By: Isabel McArdle
21 February 2011 by Isabel McArdle
Munim Abdul and Others v Director of Public Prosecutions [2011] EWHC 247 (Admin) – Read judgment
The High Court has ruled that prosecution of a group of people who had shouted slogans, including, “burn in hell”, “baby killers” and “rapists” at a parade of British soldiers, was not a breach of their right to freedom of expression, protected by Article 10 of the European Convention on Human Rights.
Five men were convicted of using threatening, abusive or insulting words within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby (contrary to section 5 of the Public Order Act 1986). The men launched an appeal, raising amongst other things the question of whether the decision to prosecute them for shouting slogans and waving banners close to where the soldiers and other members of the public were was compatible with Article 10.
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15 February 2011 by Isabel McArdle
JR1, Re Judicial Review [2011] NIQB 5 – Read judgment
A decision of the Northern Ireland high court has highlighted the continued narrow definition of “standing”, or the right to bring a claim, under the Human Rights Act 1998.
An 8-year-old child applied to bring a claim, which included a challenge under Article 2 of the European Convention on Human Rights (the right to life), to the decision by police to introduce tasers in Northern Ireland.
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28 January 2011 by Isabel McArdle
X v Mid Sussex Citizens Advice Bureau [2011] EWCA Civ 28 – Read judgment
The Court of Appeal has ruled that disabled people are not protected by domestic or European legislation against discrimination when they undertake voluntary work.
In this decision the specific question was whether volunteers at Citizens Advice Bureaus are protected from disability discrimination. X, the anonymised claimant, argued that CAB had terminated her role as a volunteer adviser because she had a disability. She claimed that:
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11 January 2011 by Isabel McArdle
Twaite, Re Appeal against conviction [2010] EWCA Crim 2973 – Read judgment
In an interesting decision on fair trial rights under article 6 of the European Convention, the Court of Appeal been ruled that a court martial conviction by majority neither not inherently unsafe or in breach of human rights.
Mr Twaite had been accused fraud while serving in the armed forces. He and his fiancée had been given particular military accommodation on the basis that they were getting married on 28 August 2008. In a form which Mr Twaite submitted he had allegedly been dishonest by stating that he was getting married on that date. In fact he did not marry until a year later.
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24 December 2010 by Isabel McArdle
Stellato v Ministry of Justice [2010] EWCA Civ 1435 – Read judgment
The court of appeal has ruled that when a court set a deadline for a prisoner’s release, that deadline could was not lawfully extended simply because a court needed time to hear an appeal against the decision to release him.
In other words, prisoners must be released on time unless a court explicitly rules otherwise. Absent such a ruling, any additional time spent in custody waiting for a hearing will be unlawful detention and could trigger damages.
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6 December 2010 by Isabel McArdle
Sinclair Collis Limited, The Members of National Association of Cigarette Machine Operators (Interested Party) v Secretary of State for Health [2010] EWHC 3112 (Admin) – Read judgment or Rosalind English’s analysis of the decision
The High Court has ruled that the Secretary of State for Health did not breach the human right to peaceful enjoyment of property or European Union law by banning the sale of tobacco products from automatic vending machines.
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18 November 2010 by Isabel McArdle
Adakini Ntuli v Howard Donald [2010] EWCA Civ 1276 – Read judgment
Take That’s Howard Donald has failed to maintain an injunction against the press reporting details of his relationship with a former girlfriend. He had originally sought the injunction after receiving a text from the woman saying: “Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?”
‘Superinjunctions’ have received a great deal of press coverage recently, not least because they are usually granted in cases involving celebrities’ private lives. They are injunctions, usually in privacy or breach of confidence cases, which prevent not only the publication of certain matters, but even the publication of the existence of legal proceedings. These cases are of particular interest because of the competing ECHR rights in play: Article 8, the right to respect for private and family life, and Article 10, the right to freedom of expression.
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26 October 2010 by Isabel McArdle
Anam v Secretary of State for the Home Department [2010] EWCA Civ 1140 – Read judgment
This appeal raises interesting questions about the approach the courts should take when considering whether detention pending deportation is legal in a case involving an ex-convict with serious psychiatric illness. A failure to implement a Home Office policy on the subject did not automatically make the decision to detain unlawful. However, the Court of Appeal was not unanimous on what the correct test for legality was.
This was an appeal against a deportation decision by the Secretary of State for the Home Department. The Appellant had a long criminal record and in 2007 was sentenced to 4 years in prison for robbery. Later that year, the deportation decision was made. However, the Appellant also had a history of serious psychiatric illness.
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8 October 2010 by Isabel McArdle
(1)A Chief Constable, (2) AA v (1)YK, (2)RB, (3)ZS, (4)SI, (5)AK, (6)MH, [2010] EWHC 2438 (Fam) – Read judgment
The High Court has given guidance on the role which special advocates may play in forced marriage and honour violence cases. The controversial special advocates system has been used in anti-terrorism trials to prevent national secrets being revealed to terrorist subjects. However, recently the courts have roundly rejected attempts for the advocates to be used in non-criminal scenarios, on the basis that open justice is a fundamental legal right.
