By: Rosalind English
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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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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