Category: Case comments
3 March 2011 by Adam Wagner
Snyder v. Phelps (09-751), United States Supreme Court – Read judgment
A recent decision of the United States Supreme Court, in which it upheld the rights of a radical anti-gay Christian group to protest at military funerals, provides a useful opportunity to compare free speech protections here to those provided over the pond.
By way of comparison, five men recently failed in a challenge to their public order criminal convictions for protesting with similar signs at a homecoming parade for British soldiers. What does this say about our respective free speech protections?
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2 March 2011 by Rosalind English
Johns v Derby City Council and Equality and Human Rights Commission (intervening) [2011] EWHC 375 (Admin)- Read judgment
Religious views opposing homosexuality are a legitimate fostering concern and the local authority’s approach to this question did not constitute religious discrimination.
The claimant husband and wife applied to the defendant local authority to be approved as short-term, respite, foster carers. They were members of the Pentecostalist Church and believed that sexual relations other than those within marriage between one man and one woman were morally wrong. The local authority considered that the claimants’ views on same sex relationships did not equate with the National Minimum Standards for Fostering Services which required carers to value individuals equally and to promote diversity. The local authority’s Fostering Panel therefore deferred a decision.
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1 March 2011 by Adam Wagner
Updated | Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v Conseil des ministres, Case C‑236/09 – Read judgment / press release
The Court of Justice of the European Union (CJEU) has ruled that from December 2012, insurers will be prevented from charging different premiums on the basis of an insured person’s gender. A partner at a leading commercial law firm called September’s preemptive preliminary opinion “completely bonkers”. Can the same be said about the latest decision?
Coverage of the decision has already been largely negative. As well as involving Europe’s increasingly unpopular and possibly unelected judges, the ruling affects an interest group – insurance companies – with deep pockets and who are capable of sophisticated lobbying. And nobody wants to see their insurance premiums go up, if that is indeed to be the outcome of this ruling, something which is by no means clear. So expect to see plenty of critical articles. The Telegraph website is already sporting an unchallenged article/press release from Esure, including a video interview which begins with an advert for ESure’s “Sheila’s Wheels”.
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1 March 2011 by Rosalind English
Like many points of European law, the question whether the UK and Polish protocol to the EU Charter of Fundamental Rights amounts to a full opt-out is mired in confusion and political prejudice.
Its characterisation as an opt out or a mere “clarification” depends on where one stands on the eurosceptic/europhile spectrum. So where do we find a practical rather than an ideological answer to this important question? Certainly not in the political or academic record.
First, a reminder of what the Charter is all about. From the very early days of the European Community the Court of Justice (ECJ) has relied on fundamental principles of human rights as an interpretative tool, and the key provisions of the Charter are derived from the ECHR, which is uncontroversial enough. However a large number are drawn from the Community Social Charter 1989 and the Council of Europe’s Social Charter 1961. These are the so-called “social and economic rights” which appear to transform aspirational norms into judicially enforceable ones, like the right to work or healthcare. These “rights” are largely to be found in the “Solidarity Title” of the Charter, and it is to this part of the Treaty that the UK secured an opt out at the European Council in 2007.
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15 February 2011 by Isabel McArdle
JR1, Re Judicial Review [2011] NIQB 5 – Read judgment
A decision of the Northern Ireland high court has highlighted the continued narrow definition of “standing”, or the right to bring a claim, under the Human Rights Act 1998.
An 8-year-old child applied to bring a claim, which included a challenge under Article 2 of the European Convention on Human Rights (the right to life), to the decision by police to introduce tasers in Northern Ireland.
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10 February 2011 by Guest Contributor
The recent critics of Strasbourg judicial activism will, doubtless, be pleased by the Court’s latest Article 10 decision. Free speech campaigners may have more mixed views.
In the case of Donaldson v United Kingdom ([2011] ECHR 210) the Fourth Section held that the application of a serving Republican prisoner alleging a violation of his rights under Article 10 (freedom of speech) and Article 14 (discrimination) was inadmissible.
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7 February 2011 by Adam Wagner
G v E & Ors [2010] EWHC 3385 (Fam) (21 December 2010) – Read judgment
Manchester City Council has been ordered to pay the full legal costs of a 20-year-old man with severe learning disabilities who was unlawfully removed from his long-term foster carer. The council demonstrated a “blatant disregard” for mental health law.
The case has wound an interesting route through the courts, with hearings in the Court of Protection, Court of Appeal, and also a successful application by the Press Association to reveal the identity of the offending local council in the interests of transparency. In August, Siobhain Butterworth wrote that the decision to name and shame the council was a “good” one which “marries the need for transparency in the treatment of vulnerable people with the right to a private life“.
Now, Mr Justice Baker has taken the unusual step of ordering that Manchester City Council pay all of E’s family’s legal costs. The general rule in the Court of Protection is that costs should not be awarded, but as the judge ruled it can be broken in certain circumstances:
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2 February 2011 by Rosalind English
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment
This case (see yesterday’s summary) is illustrative of two misconceptions about rights that we are all in thrall to from time to time.
One is that there is a fundamental hierarchy of human rights which allows certain interests to prevail over others in all situations; the other is that this hierarchy is determined by considerations that are morally and politically neutral. A prime example of this kind of principle is the idea of the “overriding rights of the child”, a consideration with a perfectly orthodox role in family law, but one whose application to human rights as a whole is questionable.