Forced marriage cases often involve information which it is in the public interest not to disclose because to do so would, for example, endanger police informants. Special advocates are not normally needed, because the legislation in question allows the courts to make orders to prevent forced marriages without those suspected of attempting to force a marriage from being notified at all.
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1 September 2010 by Isabel McArdle
Prashant Modi v United Kingdom Border Agency [2010] EWHC 1996 – Read judgment
Mr Justice Burnett in the High Court has found that there was no breach of a man’s right to respect for private and family life (Article 8 of the European Convention on Human Rights) when he was refused entry to the UK for business purposes after conviction for a sexual offence. This interesting decision highlights the very limited nature of protection that Article 8 may give in relation to business activities.
Mr Modi was an Indian businessman who was given multi-visit entry clearance for the UK in 2005. He regularly made business trips to the UK following this. In 2006 he committed a serious sexual offence in the UK and pleaded guilty to the charge. The Judge of the criminal court considered that the Appellant did not pose a serious risk to the public after the commission of the offence and made no recommendation for deportation.
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23 August 2010 by Isabel McArdle
Review: The Ripple Effect: Guantanamo Bay in the United Kingdom Courts” by CRG Murray, International Law Review Online Companion, April 2010 – Read article
A new academic article by C.R.G Murray at Newcastle University analyses the interesting and important line of case-law arising from claims by men detained in Guantanamo Bay. The case-law has involved many issues of a politically sensitive nature and generated much media coverage and pressure on the British Government. The ripple effects from the detentions have led to a series of important judgments.
Murray’s article reviews important case-law arising from detention at Guantanamo Bay and the impact it has had on the decisions reached by the courts. Murray concludes that the case-law demonstrates two major ‘ripple effects’: (1) judicial review has been used to press the British Government into being more active in opposing detentions at Guantanamo Bay; (2) where serious human rights breaches are in issue, the courts have been more willing to disregard historic concepts of comity between courts in different jurisdictions and give their own view of the correct interpretation of law for the benefit of appellate courts in the United States.
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23 July 2010 by Isabel McArdle
G v E and others [2010] EWCA Civ 822 – Read judgment
This post was written with the kind help of Jaime Lindsey
The Court of Appeal has held that a person who lacks mental capacity can be detained if the Court of Protection considers that it is in their best interests, without having to meet additional conditions under Article 5 of the European Convention on Human Rights.
This case was a challenge to the decision of Jonathan Baker J in the Court of Protection and raises issues about the relationship between ECHR Article 5 (right to liberty and security) and the Mental Capacity Act 2005 (MCA). It reinforces the point that it is for the Court to decide what is in an incapacitated patient’s best interests, and that Article 5 imposes no further requirements.
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13 July 2010 by Isabel McArdle
Al Jedda V Secretary Of State For Defence [2010] EWCA Civ 758 – Read judgment
The Court of Appeal has found that there was no breach of the “essence” of a right guaranteed under the Iraqi Constitution to have a prisoner’s detention reviewed by a judicial authority when the reviewing authorities were not judges, but had the necessary judicial qualities.
Mr Al Jedda was detained in Iraq in 2004 by British forces on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007 in Iraq but was at no time charged with any offence.
The case has had an interesting route through the courts which is worth summarising briefly.
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29 June 2010 by Isabel McArdle
In the matter of an application by ‘JR17’ for Judicial Review (Northern Ireland) [2010] UKSC 27
The Supreme Court found that there was no breach of a pupil’s right to education, where he was unlawfully suspended from school but was provided with work to do and home tutoring – read judgment
A pupil was suspended from school after a complaint from a female pupil about the pupil’s alleged misconduct in school. His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a Scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The principal purported to suspend the pupil in accordance with the Scheme but in fact failed to comply with its requirements. The pupil brought proceedings for judicial review, claiming that the suspension was unlawful and breached his right to education pursuant to Article 2 of the First Protocol of the European Convention on Human Rights, which the Human Rights Act 1998 protects. The Article provides:
No person shall be denied the right to education…
The Court of Appeal made a finding that, although the Scheme had not been complied with, the principal had lawfully exercised a common law power to suspend the appellant.The Supreme Court found that there was no such common law power but that the pupil’s right to education had not been breached by the suspension. During his suspension, work was provided to the boy to do at home and home tuition was arranged.
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20 May 2010 by Isabel McArdle
R (on the application of Dennis Gill) v Secretary of State for Justice – Read judgment
The Secretary of State for Justice should have done more to enable a prisoner with learning difficulties to participate in programmes which could have helped him gain an earlier release. In finding that the prisoner was discriminated against, the High Court has set down a precedent which will affect many other learning disabled prisoners.
Mr Justice Cranston held that participation in offender behaviour programmes would have made it easier for Mr Gill to persuade a Parole Board that he was suitable for release. His participation in them had been recommended but his learning difficulties had prevented him from taking part, and as such the Secretary of State for Justice had discriminated against him contrary to the Disability Discrimination Act 1995.
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