By: Rosalind English
1 September 2011 by Rosalind English
As of today, government or private institutions tasked with keeping people in custody will be accountable in criminal law if it can be shown that a “gross duty of care” has led to the death of a detainee.
In 2008 the Corporate Manslaughter and Corporate Homicide Act 2007 came into force, creating a new offence of corporate manslaughter. An offence is made out under this Act where a corporation’s activities cause a person’s death and the failure was because of a breach that falls far below what can reasonably be expected of the organisation in the circumstances.
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12 August 2011 by Rosalind English
Belmarsh Magistrate’s Court has ruled that Shrien Dewani can be extradited to South Africa to stand trial for the murder of his wife, the judge concluding that the hardships he would face there would fall short of oppression. On Monday 26 September the home secretary signed an order for his extradition.|updated
The South African government sought extradition for Dewani in order to put him on trial for the murder of his wife Anni in Cape Town last November. The newlyweds were being driven through the dangerous township of Gugulethu when their taxi was hijacked on November 13. Dewani was thrown out of the vehicle while his wife was driven off and shot dead. The authorities subsequently claimed to have evidence that Dewani had arranged the carjacking and shooting of his wife.
Dewani’s lawyers argued that the extradition proceedings were not only an abuse of the process of the court, but if extradition was granted, it would be a breach of the defendant’s human rights, particularly Articles 2 and 3 of the European Convention. The abuse argument was predicated on allegations that the South African authorities had already prejudged Dewani’s guilt. As to the Convention arguments, evidence was advanced of widespread sexual assault and gang crime in the overcrowded South African prisons, including potentially lethal attacks by HIV infected inmates. His defence team also argued that he was too unwell to stand trial abroad, adducing medical evidence of severe depression and suicidal tendencies which would be exacerbated if he were sent to South Africa.
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28 July 2011 by Rosalind English
R v Maxwell [2010] UKSC 48 – read judgment
This case concerned the question of what should happen to a conviction when it turns out that it is based on pre-trial malpractice by the police (this time involving evidence from a “supergrass”), where there is nevertheless other strong evidence of the defendant’s guilt. If the pre-trial irregularity is sufficiently serious materially to affect the trial but not to render the conviction unsafe, should the Court of Appeal retain the power to order a retrial? Or should the conviction should be quashed?
In this case the appellant and his brother were convicted of murder and two robberies at Leeds Crown Court on 27 February 1998. The appellant was sentenced to life imprisonment for murder to be served with concurrent twelve-year terms for the robberies. The main prosecution witness was Karl Chapman, a professional criminal and a supergrass. His evidence was crucial to the arrest and prosecution of the appellant.
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25 July 2011 by Rosalind English
A A O v Entry Clearance Officer [2011] EWCA Civ 840 – read judgment
1 Crown Office Row’s Sarabjit Singh appeared for the Respondent in this case. He is not the writer of this post.
“No”, seems to be the Court of Appeal’s answer to the question posed by the heading above; indeed Rix LJ goes as far to say that “the provision of such money can be as much an insulation against family life as evidence of it.”
In this case the appellant, a 69 year old Somalian national who had been living in Kenya, appealed against the respondent entry clearance officer’s refusal to grant her leave to enter the UK to join her daughter. The daughter, who sponsored this claim, had been granted British citizenship. She had seven children and was living on benefits, out of which she sent a monthly contribution to her mother. The appellant, who was said to be in poor health and dependent on a neighbour for daily care, had applied for indefinite leave to join her daughter as a relative and financial dependant of a person settled in the UK under the Immigration Rules r.317. The entry clearance officer refused her request, having found that she did not satisfy r.317(iva) in respect of her ability to be maintained without recourse to public funds and that any interference with her rights under Article 8 of the European Convention on Human Rights was justified and proportionate for the purpose of maintaining effective immigration control.
