Media By: Matthew Flinn


What’s in store for judicial review?

9 March 2020 by

The electoral map: Boris Johnson’s victory in the general election in December has put reform of judicial review firmly on the political agenda

Tucked away on page 48 of the Conservative Party 2019 election manifesto, the following passage could be found in a section entitled “Protecting our Democracy”: 

After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.

That is something of a laundry list of many of the most charged constitutional issues faced by the United Kingdom. But of all the matters cited, the one which has received perhaps the most attention of late is the Government’s apparent intention to consider changes to our system of judicial review. 


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High Court considers Article 2 inquests in medical cases

21 May 2019 by

iraq war human rights compensation civilian Camp Bassa compensation damages conflict of laws international humanitarian law

R (Maguire) v HM’s Senior Coroner for Blackpool and Fylde [2019] EWHC 1232 (Admin) – Read Judgment

A three-judge panel of the Divisional Court has re-affirmed that, in general, medical inquests do not engage the State’s positive obligations under Article 2 of the European Convention on Human Rights.

Jackie Maguire had Down’s Syndrome, moderate learning difficulties, and severely compromised cognitive and communication abilities. On 22nd February 2017, she tragically died from a perforated ulcer at the age of 52, having developed symptoms starting with a sore throat around one week previously. For around 20 years prior, she had been living in care, and at the time of her death, following a capacity assessment under sections 1 – 3 of the Mental Capacity Act 2005, her place had been maintained by Blackool City Council in a care home from where she was not allowed to leave without supervision.


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Supreme Court awards damages against the police for failure to conduct an effective investigation

21 February 2018 by

supreme courtCommissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11Read Judgment

In an important decision for UK human rights law, the Supreme Court confirmed on 21st February 2018 that the police have a positive operational duty – owed to the individual victims of certain crimes – to conduct an effective investigation under Article 3 of the European Convention on Human Rights.

The decision stems from a claim brought by two victims of John Worboys, a London black cab driver who committed “a legion of sexual offences on women” between 2003 and 2008.

The victims, identified in the proceedings as DSD and NBV, sought damages from the Metropolitan Police, due to various failures in the course of investigating their complaints. The action was brought under sections 7 and 8 of the Human Rights Act (“HRA”) 1998, which enables claims for damages to be pursued in the English Courts where there has been a breach of an article of the European Convention on Human Rights (“ECHR”). This approach was taken because a “standard” action in the tort of negligence would be doomed to failure. There is a long line of authority, still holding firm (although regularly probed and challenged), which provides that police are immune from suit due to negligent failures in the conduct of many of their public functions, largely for policy reasons.

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When prurient curiosity meets privacy

8 April 2016 by

PJS v NEWS GROUP NEWSPAPERS LIMITED [2016] EWCA Civ 100

In an anonymised judgment dated 22nd January – but only recently published – the Court of Appeal underscored the importance of the right to privacy in the context of sexual activity.

In the modern digital age – an age when society is grappling with “sexting” and “revenge porn”, and one’s follies may be photographed and uploaded to Facebook for friends and family (and others) to see for years to come – the nature and scope of privacy, and the public’s expectations in relation to it, are being consistently challenged and redefined. This case may therefore be seen as a welcome re-affirmation of the basic point that, at least in normal circumstances, one’s sex-life is inherently private, and not a topic for public consumption.
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“No union more profound”: The US Supreme Court’s ruling on same-sex marriage

30 June 2015 by

Photo credit: Guardian

Photo credit: Guardian

The Supreme Court of the United States has decided that same-sex couples have a constitutionally protected right to marry.

In the history of American jurisprudence, there are a handful of cases which are so significant that they will be known to all US law students, much of the domestic population at large, and even large segments of the international community. Brown v Board of Education, which ended racial segregation in schools, is one example. Roe v Wade, which upheld the right of women to access abortion serves, is another. To that list may now be added the case of Obergefell v Hodges.

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The Tale of the Black Spider: The Supreme Court speaks

27 March 2015 by

Photo credit: The Guardian

Matthew Flinn

And so, the long legal saga of the Black Spider Letters finally comes to a close.

