By: Elspeth Wrigley

Stalking, psychosis and detention: Habeas Corpus under the Human Rights Act

17 June 2010 by Elspeth Wrigley

TTM v London Borough of Hackney & Ors [2010] EWHC 1349 (Admin) (11 June 2010) – Read judgment

A man accused of harassing women he did not know has failed in his human rights challenge to his detention under the Mental Health Act 1983. Having successfully secured a writ of habeas corpus to release him from a mental health institution, he has lost his initial bid for the High Court to declare that his detention ran contrary to his human rights. He is now appealing the decision.

This case has raised important questions about the extent of the ancient right of habeas corpus (relief from unlawful detention) and its interaction with the far more recent Article 5 of the European Convention on Human Rights 1950 (“ECHR”), as well as the ability of any wronged claimant to recover damages in circumstances where they are wrongly detained.

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Judge orders that patient be operated on against her will

3 June 2010 by Elspeth Wrigley

DH NHS Foundation Trust v PS (by her litigation friend, The Official Solicitor) [2010] EWHC 1217 (Fam) – Read judgment

The head of the Family Division, Sir Nicholas Wall, has ordered that a woman with learning disabilities be forced under sedation to undergo surgery in order to save her life.

This case brought to the fore the complex balance between allowing those who lack the capacity the autonomy to make decisions about how they wish to live their lives, and enabling the State to step in when such decisions are not only unwise but actually life threatening.   It treads a delicate path between a number of human rights, in particular Article 2 (right to life), Article 5 (right to liberty and security) and Article 8 (right to privacy).

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New Coalition abolishes Infrastructure Planning Commission after less than a year of operation

28 May 2010 by Elspeth Wrigley

The Infrastructure Planning Commission (“IPC”) is to be one of the first fatalities of the new coalition government. What impact will another change to the controversial system have on the fairness of planning decisions?

In a letter on 24 May 2010, the head of the IPC, Sir Michael Pitt, has confirmed the government is planning to scrap the organisation as a part of a wider overhaul planning powers in the Department for Communities and Local Government.

The IPC was set up as part of a number of planning reforms under the Planning Act 2008. The goal of the IPC is described on the website as “making the application process for nationally significant infrastructure projects faster, fairer and easier for people to get involved in”. Whether the IPC was achieving this goal is hard to say, as the body only began operation on 1 October 2009, and only began to receive applications on 1 March 2010.

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Deprivation of liberty must be regularly reviewed

4 May 2010 by Elspeth Wrigley

BJ (Incapacitated Adult) sub nom Salford City Council V BJ (By His Litigation Friend The Official Solicitor) [2009] EWHC 3310 (Fam) – Read judgment

Where there is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights, regular reviews by the court are not merely desirable but essential.

This case concerned the application of Article 5 of the European Convention on Human Rights to the ongoing review of the continuing detention of persons lacking capacity.  The individual in question was a 23 year old man, BJ.  As BJ lacked capacity, it was found that his best interests would be served by his continued residence at a location referred to as “MH”.

As such, the care plan devised by the local authority and approved by Lord Justice Munby (in the original hearing of 16 May 2008), required the deprivation of BJ’s liberty within the meaning of Article 5 of the European Convention on Human Rights.

Summary

Given that BJ was being deprived of his liberty, Article 5 required a review by the court of the lawfulness of his detention at ‘reasonable intervals’. Munby LJ had set out the frequency and nature of any review at the previous hearing and at paragraph 10 of this judgment the LJ again highlighted the importance of regular reviews in such circumstances,

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Media privacy of severely disabled musical prodigy protected

28 April 2010 by Elspeth Wrigley

A (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) v INDEPENDENT NEWS & MEDIA LTD & ORS [2010] EWCA Civ 343 – Read judgment

This appeal was bought on behalf of a severely disabled adult (known as “A”), against the order of Hedley J of 19 November 2009 that the media should be granted access to a hearing in the Court of Protection.  The Lord Chief Justice has refused the appeal.

The case was unconventional, largely because of A’s own situation.  A had been totally blind from birth and suffered from acute learning difficulties associated with Autism Spectrum Disorder, which meant that he was not able to lead an independent life and was dependent on others for his care.   Despite this, however, A had taught himself the piano and had gone on to become an extraordinary gifted musician, and was described by the judge as ‘a man of remarkable accomplishment’.  
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European Commission warns the UK about unfair cost of challenging environmental decisions

28 March 2010 by Elspeth Wrigley

The European Commission has sent an official warning letter to the UK regarding the prohibitive expense of challenging the legality of environmental decisions.

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) was signed by the United Kingdom in 1998, and came into force in October 2001.  It was ratified by the United Kingdom in February 2005, at the same time as its ratification by the European Community.  Article 9(4) of the Convention provides that access to environmental justice must be fair, equitable, timely and not prohibitively expensive.

The European Convention on Human Rights (ECHR) does not provide for a specific human right to a clean environment, nor a right to environmental justice, although Article 2 (right to life), Article 6 (right to a fair trial) and Article 8 (respect for family and private life) do provide some scope for environmental protection, Conventions such as Aarhus are important in supporting these rights in an environmental context, particularly where the ECHR may provide inadequate protection. This connection is recognised in the preamble to the Aarhus Convention which identifies that, “the adequate protection of the environment is essential for human well-being and the enjoyment of basic human rights, including the right to life itself.”

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Mutual confidentiality between intelligence services trumped by open justice requirements

25 February 2010 by Elspeth Wrigley

R(on the application of Binyam Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65

The Grainger case – a double edged sword for climate change campaigners?

18 January 2010 by Elspeth Wrigley

Grainger PLC v T Nicholson

Employment Appeal Tribunal (Burton J), November 3 2009 – Read judgment

The Employment Appeal Tribunal has found that belief in climate change is capable of constituting a “philosophical belief” within the meaning of the Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”).

The decision of 3 November 2009 also provides important guidance for what constitutes a “philosophical belief” under the 2003 Regulations, as well as raising a number of questions regarding the status of ‘beliefs’ in relation to ‘scientific evidence’, a matter which, the EAT’s findings do not entirely resolve.

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Court of Appeal rules on entitlement of foreign nationals to treatment for HIV

10 January 2010 by Elspeth Wrigley