9 January 2012
On Friday 6 January 2012, a historic case came to a conclusion in Courtroom 7 of Southwark Crown Court. Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.
Peacock had been charged under the Obscene Publications Act 1959 for allegedly distributing ‘obscene’ ‘gay’ DVDs, which featured fisting, urolagnia (‘watersports’) and BDSM.
9 January 2012
Mr Abdullah Manuwar and Secretary of State for the Home Department IA26/543/2010 – Read decision
We have posted on this blog previously on some of the poor reporting of human rights cases. Alarm bells were ringing as the Sunday Telegraph reported student Abdullah Munawar’s appeal on human rights grounds against a refusal to grant him leave to stay in the UK, citing his playing cricket as a reason he had a private life under Article 8 of the ECHR.
However, considering the judgment, the Telegraph article makes a valid point on the limits provided by human rights on immigration decisions, and shows that not all journalism critical of the Human Rights Act is inaccurate.
1 January 2012
Denry Okpor v London Borough of Lewisham, Bromley County Court 25 October 2011 [Transcript not publicly available]
Adam Wagner represented Mr Okpor in this case. He is not the author of this post.
This was a rolled up permission to appeal and appeal hearing (on which more later) for appeal to a Circuit Judge from a possession order made by a District Judge at Bromley. At issue was whether the District Judge was wrong to reject a) a proportionality defence and b) a gateway B public law defence arising from Lewisham’s failure to follow its own policy. It is interesting as an example of proportionality/gateway B defences in action in the County Court, but also somewhat frustrating, for reasons which will become clear.
Mr Okpor was the secure tenant of Lewisham. At the age of 15 he had been taken into care by Lewisham following abuse. He left care aged 18 in 2006. In 2009, aged 21, he was given the secure tenancy. Mr O went into full time higher education later that year and has remained in full time higher education. This meant that the relevant Children Act 1989 provisions for care leavers continued to apply and would do until he was 24, if still in full time higher education. Mr O was receiving support from the Lewisham Leaving Care Team.
29 December 2011
R (on the application of (1) Homesun Holdings (2) Solar Century Holdings (3) Friends of the Earth) v Secretary of State for Energy and Climate Change
Admin. Ct, Mitting J, 21 December 2011, extempore judgment, so no transcript available
This successful challenge to a proposal to modify subsidies for solar power arose out of the decision by the climate change Department to amend the rules under which the subsidies were to be payable. The essential questions were whether DECC could do this whilst a statutory consultation period was running, and further whether judicial review lay against a proposal to change the system, as distinct from a challenge to the change itself.
28 December 2011
Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title.
The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law.
22 December 2011
R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD & RURAL AFFAIRS (2011), QBD (Admin) Mitting J, 13 December 2011, extempore so transcript not available.
For some time now, the United Kingdom has known that it is in trouble under EU legislation, Directive 2008/50, limiting the amount of nitrogen dioxide in the air we breathe. The date for meeting these levels was 1 January 2010. ClientEarth, an environmental NGO, brought proceedings to enforce this obligation. They failed, despite an admitted breach by the UK. Why?
ClientEarth sought a declaration and mandatory orders against the Government for failing to comply with the levels set out in Article 13 of the Directive. Only 3 out of 43 areas and conglomerates in the UK met that target. Under Article 22, it was possible to extend the time for compliance with the limits by a maximum of five years. Recital nine to the 2008 Directive stated that where the objectives were not met, Member States were required to take steps to ensure compliance. In particular Articles 22 and 23 said that where an extension to the compliance time was sought, a Member State should publish an air quality plan indicating how compliance with the limits would be reached.
20 December 2011
Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538 – Read Judgment
The Court of Appeal has decided that a failure to provide a life sentence prisoner with a minimum of one hour in the open air each day did not constitute a breach of his human rights under Article 8 of the European Convention of Human Rights (“ECHR”).
Oliver Sanders of 1 Crown Office Row represented the Secretary of State in this case. He is not the author of this post.
