiving support from the Lewisham Leaving Care Team.
Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD(C-411/10) must be a contender for the title.
The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law.
It is the third report of the current Independent Reviewer, David Anderson Q.C., since he took up the post in February. Asset freezing is something of a speciality of his, as he has appeared in litigation in both EU and UK courts on the matter. It is therefore unsurprising that the Report exhibits the same attention to detail that made the Anderson’s previous two efforts essential reading.
Lord Irvine tonight weighed in to the debate about Britain’s relationship with the European Court of Human Rights – and effectively accused the Supreme Court of having surrendered its intellectual independence, and shirked its judicial responsibility.
His at times toughly-worded lecture to the UCL Judicial Institute and the Bingham Centre for the Rule of Law chimes with what the Attorney General Dominic Grieve has been saying recently about the need for primary responsibility for human rights protection to lie with states, not Strasbourg – and Grieve will surely approve of both the content and timing of Lord Irvine’s intervention, on the eve of the European Court’s ruling in Al-Khawaja and Tahery v. UK and in the context of Britain’s chairmanship of the Council of Europe. I’ll link to the text of his speech when it’s available.
The European court of human rights is considering a challenge by the UK supreme court to its ban on hearsay evidence. On Thursday, the grand chamber of the European court of human rights will deliver a judgment that could mark a turning point in the UK’s relationship with the Strasbourg court.
On the face of it, the issue looks simple enough. One clue to its importance, though, is that we have had to wait more than 18 months for the court’s final appeal chamber to come up with a ruling. Perhaps the judges have found it a difficult decision to reach.
Traditionally, the English courts have not permitted hearsay evidence: a witness was not allowed to give evidence of what he heard someone say to him. That was because it was difficult for the jury to assess the value of an absent witness’s evidence. But English law now permits a number of exceptions in the interests of justice. These are not reflected in the wording of the human rights convention.
What the Strasbourg judges have been asked to decide is whether two defendants in unrelated cases received fair trials in the crown court. They were both convicted even though their lawyers had not been able to cross-examine witnesses who had given written evidence against them. Continue reading →
The commission’s establishment and composition provoked adverse comment. The mood of open hostility to existing human rights law merged with the potential for engineered political standoff, as the commission members are split between those who support the Human Rights Act and those who oppose it. A commission born from political compromise looks primed for stalemate. Not the best way to initiate a new constitutional conversation.
Adam Wagner’s October 19th post on Sir Scott Baker’s Extradition Review Panel report noted that the document “mostly backed the status quo,” calling attention to its rejection of proposed reforms to the “forum bar” rule, the US/UK Treaty, and the lack of a prima facie case requirement.
While it’s true that the Report left much to be desired for extradition reform campaigners, especially those focusing on US/UK extradition issues, reformers can take comfort in the Report’s response to proposed reforms of the European Arrest Warrant (EAW), which offered a rather different picture than was reported.
The Court of Appeal (Criminal Division) has issued judgment in relation to ten appeals against sentences imposed for convictions arising from the August disorder.
On 20th August, in a post related to the August disorder, Law and Lawyers looked at relevant sentencing principles and also at the views arrived at by the Crown Court judiciary in Manchester. It was clear, even at that stage, that the context of widespread disorder would be seen as a serious aggravation of offences such as burglary, theft and handling stolen goods. The 20th August post commented that – “It must be doubtful whether the Court of Appeal would adopt a substantially different viewpoint” to that of the Manchester judiciary.
This has proved to be the case though the Court of Appeal said that it is inappropriate for Crown Court judges to “issue, or appear to be issuing, sentencing guidelines.” That is a task for
the Court of Appeal and the Sentencing Council – and the court and council have a relationship of “mutual respect and comity.”
why should judges decide matters of social policy [thrown up by human rights cases] at all? The political rights, Article 8 – 12, with the right set out in the first part and the derogation in the second, create a structure which means that a very large number of legal debates is about how the balance between private right and public interest should be struck. But what authority, expertise, do lawyers have to strike that balance, that is special to them? Why are lawyers any better qualified to assess family ties in foreign criminal questions?
When the floor was opened to questions I suggested that these comments could be extended out more broadly: what was the proper role and function of the Strasbourg Court? This question, I suggest, lies at the heart of much of the recent controversy surrounding the influence of the European Court of Human Rights, especially in the context of the disagreement over whether prisoners should be able to vote.
Equality and Human Rights Commission v Prime Minister & Ors  EWHC 2401 (Admin) – Read judgment
A challenge to published guidance for intelligence officers interviewing detainees overseas has been partially successful.
Mr Al Bazzouni and the EHRC argued that the guidance as to what officers should do if they suspect detainees might be subject to torture or to cruel, inhuman or degrading treatment or punishment (“CIDT”) was unlawful.
Ferdinand v Mgn Ltd (Rev 2)  EWHC 2454 (QB) – Read judgment
In the first “misuse of private information” trial against a newspaper since Max Mosley in 2008, Mr Justice Nicol dismissed a claim brough by England and Manchester United footballer Rio Ferdinand against the “Sunday Mirror”.
The Judge found that, although the claimant’s Article 8 rights to private and family life were engaged, there was a public interest in correcting a false image promoted by the claimant. It was also held that the article contributed to a debate as to the claimant’s fitness to be a role model in the light of his appointment as England football captain.
In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own [also see Rosalind English’s post].
In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution: this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?
Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school. She was kidnapped and murdered and her body was found in September 2002. In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff. When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail. The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story.
The Commissioner found that, where the answer was “zero”, this was not personal data and should be disclosed; otherwise, the information could be withheld under section 40. The Tribunal has upheld this decision, albeit for different reasons.
This decision is worth noting on a number of grounds.
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