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21 July 2011 by Rosalind English
Jakobski v Poland (December 2010) – read judgment
Mahayana Buddhists have profound moral objections to eating meat. According to the rules, a Mahayana Buddhist should avoid eating meat to cultivate compassion for all living beings.
Even peaceable Buddhists commit crimes sometimes and go to prison. Meat free diets however are not available in all European penitentiaries. Should committed vegetarians be made to forfeit their beliefs once their offences against society have committed them to penal servitude?
In Poland, apparently, the answer is yes. The refusal to provide a Buddhist prisoner with a meat-free diet was not unlawful under local law which provided only that prisoners should receive meals taking into consideration their employment, age and where possible religious and cultural beliefs. That let-out clause allowed the Polish government to issue an ordinance requiring the provision of special meals for diabetics and a “light diet”. Both contain meat products.
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19 July 2011 by Rosalind English
Christopher Hutcheson (formerly known as KGM) v News Group Newspapers and others – read judgment
In these turbulent times for Rupert Murdoch (see our contempt post) it seems strange to see one of his newspapers being vindicated by the courts, but, for once, The Sun seems to be coming up smelling of roses.
These proceedings concerned Mr. Hutcheson’s application to restrain NGN from publishing certain information. In 1968 he married a lady with whom he had four children, who are now grown up. The marriage still subsists. In the meantime, from about 1976 he developed a relationship with another woman with whom, in 1979 and 1981 respectively, he had two children.
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19 July 2011 by Rosalind English
When the Welsh Assembly voted to ban the use of the electronic training collar, which works by emitting an electric stimulus when the dog goes near a forbidden object like a fence, the main opponents of the ban the Electronic Collar Manufacturers’ Association were quick to take judicial review proceedings against the Welsh lawmakers.
They alleged that the ban was in breach of Article 1 of the First Protocol to the European Convention on Human Rights (the right to enjoyment of possessions and property) and the prohibitions in Articles 34 and 56 of the Treaty on the Functioning of the European Union, which prohibit restrictions to free trade.
They were unsuccessful in their bid to disqualify the ban and we posted an analysis of the case and the issues it raised. Since this post has attracted over three thousand hits since its publication, we feel it only right to follow it up with this story of the first prosecution under the ban.
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17 July 2011 by Rosalind English
1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.
On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here. Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case. In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.
The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.
In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases.
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14 July 2011 by Rosalind English
Farouk Sabeh el Leil v France (29 June 2011) – read judgment
When a diplomatic employee takes action for compensation for unfair dismissal, the host country’s courts cannot simply rule out the possibility of a claim on the basis that the employer has state immunity. This would impair the very essence of his right of access to a court under Article 6 of the Convention.
The applicant, a French national, had been employed as an accountant in the Kuwaiti embassy in Paris since August 1980. He was promoted to head accountant in 1985. In March 2000, the Embassy terminated his contract as part of a cost-cutting exercise. His application to the local employment tribunal was initially successful but ultimately failed before the Paris Court of Appeals which found that the State of Kuwait enjoyed jurisdictional immunity on the basis of which it was not subject to court actions against it in France.
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13 July 2011 by Rosalind English
1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.
Al Rawi and others (Respondents) (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 – read judgment; read press summary
At the centre of this appeal was the court’s power to order a “closed material procedure” for the whole or part of the trial of a civil claim for damages. The question arose as a “preliminary issue” – a point to be determined on its own – in the appellants’ compensation claim for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay.
In countering the respondents’ claim for compensation, the appellant security services claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They therefore sought a “closed material procedure” for this part of their defence – a procedure whereby a party can withhold certain material from the other side where its disclosure would be contrary to the public interest.
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13 July 2011 by Rosalind English
Home Office (Appellant) v Tariq (Respondent); Home Office (Respondent) v Tariq (Appellant) – read judgment; read press release
In these appeals the question was whether a claimant in employment tribunal proceedings may be excluded from certain aspects of those proceedings on grounds of national security, without breaching the right to fair trail under Article 6 of the Convention. Mr Tariq had been suspended from his job as immigration officer following the arrest of his brother and cousin for involvement in the suspected transatlantic airline terrorist plot. There was no suggestion that Mr Tariq himself had been involved.