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1 February 2011 by Guest Contributor
The Court of Appeal yesterday handed down judgment in the case of JIH v News Group Newspapers Ltd ([2011] EWCA Civ 42). In allowing the appeal against the order of Tugendhat J ([2010] EWHC 2818 (QB)) the Court ordered that the claimant’s anonymity should be restored.
Although the Court stressed that each decision is fact sensitive, this approach seems likely to be followed in most types of privacy injunction cases. This eagerly awaited decision adds to the growing body of case law concerning reporting restrictions where an injunction has been granted to restrain publication of information about a claimant’s private life.
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31 January 2011 by Adam Wagner
Shergill v Purewal & Anor [2010] EWHC 3610 (QB) (15 December 2010) – Read judgment
In the commotion surrounding the Christian hotel gay discrimination case, it is easy to forget that there is a long-standing principle that English courts will not decide matters of religious doctrine. This principle has been in play in a run of recent cases involving an Indian holy man and libel claims against journalists.
The most recent case was brought by
Dajid Singh Shergill, a UK-based Sikh activist suing the Panjab Times in relation to 3 articles published in the summer 2008, relating to His Holiness Sant Baba Jeet Singh Ji Maharaj (Jeet Singh), an Indian based preacher. The articles claimed, amongst other things, that Jeet Singh had “
abandoned Sikh Principles“, that he and his supporters were a “
sham“, that Shergill had “
sought to instigate serious riots and create an atmosphere of terror” by proclaiming that Baba Jeet Singh had won a court case in India and was seeking to misappropriate local Sikh temples.
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21 January 2011 by Guest Contributor
Over the past month, the Court of Human Rights has handed down judgment in six Article 10 cases. We have already posted about the most recent, MGN v United Kingdom. Of the other five, two involved civil defamation claims in domestic cases. In both civil defamation cases it was held that the State had infringed the right to freedom of expression but there was no finding of violation in any of the other cases. The reasoning is not straightforward in any of these cases and there are continuing doubts about the quality of the Court’s Article 10 case law.
The only “media case” amongh the five was Novaya Gazeta V Voronezhe v. Russia([2010] ECHR 2104) in which a unanimous First Section found a violation of Article 10 as a result of a domestic defamation award of RUB 25,000 (£525) and an order for the publication of an apology. The applicant newspaper had published an article which concerned abuses and irregularities allegedly committed by the mayor of Novovoronezh and other municipal officials. It also made references to services supplied by a local businessman. The article relied on and quoted from a town administration audit report. The domestic court allowed the plaintiffs’ action, holding in particular that the article implied the embezzlement of funds by the mayor and the businessman, of which the newspaper had failed to adduce any proof. It pointed out that no criminal proceedings against the plaintiffs in connection with the audit of some of the financial matters in question had been opened and that the article thus lacked a factual basis.
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21 January 2011 by Rosalind English
Morge (FC) (Appellant) v Hampshire County Council (Respondent) on appeal from [2010] EWCA Civ 608- Read judgment
We cannot drive a coach-and-horses through natural habitats without a bit of soul-searching, says the Supreme Court .
The UK has conservation obligations under EU law to avoid the deterioration of natural habitats and this goes beyond holding back only those developments that threaten significant disturbance to species. Detailed consideration must be given to the specific risks to the species in question. But this consideration can be left to the quangos; planning committees are not obliged to make their own enquiries.
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19 January 2011 by Matthew Flinn
Secretary of State for Justice v RB [2010] UKUT 454 – Read judgment
In a fascinating recent case, the Upper Tribunal has departed from a line of court authority to decide that where a patient has been detained under the Mental Health Act 1983, conditionally discharging that patient from hospital subject to conditions which might themselves amount to a form of detention is compatible with Article 5 of the European Convention of Human Rights, the right to liberty .
RB, who was aged 75, had been detained under the Mental Health Act on 30 June 1999 following a conviction for indecent assault on a boy aged under 16. He suffered from a persistent delusional disorder, which rendered him a “strongly misogynistic”, lifelong paedophile.
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19 January 2011 by Rosalind English
MGN Limited v The United Kingdom – (Application no. 39401/04) Read judgment
The details of the Court’s ruling are set out in our previous post on this case. The following analysis focusses on the success of the newspapers’ core complaint concerning the recoverability against it of 100% success fees.
This judgment has serious practical implications not just for publication cases but for any civil case not covered by legal aid, and although the ruling is only binding on the government, not on the courts, the potential for its immediate domestic impact cannot be ignored. Defendants challenging costs orders will have this judgment at the head of their arsenal from today; the practical resonances of the case are imminent.
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18 January 2011 by Rosalind English
IFAW Internationaler Tierschutz-Fonds gGmbH; read judgment
EU law is replete with the soaring rhetoric of rights and transparency. Indeed the very first Article of the Treaty on European Union states that ‘decisions are taken as openly as possible and as closely as possible to the citizen’ . But not, it appears, when the decision concerns the balance between short-term economic interests and those of the environment – or, in the Commission’s own words, the “Community’s natural heritage”.
Key facts and figures relating to central policy remain firmly under lock and key in the EU, as NGOs find when they try to get the Commission to enforce the various Directives against national governments and the EU institutions themselves.
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