By: Rosalind English
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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17 December 2011 by Rosalind English
Case C-53/10 Land Hessen v Franz Mücksch OHG – read opinion; read judgment
There may not appear at first sight to be much common ground between a dispute in the European Court of Justice (CJEU) over hazardous premises and planning permission, and the relationship between the Strasbourg Court and domestic courts in their interpretation of the provisions of the Human Rights Convention. But one innocent-sounding phrase in the Human Rights Act which requires national courts to “take account of” the rulings of the Strasbourg Court has been causing so much trouble lately that it is worth casting around for any elucidation of its meaning, and some very welcome light has been thrown on it by AG Sharpston in the CJEU, albeit in a completely different context.
The dispute
Following the accidents at Bhopal and Mexico City, the EU introduced a Directive (“Seveso II“) to limit the consequences of incidents involving hazardous substances. Under Article 12 of the Directive, member states are obliged to keep a “suitable distance” between residential or environmentally sensitive areas and establishments presenting such hazards are sited.
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15 December 2011 by Rosalind English
Al-Khawaja and Tahery v United Kingdom (15 December 2011) – read judgment
The Grand Chamber of the European Court of Human Rights has ruled today that convictions based on statements from witnesses who could not be cross examined in court did not violate the applicants’ rights under Article 6(3) (d) to obtain attendance and examination of witnesses fair trial.
This latest predicted clash between Strasbourg and UK courts has therefore not come about, as the Court has essentially agreed with the domestic courts that a conviction based solely or decisively on the statement of an absent witness does not automatically result in a breach of Article 6.
It should be noted at the outset that the principle against hearsay and the relevant provisions against Article 6 apply to criminal trials only. There is no difficulty with the use of hearsay evidence in civil trials, which represent the vast majority of cases litigated.
A brief account of the facts was given in Joshua Rozenberg’s post published earlier. The following detailed summary is based on the Court’s press release.
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13 December 2011 by Rosalind English
R v Michael Peter Lyons [2011] EWCA Crim 2808- read judgment
Moral objections to the UK’s involvement in Afghanistan do not constitute a defence to an insubordination charge, the Court Martial Appeal Court has ruled. The appellant was not entitled to disobey a lawful command on the ground of conscientious objection.
At the age of 18 the appellant had volunteered for the Royal Navy and under its auspices was posted to submarines as Leading Medical Assistant. Five years in to his service, he was told that he would be deployed to Afghanistan. He applied for discharge on the basis that he objected to the UK’s role in Afghanistan. His application on grounds of conscientious objection was refused. Before his appeal against this refusal was decided he was ordered to undertake a pre-deployment weapons training course, because of the risk all personnel faced in that theatre, combatant or not. On refusing to submit to this he was convicted of insubordination.
In this appeal against his sentence he argued that Article 9 protected him from active service from the moment when he told his commanding officer of his objections, until his appeal on grounds of conscientious objection was finally determined. He also contended that he had protected status under the Geneva Convention 1949 and it was unlawful to require him to undergo weapons training. His appeal was dismissed.
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6 December 2011 by Rosalind English
Behind the Times paywall Anthony Lester today declares that “Sniping at Strasbourg will only hinder reform”. In his guest column, he says that Court is suffering unfair criticism from “sections of the British media” and “politicians who accuse it of over-reaching its power”. That may well be the case, but the most searing and authoritative criticism comes not from politicians or the press but from Lord Lester’s own profession – see Jonathan Sumption QC’s recent broadside (and our post) and Lord Hoffmann’s much-discussed analysis (posted here).
If the Court is indeed hobbled by unfair squibs and arrows from a resentful sector of the British populace, as Lord Lester suggests, why is the prisoner votes example the only one he can come up with? That is an important fight, at least from a constitutional angle, but not the only flashpoint; the Court’s tendency to act as fourth instance appeal tribunal particularly on deportation and terrorism cases is arguably far more “dangerous” and certainly of concern to more people than votes for prisoners.
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25 November 2011 by Rosalind English
Ironically, during the week when South Africa’s notorious “Secrecy Bill” was making its speedy way through parliament, Helen Zille, Leader of the opposition Democratic Alliance party in South Africa, struck a blow for freedom of expression by tackling one of the most sensitive subjects on the Southern Africa agenda – Aids.
In short, Zille has created a storm in the Twittersphere and many other places besides by questioning the softly-softly culturally sensitive approach to Aids prevention in South Africa and contrasting it with the greater emphasis placed on individual responsibility in other countries.
In her her piece in the Cape Times she points out that in Europe, North America, Australia and New Zealand, deliberate infection of others with HIV is an imprisonable crime. Far from being a violation of HIV sufferers’ rights, she notes the high proportion of Council of Europe countries which have criminalised people for having unprotected sex, knowing they were HIV-positive, without disclosing their status. To us there is nothing controversial about these measures.
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24 November 2011 by Rosalind English
Jude and others (Respondents) v Her Majesty’s Advocate (Scotand) [2011] UKSC 55 – read judgment; McGowan (Procurator Fiscal, Edinburgh) (Appellant) v B (Respondent) [2011] UKSC 54 – read judgment
In these two cases the Supreme Court has considered whether the failure to take up on legal representation during police interview amounted to a waiver of the right of access to legal advice for the purposes of determining whether the trial had been fair.
Both cases involved detention of individuals which had taken place prior to the decision of this Court in Cadder v Her Majesty’s Advocate [2010] UKSC 43 (see our post) and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials.
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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
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