By: Guest Contributor
9 July 2012 by Guest Contributor
Philips v Mulcaire [2012] UKSC 28 – read judgment
The Supreme Court has had its first (and perhaps last) look at an issue arising from the phone hacking litigation against the News of the World newspaper.
The appeal related to a request for further information served by the Claimant, Ms Nicola Phillips, on the Second Defendant, Mr Glenn Mulcaire, the private investigator engaged by the newspaper.Mr Mulcaire had declined to provide the information, asserting that to do so would be contrary to his privilege against self-incrimination, having regard to the significant scope for criminal prosecution he still faced arising from his alleged phone hacking activities.
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24 June 2012 by Guest Contributor
When two Nobel Laureates, an eminent constitutional lawyer and the Secretary General of COSATU (South Africa’s largest trade union federation) are unified in their stinging criticism of a proposed Bill, it may be the time has come for a redraft. Following 293 condemnatory submissions to the National Council of Provinces’ Ad Hoc Committee, the ANC has begun to make concessions.
In an unexpected volte-face at Committee deliberations last month, the ANC tabled a raft of amendments to the current draft of the controversial Protection of State Information Bill. Key proposals include the insertion of a narrow ‘public interest defence’ in relation to a Clause 43 charge of unlawful disclosure of classified information and scrapping of the intolerably low mental element of constructive knowledge – “ought reasonably to know” – from many of the offence-creating provisions. By virtue of the former amendment, an accused would also be able to rely on a defence of ‘wrongful classification’.
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20 June 2012 by Guest Contributor
The real “democratic deficit” in the courts is about limited public access not “unelected judges“, Adam Wagner argued on the UK Human Rights Blog at the weekend, challenging a recent political and media narrative.
In his view, the internet age necessitates “a completely new understanding of the old adage ‘Not only must Justice be done; it must also be seen to be done‘”.
Wagner is one of 14 authors who contributed to a new working publication entitled ‘Justice Wide Open’, produced by the Centre for Law, Justice and Journalism (CLJJ), City University London, following an event on February 29 2012. The individual chapters can be accessed electronically.
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15 June 2012 by Guest Contributor
At the heart of the Church of England’s (CoE) response to the Government’s Equal marriage: a consultation is an argument about the existence and importance of canon law on marriage. The CoE pins its objection to same-sex marriage on the assertion that its ‘teaching on marriage is embodied in law’ and that the Government has failed to consider the significance of canon law in its proposal to change the statutory organization of civil marriage.
What exactly is canon law and how does it relate to marriage?
Canon law (or Canons Ecclesiastical), as set out in the Canons of the Church of England, is primary legislation that determines inter alia the doctrine and form of worship of the CoE. Since the First Act of Supremacy 1534, canon law has been formally subservient to ‘state law’ – it has become progressively subsumed by both common and statutory law – but has often retained a strong influence, particularly in respect of marriage.
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7 June 2012 by Guest Contributor
In last week’s judgment in Assange v The Swedish Prosecution Authority [2012] UKSC 22, the Supreme Court decided that the words ‘judicial authority’ in s 2(2) of the Extradition Act 2003 include prosecutors as well as courts. This was because the European Arrest Warrant (EAW) Framework Decision, to which the Part 1 of 2003 Act gave effect, uses the expression in that broad sense, and the presumption is that Parliament meant the same thing (summary here).
The EAW Framework Decision has always guided the interpretation of the Part 1 of the 2003 Act. Until Assange, there were two different reasons for this: (i) a domestic rule of statutory interpretation; and (ii) the rule expounded by the Court of Justice of the EU in Case C-105/03 Criminal proceedings against Maria Pupino.
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29 May 2012 by Guest Contributor
Publishing the Justice and Security Bill this morning, the Secretary of State for Justice said “I have used the last few months to listen to the concerns of … civil liberties campaigners with whom I usually agree.”
There are many people who today would sorely like to agree that Ken has listened and has taken their concerns on board. Unfortunately, the Government’s analysis remains fundamentally flawed. The Green Paper was clearly a “big ask”. There have undoubtedly been significant changes made from the proposals in the Green Paper. However, the secret justice proposals in the Justice and Security Bill remain fundamentally unfair, unnecessary and unjustified.
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29 May 2012 by Guest Contributor
On Wednesday 27 June, One Crown Office Row is hosting an informative and entertaining evening examining the present state of the law relating to freedom of speech in the workplace. The centrepiece will be a mock trial, set in the employment tribunal, which will cover whistleblowing, dismissal and human rights obligations.
- The seminar will be chaired by Martin Forde QC, who has extensive experience of workplace disputes, in particular in the healthcare sector.
- The evening’s judge will be Martin Downs, an Employment Judge since 2002, who has expertise in all aspects of employment law.
- Counsel for the parties will be Robert Kellar and Alasdair Henderson, members of 1COR’s employment team and regular advocates in the ET and appellate courts.
- Marina Wheeler, a senior member of the team, will give an introductory talk on recent developments and the legal framework.
This event will be registered for 1.5 CPD points and debate, drinks and snacks will of course follow. Doors open at 5:30pm for a 6pm start.
There are still a few places remaining to attend this event. If you are currently a legal practitioner and would like to attend please contact Charlotte Barrow, Marketing Executive at One Crown Office Row on charlotte.barrow@1cor.com stating your name and organisation. Places will be allocated on a first-come-first-served basis.