Between 26 April and 2 October 2007, a period of 159 days, Mr Leslie Malcolm was detained in the Segregation Unit at HMP Frankland. During that time, he was provided with an average of 30 minutes in the open air each day. However, paragraph 2(ii) of Prison Service Order 4275 (“PSO 4275”), which contained policy guidance for prison officers operating under the Prison Rules 1999, stated that he should have had the opportunity to have at least one hour each day in the open air.
When Mr Malcolm first brought his claim, he complained that not only had his human rights under the ECHR been infringed, but also that the prison officers at HMP Frankland were liable for misfeasance in a public office. Both aspects of the claim were rejected by Sweeney J at first instance, and it was only the human rights question that was considered on appeal.
The judgment of Richards LJ, in leading a unanimous Court of Appeal, is an elucidating one insofar as it breaks down and draws attention to the various questions which need to be addressed when a human rights claim under Article 8 is brought.
Continue reading →
7 December 2011
Leeds Group v. Leeds City Council et al [2011] EWCA Civ 1447
Retrospective legislation often gives rise to claims under Article 1 Protocol 1 of the Convention – you may have some legal advantage (whether it be property or a legal claim) which you then find yourselves losing as a result of the change of law. I have posted on some of these, the ban of the pub fag machine, or the change in the law that meant insurers had to pay compensation for pleural plaques caused by asbestos. These A1P1 cases are not easy to win, not least because the courts are wary in thwarting legislative changes via one of the less fundamental and most qualified rights in the Convention locker.
The Leeds Group case is a good example of this. The Countryside and Rights of Way Act 2000 (CROW) changed the basis on which town and village greens could be registered. Put very shortly, you can register some land as a green if people had “indulged” in “lawful sports and pastimes” on the land for not less than 20 years, in the rather quaint and de haut en bas language of the drafter. The changes under CROW were quite subtle. You now have to show a “significant number” so indulging, but these people can come from “any neighbourhood within a locality”, rather than from a “locality” – a term on which previously masses of ink has been split and by which otherwise meritorious claims for greens disallowed. And the sports and pastimes now had to continue to the date of registration – you and your fellow Morris dancers could not just stop dancing or whatever once you had done your 20 years, if you wanted to register the greens.
5 December 2011
Mortgage Agency Services Number Four Limited v. Alomo Solicitors, HHJ Simon Brown QC, [2011] EWHC B22 (Mercantile)
Every so often, a judge gets so infuriated with the prolixity of an advocate that he has a real go at him in the resulting judgment, and this solicitors negligence case is a good example. However, this judge spiced up his reasoning with a tale of how long-winded advocates were treated in the past when their legal documents went on too long:
“One early remedy that had an effect was used by the Lord Keeper in England in 1596 in the case of Mylward v Weldon…[1595] EWHC Ch 1]. He ordered that a pleading 120 pages long be removed from the file because it was about eight times longer than it need have been. He ordered that the pleader be taken to the Fleet prison. His Lordship then ordered that on the next Saturday the Warden of the Fleet bring the pleader into Westminster Hall at 10 a.m. and then and there cut a hole in the midst of the pleading and place it over the pleader’s head so that it would hang over his shoulders with the written side outwards. The Warden had to lead the pleader around Westminster Hall while the three courts were sitting and display him “bare headed and bare faced” and then be returned to the Fleet prison until he had paid a £10 fine – a huge sum in those days.”
1 December 2011
Harvey v Director of Public Prosecutions [2011] EWHC Crim B1 – Read judgment
“What on earth was he thinking?” asks a Telegraph article bearing as its title another rhetorical question, “Would Judges like to be told to eff off in court?”. This is in reference to Mr Justice Bean’s judgment in Harvey v Director of Public Prosecutions in which he overturned Mr Harvey’s conviction under section 5 of the Public Order Act 1986 for swearing at a police officer.
Alarmed at the corrosion of the rule of law and standards of public behaviour that the judgment propagates, the author of the article admonishes Bean J for ignoring the moral and social significance of “such insolent defiance” of the Police.
So, why such disapproval?