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30 June 2011 by Rosalind English
Sufi and Elmi v United Kingdom – 8319/07 [2011] ECHR 1045 (28 June 2011) – Read judgment
Somalia has been without a functioning government since 1991, riven, since then, by violence between rival clans and sub-clans and largely at the mercy of extreme Islamist groups with one aim in common: sabotaging any efforts by the international community to install a transitional government.
The tragedy is that the combination of resource scarcity, natural disasters and rapacious human activity are so enmeshed, particularly in Africa, that the separation of state-sponsored violence (which does involve humanitarian responsibilities under the European Convention) and harm emanating from naturally occurring disaster (which does not) no longer makes any sense. The kind of conditions that give rise to treatment prohibited under Article 3 of the Convention can be said to prevail in many parts of the continent. How are signatory states to cope?
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24 June 2011 by Rosalind English
R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011 – read judgment; press summary here
Unappealable decisions of the Upper Tribunal are still subject to judicial review by the High Court, but only where there is an important point of principle or practice or some other compelling reason for the case to be reviewed. Unrestricted judicial review in this context is unnecessary and a waste of resources.
This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three was the extent to which decisions of the Upper Tribunal, established under the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”), are properly subject to judicial review by the Administrative Court in England and Wales and the Court of Session in Scotland.
In all of them the claimant failed in an appeal to the First-tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First-tier Tribunal and by the Upper Tribunal. In all three the claimant sought a judicial review of the refusal of permission to appeal by the Upper Tribunal.
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20 June 2011 by Rosalind English
In her lecture at Gresham College last week Baroness Hale speculated how high the human rights tree might grow before it presents a threat to the surrounding constitutional ecosystem. Our words, not hers, but she preferred the arboreal image to the more established but inherently nonsensical notion of a “living instrument” as an expression of the Convention’s adaptability over time. This tree, she suggested, should not be allowed to transmogrify in to a gigantic beanstalk, crashing through the sky, inspiring false dreams and unrealisable ambitions.
The seeds of this tree – or treacherous beanstalk, whichever way one prefers to look at it – were sown in the seventies when the Strasbourg Court chose a “purposive” rather than a literal construction of the language used in the Convention. This means that judges enforcing the norms of the Convention need not confine themselves to the terms as stated or clearly implicit in the written text, nor to the purpose that might be derived from the preparatory materials and the historical context. Thus in the landmark case of Golder v United Kingdom, the Court ruled that Article 6 not only conferred an explicit right to a fair trial but implied that citizens should be granted the right of access to justice, something that could not be discovered within the four corners of the Convention as a document.
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14 June 2011 by Rosalind English
E (Children) FC [2011] UKSC 27 – read judgment ; see previous post for summary
This case shows some of the difficulties thrown up by the interesting tension between the primacy of children’s interests implied by Article 8 of the European Convention on Human Rights and the controls on child abduction exerted by the 1980 Hague Convention.
The Human Rights Convention, in requiring that states ensure respect for family life, protects first and foremost the rights of the child. But of course the Hague Convention has different priorities. The first aim of that instrument is to deter either parent from taking the law into their own hands and removing themselves and their children to another jurisdiction. If abduction does take place, the next object of the Convention is to restore the children as soon as possible to their home country, so that any dispute can be determined there, since the parent left behind is the wronged party, and should not be put to the trouble and expense of coming to the requested state in order to participate in the resolution of factual issues here. Article 12 therefore requires a requested state to return a child forthwith to its country of habitual residence if it has been wrongfully removed in breach of rights of custody. Article 13(b) mitigates that obligation if there is a “grave risk” of “physical or psychological harm.”
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As of today, government or private institutions tasked with keeping people in custody will be accountable in criminal law if it can be shown that a “gross duty of care” has led to the death of a detainee.
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