By: Rosalind English
29 January 2012 by Rosalind English
Dr John Sentamu, the Archbishop of York, has thrown a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is. “It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.
Gay rights campaigners have poured scorn on this pronouncement, calling the Archbishop a “religious authoritarian” who wants to “impose his personal opposition to same-sex marriage on the rest of society.” But this outbreak of bad temper – not unpredictable, given the skirmishing over the consultation on the same issue which took place in Scotland last year – raises the wider issue of the role and influence of church leaders in the process of legal change.
In a secular society, the participation of clerics in the House of Lords is grudgingly accepted as part of an ancient tradition. And on this issue at least, the general view seems to be that the Church has grounds for complaint. The current system recognises gay partnerships under the Civil Partnership Act 2004 (CPA). But the main change is to alter the Equality Act so as to allow such partnerships to take place on religious premises, and it is that which is being so bitterly opposed, apparently because it brings the matter within the church’s bailiwick. But even if it does, we have to ask what it is that privileges Sentamu’s voice over any others in the debate over whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered.
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27 January 2012 by Rosalind English
The Queen on the Application of Medical Justice v Secretary of State for the Home Department [2011] EWCA Civ 1710 – read judgment
People who make unsuccessful claims to enter or remain in the United Kingdom cannot be removed without being given sufficient time for a lawyer to prepare a proper challenge to their claim. The government has failed in its appeal against the Administrative Court’s finding that government policy unlawfully provided for expedited removal procedures in certain pressing circumstances – for example where there was a risk that the person concerned, if given advanced notification of his removal, might attempt to frustrate those measures of removal. The policy was quashed because it interfered with people’s right of access to a lawyer.
The Home Secretary is responsible for granting or refusing leave to remain in the United Kingdom for those who do not have the right of abode in this country in accordance with the Immigration Rules. It is an important aspect of maintaining immigration control that a credible enforcement process is in force and that those with no right to remain in the United Kingdom are removed from the jurisdiction while not infringing the accepted rights of those about to be removed.
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22 January 2012 by Rosalind English
Standard Verlags GmbH v. Austria (no. 3) (no. 34702/07) – read judgment
On the face of it this judgment is no more than a run of the mill case ( in a line running from Bladet Tromso through Fressoz and Roire to Flinkkilä and Others) concerning freedom of speech in one of the Convention signatory states where media controls are a great deal more stringent than they are here. However with the ongoing Leveson inquiry and speculations about its future recommendations occupying many column inches in the UK media it is instructive to see how other countries apply their press restrictions and indeed how Strasbourg approaches any challenge brought against them.
Background
The applicant company, Standard Verlags GmbH, owns the Vienna daily newspaper Der Standard. The case concerned an article it published in April 2006 reporting on enormous speculation losses incurred by a state-backed bank, and the ensuing criminal investigation for embezzlement brought against the bank’s senior management. The article identified a member of the bank’s treasury department as Christian Rauscher, the son of a former regional government member with responsibility for finance. The article reported that in 2004 Rauscher was not dismissed but merely demoted and transferred, being relieved of his duties only after the incident of the losses had become known. But it made it clear that the losses had thus been incurred under his responsibility.
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18 January 2012 by Rosalind English
Joseph Lennox Holmes (Appellant) v Royal College of Veterinary Surgeons (Respondent) [2011] UKPC 48 – read judgment
The disciplinary procedures of the Royal College of Veterinary Surgeons did not give rise to any appearance of bias so as to breach a practitioner’s right to a fair trial under Article 6.
Despite the fact that the membership of the committee dealing with the prosecution of charges was drawn from the College’s governing body, in whose name any charges were brought, and that the body dealing with the determination of charges was also drawn from the College’s governing body, in practice their procedures were fair.
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17 January 2012 by Rosalind English
Othman (Abu Qatada) v United Kingdom – read judgment | updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
The Strasbourg Court has ruled today that whilst diplomatic assurances may protect a suspected terrorist from torture, he cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him.
The following summary is based on the Court’s press release.
The applicant, Omar Othman (Abu Qatada), is a Jordanian national, currently detained in Long Lartin prison. He is suspected of having links with al-Qaeda.He arrived in the United Kingdom in September 1993 and made a successful application for asylum, in particular on the basis that he had been detained and tortured by the Jordanian authorities in 1988 and 1990-1. He was recognised as a refugee in 1994, being granted leave to remain until June 1998.
While his subsequent application for indefinite leave to remain was pending, he was detained in October 2002 under the Anti-Terrorism, Crime and Security Act. When that Act was repealed in March 2005, he was released on bail and made subject to a control order under the Prevention of Terrorism Act. While his appeal against the control order was still pending, in August 2005 he was served with a notice of intention to deport him to Jordan.
