By: Rosalind English
17 April 2012 by Rosalind English
A fascinating perspective on how a city’s architecture may be altered and shaped by aggressive rights litigation has been provided by today’s New York Times, which leads with a story entitled “Lawyers find obstacles to the disabled, then find plaintiffs“.
We are familiar in this country with the decades-old complaint that various unfortunate trends such as ambulance chasing and the litigation culture have filtered over the Atlantic, infecting English public life with defensive practices and an obsession with health and safety. Whether the blame can be laid solely at the door US culture is moot, but certainly lessons can be drawn from the unintended consequences of high-minded rights legislation as they play out across the pond, particularly where similar laws in this country – largely consolidated in the Equality Act 2010 – have yet to make their impact.
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17 April 2012 by Rosalind English
R (on the application of Ian Shutt and John Tetley v Secretary of State for Justice (2012) [2012] EWHC 851 (Admin) – read judgment
Hard on the heels of MP comes another case on the unlawful restriction of discretion with regard to prison rules (see my post on that decision). This case concerned national policy relating to prison incentives and the earned privileges scheme (IEP). The scheme gave enhanced status to convicted sex offenders who had been assessed as unready for a sexual offences training programme.
Background
Both men were serving substantial determinate sentences in the Isle of Wight after having been convicted of serious sexual offences against children. Despite the fact that they had been assessed as suitable for the training programme under the national IEP policy, there was a points system under the local prison policy which meant that convicted sex offenders such as the claimants were considered unready for the programme by reason of continued denial of their offences. As the claimants refused to admit their guilt, they could not accrue enough points to attain enhanced status. The national IEP policy stated that unreadiness for such a programme “could” bar a prisoner from obtaining enhanced status. The issue was whether that amounted to a blanket ban, and if so, whether it was unlawful.
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16 April 2012 by Rosalind English
MP, R(on the application of) v the Secretary of State for Justice [2012] EWHC 214 (Admin) – read judgment
The prison authorities had acted unlawfully in restricting childcare resettlement leave to prisoners who were within two years of their release date and had been allocated to “open” conditions.
Two female prisoners applied for judicial review of decisions of the defendant secretary of state and prison governors to refuse them childcare resettlement leave (CRL). CRL is a type of temporary licence available to prisoners who have sole caring responsibility for a child under 16. CRL enables prisoners to spend up to three days at home (including nights), provided certain conditions are met. The principal issue in the claim was whether the secretary of state was acting lawfully in restricting CRL to female prisoners who have less than 2 years until their earliest release date.
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11 April 2012 by Rosalind English
Waking up in New York this morning, I find the newspapers are much exercised by the recent decision of the Strasbourg Court to allow the extradition of certain terror suspects to the US, as discussed in Isabel McArdle’s post. The colourful New York Post declares unambiguously that “Thugs face Extradition” (April 11), following its banner headline of yesterday “UK can extradite hook-handed clerk, 4 other terrorists to US”. And just in case any passing reader failed to get the point, the strapline says
Britain can extradite a one-eyed, hook-handed radical Muslim cleric and four other suspects to the United States to face terrorism charges, Europe’s human rights court ruled today.
Giving rather more detail by way of background, today’s edition of The New York Times explains that Britain
has struggled to balance civil liberties and domestic security in the face of entrenched Islamic extremism and repeated terrorist attacks, and has sought to deport some of the dozens of subjects it has detained in scores of possible plots over a decade
According to the NY Times, the director of the national prison project for the American Civil Liberties Union found the ruling “disappointing”, and showed that the Strasbourg Court seemed willing to accept “dubious” assurances from the United States.
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7 April 2012 by Rosalind English
R (on the application of Amada Bizimana) v Secretary of State for the Home Department [2012] EWCA Civ 414
In the wake of France’s apparently unencumbered expulsion of individuals on public interest grounds there has been a fresh outcry from the press about the shackles imposed by the Human Rights Convention on the UK authorities which other signatory states seem to ignore with impunity. The Times leader column, headed “Sarko’s way”, asks “Why is it that the French can deport their foreign undesirables but we in Britain cannot?” –
Bish, bosh, no problem, it seems. Although all three men, apparently have the right to appeal against their sudden lack of access to France, they will have to exercise it from afar. And at this point one can only wonder how on earth they can do it in France, but we cannot do it here in Britain…
The actions of the French Government raise the obvious question (as well as a gigantic eyebrow): how come they can do it, and we can’t? What does Nicolas Sarkozy have that David Cameron lacks? France accepts the judgments of the ECHR and is regarded as being as civilised, almost, as we are.
