Media By: Rosalind English

Rules allowing closed procedure in employment cases do not breach fair trial

13 July 2011 by

Home Office (Appellant) v Tariq (Respondent); Home Office (Respondent) v Tariq (Appellant) – read judgment; read press release

In these appeals the question was whether a claimant in employment tribunal proceedings may be excluded from certain aspects of those proceedings on grounds of national security, without breaching the right to fair trail under Article 6 of the Convention. Mr Tariq had been suspended from his job as immigration officer following the arrest of his brother and cousin for involvement in the suspected transatlantic airline terrorist plot. There was no suggestion that Mr Tariq himself had been involved.
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No removal of foreign criminals to failed states

30 June 2011 by

Sufi and Elmi v United Kingdom – 8319/07 [2011] ECHR 1045 (28 June 2011) – Read judgment

Somalia has been without a functioning government since 1991, riven, since then, by violence between rival clans and sub-clans and largely at the mercy of extreme Islamist groups with one aim in common: sabotaging any efforts by the international community to install a transitional government.

The tragedy is that the combination of resource scarcity, natural disasters and rapacious human activity are so enmeshed, particularly in Africa, that the separation of state-sponsored violence (which does involve humanitarian responsibilities under the European Convention) and harm emanating from naturally occurring disaster (which does not) no longer makes any sense. The kind of conditions that give rise to treatment prohibited under Article 3 of the Convention can be said to prevail in many parts of the continent. How are signatory states to cope?

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Judicial review golden goose has narrow escape in Supreme Court

24 June 2011 by

R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011 – read judgment; press summary here

Unappealable decisions of the Upper Tribunal are still subject to judicial review by the High Court, but only where there is an important point of principle or practice or some other compelling reason for the case to be reviewed. Unrestricted judicial review in this context is unnecessary and a waste of resources.

This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three was the extent to which decisions of the Upper Tribunal,  established under the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”), are properly subject to judicial review by the Administrative Court in England and Wales and the Court of Session in Scotland.
In all of them the claimant failed in an appeal to the First-tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First-tier Tribunal and by the Upper Tribunal. In all three the claimant sought a judicial review of the refusal of permission to appeal by the Upper Tribunal.
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Beanstalks and golden eggs

20 June 2011 by

In her lecture at Gresham College last week Baroness Hale speculated how high the human rights tree might grow before it presents a threat to the surrounding constitutional ecosystem. Our words, not hers, but she preferred the arboreal image to the more established but inherently nonsensical notion of a “living instrument” as an expression of the Convention’s adaptability over time. This tree, she suggested, should not be allowed to transmogrify in to a gigantic beanstalk, crashing through the sky, inspiring false dreams and unrealisable ambitions.

The seeds of this tree – or treacherous beanstalk, whichever way one prefers to look at it – were sown in the seventies when the Strasbourg Court chose a “purposive” rather than a literal construction of the language used in the Convention. This means that judges enforcing the norms of the Convention need not confine themselves to the terms as stated or clearly implicit in the written text, nor to the purpose that might be derived from the preparatory materials and the historical context. Thus in the landmark case of Golder v United Kingdom, the Court ruled that Article 6 not only conferred an explicit right to a fair trial but implied that citizens should be granted the right of access to justice, something that could not be discovered within the four corners of the Convention as a document.
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Abduction and the child’s “best interests” – analysis

14 June 2011 by

E (Children) FC [2011] UKSC 27 – read judgment see previous post for summary

This case shows some of the difficulties thrown up by the interesting tension between the primacy of children’s interests implied by Article 8 of the European Convention on Human Rights and the controls on child abduction exerted by the 1980 Hague Convention.

