By: Guest Contributor


Guest post: Will the Detainee Inquiry be human rights compliant? A JUSTICE reply – Eric Metcalfe

16 August 2011 by

A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.

In his interesting article last week (‘Will the Detainee Inquiry be human rights compliant?’, 8 August) Matthew Flinn queried our claim that the Protocol fails to meet the requirements of article 3 ECHR. Notwithstanding the government’s own statement that it doesn’t intend for the Inquiry to comply with article 3, Flinn set out various arguments to suggest that the Protocol might nonetheless comply with article 3 in any event.

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Nuclear test veterans appeal to be heard by Supreme Court

29 July 2011 by

On Thursday 28th July, the Supreme Court heard a “permission to appeal” argument in the British nuclear testing case.  The judgment to be appealed is that of the Court of Appeal Civil Division in Ministry of Defence v AB and others[2010] EWCA Civ 1317 – (Smith and Leveson LJJ and Sir Mark Waller).  

In terse legalese, the issue to be appealed is whether the Court of Appeal – (1) applied the wrong legal test for knowledge in section 14 of the Limitation Act 1980, and (2) adopted the wrong legal approach to the exercise of discretion under section 33 of the Act.  The Supreme Court granted permission for the appeal – see BBC 28th July and The Independent 28th July.

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The book that all family practitioners wish they had written

21 July 2011 by

Review: Family Courts without a Lawyer: A Handbook for Litigants in Person – Lucy Reed – Buy book here

Family Courts without a Lawyer : A Handbook for Litigants in Person is written by Lucy Reed, barrister and author of the Pink Tape blog. A title that may, on its first reading, strike fear into the heart of family lawyers and, hopefully, give a sense of relief to many litigants in person. However, this is the book that all family practitioners wish they had written and which litigants in person may consider buying, its aim being to make any interaction with the Family Courts, for the uninitiated, as stress free as possible.

The book is described as providing “as practical tool to help you in court and a reference to help you understand what happens in family proceedings, whether or not you have a lawyer”. It does not suggest going to court as a litigant in person is to be preferred over attending at court with a lawyer, nor does it suggest the opposite; it allows the reader freedom of choice.

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Prison’s decision not to investigate sexual assault was lawful

13 July 2011 by

R (NM) Secretary v of State for Justice [2011] EWHC 1816  – Read judgment

This case concerned whether the prison authorities were in breach of the Disability Discrimination Act 1995 and the Equality Act 2010 when they failed to conduct a form investigation into a sexual assault against a prisoner with learning disabilities, NM.

It was further considered whether the failure to conduct a formal investigation was in breach of NM’s Article 3 rights. The claimant was assisted in bringing his case by the Howard League for Penal Reform. The court found in relation to all points that the defendant had acted lawfully.

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News: Joshua Rozenberg Interviews Mr Justice Eady

14 June 2011 by

The latest issue of the Index on Censorship magazine is entitled “Privacy is Dead! Long live privacy” and includes an interview with Mr Justice Eady, conducted by the veteran legal commentator Joshua Rozenberg entitled “Balancing Acts“.  

This is a rare example of an interview with a serving judge.  It was conducted on 11 April 2011 – before heat was turned up in the “Superinjunction Spring”.   Despite the worst efforts of the “Sunday Times” – of which more in a moment – the interview contains few surprises for those who have taken the trouble to read Mr Justice Eady’s judgments (and lectures) on the subject of privacy.

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Forced marriages Supreme Court hearing streaming live today

9 June 2011 by

The Supreme Court has been streaming its hearings live on the internet for three weeks now, but this week sees the first case to be streamed which has significant implications for human rights.

And, as a bonus, you can watch one of our editors, Angus McCullough QC, who is representing the Secretary of State for the Home Department. Andrea Lindsay Strugo, also of 1 Crown Office Row, is junior counsel for the Secretary of State. Richard Drabble QC is for the appellants.

From 10am, you can click here to watch the second and final day of R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant). For the basic background, see Adam’s post on the court of appeal judgment, formerly known as Quila and Others – Policy to prevent forced marriages “arbitrary and disruptive”, says Court of Appeal.

We understand that at present the stream is viewable around the world, although as in the UK you will have to download Microsoft Silverlight (free).

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And about time for rights to nature? By Begonia Filgueira

2 June 2011 by

It took until 1998 for the UK Parliament to incorporate human rights directly into the domestic legal system. In light of the dangers posed by climate change, is it time to go one step further and grant rights to the Earth herself?

Bolivia has done just that – the Mother Earth Rights Law (Ley 071(21 December 2010)) has now come into force.  Congratulations to everyone involved in drafting and promoting this law.  With Evo Morales’ Party (the Movement Towards Socialism) having a majority in Congress and the Senate, this law passed without much opposition.  It is a wonderful legal milestone, which I have been advocating for a number of years as the only way to balance the rights that humans have with the protection of the Planet and ultimately the human race.

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Is it time for a crime of ecocide? – Frances Aldson

2 June 2011 by

Most now accept that the Earth is fragile, but can the legal system help to secure its future? 

Among the ideas currently gaining currency is adding a crime of ecocide to the jurisdiction of the International Criminal Court (ICC).  If this idea is accepted, ecocide would join war crimes, aggression, crimes against humanity and genocide as a fifth crime against peace.