But in truth the Convention is not always to blame in these cases; sometimes deportation can run aground on a strict interpretation of English statute law without the help of human rights, as the case below demonstrates.
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4 April 2012 by Rosalind English
The Parliamentary Committee on Human Rights has now responded to the Government’s consultation on the proposals set out in their Justice and Security Green Paper Cm 8194. The idea is to extend “closed material procedures” so as to be available in all civil proceedings, i.e. not just in some highly restricted national security contexts such as deportation appeals before SIAC (the Special Immigration Appeals Commission), control orders, and their successor regime known as TPIMs.
On the one side…
is the independent reviewer of terrorism legislation, David Anderson QC, who has concluded that secrecy of evidence should be maintained in civil procedures as well; after reviewing secret evidence relating to a small selection of civil claims, he reported that issues in some damages claims could not be determined at all without resort to a closed material procedure.
On the other …
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29 March 2012 by Rosalind English
Hilal Abdul-Razzaq Ali Al‐Jedda v Secretary of State for the Home Department March 29 – read judgment
The Court of Appeal has allowed the suspected terrorist Al‐Jedda’s appeal against the Home Secretary’s decision to deprive him of his British nationality.
The appellant, an Iraqi refugee, was granted British nationality in 2000. Four years later however he was detained by British forces in Iraq on grounds of suspected terrorist activities. At the end of 2007 he was released from detention without charge, but just prior to his release, on 14 December 2007, the Secretary of State for the Home Department made an order under the British Nationality Act 1981 depriving him of his British nationality. As a consequence of this order the appellant has not been able to return from Turkey to the United Kingdom. His appeal against this order has been upheld on the basis that he had not regained Iraqi nationality when his British nationality was revoked. He thus requalifies for citizenship in this country.
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28 March 2012 by Rosalind English
Cairns v Modi [2012] EWHC 756 – read judgment
It was coincidental that this cricket libel case and Lady Justice Arden’s speech on media intrusion and human rights “Striking the Balance” came out on the same day.
Non-followers of cricket and non-followers of Twitter are equally bemused by the vastly frothed story about match-fixing allegations, but this was the first social networking libel to hit the law reports in this country. Despite this, the case has all the trappings of an old fashioned defamation case – strong public figures, ready to come forward to defend their reputation/publication; a long lead time between publication and identification of the libel, protracted cross examination, sheaves of evidence going to both justification and claimant. The claimant is a famous New Zealand cricketer with a reputation to defend. Nothing new there. The novelty was that the defendant, one time chairman of the hugely popular Indian Premier cricket league, posted a line on his Twitter profile implying that the claimant had cheated by fixing matches. It was serendipitous that the author of the tweet, Mr Modi, is both a well known figure, resident in England, and ready to come forward. The justification defence fell apart and the claimant was awarded £75,000, with another £15K for aggravated damages. End of story. Or is it?
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27 March 2012 by Rosalind English
Barr v. Biffa, CA, 19 March 2012, read judgment
The reverse suffered by the claimants in the noisy motor racing case case before the Court of Appeal last month was something of a body blow to common lawyers and environmentalists. So this latest development in nuisance litigation should be welcome news.
As David Hart’s report suggests, the Court of Appeal pulls no punches in its critique of the High Court judgment which dismissed the claims of 152 households on the basis that a landfill operator had abided by the terms of its permit. Reasserting the private law rights of individuals in nuisance actions, Carnwath LJ observes that this case has been
a sad illustration of what can happen when apparently unlimited resources, financial and intellectual, are thrown at an apparently simple dispute such as one about nuisance by escaping smells. The fundamental principles of law were settled by the end of the 19th century and have remained resilient and effective since then.
