The Grand Chamber of the European Court of Human Rights (“ECtHR”) has held that the risks to the applicant’s psychiatric health posed by his expulsion to Turkey did not reach the threshold for the application of Article 3.
The decision demonstrates the extremely high evidential threshold which applicants bringing such complaints will have to meet in order to establish that there are “substantial grounds” for believing that there is a real risk of a violation of Article 3, i.e., to pass the first stage of the Article 3 analysis articulated in the ECtHR’s case law.
The United Kingdom has been ordered by the European Court of Human Rights to pay damages and legal costs to a social worker who was unfairly accused of professional misconduct by a Family Court judge.
The applicant was a social worker who was called to give evidence in childcare proceedings concerning the alleged sexual abuse of a number of siblings.
The Family Court rejected the allegations of sexual abuse. The judge also found that the applicant was the principal instigator in a “joint enterprise to obtain evidence to prove the sexual abuse allegations, irrespective of the underlying truth and relevant professional guidelines”; that she had lied to the court about important aspects of the investigation; and that she had subjected one of the children involved to emotional abuse.
The applicant first became aware of these adverse findings at the end of the hearing when the judge gave a summary oral judgment. Prior to finalising the judgment, she was able to make some submissions, including in respect of the decision not to grant her anonymity. However, the adverse findings and the decision not to grant her anonymity were maintained. The judge also directed that the judgment be sent to the authority to which the applicant had since been re-assigned, and advised that his findings should be shared with other local authorities where she had worked and with the relevant professional bodies.
Her local authority assignment was then terminated without notice.
The local authority and the applicant sought to appeal against the Family Court judgment. Before the Court of Appeal, the case was argued as a procedural violation, namely that the highly adverse findings “came out of the blue” and had the potential to impact adversely on her employment prospects and personal life, yet she had not been given any opportunity to know of or meet the allegations during the course of the trial process. The Court of Appeal found that the criticism would breach her rights under Art. 8 of the Convention if the judgment were allowed to stand. The process by which the judge arrived at the criticisms was “manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art.8.” His findings were set aside, in the sense that “they no longer stood and had no validity”. The effect was to be “as if those findings, or potential findings, had never been made in any form by the judge” (§§ 16 – 20).
In its judgment of 25 May 2021 the Grand Chamber of the European Court of Human Rights found that certain aspects of the UK’s regime governing bulk interception of communications were contrary to Articles 8 and 10 of the Convention.
The case concerned three different interception regimes: bulk interception of communications; the receipt of intercepted material from foreign governments and intelligence agencies; and the obtaining of communications data from communication service providers (“CSPs”). The three applications were introduced by individuals, journalists and human rights organisations following Edward Snowden’s revelations about surveillance programmes operated by the intelligence services of the USA and the UK.
The issue before the Court of Appeal was whether the Secretary of State for Education had acted unlawfully in failing to consult certain bodies representing children in care, including the Children’s Commissioner for England, before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (“the Amendment Regulations”) following the outbreak of the Coronavirus pandemic.
On 24 November 2020, the Court of Appeal allowed the appellant’s appeal, granting a declaration that the Secretary of State for Education had acted unlawfully by failing to consult those bodies before introducing the amendments.
The Court of Appeal has revisited the tension between the wish of a transgender person to have their legal gender recognised on their child’s birth certificate and the right of the child to discover the identity of their biological mother.The Court has ruled that as the person who gave birth to the child, the appellant (a transgender male) must be registered as the “mother” on the child’s birth certificate.
Uddin v The Secretary of State for the Home Department  EWCA Civ 338 – read judgment
On 12 March 2020 a unanimous Court of Appeal led by Sir Ernest Ryder (Senior President of the Tribunals), together with Lord Justice Bean and Lady Justice King, allowed the Appellant’s appeal against the First tier Tribunal (“FtT”) and Upper Tribunal (“UT”)’s decisions upholding the refusal of his application for leave to remain.
The case concerns the correct approach to the interpretation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) in circumstances arising out of a foster care relationship where the person who had received or continued to receive that care is now an adult.
In a significant public law decision, the Supreme Court dismissed the Secretary of State’s appeal and held that the policy governing detention pending removal fails to comply with the Dublin III Regulation as it lacks adequate certainty and predictability.
