Category: Case comments
30 June 2010 by Adam Wagner
The Mayor of London v Hall & Ors [2010] EWHC 1613 (QB) (29 June 2010) – Read judgment
The Mayor of London has won a court order to evict a camp of protesters from Parliamentary Square, with the High Court stating that his response to the protest was proportionate and not a breach of the protesters’ human rights.
The protesters have gained a temporary reprieve by appealing the decision, and according to their website have therefore delayed their eviction until at least 4pm on Friday 2 July
As we posted earlier this month, during the build-up to the General Election a number of protesters erected tents and flags in Parliament Square, a green outside the Houses of Parliament. The protesters named the site “Democracy Village”. Boris Johnson, the Mayor of London, launched an action for possession against the protestors, who he claimed were trespassing on Parliament Square.
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30 June 2010 by Rosalind English
The Queen on the Application of Janet Harris (Appellant) v London Borough of Haringey (Respondent) and Grainger Seven Sisters Ltd (2) Northumberland And Durham Property Trust Ltd (Interested Parties) and The Equality and Human Rights Commission (Intervener) [2010] EWCA Civ 703 22 June 2010 – read judgment
In granting planning permission for redevelopment of a site in an area made up predominantly of ethnic minority communities, a local authority had failed to discharge its duties under the Race Relations Act 1976 s.71(1)(b) as the requirements of s.71 had not formed, in substance, an integral part of the decision-making process –
The appellant challenged a decision to grant planning permission to the first interested party (“Grainger”) for the development of a site in Tottenham which incorporated an indoor market. The grant permitted the demolition of all the business and residential units on the site, and erection of mixed use development with parking and “public realm improvements”.
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24 June 2010 by Rosalind English
Grzelak v. Poland (no. 7710/02) – read judgment
The European Court of Human Rights has found that A Polish boy who refused to attend religious instruction classes for reasons of personal conviction had been discriminated against human rights because of a policy of reflecting that non-attendance in school reports.
The applicant Mateus Grzelak had been brought up in a non-religious tradition by his parents who were also applicants. Mateus began his schooling at the age of seven, and in conformity with his parents’ wishes, he did not attend religious instruction. Doctrinal classes were scheduled in the middle of the school day, between various compulsory courses.
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23 June 2010 by Rosalind English
(1) Richard Rabone (In his own Right & as Personal Representative of the Estate of Melanie Rabone, Deceased) (2) Gillian Rabone(In her own Right) Appellants v Pennine Care NHS Trust 21 June 2010 [2010] EWCA Civ 698 – read judgment
Court of Appeal rules that health trusts did not have operational obligations under Article 2 of the Human Rights Convention to take all steps to prevent the suicide of voluntary patients.
The appellants, parents of the deceased (Melanie) and administrator of their daughter’s estate, appealed against a decision ([ 2009) EWHC 1827 (QB),(2010) PIQR P2) that the respondent NHS trust had not breached Article 2 of the European Convention on Human Rights 1950. Melanie had suffered from a recurrent depressive disorder and at the age of 24, she agreed to be informally admitted to the Trust’s hospital. Despite the fact that it had been noted by employees of the trust that she had thought of suicide and self-harm, she was later granted two days’ home leave. During that leave, Melanie committed suicide.
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21 June 2010 by Adam Wagner
British Airways Plc v Unite the Union [2010] EWCA Civ 669 (20 May 2010) – Read judgment
Last month Unite won their appeal against an injunction obtained by British Airways in the High Court preventing their members from striking. The judgment has some potentially important implications for human rights, and in particular the right to free assembly.
The strike has already been the most damaging in British Airways’ history and they airline are now preparing for another round of strikes with Unite threatening to ballot its members for a third time.
Today the Confederation of British Industry (CBI) called for a change in the law to make it harder to bring strikes. Amongst other things, they are lobbying for the number of workers who need to agree to a strike before it can take place to be raised to 40%, which they say would “prevent strikes going ahead based on a relatively small turnout of particularly active members.”