The common law, he notes, is best when it is simple. And in this judgement he returns nuisance to the simple statement of reciprocity and neighbourliness where it belongs.
There are a few propositions – not many – in Carnwath LJ’s judgment which will serve as a clear, short checklist for the viability of a nuisance action.
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23 March 2012 by Rosalind English
Wright v Argentina [2012] EWHC 669 (Admin) – read judgment
The Administrative Court has just found that a British citizen cannot be extradited to Argentina to be tried for a drug smuggling offence because she would face inhuman and degrading treatment in the Argentinian prison system contrary to her Article 3 rights under ECHR.
Background
The appellant was apprehended at the airport in Buenos Aires with cocaine in her luggage. She was remanded into preventative detention and questioned, but eventually she was granted bail. In breach of her bail conditions, she fled the Argentinean jurisdiction and returned to the United Kingdom via Brazil. The Argentinian government issued a request for the appellant’s extradition to Argentina through diplomatic channels so that she could face a drug smuggling charge. The appellant was subsequently arrested and brought before the magistrate’s court where she argued that extradition would breach her rights under Article 8. The District Judge did not accept that argument and an extradition order was consequently issued.
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21 March 2012 by Rosalind English
Lord Carlile and others v Secretary of State for the Home Department – read judgment
The High Court has upheld an order by the Home Secretary preventing Maryam Rajavi, a prominent Iranian dissident, from speaking in Parliament. The exclusion order was imposed because of concerns about the deterioration of bilateral relationships between this country and the Iranian government, and fears that if the exclusion order was lifted there could be reprisals that put British nationals at risk and make further consular cooperation even more problematic. For further details of the Home Secretary’s decision see Henry Oliver’s excellent discussion of the case “Free Speech and Iranian Dissent in Parliament”.
The claimants contended that the Secretary of State’s exclusion of Mrs Rajavi was unlawful, as an unjustified and perverse infringement of their common law and Convention right of free expression, rights that are all the more important and precious where those involved are members of the legislature. The court dismissed these arguments, albeit with considerable reluctance.
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20 March 2012 by Rosalind English
This is a shortened version of an article published by Rosalind English in the Journal of Environmental Law and Management November 2011: Cooperation and Public Goods: an evolutionary perspective on environmental law 23 ELM 278-283
In my 2011 post Why be nice? Human rights under pressure I explored the extent to which our limited tendencies to altruism, insofar as they have survived natural selection, could be institutionalised and enforced. In this article I apply the scientific learning on our cooperative instincts to the question of environmental regulation. I argue that whilst we seem to be hard-wired to cooperate, environmental responsibility will only be instilled under certain conditions that resonate with our evolved psychology, and that most modern environmental law fails to acknowledge these conditions.
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15 March 2012 by Rosalind English
The road to hell as we know is paved with good intentions and here they are, laid bare by the Daily Politics broadcaster in his exposition of everything that has gone wrong with the Convention since it was forged in the crucible of two world wars.
Post war prosperity ensured that genocide and dictatorships did not arise again. But the Convention has become a “political poison” that goes to the very core of how the country is governed.
In “Rights and Wrongs” Neil declares that he is trying “to cut throughout the hype and confusion” surrounding the subject, and his approach is undeniably forthright and populist. No doubt he will be castigated severely for poor reporting. But to be fair, he points out that the media had exaggerated some judgments – you can’t avoid deportation merely by owning a cat, but you can if you have a settled family who happens to own one. He also cites a number of decisions from Strasbourg that most people in this country would support, or at least think nothing of these days – gays in the military, the abolition of corporal punishment in schools, freedom of the press (particularly the ruling that saved Andrew Neil from jail during the Spycatcher affair in the 1980s).
But – inevitably – the documentary focussed on the cases of Abu Qatada and Aso Mohammed Ibrahim, the asylum seeker whose car hit and killed 12-year-old Amy Houston, and who successfully resisted deportation because of his right to a family life.
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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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A fascinating perspective on how a city’s architecture may be altered and shaped by aggressive rights litigation has been provided by today’s New York Times, which leads with a story entitled “Lawyers find obstacles to the disabled, then find plaintiffs“.
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