In AC (Algeria) v Secretary of State for the Home Department EWCA Civ 36, the Court of Appeal gave a trenchant warning that once it ceases to be lawful to detain an individual, the ‘grace period’ allowed within which to make arrangements for release can only be a short period. Moreover, the reasons for which any such grace period is required will be be closely scrutinised by the courts.
Unsurprisingly, there continue to be a very significant number of judicial review and county court claims for unlawful detention brought by current and former immigration detainees. What is perhaps more interesting is that despite the relatively well-understood law governing the lawfulness of immigration detention the precise legal limits of the Home Secretary’s power to detain for immigration purposes continue to be tested and developed.
The Campaign Against Arms Trade argued that there was a large body of evidence which demonstrates overwhelmingly that Saudi Arabia has committed repeated and serious breaches of international humanitarian law during the conflict in Yemen. CAAT claimed, in particular, that Saudi Arabia has committed indiscriminate or deliberate airstrikes against civilians, including airstrikes which have used “cluster” munitions, and which had targeted schools and medical facilities.
The Court of Appeal held that the decision-making process had been irrational, as it had not included an assessment as to whether there had been previous breaches of international humanitarian law in the past, without which there could not be a proper assessment of the risk of future breaches.
Lord Justice Davis gave the only substantive judgment. He began by summarising that in the instant inquest concerning the death of a prisoner who had been found hanging, the Chief Coroner for Oxfordshire had followed the Chief Coroner’s Guidance No 17 and also the guidance contained within the Coroner’s Bench Book. The Coroner had accepted that the evidence on a ‘Galbraith plus’ basis was insufficient to enable a jury, properly instructed, to conclude to the criminal standard that the deceased had intended to take his own life.
However, having so ruled, the Coroner had further decided that it would not be appropriate simply to elicit an open conclusion from the jury and that they should be asked to ask a number of questions in order to elicit a narrative conclusion. In light of the way the questions were framed, the jury had for the purposes of their narrative conclusion, considered whether the deceased had intended fatally to hang himself by reference to the balance of probabilities. Their narrative conclusion included a determination that the deceased had intended to kill himself.
The Divisional Court in R (Chidlow) v HM Senior Coroner for Blackpool  EWHC 581 has given a concise and authoritative judgment reiterating and summarising the current common law concerning causation in inquests. Given the ever increasing importance of inquests and their conclusions as preliminaries to civil litigation, as well the growing number of inquests being held into historical deaths, the judgment will doubtless be frequently cited over the coming months and years.
Mr Childlow brought the judicial review following the inquest into the death of his brother (Carl Bibby). Mr Bibby died from a cardiac arrest in circumstances where an ambulance had been called, but there were admitted delays in the ambulance attending. At the inquest, the jury heard evidence from a consultant in Critical Care & Emergency Medicine that had paramedics attended Mr Bibby before he suffered cardiac arrest, he would, on the balance of probabilities, have survived. Nevertheless, the coroner ruled that it was not safe to leave the issue of a causal link between the delay and Mr Bibby’s death to the jury. Mr Chidlow sought a declaration that the coroner acted unlawfully, an order quashing the record of inquest and an order that a fresh inquest be held before a different coroner.
The International Court of Justice has given a near-unanimous opinion that the separation in 1965 of the Chagos Archipelago from the then British colony of Mauritius was contrary to the right of self determination, and that accordingly the de-colonisation of Mauritius by the United Kingdom had not been in accordance with international law. The ICJ held that Britain’s continued administration of the islands was an internationally wrongful act, which should cease as soon as possible.
This is the latest in a long series of cases concerning the Chagossian islanders, the last domestic one being Hoareau last month, which summarises decisions so far. Also see - of the ICJ’s opinion for the back-story.
The Chagos Archipelago consists of a number of islands and atolls in the Indian Ocean. The largest island is Diego Garcia, which accounts for more than half of the archipelago’s total land area.
Mauritius is located about 2,200 km south-west of the Chagos Archipelago. Between 1814 and 1965, the islands were administered by the United Kingdom as a dependency of the colony of Mauritius. In 1964, there were discussions between America and Britain regarding the use by the United States of certain British-owned islands in the Indian Ocean, in particular in establishing an American base on Diego Garcia.
The European Court of Human Rights has held in Catt v The United Kingdom (43514/15)) that that the retention by UK police of information on the Domestic Extremism Database about a 90 year-old activist’s presence at political protests was a breach of his Article 8 ECHR rights. The ruling follows the Supreme Court’s contrasting judgment that such gathering and retention had been lawful and a proportionate interference with Mr Catt’s Article 8 ECHR rights.
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM
In an exhaustive and detailed judgment coming to over 200 pages, the ECtHR held that both the bulk electronic communications interception regime operated by the UK’s intelligence agencies under the Regulation of Investigatory Powers Act 2000 and its provisions for acquiring communications data from telecommunications operators violated Articles 8 and 10 of ECHR.
However, the ECtHR held that there was no violation of Article 8 through the UK’s receipt and use of similar information obtained from other countries.
The ECtHR’s judgment is as noteworthy for what it deemed to be incompatible with the ECHR as what it deemed to be incompatible. In contrast to the tenor of many of the headlines in the media about the judgment, it was not an unreserved endorsement of the criticisms that have been levelled at the intelligence services in light of the Snowden revelations. The ECtHR’s comments as to the proportionality and necessity of the bulk collection of electronic communications, as well as about the adequacy of the safeguards and oversight structures will be of some consolation to the government.