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17 June 2010 by Elspeth Wrigley
TTM v London Borough of Hackney & Ors [2010] EWHC 1349 (Admin) (11 June 2010) – Read judgment
A man accused of harassing women he did not know has failed in his human rights challenge to his detention under the Mental Health Act 1983. Having successfully secured a writ of habeas corpus to release him from a mental health institution, he has lost his initial bid for the High Court to declare that his detention ran contrary to his human rights. He is now appealing the decision.
This case has raised important questions about the extent of the ancient right of habeas corpus (relief from unlawful detention) and its interaction with the far more recent Article 5 of the European Convention on Human Rights 1950 (“ECHR”), as well as the ability of any wronged claimant to recover damages in circumstances where they are wrongly detained.
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16 June 2010 by Rosalind English
Oxfordshire County Council v X & Ors [2010] EWCA Civ 581 (27 May 2010) – read judgmentIn ordering adoptive parents to provide an annual photograph of the child to the birth parents, the judge below had erred in failing to accept as reasonable the adoptive parents’ fears, that there was a risk of the placement being identified.
The child (J), had been made the subject of an adoption order when she was four months old, due to the mental illness of her natural mother. The natural mother subsequently applied for an order for the provision of a photograph of J on an annual basis. The adoptive parents, backed by the local authority, objected to the provision of a photograph and contended that they should make available a photograph for viewing at the offices of the local authority.
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15 June 2010 by Rosalind English
Bank Mellat v HM Treasury [2010] EWHC 1332(QB) Miity J 25/5/2010 – read judgment
A challenge to the imposition of a Financial Restrictions Order on an Iranian Bank alleged to have supported Iran’s nuclear program has been dismissed as the order was not considered disproportionate in the light of the importance of the public interested protected.
The order, which directed that anyone in the UK financial sector must not enter into or continue to participate in business with Bank Mellat, was maintained despite the Court of Appeal’s refusal to allow the government to rely upon secret evidence in order to prove the bank’s links with the nuclear program (see Court of Appeal launches offensive against secret justice with three linked judgments).
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14 June 2010 by Adam Wagner
Morley & Ors, R. v [2010] EW Misc 9 (EWCC) (11 June 2010) – Read judgment
Four former Members of Parliament have failed in their initial bid to claim parliamentary privilege in criminal proceedings arising from the parliamentary expenses scandal. The case has highlighted constitutional principles which reach back hundreds of years to the time of Oliver Cromwell, and raises questions of whether parliamentarians are above the criminal justice system.
This will not be the end of the affair, however, as leave to appeal has been granted with the case to be heard by the Court of Appeal as early as before the end of this month
Mr Justice Saunders sitting the Southwark Crown Court ruled that the parliamentary privilege enshrined in the 1688 Bill of Rights does not extend to protecting the four ex-MPs, Elliott Morley, David Chaytor, James Devine and Lord Hanningfield, from prosecutions for claiming inflated expenses.
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8 June 2010 by Adam Wagner
HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group & Anor [2010] EWHC 1294 (QB) (17 May 2010) – Read judgment
The High Court has effectively thrown out a libel action against a journalist who claimed in an article that a Sikh holy man was a “cult leader”. The judge’s reasoning was that the disputed points of religious principle were not questions which a secular court could properly decide. In refusing to rule on such cases, are the courts taking an increasingly anti-religious view, and are they now in breach of the human right to religious freedom?
The decision was reported in mid-May, but Mr Justice Eady’s judgment was made publically available yesterday. It highlights controversial issues of whether religious believes are getting a fair hearing in the English courts, and whether “secular” judges are qualified to decide points of religious principle.
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27 May 2010 by Rosalind English
The authorities’ statutory power to detain pending deportation had to be motivated purely by the need to remove a subject from the United Kingdom, not to ensure his surrender into custody of the authorities operating in the receiving country. A subject detained not only for the purpose of effecting his removal from the UK, but also for the purpose of investigating whether acceptable arrangements could be made to return him into detention in the receiving country, was being detained unlawfully.
