By: Rosalind English
3 February 2014 by Rosalind English
Shahid v The Scottish Ministers [2014] ScotCS CSIH – 18 – read judgment
Solitary confinement of a dangerous prisoner in accordance with the prison rules was neither unlawful nor in breach of his Convention rights, the Scottish Court of Session has ruled.
The petitioner (as we shall call him to avoid confusion, rather than the more accurate “reclaimer”) was serving a life sentence for what the court described as a “brutal and sadistic” racially motivated murder of a 15 year old white boy in 2006. Apart from a short period during his trial he remained continuously segregated until 13 August 2010, when he was allowed once again to associate with other prisoners (“mainstream”). He claimed that his segregation was contrary to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 and, separately, contrary to Article 3 of the European Convention on Human Rights, which provides protection against torture and cruel and unusual punishments, and Article 8, which protects the right to private life. He sought declarations to that effect and £6,000 by way of damages.
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1 February 2014 by Rosalind English
Government of the Republic of South Africa v Dewani [2014] EWHC 153 (Admin) 31 January 2014 – read judgment
Shrien Dewani, the British man facing charges of murdering his wife on honeymoon in South Africa, has lost his appeal to block extradition there (so far three men have been convicted in South Africa over Mrs Dewani’s death). The Court ruled that it would not be “unjust and oppressive” to extradite him, on condition that the South African government agreed to return him to the UK after one year if his depressive illness and mental health problems still prevented a trial from taking place.
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29 January 2014 by Rosalind English
Trafford v Blackpool Borough Council [2014] EWHC 85 – read judgment
The High Court has held that a local authority had abused its powers by refusing to offer a solicitor a new lease of the claimant’s office premises.
The claimant solicitor was aggrieved by the fact that the stated reason for the defendant’s refusal was that her firm had brought claims against the Council on behalf of clients seeking compensation for injuries alleged to have been caused by the negligence of the Council, predominantly in highways “tripping” type claims.
HHJ Davies held that the Council had exercised its “wide discretion” under Section 123 of the Local Government Act 1912 for an improper purpose and was “fundamentally tainted by illegality” on that basis. The Council’s refusal was both Wednesbury unreasonable and procedurally unfair.
Public versus private
The interesting question central to this case was whether or not a public body, acting under statutory powers in deciding whether or not to renew or terminate a contract, was acting under public law duties, and therefore amenable to judicial review, or whether the relationship between the claimant and the defendant was one governed exclusively by private law, where judicial review has no part to play .
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24 January 2014 by Rosalind English
Pike and Doyle v Indian Hotel Companies Ltd [2013] EWHC 4096 (QB) – read judgment
Philip Havers QC and Peter Skelton of 1 Crown Office Row represented the claimants in this case. They have nothing to do with the writing of this post.
This sad case arose out of the 2006 terrorist attack on the Taj Mahal Palace, Mumbai, India. The claimants, who had spent 15 days backpacking around Goa, decided to treat themselves to one night of luxury at the hotel before they were due to fly home from Mumbai. Shortly after the attack began the claimants hid in their room, locked the door and turned off the lights. Some hours later they tried to escape through the window. Their room was on the third floor of the tower part of the hotel. They tied together sheets, curtains and towels to make a rope. They hung it outside their room and the first claimant went first. The “rope” came apart and he fell to the ground suffering serious spinal injuries which have left him paraplegic. The second claimant was rescued subsequently. She did not suffer physical injuries but claims for continuing psychiatric consequences.
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22 January 2014 by Rosalind English
Association de médiation sociale v Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT), Case C‑176/12 – read judgement
The Grand Chamber of the Court of Justice of the European Union has ruled on whether the Charter of Fundamental Rights of the European Union can apply in a dispute between private parties, although it is not quite clear what its conclusion implies.
This was a request for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), received by the CJEU in April last year.
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18 January 2014 by Rosalind English
Jones and Others v. the United Kingdom (application nos. 34356/06 and 40528/06) – read judgement
The Strasbourg Court has ruled that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach the Convention. The Court held that a “grant of immunity to the state officials in the present case reflected generally recognised rules of public international law” and that there had been no violation of Article 6 (right of access to court).
