By: Rosalind English
9 June 2011 by Rosalind English
Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment
1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.
This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.
The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
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2 June 2011 by Rosalind English
R. and H. v. United Kingdom (no. 35348/06) – Read judgment
This ruling from Strasbourg sheds little light on how Article 8 can help adoption procedure, but it does illustrate how courts and agencies are having to square up to the deepening crisis in adoption rates.
Newspaper and charity campaigns are vocal about this issue but little attention is paid to the very difficult business of balancing the needs of children against those of the biological or (prospective) adoptive parents.
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27 May 2011 by Rosalind English
Fraser v Her Majesty’s Advocate [2011] UKSC 24 (25 May 2011) – Read judgment
The Supreme Court has had to consider (for the second time in a month) the ticklish question of what constitutes a “miscarriage of justice”.
The business is rendered more ticklish because this was a case being handled by the High Court of Justiciary, the court of last resort in all criminal matters in Scotland.
Our previous post questioned whether the finding of a miscarriage of justice entitled the individual, whose conviction is quashed, to compensation for the slur on their innocence. Here the Court scrutinises the actual diagnosis of a miscarriage of justice. They had to do so in this case because their jurisdiction depended on it. This needs some explaining.
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24 May 2011 by Rosalind English
We reported last week the Supreme Court ruling in R (on the application of GC) (FC) (Appellants) v The Commissioner of Police of the Metropolis (Respondent) in which the majority found that they could interpret the DNA retention provision in the Police and Criminal Evidence Act (PACE) in such a way that it would be compatible with article 8 of the ECHR.
Not only that; the Court concluded that such a reading could still promote the statutory purposes: ” Those purposes can be achieved by a proportionate scheme.”
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18 May 2011 by Rosalind English
R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis – read judgment
A declaration has been granted by a majority in the Supreme Court that police policy of DNA retention is unlawful because it is incompatible with article 8 of the ECHR.
Guidelines under the current legislation allow destruction of DNA evidence only under “exceptional circumstances”; however police can be said to be acting unlawfully in retaining the evidence because the relevant provision of the Police and Criminal Evidence Act (PACE) should be ‘read down’ to accord with the right to privacy under the Convention.
The guidelines on DNA retention were introduced under Section 64(1A) of PACE, which provides that samples taken in connection with the investigation of an offence “may” be retained. The provision thus substituted a discretionary power for an earlier obligation in the statute to destroy data. The guidelines issued by the Association of Chief Police Officers (“ACPO”) guidelines provided that data should be destroyed only in exceptional cases.
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16 May 2011 by Rosalind English
When does being not guilty make you innocent? This question arose coincidentally in two rulings, just over a month of each other, from the highest courts of the UK and South Africa respectively.
The Citizen and others v McBride concerned libel proceedings which had been brought against a former member of the armed wing of the ANC. McBride had been convicted of murder and sentenced to death in 1986 after killing three women in a bomb attack. Nine years later he was granted an amnesty by the SA Truth and Reconciliation Commission. The question before the Constitutional Court was whether a person convicted of murder, but granted amnesty under the Reconciliation Act, can later be called a “criminal” and a “murderer” in comment opposing his appointment to a public position.
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11 May 2011 by Rosalind English
I promised an analysis piece in my post on the Mosley judgment but there has been such an outpouring of comment and opinion on the case that a more useful exercise is to provide some sort of guide through the maze of material already out there.
This rather toothless ruling has, needless to say, received enthusiastic acclaim by the mainstream media, smarting with indignation over Twitter’s coup de théâtre re superinjunctions. See the Guardian coverage and the Express’s aptly named article Max Mosley Loses Privacy Case Amid Super-injunction Chaos. The Daily Mail of course goes straight to the Naughty Step with its triumphalist and inaccurate headline Victory for freedom of speech: European court rejects Mosley’s bid to impose new constraints on Press. First, it wasn’t the European Court (more commonly known as the ECJ). It was the European Court of Human Rights. Second, the rather mealy-mouthed judgment is hardly a ringing endorsement for freedom of speech; as Hugh Tomlinson points out, the press won the battle but the judgment confirms that it has lost the “privacy war”:
The Court makes its disapproval of the conduct of the News of the World crystal clear and emphasises the need for a “narrow interpretation” of freedom of expression where sensational and titillating press reports are involved [114].
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10 May 2011 by Rosalind English
The Strasbourg Court has ruled that the United Kingdom has not breached the right to privacy by failing to have in place a “pre-notification” requirement that would have alerted Max Mosley to the News of the World’s impending publication of covertly filmed footage – read judgment.
Adam Wagner’s prediction is bang to rights; although in this particular case the Court agreed that the newspaper had “flagrantly” violated Max Mosley’s right to privacy, it has refrained from ruling that UK law fell short of adequate protection of Article 8. “Particular care” had to be taken when examining constraints which might operate as a form of censorship prior to publication and generally have a chilling effect on journalism.
A new attitude of diffidence characterises this judgment in that the Court expressly refrains from considering the application of Convention rights to the facts of this case, since the UK Court had already decided on it. This suggests that Strasbourg is beginning to take on board criticisms that it is tending to arrogate to itself the role of supra-national court of appeal. There was no reconsideration therefore of the High Court’s assessment of the newspaper’s public interest defence nor of the balancing act that the judge had conducted between the right to privacy and the right to freedom of expression. The focus of this ruling was on the question of whether a legally binding pre-notification rule was required.