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17 January 2012 by Rosalind English
Vinter and others v United Kingdom (application nos. 66069/09, 130/10 and 3896/10) – read judgment
The Strasbourg Court has found three British murderers’ imprisonment for life is not inhuman or degrading and therefore not in violation of Article 3. The following summary is based on the Strasbourg Court’s press release:
The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are British nationals who were born in 1969, 1961 and 1946 respectively. All three men are currently serving mandatory sentences of life imprisonment for murder.
Background
Mr Vinter was convicted of stabbing his wife in February 2008. While still on parole for a first murder offence (he killed a work colleague), he followed his wife – from whom he was estranged – to a public house, forced her into his car and drove off. When the police telephoned her, Mr Vinter forced her to tell them that she was fine. He also later called the police to tell them that she was alive and well. However, some hours later he gave himself up and confessed that he had killed her. The post-mortem revealed that his wife had a broken nose, strangulation marks around her neck and four stab wounds.
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16 January 2012 by Rosalind English
The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd and Serco plc [2012] EWHC 8 (Admin) – read judgment
Although certain restraining measures had been taken unlawfully against young people in secure training centres for a number of years, the court had no jurisdiction to grant an order that the victims of this activity be identified and advised of their rights.
The claimant charity alleged that children and young persons held in one or other of the four Secure Training Centres in the UK had been unlawfully restrained under rules which approved certain techniques of discipline. It sought an order requiring the defendant to provide information, to the victims or their carers on the unlawful nature of restraint techniques used in Secure Training Centres (“STCs”) and their consequential legal rights.
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12 January 2012 by Rosalind English
AMP v Persons unknown – read judgment
If you lose your mobile phone with highly confidential and private information on it, all may not be lost. The unscrupulous finder may be prevented from blurting its contents all over the web, even if the identity of that person is unknown to you or the court. It requires considerable input of computer expertise, but it is possible, as this case (cleverly taken in the Technology and Construction Court) illustrates.
The applicant’s mobile phone was reported to the police as stolen after she lost it at university in 2008. It contained digital images of an explicit sexual nature which were taken for the personal use of her boyfriend at the time. The applicant was alone in the photos and her face was clearly visible.
Invoking the right to privacy under Article 8, and the Protection from Harassment Act 1997, she applied for an interim injunction to prevent transmission, storage and indexing of any part or parts of certain photographic images taken from the phone, and an anonymity order under CPR r.39.2(4), which meant that the application, which was heard in private on the basis that publicity would defeat the object of the hearing, would preserve the anonymity of the applicant. Both applications were granted.
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5 January 2012 by Rosalind English
C- 310/60 Danske Svineproducenter v Justitsministeriet – reference to the European Court of Justice (CJEU) for a preliminary ruling on the Regulation laying down standards for the transportation by road of live vertebrates – read judgment
Some people might disagree with the Appeal Court’s judgment that a life serving prisoner did not have a human right to more than thirty minutes’ daily exercise in the open air (see Matthew Finn’s post on this case). Of course a pig, being transported by road on a journey lasting at least eight hours, is allowed no open air at all. EU law provides that for road vehicles used for the transport of livestock, the internal height of the compartments intended for the animals must be sufficient for them to be able to “stand up in their natural position, having regard to their size and the intended journey, and that there must be adequate ventilation above them when they are in a naturally standing position, without hindering their natural movement”. That’s very good and high minded, one might think, given that the EU has not been known to be at the forefront of animal welfare legislation, particularly in relation to livestock being traded over member state boundaries. But the devil is in the detail…
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2 January 2012 by Rosalind English
Dobson and others v Thames Water Utilities Ltd [2011] EWHC 3253 – read judgment
David Hart QC acted for the defendants in this case. He has played no part in the writing of this post.
An operator carrying out activities authorised by legislation is immune from common law nuisance liability unless the claimant can prove negligence. Any damages for such a nuisance will constitute “sufficient just satisfaction” for the purpose of the Human Rights Act; even if breach of a Convention right is proved, no further remedy will be available.
Background
It has been a long established canon of common law that no action will lie in nuisance against a body whose operation interferes in one way or another with neighbouring land, where Parliament has authorised the construction and use of an undertaking or works, and there is a statutory scheme in existence which is inconsistent with such liability.
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29 December 2011 by Rosalind English
The Queen on the application of Naik v Secretary of State for the Home Department [2011] EWCA Civ 1546 – read judgment
The Court of Appeal has confirmed that the exclusion of an Indian Muslim public speaker from the United Kingdom after making statements which breached the Home Office’s “unacceptable behaviours policy” was lawful, and that any interference with his rights was justified.
We posted previously on the original exclusion of Dr Naik from the United Kingdom, and reported on his subsequent address by sattelite link to the Oxford Union.