The claimants argued that there there was emerging support for a special exception to this immunity in cases concerning civil claims for torture lodged against foreign State officials. But the Court took the view that the bulk of the authority was to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead. The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity.
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14 January 2014 by Rosalind English
Belhaj and another v Straw and Others [2013] EWHC 4111 (QB) 20 December 2013 – read judgment
Peter Skelton of 1 Crown Office Row acted for the defendants in this case. He has nothing to do with the writing of this post.
The High Court has struck out claims against British establishment defendants for “unlawful rendition”. The doctrine of immunity attaching to an act of state is total bar to that such claims and is not limited by the gravity of the alleged violation of rights.
Factual background
The first claimant, an opponent of the Gaddafi regime, and his wife, the second claimant, had been apprehended in Bangkok in 2004 whilst trying to travel from Beijing to the UK to claim asylum. They were held in a detention centre in Kuala Lumpur for two weeks and whilst they were there the UK authorities, along with the US, the Malaysians and the Chinese, worked together to secure their extradition to Libya (this was a time when friendly relations were maintained between the UK and the Libyan government). After another journey to Bangkok, where they were detained in a US “black site”, they were flown to Tripoli and transported to Tajoura prison, a detention facility operated by the Libyan intelligence services. The second claimant was released later in 2004, but the first claimant was transferred to another prison and held until 2010.
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19 December 2013 by Rosalind English
JXMX (A Child) v Dartford and Gravesham NHS Trust [2013] EWHC 3956 (QB) – read judgment
Elizabeth-Anne Gumbel QC of 1 Crown Office Row represented the claimant in this case. She has nothing to do with the writing of this post.
In Part 1 on this subject, I discussed medical confidentiality and/or legal restrictions designed to protect the privacy of a mother and child. This case raises the question in a slightly different guise, namely whether the court should make an order that the claimant be identified by letters of the alphabet, and whether there should be other derogations from open justice in the guise of an anonymity order, in a claim for personal injuries by a child or protected party which comes before the court for the approval of a settlement.
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18 December 2013 by Rosalind English
AA, Re (Including: note by Mr Justice Mostyn) 4 December 2013 [2013] EWHC B24 (COP) – read note and judgment
In the matter of P (a child) 13 December 2013 [2013] EWHC 4048 (Fam) – read judgment
The full story of the “forced caesarean” that went viral a few weeks ago has been set out by Adam Wagner and others in his post “Lessons learned”. In order to set the record straight, Mostyn J has now authorised the 2012 judgment to be released, together with the verbatim transcript of the proceedings and the order made. Far from the baby being snatched from the womb of its unwilling mother at the behest of interfering social services, this is what took place:
… it was an urgent application first made at 16:16 on 23 August 2012 by the NHS Trust [not social services], supported by the clear evidence of a consultant obstetrician and the patient’s own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner.
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17 December 2013 by Rosalind English
Following David Hart’s highly popular review of Alan Paterson’s book on the Supreme Court, here’s an account of the recent public speeches of Lord Sumption, Lord Justice Laws, and Lady Hale. I apologise in advance for the length of this post, but to do justice to all three lectures it has proved necessary to quote extensively from each. There are links to the full text of the lectures, if you want to digest them over Christmas. But whether or not that prospect appeals, here is a challenge for the festive season. Lord Sumption divides judges into three categories: the “parson”, the “pragmatic realist” and the”analyst” (quoted by Professor Paterson in Final Judgment: The Last Law Lords and the Supreme Court). Which of these labels fit the respective speakers?
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11 December 2013 by Rosalind English
Kaiyam v Secretary of State for Justice and Haney v Secretary of State for Justice (9 December 2013) [2013] EWCA Civ 1587 – read judgment
The Court of Appeal has ruled that continued detention in prison following the expiry of the “minimum terms” or “tariff periods” of their indeterminate terms of imprisonment did not breach prisoners’ Convention or common law rights, but has left it to the Supreme Court to determine the substance of the Convention claims in detail.