The real issue for the Government is whether the ‘checks and balances’ in the Investigatory Powers Act (which is not yet fully in force) will be sufficient to defeat the criticisms made by the ECtHR of the previous regime under RIPA; in particular over the selection criteria for material that would be seen by human eyes and whether there are sufficient ‘journalistic’ safeguards.
The appellant had proposed an alternative scheme for assisted suicide containing certain conditions and safeguards, including the approval of a High Court judge, for those who were terminally ill and had less than six months to live. However, it was held that the alternative scheme would not be effective and raised wide-ranging policy issues that would be better dealt with by Parliament.
The Court identified the origin of the case as being that the Claimant has a prognosis of six months or less to live and wishes to have the option of taking action to end his life peacefully and with dignity, with the assistance of a medical professional, at a time of his choosing, whilst remaining in control of the final act that may be required to bring about his death. However, Section 2(1) of the 1961 Suicide Act makes it a criminal offence to provide encouragement or assistance for a person to commit suicide.
Mr Conway therefore sought a declaration of incompatibility under section 4 of the HRA , on the basis that the ban on assisted suicide was a disproportionate interference with his right to respect for his private life under Article 8 of the Convention (“Article 8”).
In NT1 and NT2 v Google LLC, Mr Justice Warby considered whether Google should be required to ‘de-list’ links in its search results to articles about the spent historic convictions of two businessmen under what is commonly called the ‘right to be forgotten’. He held it was in the case of one claimant, but not the other.
The claimants argued that the Google search results conveyed inaccurate information about their offending. Further, they sought orders requiring details about their offending and their convictions and sentences to be removed from Google Search results, on the basis that such information was out of date; irrelevant; of no public interest; and/or otherwise an illegitimate interference with their rights. They also sought compensation for Google in continuing to return search results disclosing such details, after the claimants’ complaints were made. Google resisted both claims, maintaining that the inclusion of such details in its search results was legitimate.
Mr Justice Warby summarised the issues as “the first question is whether the record needs correcting; the second question is whether the data protection or privacy rights of these claimants extend to having shameful episodes in their personal history eliminated from Google Search; thirdly, there is the question of whether damages should be paid.”
In Secretary of State for the Home Department v Sergei Skripal  EWCOP 6, Mr Justice Williams made a best interests decision that blood samples could be taken by the Organisation for the Prohibition of Chemical Weapons from Sergei and Yulia Skirpal in order that the Organisation for the Prohibition of Chemical Weapons (OCPW) could undertake their own analysis to find evidence of possible nerve agents. Both Sergei and Yulia were and remain unconscious and in a critical condition, and were unable to consent to such blood samples being taken.
In a judgment that sheds light on the current approach to both vicarious liability and non-delegable duties of care, Cockerill J held that: (1) the MOJ had not breached its limited direct duty of care, (2) did not owe a non-delegable duty of care and (3) was not vicariously liable.
The Claimant alleged that there was a negligent failure to diagnose and treat a soft tissue sarcoma, a rare form of cancer, which developed in his calf muscle in 2010. He has since had to undergo a left leg amputation above the knee and also surgery for metastatic disease in his left shoulder muscle. It is estimated that there is a 70% chance that he will develop further metastases in the future. His life expectancy has been sharply reduced.
In Noel Douglas Conway v The Secretary of State for Justice  EWCA Civ 16, the Court of Appeal gave an unusually detailed judgment granting permission to appeal against the decision of the Divisional Court in Conway, R (on the application of) v Secretary of State for Justice  EWHC 640, refusing permission for the applicant to judicially review the criminalisation of physician-assisted suicide under the Suicide Act 1961.
The Divisional Court had held that that Parliament had recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR.
Ratko Mladić was one of the most notorious figures of the war in Bosnia.
He was Commander of the Main Staff of the Bosnian Serb Army between 1992 and 1995. He was indicted in 1996, arrested in 2011 and tried between 2012 and 2016.
Last week the International Criminal Tribunal for the former Yugoslavia delivered its judgement. Mladic was found guilty of genocide in Srebrenica, crimes against humanity for ethnic cleansing of Bosnian towns and the siege of Sarajevo, and war crimes for the hostage taking of UN staff to stop NATO intervention.
In R(on the application of UNISON) v Lord Chancellor UKSC 51, the Supreme Court gave an important judgment regarding the importance of access of justice. The Supreme Court held that the fees imposed by the Lord Chancellor in employment tribunal and employment appeal tribunal cases were unlawful.
Sir Edward Coke’s bold assertion in 1605 of one of the cornerstones of the unwritten constitution of the United Kingdom has been upheld today in a hugely important decision by the Supreme Court. In R(Miller) v Secretary of the State for Exiting the European Union  UKSC 5, the Supreme Court today ruled 8-3 that an Act of Parliament was required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union. This post focuses on the decisions made in relation to the more legally significant claim that this Article 50 notice could not be given without Parliamentary approval, rather than those made in relation to the devolution claims – although in terms of practical political impact, a ruling that the devolved assemblies had to approve the giving of notice would have been far more disruptive to the Government’s plans.
Lord Neuberger, with whom Lady Hale, and Lords Mance, Kerr, Sumption, Clarke, Wilson and Hodge agreed), gave the judgment for the majority. He introduced the case by putting the issue very simply “The question before this Court concerns the steps which are required as a matter of UK domestic law before the process of leaving the European Union can be initiated.”
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