24 May 2012 by Guest Contributor
Last Tuesday saw the latest episode in the prisoner voting legal saga with the European Court of Human Rights’ Grand Chamber’s judgment reversing the Chamber judgment which found Italy’s automatic ban on voting for prisoners serving over 3 years in prison (and a lifetime ban with the possibility of future relief for those sentenced to more than 5 years) in breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
Adam Wagner has compared the prisoner voting issue to a ping-pong ball in a wind tunnel, noting that ‘the ball is now back on the UK’s side of the table’. Indeed, the UK must still allow at least some prisoners the vote, as required by the 2005 judgment in Hirst v UK (No.2) and the 2010 judgment in Greens & MT v UK. Over at EJIL: Talk!, Marko Milanovic rightly accounts for the unholy mix of law and (inter)national politics that has generated the Grand Chamber’s unprincipled judgment. Indeed, as Carl Gardner suggests on the Head of Legal blog all that logically remains of the Hirst judgment is that automatic disenfranchisement of prisoners that are sentenced for less than 3 years (probably) breaches the convention.
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17 May 2012 by Guest Contributor
R (on the application of Maria Gallastegui) v Westminster City Council [2012] EWHC 1123 (Admin) – Read judgment
On 27 April 2012, Maria Gallastegui, a peace campaigner and resident of the East pavement of Parliament Square since 2006, lost her legal battle to continue her 24 hour, tented vigil in protest against the folly of war and in particular the UK’s involvement in armed conflict.
The Court’s main task was to construe a new law enacted to bolster the legal armoury available to control long-term protests in the Square. Section 143 of the Police Reform and Social Responsibility Act 2011 – which came into force on 19 December 2011 – gives a local authority the power to stop “prescribed activities” such as using tents (and other structures) to sleep. They are also empowered to seize items used for these prescribed purposes ie the tents.
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15 May 2012 by Guest Contributor
De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin) – Read judgment
This was a judicial review of RBK&C’s refusal to provide support under s.21 and s.29 National Assistance Act 1948 and indeed to carry out an assessment under s.47 of the National Health Service and Community Care Act 1990.
Mr De A is a Portuguese national. He lived in the UK from 1998 to 2001 and from 2008 to date. He worked during the first period and for a year after his return. Mr De A had contracted HIV and AIDS. His health deteriorated so that he was not able to work. His prognosis in October 2010 was that he had about a year to live. At the time of the first hearing in this case in November 2011, his prognosis was about 6 months.
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9 May 2012 by Guest Contributor
In the UK there are at present no rights expressly cast in terms applicable to climate change, nor have our traditional human rights been extensively interpreted as covering climate change consequences. As David Hart QC identifies in his blog, Is climate change a human rights issue?, human rights principles, to be useful for climate change litigators, have to have some democratic backing somewhere. So is there any hope, in the near future at least, of formally or even informally establishing a link between climate change and human rights in the UK? Is human rights based climate change litigation as ‘radical’ as David Hart suggests?
Consider, for example, the situation where the avoidance of further climate change damage was possible through adequate mitigation and/or adaptation, but where adaptation measures were not implemented due to financial or technical constraints. Leaving aside the issue of whether the State would be liable for a moment, could existing human rights be engaged in this situation?
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7 May 2012 by Guest Contributor
This piece is in response to Rosalind English’s post on this blog arguing that in M.S. v United Kingdom the European Court extended to far the ambit of Article 3 of the European Convention on Human Rights (ECHR), which protects against torture, and inhuman or degrading treatment. This post argues that the European Court’s ruling is both a logical step in the jurisprudence and a welcome one for the protection of those with mental health problems in state detention.
M.S. v United Kingdom identifies a gap in the provision of crisis mental healthcare for those in state detention that has long been recognised by lawyers, campaigning organisations, carers, service users, the police and healthcare providers. The judgment is a welcome recognition of two things: first, that a prolonged and acute mental health crisis while in state detention can amount to degrading treatment for the purposes of Article 3 ECHR. And second, that the state is responsible when delays in the provision of psychiatric care to those in detention cause someone with mental health problems to descend into a crisis that is degrading and undignified.
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20 April 2012 by Guest Contributor
The Abu Qatada deadline debacle has once again thrust the European Court of Human Rights – and in particular, its relationship with the UK – into unwanted controversy just as European representatives gathered in Brighton to debate the Court’s future. This new fracas over the deportation of Abu Qatada has acted as a lightning rod for well-rehearsed criticisms of the Strasbourg Court – that it is a ‘meddling pseudo-judiciary’ and the enforcer of a villains’ charter.
A new report for the Equality and Human Rights Commission by researchers at London Metropolitan University and LSE, including myself, addresses these critiques as part of a broad analysis of the relationship between the UK and Strasbourg.
Among those interviewed for the report were the President of the European Court, Sir Nicolas Bratza; the outgoing Council of Europe Commissioner for Human Rights, Thomas Hammarberg; and, in the UK, Baroness Hale, Sir John Laws and Jack Straw, along with two members of the Commission on a Bill of Rights, Lord Lester QC and Anthony Speaight QC. The report also conducts a thematic analysis of case law, as well as examining wider literature and the voluminous statistics produced by the Court.
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19 April 2012 by Guest Contributor
The BBC reported yesterday that there’s “doubt” about the deportation of Abu Qatada, following his arrest on Tuesday and now his appeal to the European Court of Human Rights – which the Home Secretary Theresa May says is out of time. So: is she right? Is the appeal out of time? How has the Home Office got into this apparent mess? And what if any difference does this appeal make?
The European Court’s judgment in Abu Qatada’s case was dated January 17th 2012. Of that there’s no doubt; and it’s irrelevant whether the government or anyone else was given notice of the judgment before, or received it later.
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17 April 2012 by Guest Contributor
This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the European Court of Human Rights (ECtHR) is taking an approach that looks like one of appeasement of certain signatory states.
Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconcilable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?
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Philips v Mulcaire [2012] UKSC 28 – read judgment
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