I last blogged about this case back in October 2012. At that time, the Attorney General had ignited controversy by invoking a little-known power under section 53 of the Freedom of Information Act 2000 (FOIA).

Under that provision, he issued a certificate which effectively vetoed a decision of the Upper Tribunal that a number of items of correspondence sent by Prince Charles to seven Government Departments (characterised as “advocacy correspondence” as opposed to personal letters) had to be disclosed to Mr Rob Evans of the Guardian newspaper.

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The paradox beneath Strasbourg’s French veil ban decision

16 July 2014 by

french-veil-ban-001S.A.S v France (Application no. 43835/11) – read judgment

The Grand Chamber of the European Court of Human Rights has rejected a challenge to a French law which prohibits the wearing of veils in public. The ruling is, of course, of great political and media interest, but it is also significant from a legal perspective. In a lengthy and detailed judgment, the Court ultimately accepts that, as a matter of principle, a government can legitimately interfere with the rights of individuals in pursuit of social and cultural cohesion.

On 11th April 2011, Law no. 2010-1192 came into force in the French Republic. Subject to certain limited exceptions, the law prohibits anyone from wearing any clothing which conceals their face when in public places, on pain of a 150 euro fine, and/or compulsory citizenship classes. Whilst phrased in general terms, the most obvious effect of the law, and its clear intention, is to ban the niqab (a veil that leaves only the eyes visible) and the burka (a loose garment covering the entire body with a mesh screen over the face).

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Personal consultation with solicitor must be offered before terror questioning, rules High Court

24 November 2013 by

Screen Shot 2013-11-24 at 10.30.23Elosta v Commissioner of Police for the Metropolis [2013] EWHC 3397 – Read Judgment

The High Court has held that a person detained for questioning under the Terrorism Act 2000 is entitled to consult with a solicitor in person prior to answering questions.

The right to consult with a lawyer before one is interviewed by law enforcement officers might be fairly characterised as a “pop culture” right. Reality television shows, crime dramas, even block buster films (I’m thinking Neo in the first Matrix film – pictured) have all played a part in ensuring that the right to legal advice in that context is ingrained in the consciousness of the masses.

This case dealt with a specific and rather technical variation on that theme.

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Police ‘containment’ of Palestinian solidarity protester was lawful, rules High Court

24 September 2013 by

Wright v Commissioner of Police for the Metropolis [2013] EWHC 2739 (QB) – Read Judgment

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Image via Richard Millett’s Blog

The High Court has found that the containment of a protester in a designated protesting pen for seventy five minutes was not unlawful at common law, nor under the Human Rights Act 1998.

On 30th March 2011, a seminar marking sixty years of British-Israeli diplomatic relations took place in Chatham House in St James’ Square, London. The Israeli President, Mr Shimon Peres, was to be in attendance, and a group of protesters from the Palestinian Solidarity Campaign took the opportunity to demonstrate outside the seminar venue.

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US Supreme Court opens door to marriage equality, UK coming next

29 June 2013 by

Kris Perry kisses Sandy StierHollingsworth v Perry – No. 12–144 – Read judgment

United States v Windsor – No. 12–307 – Read judgment

In rulings that have the potential to influence the jurisprudence of courts around the world, the Supreme Court of the United States has handed down two landmark decisions pertaining to the issue of same-sex marriage.

The right of gay and lesbian couples to wed remains one of the most controversial and debated civil rights issues of our time. However, the ground has been shifting with increasing rapidity in recent years and months. The direction of change is clear. There are now fifteen countries which permit or will permit same-sex marriages, including most recently Uruguay, New Zealand and France. With bills steadily progressing through the Parliamentary process, there is a strong possibility that England, Wales and Scotland may soon be added to the list.

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Death penalty legal funding refusal: Appeal court confirms limits of Human Rights Act

29 May 2013 by

Lindsay SandifordR (on the application of Sandiford) v Secretary of State for Foreign & Commonwealth Affairs [2013] 168 (Admin) – read judgment

On 22 April 2013 the Court of Appeal upheld the decision of the Foreign and Commonwealth Office in refusing to pay for a lawyer to assist Lindsay Sandiford as she faces the death penalty for drug offences in Indonesia. Last Wednesday, they handed down the reasons for their decision.

