By: Rosalind English
13 March 2012 by Rosalind English
Tony Nicklinson v Ministry of Justice [2012] EWHC 304 (QB) – read judgment
Jean-Dominique Bauby’s eyelid-blinking account of Locked-in Syndrome had us all quivering at the thought of being blindsided, as he was, at the peak of his career, on some banal afternoon outing. One moment you’re in charge, the next, you’re a living, conscious cadaver, entirely at the mercy of your family (if you’re lucky), the state (inevitably), and, you’re very unlucky, the police.
This is humanity at its most pinched and wretched, one might have thought more in need of the arsenal of human rights than any other situation. But all the big guns are elsewhere, it seems. We have the political stand-off in the Bill of Rights Commission, and all the other noisy controversial products of the human rights industry, welfare, asylum, crime, deportation, prisoner rights and press freedom. In the meanwhile, a much quieter, but much starker drama unfolds in the wake of Pretty , Purdy et al. Now we have Tony Nicklinson, whose case takes human rights ideology back to its roots: a person with his back against a wall.
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8 March 2012 by Rosalind English
W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department [2012] UKSC 8 – read judgment
As we reported in our summary of the decision earlier, the Supreme Court has confirmed that the Special Immigration Appeals Commission (SIAC) has the power to order that certain witness evidence may be produced in conditions of absolute and irreversible secrecy.
A brief recapitulation: the appellants were resisting return to Algeria, a a country where torture has been systematically practised by the relevant authorities. The respondent secretary of state had obtained assurances from the Algerian Government that the appellants’ rights would be respected upon return, but, in appeals to the Commission, the appellants wished to adduce evidence from witnesses with inside knowledge of the position in Algeria that those assertions would not be honoured, and that torture and ill-treatment of the returnees was likely. The witnesses were not prepared to give evidence in the appeals unless their identity and evidence would remain forever confidential to the Commission and the parties to the appeal. The Court of Appeal held that despite the breadth of the Commission’s powers under Rule 39(1) of the SIAC (Procedure) Rules 2003, it was not open to it to give such guarantees. The Supreme Court overturned that ruling, declaring that SIAC could give an absolute and irrevocable guarantee of total confidentiality to a witness who was prepared to testify that the deportee was likely to be subjected to torture or ill-treatment upon return despite contrary assurances from the authorities in the country of return.
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7 March 2012 by Rosalind English
W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department [2012] UKSC 8 – read judgment
The court is entitled to make an order for a witness to give evidence before the Special Immigration Appeals Commission (SIAC) in such a way that the identity of the witness and the substance of the evidence remains confidential. Such an order will only be granted if the court is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and it has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state.
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5 March 2012 by Rosalind English
Merchant International v Naftogaz International [2012] EWCA Civ 196 – read judgment
The Court of Appeal has ruled that domestic courts may refuse to recognise a judgment of another Convention country on the basis that it failed to respect the fair trial principles in Article 6.
In this case the Ukraine Supreme Court was said to have “flagrantly” disregarded the principle of legal certainty. Whilst the English court should apply a strong presumption that the procedures of other Convention States complied with Article 6, it was not wrong for an English court to consider whether a judgment of a court of a Convention State contravened the Convention.
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29 February 2012 by Rosalind English
Application by Guardian & Various Claimants v. NGN & Mulcaire- read judgment
A high court judge has allowed the media unrestricted access to documents submitted to the court for use in litigation by victims of phone hacking who have now reached settlements with News Group Newspapers (NGN).
Full disclosure of this material was resisted by the private investigator Glenn Mulcaire on the grounds that it would create a “substantial risk” that the course of justice in the criminal proceedings he faces will be seriously impeded or prejudiced. The Telegraph and other papers have now published passages of the documents which were previously censored following this order from Vos J, the judge who has presided over more than 50 hacking claims against NGN.
Mulcaire was jailed in 2007 together with Clive Goodman, the News of the World’s then royal editor, after police found they had hacked phones belonging to members of the Royal household. The Telegraph reports that a section of the documents released in these proceedings that had been previously redacted
alleges that from 1998, when Mulcaire first started working with the News of the World, he “entered into a conspiracy with senior executives of [NGN] including Clive Goodman and Journalists A,B,C,D and E whereby he would, on their behalf, obtain information about individuals of interest to [NGN] journalists and use electronic intelligence and eavesdropping in order to obtain this information.
