Category: Case comments
9 July 2011 by David Hart KC
RWE Npower Renewables Ltd v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment
There are two things which public law fairness demands of a judge or a planning inspector before they rule against a party. The first is to make sure that any doubts about a party’s case is put to that party so he can respond. The second is that the judge or inspector explains his reasons for his conclusions in summary form. Unfortunately, in this case, the inspector did neither, and hence the decision was quashed by Beatson J. The judgment, at [37], contains a very good summary of the current cases on the adequacy of reasons in both planning and non-planning contexts.
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8 July 2011 by Martin Downs
R (on the application of G) v The Governors of X School [2011] UKSC 30 – Read judgment
On 4 October 2007 the parents of a 15 year old boy complained that he had been kissed by his 22 year old school sessional music teaching assistant (G).
After an (inconclusive) Police investigation, the school held a disciplinary hearing and dismissed G. They also referred his case to the Secretary of State with a view to him being barred from working with children. The Claimant appealed to the school governors. He also sought to be represented by his solicitor. In this he was successful on judicial review and at the Court of Appeal.
The question for the Supreme Court was, did Article 6 of the European Convention of Human Rights (the right to a fair trial) mean that G was entitled to be legally represented at the hearing before the school governors?
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3 July 2011 by David Hart KC
Many will remember the batch of e-mails hacked in 2009 that caused delight in climate change sceptic circles (see this example from James Delingpole), and considerable embarrassment to UEA; some of it concerned the famous or infamous hockeystick graph (see below) showing temperature change over the last 1000 years.
This environmental information case is the sequel. And, as we shall see, strange is the territory into which the right to information leads us: so far I have posted on pearls and badgers and oilseed rape, bees, lettuces and mobile phone masts. Now we are into global weather data going back to 1850.
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1 July 2011 by Adam Wagner
Smith & Ors v Ministry of Defence [2011] EWHC 1676 (QB) – Read judgment
Update, 20 June 2013: This decision has been reversed by the Supreme Court: Supreme Court gives the go ahead for negligence and human rights claims for British servicemen deaths in Iraq
The Human Rights Act applies in the UK. That much is clear. Whether it applies outside of UK territory is a whole other question, and one for which we may have a new answer when the Grand Chamber of the European Court of Human Rights gives judgment in the case of Al-Skeini and others v. the United Kingdom & Al-Jedda v. the United Kingdom next week.
The court is to give its long-awaited ruling at 10am (Strasbourg time) on Thursday 7 July. In short, the 7 applicants in the case were killed, allegedly killed or detained (Al-Jedda) by British forces in Iraq between 2003 and 2007. Both of the claims reached the House of Lords in the UK (now the Supreme Court), and in all but one case, which involved a death in a military detention centre, the court found that the Human Rights Act did not apply in Basra at the time, and therefore the UK military had no obligation to observe the requirements under the European Convention on Human Rights, and in particular article 2 (the right to life) and article 5 (right to liberty).
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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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22 June 2011 by Richard Mumford
R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin) – read judgment
This post was coauthored by Richard Mumford and Joanna Glynn QC. Kieran Coonan QC and Neil Sheldon of 1 Crown Office Row appeared for the claimant in this case.
On 21 June 2011 the Divisional Court held to be “irrational and … a breach of the Claimant’s Article 6(1) right to a fair hearing” a decision by the Fitness to Practise Panel of the General Medical Council to admit hearsay evidence under its own rules, having determined that such evidence would not be admissible under the criminal rules of evidence .
Professor Bonhoeffer, described in the judgment as “an eminent consultant paediatric cardiologist of international repute”, was charged by the GMC with impairment of his fitness to practise arising from alleged serious sexual misconduct towards boys and young men in Kenya. It was alleged that over a number of years the Claimant travelled to Kenya to undertake charitable medical work and that the victims were children and young men to whom he had provided sponsorship by paying for their education and accommodation.