Continue reading →
30 November 2011
Modaresi v. Secretary of State for Health & others [2011] EWCA Civ 1359, Court of Appeal
Any lawyer dealing with civil or criminal cases tends to think that, if there is a time limit for doing something in the case, then if that thing does not get done on time, the court may be lenient if there is good reason for extending time. The problem comes where the court is only given power to hear an appeal by a specific set of rules, and the rules say, for instance: you must appeal within 14 days of the decision. In the statutory context, that may mean precisely what it says. And the court, however sympathetically inclined, cannot do otherwise and allow a late appeal.
We see this from this mental health case. Ms Modaresi, who suffers from schizophrenia, was admitted to hospital on 20 December 2010 for assessment under section 2 of the Mental Health Act. Section 66 of the Act provides that where a patient is admitted to hospital in this way, “an application may be made to [the tribunal] within the relevant period” by the patient, and “the relevant period” means “14 days beginning with the day on which the patient is admitted”.
8 November 2011
David Thomas Howarth v Commissioner of Police of Police of the Metropolis [2011] EWHC 2818 (QB) – read judgment
Protestors have to put up with “sensible and good natured” controls by the authorities as a limitation on their rights to free expression and assembly, the Divisional Court has ruled.
A claim for judicial review brought by an environmental protestor (“Mr Howarth”) against the Commissioner of Police of the Metropolis, challenging the lawfulness of a personal search of Mr Howarth carried out by a Metropolitan Police officer on 16 October 2010. The search was carried out on a railway train on which Mr Howarth was travelling in order to reach a site of intended public protest against an oil company. On the day in question Mr Howarth travelled with four friends from his home in the West Midlands to London to attend a demonstration organised by a body of persons calling themselves “Crude Awakening”, whose principal object is to campaign against the activities of those involved in the oil industry. The officer who conducted the search stated that he was looking for articles such as chalk, spray paint or highlighters that had been used in similar protests. He found no relevant articles.
6 November 2011
Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182) 3 November 2011. This significant decision of the First Tier Tribunal (FTT) is well described on 11 KBW’s Panopticon blog. So just a few thoughts on a case which has the hallmarks of going to appeal.
The underlying question was whether the Duchy of Cornwall had to answer Michael Bruton’s requests for information about the Duchy’s oyster farm, and in particular whether the farm had undergone environmental assessment before it commenced operation. Bruton’s concerns were that the Duchy’s oysters were non-native Pacific oysters, and he wanted to know whether the Duchy had considered whether the establishment of such a fishery affected existing oysters or had other effects upon the environment. In many regards, the case is round 2 of a battle started by Bruton in 2009 challenging the original grant of a licence by the Duchy to the oyster fisherman: see the 2009 decision by Burton J granting permission for this challenge. In the present case, the Information Commissioner said that the Duchy was not obliged to provide the information. The FTT disagreed.
31 October 2011
C-128/09 Boxus, CJEU, 18 October 2011
Belgium and its airports seem to have been skirmishing with the European Union Courts for some time now. First, in 2008, the ECJ in Abraham decided that a major and well-established expansion of Liege-Bierset airport required Environmental Impact Assessment (EIA), contrary to the contentions of the airport and its operators. Our case, Boxus, concerns a raft of challenges to consents for that airport expansion, and to similar projects affecting Charleroi airport and railways. These challenges ended up in front of the Court of Justice of the European Union on more EIA issues. This time, it appears that the Walloon Region of Belgium had become impatient with continuing court challenges – so it resorted to Parliamentary Decree, in which Parliament “ratified” the various planning consents.
Hey, presto, the Region thought, any defects in previous procedures are solved, and the court proceedings will fall away – or will they? Enter, on a white charger, the Aarhus Convention to the aid of the challengers.
28 October 2011
R (o.t.a Cornwall Waste Forum, St Dennis Branch) v Secretary of State for Communities and Local Government [2011] EWHC 2761 (Admin) Collins J, 13 October 2011
I did a recent post on this case based upon a very short report; the full transcript of the judgment is now available. The case concerns who is to decide issues of air quality in a planning case about incinerators/energy-from-waste plants.
The headlines are as before – but there is a good deal in this judgment, particularly for those interested in conservation issues, as well as that vexed question of when a legitimate expectation may arise in the course of a hearing. Sadly, the judgment is still not available on an open access website such as Bailli – bless it, per Adam Wagner’s post– but I hope that will change soon.
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