The appellant prisoners claimed that their continued detention breached the Article 5, and in one case Article 14. The courts at first instance had been obliged to dismiss the claims under Article 5 in the light of the House of Lords decision in R(James and others) v Secretary of State for Justice [2009] UKHL 22, [2010] 1 AC 553, notwithstanding that Strasbourg subsequently held in James, Wells and Lee v United Kingdom that the House of Lords decision was wrong.
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11 December 2013 by Rosalind English
R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 On appeal from [2012] EWHC 3635 – read judgment
The Supreme Court has ruled, unanimously, that a Scientologist chapel is “a place of meeting for religious worship” for the purposes of section 2 of the Places of Worship Registration Act 1855, and therefore it may be licensed for the solemnisation of marriage
This was an appeal from a ruling by Ouseley J ( [2012] EWHC 3635) that a church of the Church of Scientology could not be recordable as a “place of meeting for religious worship”.
The following summary is taken from the Supreme Court’s press release. A full analysis of the case will follow shortly.
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6 December 2013 by Rosalind English
IM (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1561 (25 November 2013) – read judgement
The Court of Appeal has ruled that the secretary of state for the Home Department had the power to detain an immigration detainee in hospital to ensure that he received appropriate medical treatment pending his removal from the United Kingdom.
This was an appeal by a failed asylum seeker against the ruling by Ouseley J that his continued immigration detention was lawful ([2013] EWHC 3764 (Admin)).
Factual backgound
The appellant, a Nigerian national, had been refused asylum and leave to remain and was detained pending removal. He refused food and most fluids, stating further that he did not want medical treatment. His capacity to understand the significance or consequences of his decision had been tested on a number of occasions and was not in issue. An end-of-life plan had been prepared by nursing staff at the immigration removal centre. He had refused transfers to hospital, insisting on a condition of release from detention. His release had been refused despite referrals stating that he was unfit for detention at the IRC. The secretary of state had made a direction under the Immigration Act 1971 Sch.2 para.18(1) in relation to the appellant’s continued detention.
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4 December 2013 by Rosalind English
On Monday at 10.00 Eastern Time, the Nonhuman Rights Project filed suit in Fulton County Court in the state of New York on behalf of Tommy, a chimpanzee, who is being held captive in a cage in a shed at a used trailer lot in Gloversville.
According to the NRP, this is the first of three suits they are filing this week. The second was filed on Tuesday in Niagara Falls on behalf of Kiko, a chimpanzee who is deaf and living in a private home. And the third will be filed on Thursday on behalf of Hercules and Leo, who are owned by a research center and are being used in locomotion experiments at Stony Brook University on Long Island.
The organisation, led by the animal-rights lawyer Steven Wise, is using the writ of habeas corpus on behalf of the animals to ask the judge to grant the chimpanzees the right to bodily liberty and to order that they be moved to a sanctuary where they can live out their days with others of their kind in an environment as close to the wild as is possible in North America.
| Updated (10 December)|: The judge has declined the application for habeas corpus. According to Steven Wise, Judge Boniello said “that ‘I’m not going to be the one to make that leap of faith.’” Yet Boniello, who decided that chimpanzee personhood is ultimately a matter for legislatures to decide, was also “unexpectedly sympathetic”, calling their arguments sound and wishing them luck. “I’ve been in a lot of cases, and there’s not been many where the judge says, ‘Good luck.’ Usually they just say, ‘denied’.
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3 December 2013 by Rosalind English
J19 and Another v Facebook Ireland [2013] NIQB 113 – read judgment
The High Court in Northern Ireland has chosen to depart from the “robust” Strasbourg approach to service providers and their liability for comments hosted on their sites. Such liability, said the judge, was not consonant with the EC Directive on E-Commerce.
This was an application on behalf of the defendant to vary and discharge orders of injunction dated 27 September 2013 made in the case of both plaintiffs. One of the injunctions restrained “the defendant from placing on its website photographs of the plaintiff, his name, address or any like personal details until further order.” These interim injunctions were awarded pursuant to writs issued by the plaintiffs for damages by reason of the publication of photographs, information and comments on the Facebook webpages entitled “Irish Blessings”, “Ardoyne under Siege” and “Irish Banter” on 11 September 2013 and on subsequent dates.
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Shahid v The Scottish Ministers [2014] ScotCS CSIH – 18 – read judgment
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