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28 February 2012 by Rosalind English
Moore v British Waterways Board [2012] EWHC 182 (Ch) – read judgment
From time to time, the courts are called upon to explain who holds the power to order people about, and why they have it. In Roger Deakin’s classic celebration of swimming the wild waterways of Britain, his one grouse is against the officiousness and overweening behaviour of the government bodies in charge of this country’s network of streams and rivers. If Deakin had been alive today he would have applauded the dedication of Mr Moore, a scholarly litigant in person whose challenge to the British Waterways Board elicited from Hildyard J this massively detailed and scrupulous analysis of the source of the BWB’s powers.
The appropriately-named Mr Moore’s primary claim was that the BWB simply lacked the power to issue notices of intended removal of his boats moored on the Grand Union Canal. His argument, that BWB’s actions were unlawful and unenforceable, required not only a ” trawl through numerous statutes affecting the GUC since the Act which authorised the construction of the canal, the Grand Junction Canal Act 1793″ , but a deep consideration of all the ancient pre-existing water rights that may or may not have been extinguished by that and later acts of parliament.
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27 February 2012 by Rosalind English
Social networking sites may now be used to serve claims where there are difficulties in locating one of the parties.
In a commercial case involving claims against a broker for overcharging commission, the claimants were not sure of the broker’s last known address. They served a claim at this address but also sought permission from Teare J to serve via the broker’s Facebook address, after providing evidence of the account being updated. The judge extended the time for the defendant to respond to the claim because of uncertainty as to how frequently he checks his Facebook account.
The Telegraph reports that Facebook “is routinely used to serve claims in Australia and New Zealand, and has been used a handful of times in Britain.”
In 2009 Lewison J allowed an injunction to be served via Twitter in a case where the defendant was only known by his Twitter-handle and could not easily be identified another way. But this is the first time that a claim (as distinct from an order) has been permitted at such a high level to be served in this way.
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22 February 2012 by Rosalind English
R v N; R v LE [2012] EWCA Crim 189 – read judgment
This was the first occasion when the Court of Appeal has considered the problem of child trafficking for labour exploitation. It has not previously been subject to any close analysis following the coming into force in 2005 of the European Convention on Action against Trafficking in Human Beings . In this particular case the Court concluded that the Crown Prosecution Service was entitled to prosecute foreign national youths with drug offences, despite the UK Border Agency accepting that they may have been smuggled or trafficked into the UK. But it sets out clear principles and authorities for the application of the protective mechanism of the Trafficking Convention for future prosecutions where there is evidence of human trafficking.
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15 February 2012 by Rosalind English
There are those who think that the Strasbourg Court sometimes talks through its fundament. Others are of the view that the sun shines out of it.
This may of course have something to do with the Court’s jurisdictional basis, whose proper name is the Convention for the Protection of Human Rights and Fundamental Freedoms. Be that as it may, over the years the Court has become increasingly inclined to describe so many rules, principles, aspects of people’s relationships with each other and sundry other understandings and agreements of civil society as “fundamental” that the word has ceased to resonate with its original meaning as basic, essential, primary, central, or even foundational.
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13 February 2012 by Rosalind English
We have posted previously on controversial plans to build a US-style mega pig-farm in South Derbyshire. It will be remembered from that post that Midland Pig Producers (MPP) applied for permission to build the farm – which could house up to 25,000 animals – on a greenfield site west of the historic village of Foston.
The Soil Association formally objected to the plans because of the ‘increased disease risk and poor welfare conditions” of intensive units. Despite being made within the privileged context of planning proceedings, the Soil Assocation received a threatening letter from solicitors Carter-Ruck – acting for MPP – saying its objection was defamatory.
The Guardian now reports that the campaigning local groups, Foston Community Forum and Pig Business, the film makers who exposed the abuses and environmental costs of intensive pig farming, have joined forces with the Soil Association and Friends of the Earth to bolster their original argument with claims under the Human Rights Act.
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10 February 2012 by Rosalind English
R on the application of the National Secular Society and Clive Bone v Bideford Town Council – read judgment
The High Court today ruled that the Town Council of Bideford (in Devon) had overreached their powers under the Local Government Act 1972 by insisting on the practice of prayers as part of their formal meetings. The ruling will apply to the formal meetings of all councils in England and Wales, the majority of which are thought to conduct prayers as part of their meetings.
