Category: Case comments
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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7 May 2010 by Adam Wagner
See a more recent post on this topic here
One of the enduring images of the 2010 General Election will be of long queues of people turned away from polling stations due to lack of facilities. This may well result in legal action. But according to Lord Pannick, the worse scandal may be the exclusion of 85,000 prisoners, which he says is “a constitutional disgrace that undermines the legitimacy of the democratic process”.
The BBC reports this morning that hundreds of voters were turned away from polling stations throughout the UK. This was initially blamed on a higher than expected turnout. The Electoral Commission has promised a “thorough review“, but legal action may follow from the individuals, who have been denied their basic rights, but also from the parties who may argue that marginal results would have been different if people hadn’t been turned away. In the likely outcome of a hung parliament, every seat counts and litigation may therefore follow (Update – Afua Hirch in The Guardian: Legal challenge to polling stations could result in byelections; meanwhile, Liberty, the human rights organisation, says that it will investigate the issue on behalf of voters.)
Those who have been disenfranchised may be entitled to claim under the Human Rights Act 1998. Article 1, Protocol 3 of the European Convention provides:
“The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
This Article imposes obligations on States, and the provision includes the right to vote. Voters should be able to claim for damages under section 8 of the Human Rights Act if they can prove that they were denied a vote due to administrative incompetence, which appears to have been the case in some places. Whilst high turnout may have been a factor, voters will argue that high turnout has been predicted for a while, and should have been planned for. Similar claims were made in respect of the controversial 2000 presidential election in the United States, which was ultimately decided by the US Supreme Court, but resulted in months of paralysis.
85,000 claims?
Whilst a few hundred appear to have been affected by administrative incompetence, Lord Pannick, barrister and cross-bench peer, argues that the absolute ban on prisoners voting runs contrary to repeated decisions of the European Court of Human Rights. We have posted recently on the tens of thousands of potential compensation claims that may result, which Lord Pannick estimates will be worth at least £750 each. Similar claims may be available to those who were denied the vote for other reasons.
Lord Pannick is scathing of the Government’s failure to implement the European decisions. He says:
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4 May 2010 by Adam Wagner
Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellant) [2010] EWHC 865 (QB) – Read judgment
The High Court has ruled that a mental health trust was responsible for the death of a patient who threw herself in front of a train. The judgment marks the end of a long and complex case, and a significant shift in the law relating to public authorities’ responsibility to preserve life under the Human Rights Act. The trust must now pay Mrs Savage’s daughter £10,000 in compensation.
Carol Savage committed suicide on 5 July 2004 at age 50. At the time of her death, she was detained at Runwell Hospital under Section 3 of the Mental Health Act 1983. She had suffered from mental illness intermittently for many years.
After Mrs Savage’s death, her daughter Anna made a claim on the basis that the hospital owed her, as a victim of the death, a duty under the Human Rights Act 1998. The basis of her claim was that the hospital had failed in its duty to protect her mother under Article 2 of the European Convention on Human Rights, the right to life. She also made a claim in her own right under Article 8 (right to family life).
Mental health patients and the right to life
Before making a decision on the liability of the trust, the House of Lords (now the Supreme Court) was asked to decide a preliminary issue relating to it’s responsibility under Article 2 (read decision). The Trust argued that the reasoning in Osman v United Kingdom (23452/94) (1999) 1 FLR 193 ECHR was not applicable to the care of hospital patients. In Osman, the European Court of Human Rights held that there is a positive obligation for a State to take preventive measures to protect individuals whose life is at risk.
The trust argued that applying Osman to mental health care would conflict with other obligations of medical staff to their patients and encourage them to be too restrictive of patients’ liberty for fear that they might commit suicide.
The House of Lords threw out the Trust’s appeal. They held that Article 2 put health authorities under an overarching obligation to protect the lives of their patients. If members of staff know, or are in a position to know, that a particular patient presented a real and immediate risk of suicide, there as an additional “operational” obligation to do all that could reasonably be expected to prevent such an eventuality.