The respondents were five individuals who had travelled to the UK illegally and made claims of asylum, having entered via at least one other member state of the European Union in which they had already claimed asylum. Relying on the procedure set out in the Dublin III Regulation (Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013) (“Dublin III”), the Secretary of State requested those states to take responsibility for examining the asylum claims. Each such state agreed.
The respondents were then detained pending their removal pursuant to paragraph 16(2) of the Immigration Act 1971. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that in exercising powers of detention, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State.
In Boyd & Anor v Ineos Upstream Ltd & Ors  EWCA Civ 515, the Court of Appeal handed down a fascinating judgment exploring the tension between the exercise of the rights to freedom of assembly and freedom of expression and the protection of property rights.
The case concerned injunctions ordered against “persons unknown”. In the High Court, the Ineos Group of companies (known for their prominence in the UK shale gas exploration market) had obtained interim injunctions against a collection of as yet unidentifiable defendants. The applications were made to guard against the perceived risk of fracking demonstrations becoming unlawful protests at several sites owned or operated by Ineos.
The circumstances in which a court should prevent the press from reporting information about famous people has long provoked debate. The decision of the Court of Appeal in ABC & Ors v Telegraph Media Group Ltd  EWCA Civ 2329 is no exception, attracting extensive press coverage and comment from the #MeToo movement.
In a unanimous judgment, the Court of Appeal overturned the decision of Mr Justice Haddon-Cave in the High Court and granted an interim injunction to the Appellants/Claimants.
The decision had the effect of temporarily restraining publication of certain information which was alleged by the Claimants to be confidential and disclosed in breach of non-disclosure agreements – namely allegations of sexual and racial harassment made against a well-known (and at the time unidentified) leading businessman – pending a full trial.
However, Lord Hain then went on to disclose under Parliamentary privilege that the accused businessman was Sir Philip Green. He said that given the “serious and repeated” nature of the allegations he felt under a “duty” to name him, and publication of this information was “clearly in the public interest”. Continue reading →
In the first phase of Liberty’s landmark challenge to the Investigatory Powers Act 2016 (“IPA”), Singh LJ and Holgate J sitting as a Divisional Court have granted a declaration that in the area of criminal justice, Part 4 of the Investigatory Powers Act 2016 is, in part, incompatible with EU law. Other parts of Liberty’s challenge to the IPA will be considered at a later date.
Part 4 was declared incompatible in so far as it (a) authorises the issue of retention notices for the purpose of investigating crime that is not “serious crime”, and (b) provides for access to retained data that is not subject to prior review by a court or an independent administrative body.
By way of remedy, the court has allowed the Government and Parliament a “reasonable amount of time” to correct the defects which exist and which are incompatible with EU law. This period will expire on 1 November 2018. However, the court decided not to disapply the legislation.
Recent years have seen a significant increase in the number of people sleeping on the streets in Greater London — the figure has more than doubled since 2017. This includes people of all nationalities, and a significant number of EEA nationals.
The High Court has quashed policy guidance which set out the circumstances in which “rough sleeping” would be treated as an abuse of EU Treaty rights, rendering an EEA national liable to removal if this would be proportionate .
The Claimants were two Polish nationals and one Latvian national against whom removal notices had been served. They challenged the legality of the policy on the basis that it was contrary to EU law.
R (on the application of Holborn Studios Ltd) v Hackney LBC; R. (on the application of Del Brenner) v Hackney LBC  EWHC 2823 (Admin) – John Howell QC sitting as a High Court Judge read judgment
Update: Listen to the Law Pod UK podcast episode 19, available for free download from iTunes or from Audioboom here
The High Court has just ruled that the public should be reconsulted on a planning application which has been amended. Failure to do so may be procedurally unfair and therefore unlawful.
This important case will signal to public authorities the need to consider carefully their procedural obligations when determining the outcome of planning applications. They will now need to be alive to the risk that a court will substitute its own view of whether “fairness” requires that the public be re-consulted where a planning application has been amended.
In two judicial review applications the claimants challenged the process by which Hackney London Borough Council gave planning permission to a proposed development.
The development would have replaced a number of industrial buildings in the Eagle Wharf area of Regent’s Canal in Hackney. It is a listed area of local architectural and historic interest and lies within the Regent’s Canal Conservation Area. Continue reading →
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