Background
The Secular Society brought this application as part of their campaign to separate religion from public and civil life. They have observed that prayers have been the cause of tension in a number of local councils. But the Society needed to join an individual claimant since they could not be a “victim” for the purposes of the Human Rights Act.
The claimants contended that the practice, which dates back the days of Elizabeth the First, breached the prohibition on religious discrimination in the Equality Act 2006, and the replacement “public sector equality duty” in the Equality Act 2010: it discriminated indirectly against persons, such as Mr Bone, who had no religious beliefs, and it was not justifiable under those Acts. The practice interfered with Mr Bone’s right not to hold religious beliefs under Article 9 ECHR, and not to be discriminated against for that lack of belief under Article 14. They also contended that it was outside the powers of section 111 of the Local Government Act 1972.
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9 February 2012 by Rosalind English
Othman v Secretary of State for the Home Department , 6 February 2012 – read judgment
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in this bail hearing. He is not the author of this post.
Mitting J has ruled that in the light of the recent Strasbourg ruling that the appellant could not be returned to Jordan, his detention could not continue. Under the so-called “Hardial Singh” principles, the Secretary of State must intend to deport the person and can only use the power to detain for that purpose, and the deportee may only be detained for a period that is reasonable in all the circumstances:
If before the expiry of the reasonable period it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.
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9 February 2012 by Rosalind English
Stott v Thomas Cook Operators and British Airways Plc [2012] EWCA Civ 66 – read judgment
If you need reminding of what it feels like when the candy-floss of human rights is abruptly snatched away, take a flight. Full body scanners and other security checks are nothing to the array of potential outrages awaiting passengers boarding an aircraft. Air passengers in general surrender their rights at the point of ticket purchase.
The Warsaw Convention casts its long shadow. It was signed between two world wars, at the dawn of commercial aviation, when international agreement had to be secured at all costs. These strong interests survived the negotiation of the 1999 Montreal Convention, now part of EU law as the Montreal Regulation.
Yet so powerful is the desire to travel, and so beleaguered it is now with the threat of spiralling aviation fuel prices and environmental taxes, that we are happier to surrender our freedoms at airports than we are anywhere else – hospitals, doctors’ surgeries, schools, and even on the public highways.
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8 February 2012 by Rosalind English
Ravat (Respondent) v Halliburton Manufacturing and Services Limited (Appellant) (Scotland) [2012] UKSC 1 – read judgment
The Supreme Court has ruled that an industrial tribunal does have the jurisdiction to consider a case of unfair dismissal of an employee who worked some of the time in Libya, job-sharing with another of the company’s employees. The company itself is a UK subsidiary of a US corporation.
The following is based on the Supreme Court’s press release. Numbers in square brackets refer to the paragraphs in the judgment.
Background to the case
The issue was whether an employment tribunal has jurisdiction in relation to individuals who are resident in Great Britain and employed by a British company but who travel to and from home to work overseas. The Appellant is a UK company based near Aberdeen, which is one of about 70 subsidiary or associated companies of Halliburton Inc., a US corporation. It supplies tools, services and personnel to the oil industry. Mr Ravat lives in Preston, Lancashire, and is a British citizen. He was employed by the Appellant from April 1990 until May 2006, when he was made redundant. He complains that he was unfairly dismissed. At the time of his dismissal he was working in Libya. The question is whether the employment tribunal has jurisdiction to consider his complaint.
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6 February 2012 by Rosalind English
Gurung v Secretary of State for the Home Department [2012] EWCA Civ 62 (02 February 2012) – read judgment
In a short but fascinating judgment which lays bare the foundation stones of judicial review, the Court of Appeal has articulated the principles to be applied when considering whether automatic deportation of a foreign criminal was “proportionate” for the purposes of Article 8 of the Convention.
This was an appeal by the secretary of state against a decision of the Upper Tribunal (UT) that the deportation of the respondent (G) would interfere with his family life. The respondent had arrived in the United Kingdom in 2005 to join his father who had been granted indefinite leave to remain in the United Kingdom at the end of his service with the Gurkhas. Shortly afterwards G was involved in a group attack on a man, which led to the unconscious victim being thrown into the Thames and drowned. G was subsequently tried and convicted of manslaughter, which meant that he was subject to automatic deportation under the UK Borders Act 2007. However, the Upper Tribunal found that automatic deportation would be a disproportionate interference with his right to family life in the UK.
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