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3 May 2011 by Rosalind English
In a modern liberal democracy we take for granted the fact that laws apply to all individuals and are enforced by the courts without special consideration of religious beliefs they may happen to have.
But for a while at least there was a very real danger of the dissolution of the divide between private orthodoxy and public principle following the widespread invocation of Article 9 in the courts. This came to a head in the furore over the former Archbishop of Canterbury’s intervention in the MacFarlane v Relate case, provoking some very sharp words from Lord Justice Laws. Although religious groups continue to rattle their sabres, a recent ruling from the Charity Tribunal suggests that the right to religion is losing its edge somewhat on the litigious battlefield. Does this mark a trend away from making concessions to the devout?
We posted previously on the somewhat convoluted history of Catholic Care v Charity Commission for England and Wales. Essentially the Charity wished to legitimise its policy of excluding same sex couples from its adoption services by seeking permission from the Charity Commission to amend its objects of association. They sought thereby to a statutory exception to the general prohibition on discrimination in the Equality Act 2010.
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28 April 2011 by Rosalind English
[Updated] When blogging about the Great Strasbourg Debate, Adam Wagner recently reflected that he and I are”good cop, bad cop”. No prizes for guessing who plays which role.
Anyway, for what it’s worth, here are a few pensées on the recent news that the Daily Telegraph is backing a reform campaign (see Adam’s post on this). Or rather, let’s start with Charles Darwin, who observed that the human animal is capable of continual extension in the objects of his “social instincts and sympathies” from the time when he had regard only for himself and his kin:
… later, he came to regard more and more ‘not only the welfare, but the happiness of all his fellowmen’, [then] ‘his sympathies became more tender and widely diffused, extending to men of all races, to the imbecile, maimed, and other useless members of society, and finally to the lower animals.
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20 April 2011 by Rosalind English
R (on the application of K and AC Jackson and Son) v DEFRA – read judgment.
An interesting ruling in the Administrative Court this week touches on some issues fundamental to public law – the extent to which “macro” policy (such as EC law) should trump principles of good administration; the role of factual evidence in judicial review proceedings, and the connection between public law wrongs and liability in tort.
It all started with Boxster the pedigree bull and notices issued by DEFRA which sealed his fate, or at least appeared to do so when his owners received them in April and July 2010. They were directed to arrange the slaughter of the animal as a result of a positive bovine tuberculosis (bTB) test that had been carried out by DEFRA technicians earlier in the year. The notices of intended slaughter were issued under paragraph 4 of the Tuberculosis (England) Order 2007, an Order made under powers contained in the Animal Health Act 1981.
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19 April 2011 by Rosalind English
Followers of the fall-out of the Ratcliffe on Soar affair will remember our post on the collapse on one of the prosecutions after the revelation of activities by an undercover police officer.
We speculated then whether we would ever know whether PC Kennedy’s conduct may have rendered the evidence obtained unfair. Now it seems we have the answer: the DPP has written to the representatives of the twenty protestors who were actually convicted of conspiracy to commit aggravated trespass to lodge an appeal against their conviction in December last year.
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15 April 2011 by Rosalind English
In a very short judgment about asset freezing orders the Court of Appeal has made some tart observations about the inchoate nature of Strasbourg’s rulings. These will no doubt have a certain resonance given the current fervid discussion about the competence of that court.
It was all in the context of an apparently esoteric argument about the precise nature of judicial review proceedings and whether or not they are covered by the fair trial guarantees of Article 6. The respondents’ names been placed on a United Nations list of persons believed to be associated with terrorism. The purpose and effect of listing was to freeze the listed person’s assets, to place the release of any funds at the discretion of the executive, and thereby to make him a prisoner of the state.
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15 April 2011 by Rosalind English
Andrew Crosbie v Secretary of State for Defence [2011] EWHC 879 (Admin) – Read judgment
The Administrative Court has ruled that the employment of an army chaplain involves a “a special bond of trust and loyalty” between employee and state such that the full panoply of fair trial rights under Article 6 could not apply.
This interesting judgment by Nicol J provides an illuminating analysis of the role of Article 6 in military employment disputes, exploring the scope of the “civil rights” concept for the purposes of that provision, and the extent to which these kinds of disputes are excluded from its purview by Strasbourg case law.
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13 April 2011 by Rosalind English
George McGeogh for Judicial Review of the Compatibility with the Petitioner’s EU law rights of the Decision of the Electoral Registration Officer , Outer House, Court of Session [2011] CSOH 65, 08 April 2011 (Lord Tyre) – Read opinion
This was an attempt by a prisoner to argue that his disenfranchisement under Section 3 of the Representation of the People Act breached his human rights, not under the ECHR, but his rights under EU law. The case illustrates the widespread (and probably correct) perception that if you can bring your claim under European law by persuading the court that one or other of its principles and freedoms are involved, you have a better chance of getting home on the rights argument than if you are restricted to the weaker authority of the Council of Europe and its Convention.
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Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment
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