The Human Rights Convention, in requiring that states ensure respect for family life,  protects first and foremost the rights of the child. But of course the Hague Convention has different priorities. The first aim of that instrument is to deter either parent from taking the law into their own hands and removing themselves and their children to another jurisdiction. If abduction does take place, the next object of the Convention is to restore the children as soon as possible to their home country, so that any dispute can be determined there, since the parent left behind is the wronged party, and should not be put to the trouble and expense of coming to the requested state in order to participate in the resolution of factual issues here. Article 12 therefore requires a requested state to return a child forthwith to its country of habitual residence if it has been wrongfully removed in breach of rights of custody. Article 13(b) mitigates that obligation if there is a “grave risk” of “physical or psychological harm.”
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Court orders return of children abducted from father in Norway

10 June 2011 by

In the matter of E (Children) [2011] UKSC – read judgment

The Supreme Court has ruled that two girls, aged seven and four respectively, be returned with their mother to Norway, after she had removed them without the father’s consent. The decision was made largely under the Hague Convention on the Rights of the Child which gives more specific direction to the courts in abduction cases than the European Convention on Human Rights, although, as the Supreme Court observed, a little more reassurance that the necessary safeguards can be enforced in the destination country would make it easier for the courts in the requesting country to make orders protecting the interests of the child.

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Seizure of passport actionable in law

9 June 2011 by

Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment


1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.

This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty  owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.

The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
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The Adoption Dilemma: the rights of parents v child’s interests

2 June 2011 by

R. and H. v. United Kingdom (no. 35348/06) – Read judgment

This ruling from Strasbourg sheds little light on how Article 8 can help adoption procedure, but it does illustrate how courts and agencies are having to square up to the deepening crisis in adoption rates.

Newspaper and charity campaigns are vocal about this issue but little attention is paid to the very difficult business of balancing the needs of children against those of the biological or (prospective) adoptive parents.

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Murder, miscarriage of justice and Scots judicial autonomy

27 May 2011 by

Fraser v Her Majesty’s Advocate [2011] UKSC 24 (25 May 2011)  – Read judgment

The Supreme Court has had to consider (for the second time in a month) the ticklish question of what constitutes a “miscarriage of justice”.

The business is rendered more ticklish because this was a case being handled by the High Court of Justiciary, the court of last resort in all criminal matters in Scotland.

Our previous post questioned whether the finding of a miscarriage of justice entitled the individual, whose conviction is quashed, to compensation for the slur on their innocence. Here the Court scrutinises the actual diagnosis of a miscarriage of justice. They had to do so in this case because their jurisdiction depended on it. This needs some explaining.

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DNA case analysis: The mystery of the missing purpose

24 May 2011 by

We reported last week the Supreme Court ruling in R (on the application of GC) (FC) (Appellants) v The Commissioner of Police of the Metropolis (Respondent) in which the majority found that they could interpret the DNA retention provision in the Police and Criminal Evidence Act (PACE) in such a way that it would be compatible with article 8 of the ECHR.

Not only that; the Court concluded that such a reading could still promote the statutory purposes: ” Those purposes can be achieved by a proportionate scheme.”

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Retention of DNA breaches human right to privacy, says Supreme Court

18 May 2011 by

R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis – read judgment
A declaration has been granted by a majority in the Supreme Court that police policy of DNA retention is unlawful because it is incompatible with article 8 of the ECHR.

Guidelines under the current legislation allow destruction of DNA evidence only under “exceptional circumstances”; however police can be said to be acting unlawfully in retaining the evidence because the relevant provision of the Police and Criminal Evidence Act (PACE) should be ‘read down’ to accord with the right to privacy under the Convention.

The guidelines on DNA retention were introduced under Section 64(1A) of PACE, which provides that samples taken in connection with the investigation of an offence “may” be retained. The provision thus substituted a discretionary power for an earlier obligation in the statute to destroy data. The guidelines issued by the Association of Chief Police Officers (“ACPO”) guidelines provided that data should be destroyed only in exceptional cases.
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Pardon and Amnesty – when is there money in it?

16 May 2011 by

When does being not guilty make you innocent? This question arose coincidentally in two rulings, just over a month of each other, from the highest courts of the UK and South Africa respectively.

