The subtle hand of human rights – and more Aarhus

1440788_1738fc0eR (o.t.a. Dowley) v. Secretary of State for Communities and Local Government [2016] EWHC 2618 (Admin) Patterson J, 20 October 2016 – read judgment

This challenge was about a landowner not wishing to let those wishing to develop Sizewell C nuclear power station onto her land to carry out surveys and investigations. But it came down to a disagreement about the terms which such entry might occur. For s.53 Planning Act 2008 enables the Secretary of State to allow such entry, subject to conditions, and with the proviso that the landowner may claim compensation for “damage caused to lands or chattels” (s.53(7)) via a claim to the Upper Tribunal.

The entry in question was not insubstantial; the developer wished to have access to some 75 acres of the 420 acres of the claimant’s estate, for surveys relating for possible spoil storage, roads and builders accommodation if the project was to proceed.

The major fall-out was over the issue of the extent of compensation. And this, as we shall see, is where human rights came in, albeit in a topsy-turvy way.

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Mandatory order to stop bribery investigation?

wasR (o.t.a Soma Oil & Gas) v. Director of the Serious Fraud Office [2016] EWHC 2471 (Admin) 12 October 2016 – read judgment

Soma are investing heavily ($40m spent on seismic work) in looking at oil and gas extraction in Somalia, so it was a bit of a set-back, to say the least, when their “capacity-building” efforts – funding infrastructure in the relevant Ministry – were alleged to fall under the Bribery Act 2010, and this led to a fraud investigation by the UK SFO. The investigations, as investigations do, dragged on, and Soma brought these, somewhat ambitious, proceedings to get an order telling the SFO to stop them.

As you may have guessed, the claim failed, though, as we will see, it may have achieved rather different benefits.

The judgment of the Administrative Court is a concise account of when the private challenger can and cannot seek orders in respect of investigations and prosecutions – whether to stop or start them. Here Soma wanted to stop the investigation. In other circumstances, a victim may want the authorities to start an investigation or prosecution into another party: see, e.g. Chaudhry, decided earlier this week.

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Privacy of a doctor under GMC investigation clashes with that of his patient

privacy-policy-fullDr DB v. General Medical Council [2016] EWHC 2331 (QB), 23 September 2016, Soole J – read judgment

An interesting three-way privacy fight between a GP, a patient who had complained about his treatment by the GP, and the GMC who had investigated that complaint. The prize in that fight was a copy of a medical report obtained by the GMC from an independent expert, which had concluded that the GP’s care had fallen below “but not seriously below” the expected standard.

The patient had wanted a copy of the report; all he had seen so far was a one-page summary. His motive was to investigate a possible claim for clinical negligence, arising out of the delayed diagnosis of his bladder cancer. The GP refused consent. 

The GMC then concluded it should disclose the report to the patient. And the GP brought these proceedings to stop disclosure. Continue reading

Hard cases need better reasons

13454123443_80fef9d87e_bR (o.t.a. CPRE Kent) v. Dover District Council [2016] EWCA Civ 936, 14 September 2016, read judgment

The Court of Appeal has just given us a robust vindication of the importance of giving proper reasons when granting planning permission, by way of a healthy antidote to any suggestion that this is not really needed as part of fairness.

It is, as we shall see, very context-specific, and Laws LJ, giving the main judgment, was careful not to give the green light to floods of reasons challenges – common enough as they are in planning judicial reviews. Nonetheless it is a decision of significance.

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War remains inside the court room: jurisdiction under ECHR

iraqAl-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016  – read judgment

This is an extremely important judgment from the Court of Appeal on the reach of the ECHR into war zones, in this case Iraq. The CA, with the only judgment given by Lloyd Jones LJ, disagreed in part with Leggatt J – for whose judgment see Dominic Ruck Keene’s post here.

3 main points arose on appeal.

The first was the jurisdictional question under Art.1 of the Convention – were  Iraqi civilians killed or injured by British servicemen covered by the ECHR?

The second is the extent to which the UK is under a duty to investigate ECHR violations alleged by Iraqis, under Arts 3 (torture) and 5 (unlawful detention).

And the third is the question of whether the UN Torture Convention could be relied upon in domestic law proceedings.

I shall cover the first point in this post. The blog will cover the other points shortly. The points arose by way of preliminary legal issues in various test cases drawn from the 2,000 or so Iraqi claimants.

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CA orders release of court judgment on Ellie Butler’s death

benbutler2106aC (a child) [2016] EWCA Civ 798  read judgment

This is the most recent in the long series of legal steps touching on the violent career of Ben Butler, recently convicted of the murder of his daughter, Ellie. 

Butler was convicted for Grievous Bodily Harm, and then cleared on appeal. Care proceedings were commenced at the end of which Ellie was ordered to be returned to her parents by Hogg J in October 2012. A year later, on 28 October 2013, Ellie was found dead.

C, the subject of this appeal, is Ellie’s younger sister. In June 2014, Eleanor King J, in the family courts, found that Butler had caused Ellie’s death, Ellie’s mother (Jennie Gray) had failed to protect her from Butler, and C had been the victim of physical and emotional abuse. This judgment had been the subject of reporting restrictions.

Immediately after Butler’s conviction in June 2016, media organisations applied for the release of Eleanor King J’s judgment to Pauffley J in the family court. Pauffley J dismissed this application. Her decision was roundly reversed in this decision of the Court of Appeal.

The human rights clash is the familiar one of freedom of expression under Article 10 versus the right to a fair trial under Article 6 ECHR.

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The Environmental Law Foundation

elf_mainMany readers will know that I have banged on, long and hard, via this blog about the constant problem we have in the UK trying to ensure that the cost of planning and environmental litigation is not prohibitively expensive for ordinary people. The UK system has been held repeatedly to be in breach of Article 9 of the Aarhus Convention, which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. For Aarhus beginners, have a look at my bluffers guide – here 

So I was delighted to be asked recently to chair the Environmental Law Foundation whose main role is to help out people, for free, with their planning and environmental problems. ELF is going to have its 25th birthday next year, and this short post is an unashamed plug for the job that it does – together with an invitation to contact it (see below) if you have a problem you think they may be able to help with, or if you want to volunteer to assist on someone else’s problem.

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