On 19 May 2012 Lindsay Sandiford was arrested at Ngurah Rai International Airport in Bali following the discovery of almost five kilograms of cocaine in the lining of her suitcase. A number of southeast Asian countries take a notoriously hard line on drugs offences, and following her conviction on 19 December 2012, Ms Sandiford was sentenced to death. Many media outlets have reported that in Indonesia, death sentences are generally carried out by a firing squad.

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Prince Charles and the curious case of the Black Spider Letters

23 October 2012 by

Litigation relating to information rights can sometimes seem very dry and obscure, entailing lengthy analysis of the merits of public authorities disclosing or withholding information which is highly specialised or obtuse, and of little real interest to the general population. But this case – the case of the “Black Spider Letters” – really is a fascinating one, involving an examination not just of the legislative provisions relating to the disclosure of information, but also a consideration of the existence and extent of constitutional conventions pertaining to the role of the monarchy in government. At the same time, it has the potential to generate such controversy as to make for perfect tabloid fodder. It has been the subject of international news coverage. And it’s not over yet.

It all stems from a request for information made under the Freedom of Information Act 2000 (“the Act”) and the Environmental Information Regulations 2004 (“the Regulations”) by a Guardian journalist, Mr Rob Evans. In April 2005 he wrote to seven Government Departments, and asked for a list of correspondence between Prince Charles and the ministers for those Departments between 1 September 2004 and 1 April 2005, as well as copies of each piece of correspondence. Many of the Departments initially relied on exemptions contained in the Act in order to refuse to confirm or deny whether or not they held such information. Ultimately however, all the Departments admitted that such correspondence did exist, but they refused to disclose it.

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Sex abuse allegations against parent should be disclosed in contact proceedings

28 September 2012 by

Re J (A Child: Disclosure) [2012] EWCA Civ 1204 – read judgment

The Court of Appeal has ordered the the disclosure of serious allegations made against a parent by an anonymous third party in contact proceedings. In doing so, it has demonstrated the correct approach to balancing the many different human rights considerations involved. 

Every day, family courts across the UK are required to determine the difficult question of how much contact there should be between a child and his or her parents. It is the norm for these cases to be factually complicated and emotionally draining. However, this case was exceptional. It was an appeal relating contact proceedings in respect of a ten year old girl (A). The court had made various orders for contact over a number of years, with a final order being made in 2009 that the she was to stay with her father for two weeks each February and four weeks each summer.

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Hate speech and the meaning of “unacceptable behaviour”

26 April 2012 by

Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – read judgment

1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.

Late last year I posted about the case of Mr Mahajna, a national of Israel (but of Palestinian origin), who appealed against a deportation order issued by the Home Secretary under section 3(5) of the Immigration Act 1971 on the basis that his presence in the United Kingdom was not conducive to public good. To recap:

  1. The Government has a list of “Unacceptable Behaviours” which forms the basis of its policy on excluding non-nationals under that provision. This includes actions expressing views which are likely to foster hatred and lead to inter-community violence in the UK (this policy was recent the focus of judicial consideration in the Court of Appeal in the case of R (Naik) v Secretary of State for the Home Department [2011] EWCA Civ 1546).
  2. The Home Secretary relied on five pieces of evidence which were said to fall within the scope of the list of unacceptable behaviours and justify her conclusion that Mr Mahajna’s presence was not conducive to the public good.
  3. The First-Tier Tribunal (FTT) examined those pieces of evidence. It concluded that the Home Secretary was entitled to conclude that they constituted examples of unacceptable behaviour and fell within the scope of the exclusion policy.
  4. Although the order to deport Mr Mahajna constituted an interference with his right to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR) because he was unable to carry out a number of public speaking engagements in the UK, the views of the Home Secretary as to what was in the public interest were entitled to significant weight in assessing whether or not that interference was proportionate.
  5. The FTT ultimately concluded that the interference was proportionate, and the deportation order was upheld.
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