The Citizen and others v McBride concerned libel proceedings which had been brought against a former member of the armed wing of the ANC. McBride had been convicted of murder and sentenced to death in 1986 after killing three women in a bomb attack. Nine years later he was granted an amnesty by the SA Truth and Reconciliation Commission. The question before the Constitutional Court was whether a person convicted of murder, but granted amnesty under the Reconciliation Act, can later be called a “criminal” and a “murderer” in comment opposing his appointment to a public position.

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Max Mosley – enough already

11 May 2011 by

I promised an analysis piece in my post on the Mosley judgment but there has been such an outpouring of comment and opinion on the case that a more useful exercise is to provide some sort of guide through the maze of material already out there.

This rather toothless ruling has, needless to say, received enthusiastic acclaim by the mainstream media, smarting with indignation over Twitter’s coup de théâtre re superinjunctions. See the Guardian coverage and the Express’s aptly named article Max Mosley Loses Privacy Case Amid Super-injunction Chaos. The Daily Mail of course goes straight to the Naughty Step with its triumphalist and inaccurate headline Victory for freedom of speech: European court rejects Mosley’s bid to impose new constraints on Press. First, it wasn’t the European Court (more commonly known as the ECJ). It was the European Court of Human Rights. Second, the rather mealy-mouthed judgment is hardly a ringing endorsement for freedom of speech; as Hugh Tomlinson points out, the press won the battle but the judgment confirms that it has lost the “privacy war”:

The Court makes its disapproval of the conduct of the News of the World crystal clear and emphasises the need for a “narrow interpretation” of freedom of expression where sensational and titillating press reports are involved [114].

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Mosley loses privacy case in Strasbourg

10 May 2011 by

The Strasbourg Court has ruled that the United Kingdom has not breached the right to privacy by failing to have in place a “pre-notification” requirement that would have alerted Max Mosley to the News of the World’s impending publication of covertly filmed footage – read judgment. 

Adam Wagner’s prediction is bang to rights; although in this particular case the Court agreed that the newspaper had “flagrantly” violated Max Mosley’s right to privacy, it has refrained from ruling that UK law fell short of adequate protection of Article 8.   “Particular care” had to be taken when examining constraints which might operate as a form of censorship prior to publication and generally have a chilling effect on journalism.

A new attitude of diffidence characterises this judgment in that the Court expressly refrains from considering the application of Convention rights to the facts of this case, since the UK Court had already decided on it. This suggests that Strasbourg is beginning to take on board criticisms that it is tending to arrogate to itself the role of supra-national court of appeal. There was no reconsideration therefore of the High Court’s assessment of the newspaper’s public interest defence nor of the balancing act that the judge had conducted between the right to privacy and the right to freedom of expression. The focus of this ruling was on the question of  whether a legally binding pre-notification rule was required.
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Adoption, same-sex couples and religion – again

3 May 2011 by

In a modern liberal democracy we take for granted the fact that laws apply to all individuals and are enforced by the courts without special consideration of religious beliefs they may happen to have.

But for a while at least there was a very real danger of the dissolution of the divide between private orthodoxy and public principle following the widespread invocation of Article 9 in the courts. This came to a head in the furore over the former Archbishop of Canterbury’s intervention in the MacFarlane v Relate case, provoking some very sharp words from Lord Justice Laws. Although religious groups continue to rattle their sabres, a recent ruling from the Charity Tribunal suggests that the right to religion is losing its edge somewhat on the litigious battlefield. Does this mark a trend away from making concessions to the devout?

We posted previously on the somewhat convoluted history of Catholic Care v Charity Commission for England and Wales. Essentially the Charity wished to legitimise its policy of excluding same sex couples from its adoption services by seeking permission from the Charity Commission to amend its objects of association. They sought thereby to a statutory exception to the general prohibition on discrimination in the Equality Act 2010.

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