The claimant sought damages and declaratory relief against the defendant both at common law for the tort of false imprisonment and pursuant to s. 6(1) and s.7(1) of the Human Rights Act 1998, by reason of a claimed breach of Article 5(1) of the European Convention of Human Rights.
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19 May 2010 by Rosalind English
Abid Naseer, Ahmad Faraz Khan, Shoaib Khan, Abdul Khan and Tariq Ur Rehman (Appellants) v Secretary of State for the Home Department (Respondent), Special Immigration Appeals Commission, 18 May 2010 – Read judgment
Two men suspected of attempting to mount a mass casualty attack can stay in the UK because they risked ill treatment if they were to be sent back to Pakistan. Rosalind English examines whether the extra territoriality reach of Article 3 makes a mockery of the core protections provided by European Convention on Human Rights.
Risk of torture
The alleged operatives appealed against deportation orders/refusals of re-entry on the grounds that they risked ill treatment contrary to Article 3 of the European Convention on Human Rights at the hands of the Pakistani security services. Appeals against deportation were upheld because the reassurances as to the safety of their return was based on evidence that could not be disclosed in open court.
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17 May 2010 by Adam Wagner
Moulton v Chief Constable of the West Midlands [2010] EWCA Civ 524 (13 May 2010) – Read judgment
The Court of Appeal has rejected an appeal by a man acquitted of rape as well as his argument that the law of malicious prosecution should be changed in order to bring it into line with Article 5 of the European Convention on Human Rights, the right to liberty.
In 2000, Kirk Moulton spent Christmas in jail due to administrative errors by the police. However, unlike in other jurisdictions it is not possible in England to sue the police for damages for negligence. Claims for ‘malicious prosecution’ are possible, but they are notoriously difficult to prove as the aggrieved person has to show the police acted with malice. Mr Moulton’s lawyers argued that the lack of a remedy for police maladministration meant that English law ran contrary to human rights law. But the court, whilst showing sympathy, rejected the argument. As a result the bar for claims against the police remains dauntingly high.
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13 May 2010 by Rosalind English
ZN (Afghanistan) (FC) and others (Appellants) v Entry Clearance Officer (Karachi) (Respondent) and one other action, UKSC 21. Read judgment
The Immigration Rules, which applied lighter requirements for entry clearance for the dependants of persons granted asylum than for other British Citizens, should be interpreted to mean that a person should always be a refugee for the purposes of Rule 352D even though that status has technically expired on grant of citizenship.
This appeal raised a question the true construction of the Immigration Rules, House of Commons Paper 395 (‘HC 395’): what rules apply to family members seeking entry to the United Kingdom, where the sponsor has been granted asylum and has subsequently obtained British citizenship. Put another way, the issue was whether the sponsor must enjoy refugee status at the time his spouse or child seeks to join him under the paras 352A and 352D.
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10 May 2010 by Rosalind English
McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010) – Read judgment or our previous post
Case comment
Lord Carey of Clifton, responding to Lord Justice Laws’ observations in MacFarlane, has called this latest dust-up about religion in the courts a “deeply unedifying clash of rights“. It is indeed a clash of rights, but unedifying it is not. It is precisely when these rights collide that some real, hard thinking is generated, not only about the precise content of these rights, but their historical purpose and their proper function in modern society.
It may be that when the architects of the Convention drafted Article 9, guaranteeing freedom of thought, conscience and religion, they did not foresee that its future role would not be so much the protection of oppressed believers against Soviet-style secularisation but instead a thorn in the flesh of public authority employers seeking enforce their legitimate objectives against non-compliant religious employees.
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The Mayor of London v Hall & Ors [2010] EWHC 1613 (QB) (29 June 2010) – Read judgment
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