By: Guest Contributor


No deportation for Abu Qatada, but where are we now on torture evidence? – Professor Adam Tomkins

19 January 2012 by

OTHMAN (ABU QATADA) v. THE UNITED KINGDOM – 8139/09 [2012] ECHR 56 – Read judgment – updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110).

The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.

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Making a Fist of It: The Law and Obscenity

9 January 2012 by

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 Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.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.

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Policy, possession and proportionality – Nearly Legal

1 January 2012 by

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.

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The ECJ on Aslyum, Greece; the UK Protocol on the EU Charter – Dr Cian Murphy

28 December 2011 by

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.

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Terrorist asset-freezing: an intrusion too far – Dr Cian Murphy

21 December 2011 by

Freezing

One could be forgiven, amidst the furore over the European Court of Human Rights’ Al-Khawaja judgment last Thursday, for missing the first report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorist Asset-Freezing etc Act 2010. The Report runs to over 100 pages and is the most comprehensive account of UK terrorist asset freezing in print.

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.

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Lord Irvine: British judges should decide human rights cases for themselves – Carl Gardner

15 December 2011 by

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.

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Strasbourg’s ruling on hearsay evidence could change its relationship with UK – Joshua Rozenberg

12 December 2011 by

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. 
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Listen to Northern Ireland’s advice on a UK bill of rights – Colin Harvey

10 November 2011 by

There is a commission on a bill of rights for the UK. It is in the midst of a consultation process, and visited Belfast this week. Have you noticed?

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.

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Extradition review could improve European Arrest Warrants – Rebecca Shaeffer

22 October 2011 by

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.

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Court of Appeal upholds 7 of 10 riot sentences, including Facebook cases – Obiter J

18 October 2011 by

R v Blackshaw and others [2011] EWCA Crim 2312 – Read judgments / press summary

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.”

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Why have a European Court of Human Rights? – Dr Ed Bates

13 October 2011 by

At last week’s Inner Temple hall event, ‘Strasbourg and the UK: Dialogue or Conflict’, Lord Justice Laws asked some provocative questions: 

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.

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Challenge to intelligence services guidance succeeds in part – Shaheen Rahman

6 October 2011 by

Equality and Human Rights Commission v Prime Minister & Ors [2011] 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.

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Ferdinand v MGN – a “Kiss n’ Tell” public interest defence succeeds – Lorna Skinner

2 October 2011 by

Ferdinand v Mgn Ltd (Rev 2) [2011] 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.

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When is family life family life? A look at deportation cases – Lourdes Peroni

27 September 2011 by

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?

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Is the Official Secrets Act about to be used to gag journalism? – Obiter J

18 September 2011 by

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 Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking.  There is a suggestion that the Official Secrets Act 1989 may have been breached.  The Guardian plans to resist this “extraordinary demand to the utmost” – see The Guardian 17th September – “Hacking: Met use Official Secrets Act to demand Guardian reveals sources.”

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Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google Grenfell Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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