End of the saga
The case has now finally concluded, with Mr Justice Mackay finding that the trust could and should have done more to protect Mrs Savage. He said “all that was required to give her a real prospect or substantial chance of survival was the imposition of a raised level of observations, which would not have been an unreasonable or unduly onerous step to require of the defendant…”
Read more:
- A note by Philip Havers QC on the 2008 House of Lords judgment.
- See below (after the page break) for commentary on the House of Lords case by Rosalind English
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30 April 2010 by Rachel Marcus
OM (ALGERIA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2010] EWHC 65 (Admin) – Read judgment
The claimant’s detention pending deportation was unlawful where (1) the Secretary of State had failed to take account of the guidance on immigration detention, which indicated that the mentally ill were usually unsuitable for detention and (2) the Secretary of State had failed to notify the Claimant of his right of appeal once a Court of Appeal had, in a similar case, determined such a right to exist.
Summary
The Claimant, having entered the UK illegally in 1996, had a string of criminal convictions and a Class A drug habit. Although he had claimed asylum in 1999 the whole of his claim was found by the Asylum and Immigration Tribunal (“AIT”) to be a fabrication. He had married and had two young children in the UK. The most significant issue, however, was his diagnosis in 2003 as suffering from schizophrenia.
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29 April 2010 by Kate Beattie
R (D and M) v Secretary of State for Work and Pensions; R (EM) v Secretary of State for Work and Pensions [2010] EWCA Civ 18
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With apologies, this post originally appeared with the wrong title
The Court of Appeal has ruled on two linked challenges to the entitlement to welfare benefits of prisoners detained in psychiatric hospitals. One claim alleged unlawful discrimination as compared with other psychiatric patients not serving sentences, in breach of Article 14 ECHR, taken together with Article 1 Protocol 1 ECHR. The other claim raised a point of construction of the relevant regulations affecting one category of such prisoners
The discrimination aspect of the case considered two categories of convicted, sentenced prisoners: those transferred to psychiatric hospitals under section 47 of the Mental Health Act 1983, and those subject to hospital and limitation directions under section 45A of the Act. Prisoners in the first category are transferred after sentence, and generally after serving time in prison, while those in the second were subject to a direction at the same time as they are sentenced. Such prisoners were to be contrasted with, on the one hand, convicted prisoners who serve their sentence in prison and, on the other, patients who have been detained under purely civil law powers or under section 37 of the Act (that is, following conviction, but without any sentence having been passed).
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21 April 2010 by Rosalind English
MAK and RK v United Kingdom (Application Nos 45901/05 and 40146/06) European Court of Human Rights March 23, 2010 – Read judgment
The taking of blood samples and photographs of a child by the medical authorities in the absence of the parents violated the child’s and parents’ rights to respect for their private and family life under Article 8 of the European Convention, and the inability of the parents to take an action for damages at common law against the hospital breached their right to a remedy under Article 13.
The applicant M.A.K was the father of R.K., who was born in 1989. In 1997 and again in 1998 M.A.K. took her to their family doctor because he, his wife and their daughter’s swimming teacher were concerned about what appeared to be bruising on her legs. This was followed by a visit to a paediatrician who had blood samples and pictures of the girl taken in the absence of either of the parents and despite the father’s indication that any tests should be done in the mother’s presence or with her explicit consent. The paediatrician concluded, after examining the girl’s genitalia and legs, that she had been sexually abused and informed the social workers.
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20 April 2010 by Rosalind English
EH v London Borough of Greenwich and AA and REA and RHA (through their guardian), A (children) [2010] EWCA Civ 344
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This was an appeal against the decision of the judge at first instance granting the local authority a full care order and placement order in respect of the appellant mother’s children. One of the children had been admitted to hospital as a baby with a fracture injury that was diagnosed as being non-accidental, following which both children were immediately taken from their parents’ care and placed with their maternal grandmother.
A later fact finding hearing determined that the baby’s injury had probably been caused by her father and that the mother had failed to protect the baby, although the judge did find that the mother had very many good qualities and her parenting abilities, per se, were not in issue, and that apart from the fracture injury there was no evidence that the children had suffered any harm.
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Oxfordshire County Council v X & Ors [2010] EWCA Civ 581 (27 May 2010) – read judgment
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