The rationale behind the campaign for a crime of ecocide is similar to that of other ecological legal initiatives; namely, that addressing environmental imperatives requires a seismic shift in attitudes, practices and culture, in both the corporate and political spheres.  Catastrophes such as Deepwater Horizon highlight the failure of existing mechanisms to ensure that the commercial world’s financial and economic prowess is matched by a duty of care for the planet on which it operates, and the rights of both its current inhabitants and those yet to come.

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Sharon Shoesmith wins her appeal – Obiter J

27 May 2011 by

Shoesmith, R (on the application of) v OFSTED & Ors [2011] EWCA Civ 642 (27 May 2011) – Read judgment

In April 2005, Sharon Shoesmith was appointed as Director of Children’s Services at Haringey London Borough Council.  The appointment by a Council of such an officer is a statutory requirement – Children Act 2004 s.18.  “Baby P” – who was the subject of a Child Protection Plan put in place by Haringey Social Services – died on 3rd August 2007 aged 17 months.

Those directly responsible for his death were eventually all convicted under the Domestic Violence, Crime and Victims Act 2004 s.5.  Their trial, at the Old Bailey, ended on 11th November 2008.  To say the least, the trial was followed by a media hue and cry demanding that heads roll.

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No win no fee and the litigation game – Professor Richard Moorhead

13 May 2011 by

Birmingham City Council v Barker (Equal Pay Act : Other establishments) (Rev 1) [2010] UKEAT 0056_10_0905 (9 May 2011) – Read jugment

One of the allegations made about contingency fees is that they encourage lawyers to cut corners because they are not paid by the hour. It is an allegation which has been specifically made to me in the context of equal pay claims. So I was interested to see this latest Employment Appeal Tribunal decision which deals with a number of mistakes made during high volume equal pay cases.

The first point that is worth making is that it is a reminder of how hard fought these equal pay cases are. A concern about bringing cases under a contingency fee is that opponents can string cases out, or take highly adversarial approaches, to ensure that these cases cost the contingency fee lawyers lots of their time. The longer they take, the harder it is for contingency fee lawyers to make a profit, and the less likely it is to arise in these cases.

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Privacy – the way ahead? Part 3 – Options for the Future – Hugh Tomlinson QC

4 May 2011 by

This is Part 3 of a three-part series which originally appeared on Inforrm’s Blog. Part 1 can be read here and Part 2 here.

There are at least four possible “ways forward” for the new law of privacy which has been developed by the courts over the past decade and which has, at least from the point of view of sections of the media, been very controversial. These four possibilities are as follows:

(1) Active steps could be taken to abolish the law of privacy and return to the pre-Human Rights Act position.

(2) The current “judge made” law of privacy could be replaced by a new “statutory tort” of invasion of privacy.

(3) A special “privacy regime” for the media could be established under a statutory regulator.

(4) “Steady as she goes” – the law of privacy could be left to develop in the current way – by the judges on the basis of the Article 8 and Article 10 case law.

Each of these possibilities gives rise to different issues and potential difficulties.


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Privacy: the way ahead? Part 2 – Hugh Tomlinson QC

2 May 2011 by

This is Part 2 of a three part series which originally appeared on Inforrm’s Blog. Part 1 can be read here and Part 3 is coming tomorrow.

The “new law of privacy” has not been uncontroversial.  Over the past week the press has complained bitterly about “gagging orders” and “judge made law”.  These criticisms are not new.  More than four years ago, with characteristic restraint, the commentator Melanie Phillips described the process of the development of privacy law in these terms:

“Driven by a deep loathing of the popular press, the judges have long been itching to bring in a privacy law by the back door. Thus free speech is to be made conditional on the prejudices of the judiciary …” (Melanie Phillips, “The law of human wrongs”, Daily Mail, 6 December 2006)

Her editor at the Mail, Paul Dacre, has been equally firm in his views:


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Privacy: the way ahead? Part 1 – Hugh Tomlinson QC

29 April 2011 by

The Prime Minister has said that he is “uneasy” about the development of a privacy law by judges based on the European Convention when this should be a matter for parliament.  In our contribution to the continuing debate on this issue we are re-posting this [update – three part!] discussion on the history and future of privacy law from Inforrm’s Blog.

Introduction

The “law of privacy” has been developed by the English Courts over the past decade. It is a common law development based on case law going back to the mid nineteenth century. But the pace of development has accelerated over recent years. The decisive factor has been the Human Rights Act 1998. In this area the Act has had “horizontal effect” – it operates in cases between two private parties. The action for breach of confidence has been transformed – almost beyond recognition.

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A privacy injunction binding on the whole world

25 April 2011 by

OPQ v BJM [2011] EWHC 1059 (QB – Read judgment

The case of OPQ v BJM addresses one of the most difficult practical issues in privacy law and adopts a novel solution.  Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case.   This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties. 

The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).

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Did the UK misuse European court process on prisoner votes? – Dr Ed Bates

15 April 2011 by

The recent rejection, by a panel of the Grand Chamber of the European Court of Human Rights, of the British government’s attempt to overturn the ruling in Greens and MT v United Kingdom (prisoner voting) case, brings into focus the role of the Strasbourg Grand Chamber.

In this post I attempt to highlight how the idea of a Grand Chamber came about, and its role under the ECHR. Building on Adam Wagner’s earlier posts, I also offer a possible explanation as to why the panel of the Grand Chamber refused a rehearing of the Greens case.

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 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 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 crime Cybersecurity Damages 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 Google Grenfell Health 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 Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill 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 music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness 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 USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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