The appellant had regularly visited the UK since 1990 on public lecture tours. In 2008 he was granted a five-year multiple entry visitor visa. In 2010, two days before he was due to arrive in the UK on a lecture tour, the secretary of state excluded him and revoked his visa. She considered that he had made a number of statements which were supportive of terrorists, such as Osama Bin Laden, and breached the “unacceptable behaviours policy” for exclusion from the UK.
The decision was based on the fact that several of his statements fell within the Home Office’s “Unacceptable Behaviour Policy”, an indicative guide to types of behaviour which would normally result in grounds for exclusion, and that his presence would not be conducive to the public good.The Administrative Court dismissed Dr Naik’s application for judicial review of this decision, holding that the Secretary of State’s responsibility for the protection of national security is a central constitutional role, and encompasses a duty owed to the public at large. It could not be overridden by reference to any representation or practice relating to an individual entrant.
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21 December 2011 by Rosalind English
We posted previously on Grant and Gleaves v MOD , giving a summary of the claims and the circumstances of the claimants. This case is interesting chiefly in the judge’s approach to the interpretative obligation of UK Courts under Section 2 of the Human Rights Act, which enjoins them to “take account” of Strasbourg rulings. Mr Justice Hickinbottom made it very clear at the outset that he did not consider this to be a command to follow slavishly every decision made by the European Court of Human Rights to the letter:
in considering an issue involving a Convention right, Section 2 of the Human Rights Act 1998 requires a domestic court to “take account of” the judgments of the European Court of Human Rights in Strasbourg (“the Strasbourg court”). On its face, that does not bind a domestic court to follow Strasbourg cases: it is simply an obligation to take them into account, so far as they are relevant.
That does not stop him from considering carefully all the Strasbourg jurisprudence canvassed before him. In general, however, most of the cases were ultimately unfavourable to the litigants in this case.
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20 December 2011 by Rosalind English
Desmond Grant and Roger Charles Gleaves v Ministry of Justice High Court (Queen’s Bench Division) 19 December 2011 – read judgment
The High Court (Mr Justice Hickinbottom) has today dismissed claims by two prisoners that their rights under Articles 3 and 8 of the European Convention on Human Rights were violated by the prison conditions in which they were detained.
The following is based on the High Court’s summary of the case.
About 360 long term prisoners, who were at HMP Albany between 2004 and 2011, brought claims that their right not to be subjected to inhuman or degrading treatment or punishment under Article 3 and their right to respect for private and life under Article 8 had been violated by the regime under which they were detained in that prison, which included the use of a bucket for toilet purposes when they were in a locked cell and the later emptying of the bucket at a sluice (“slopping out”). Five lead claims were selected, of which two reached trial.
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20 December 2011 by Rosalind English
Rahmatullah v Secretary of State for the Foreign and Commonwealth Office and the Secretary of State for Defence [2011] EWCA Civ 1540 – read judgment
A Pakistani detainee was sufficiently in the control of the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence to support the issue of a writ of habeas corpus, and it should not be withheld on any grounds concerned with diplomatic relations.
“Habeas corpus” is a legal action through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence. The original Latin designation simply means the initiation of a process requiring a person to be brought before a judge. It is a fundamental principle of English law that, where an individual is detained against his will, it is for the detainer to show that the detention is lawful, not for the detainee to show that his detention is unlawful.
In this case the appellant (R), a Pakistani national, had been captured by British forces in Iraq in 2004, handed to United States forces and transferred to a US airbase in Afghanistan as a suspected member of a proscribed organisation with links to Al-Qaeda. There he continued to be detained without trial. He sought the issue of a writ of habeas corpus, relying on a 2003 memorandum of understanding (MoU) between the United Kingdom, the US and Australia, active at the time of R’s capture, under which the UK retained full rights of access to any UK-detained prisoners of war and a right to request their return.
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18 December 2011 by Rosalind English
Dufosse v Melbury Events Ltd CA (Civ Div) (Rix LJ, McFarlane LJ, Sir Mark Potter) December 14, 2011 (extemporare judgment)
Christmas is full of hazards for the unwary and nowhere is more dangerous it seems than Santa’s grotto, even where there is no sign of a freeze and the only icicles are plastic ones…
Poor Santa. Heavily chaperoned in his gift-dispensing activities lest there be any whiff of inappropriate behaviour near children, now it seems his benevolent insistence on a wintry wonderland is under threat. An elderly woman visited his grotto with five members of her family at a well-known department store in London. She tripped over a plastic icicle and injured her leg, and took proceedings against the event management group responsible for running the grotto.
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Dr John Sentamu, the Archbishop of York, has thrown a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is. “It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.
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