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20 June 2011 by David Hart KC
Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health [2011] EWCA Civ 437 read judgment here
Sinclair Collis own cigarette machines, some 20,000 of them. So when cigarette machines were banned by law, there was nowhere for their owners to go, apart from the Courts. On Friday, the Court of Appeal dismissed their challenge to the ban, but there was a powerful dissent from Laws LJ on both the law and its application. This makes the prospect of an appeal to the Supreme Court all the more likely. Even that might not be the end of the line, if the SCt refer the case to Europe.
The case – all 70+ pages of the decision – is an object lesson in how to challenge a ban. But, hang on, some of you will say, how can you challenge a ban once it has become the law? Well, until 1973 you couldn’t. That is when we gained the first way of challenging a law, through joining the EEC and thus taking on the obligation to make our laws EEC-compliant. This was Sinclair Collis’s first string to its bow. In 2000, the second string arrived – the coming into force of the Human Rights Act. But there is still no third string – no purely domestic challenge to legislation once enacted – Parliament is still sovereign.
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16 June 2011 by Alasdair Henderson
Neary and his father
London Borough of Hillingdon v. Steven Neary [2011] EWHC 1377 (COP) – read judgment here.
The Court of Protection (“COP”) emphatically ruled last week that a local authority unlawfully detained a young man with autism and learning difficulties for almost an entire year, breaching his right to respect for family life as a result.
Take a 21-year-old disabled person, the Mental Capacity Act 2005, a devoted father and an adversarial social care department. Mix in centuries-old principles laid down in Magna Carta, recent case-law on Article 5 and Article 8 of the ECHR, and some tireless campaigning by legal bloggers. The result? A landmark decision on the use of deprivation of liberty (“DOL”) authorisations in respect of individuals without full legal and mental capacity.
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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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13 June 2011 by Matthew Hill
McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment
The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?
The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length. The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.
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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 Matthew Flinn
Kambadzi v Secretary of State for the Home Department [2011] UKSC 23 – Read judgment
The Supreme Court has decided by a majority that a failure to review the detention of an immigration detainee, in accordance with immigration policy, meant that his detention was unlawful.
Immigration law always has the potential to be a political tinderbox, particularly in tough economic times when unemployment rates are high. Indeed, persistent governmental rhetoric about taking net migration “back to the levels of the 1990s” and “protecting the public” might seem to suggest that “tough on immigration” is the new “tough on crime”. The issues can be particularly acute in relation to foreign national prisoners (“FNPs”). This was demonstrated in 2006 when the Home Secretary Charles Clarke was urged to resign when it was discovered that about 1,000 FNPs had been released without being considered for deportation.
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1 June 2011 by Isabel McArdle
CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin) Read judgment
As readers of this blog will know, control orders have often been successfully challenged in the courts on human rights grounds. But in this case, an order forcing a person to relocate to a different part of the country was found to be lawful.
The Prevention of Terrorism Act 2005 gives the Home Secretary the power create to control orders, which impose obligations on persons “for purposes connected with protecting members of the public from a risk of terrorism”. One of the obligations permitted is a restriction on an individual’s place of residence.
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25 May 2011 by Adam Wagner
Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) (23 May 2011) – Read judgment
The police may have a duty under article 8 of the European Convention on Human Rights (the right to privacy) to inform members of the public that their phone calls have been intercepted.
This was only a judicial review permission hearing, which means that the full “substantive” judicial review will still have to be argued at a later date. In short, the case is the latest in the long-running News of the World phone hacking affair (see this post and this one on Inforrm’s Blog for the latest developments).
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25 May 2011 by Maria Roche
AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 Read Judgment
In the ongoing controversy over the deportation of foreign offenders, the Court of Appeal has decided that the Immigration Tribunal had not made a mistake of law in deciding that a foreign citizen who had lived in the UK since the age of 4 and had been convicted and sentenced to 18 months imprisonment for a drugs offence, following a string of other offences, should not be deported.
The Court of Appeal also commented on the interaction between the Tribunal and appellate courts and a potential distinction between ‘foreign criminals‘ as defined by the UK Borders Act 2007 and other foreign offenders.
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RWE Npower Renewables Ltd v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment
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