Category: Case summaries
5 December 2012 by Rosalind English
X v Facebook Ireland Ltd [2012] NIQB 96 (30 November 2012) – read judgment
This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the “wild west” of the internet and the question of social media regulation.
This short judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,
The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.
Background to the case
The plaintiff (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith.
Continue reading →
Like this:
Like Loading...
28 November 2012 by Alasdair Henderson
C.N. v. THE UNITED KINGDOM – 4239/08 – HEJUD [2012] ECHR 1911 – read judgment here.
The European Court of Human Rights recently held that the UK was in breach of Article 4 of the European Convention on Human Rights by failing to have specific legislation in place which criminalised domestic slavery.
Thankfully Article 4 cases (involving slavery and forced labour) are rare in the UK. Indeed this is only the fifth post on this blog about Article 4, which perhaps shows just how few and far between they are, and the UK has a proud history of seeking to prevent slavery. Although British merchants and traders, to their great shame, played a major part in the trans-Atlantic slave trade throughout the 1600s and 1700s, Britain was then at the forefront of the abolition of the slave trade and slavery from 1807 onwards and the common law has always considered slavery to be abhorrent (as the famous case of ex parte Somersett in 1772 made clear).
Tragically, however, slavery has not been consigned to the history books. Across the world new forms of slavery are prevalent. The International Labour Organisation estimates that there are a minimum of 12.3 million people in forced labour worldwide, and one particular form of modern slavery – human trafficking – is one of the fastest-growing forms of human rights abuse. The UK, as a major destination country for trafficking victims, is not immune from this trend.
Continue reading →
Like this:
Like Loading...
28 November 2012 by Rosalind English
MXB v East Sussex Hospital Trust – read judgment
Elizabeth-Anne Gumbel QC of 1 Crown Office Row acted for the claimant in this case. She has nothing to do with the writing of this post.
In personal injury proceedings involving a child it was appropriate to grant an anonymity order prohibiting her identification since it would defeat the purpose of the proceedings to ensure that she received and kept compensation awarded for her injuries.
Publication of her name was not in the public interest, and the curtailment of her and her family’s right to respect for their private and family life that would occur could not be justified.
Continue reading →
Like this:
Like Loading...
22 November 2012 by Rosalind English
Oakes and others v R [2012] EWCA Crim 2435 – read judgment
The imposition of whole life orders for extremely serious crimes does not violate the prohibition on inhuman and degrading treatment under Article 3.
Until relatively recently, the Secretary of State decided the minimum term to be served by a “lifer” – a defendant who subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the 2003 Criminal Justice Act. Schedule 21 para 4 allows judges to order a whole life minimum term, a jurisdiction of last resort in cases of exceptional criminality.
It was submitted in these conjoined appeals that this provision contravenes Article 3 of the European Convention of Human Rights. Not so, said the Court of Appeal, Criminal Division.
Continue reading →
Like this:
Like Loading...
21 November 2012 by Rosalind English
Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) – read judgment
Turner v East Midlands Trains [2012] EWCA Civ 1470 – read judgment
Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority.
It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.
Continue reading →
Like this:
Like Loading...
13 November 2012 by Rosalind English
Peta Deutschland v Germany (No. 43481/09) – read judgment
Referring to the concentration camps has become an offence on a par with holocaust denial, it seem, in certain contexts.
In 2004 the applicant animal welfare association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.
Three individuals filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. They submitted that the intended campaign was offensive to them as survivors of the holocaust and violated their human dignity.
Continue reading →
Like this:
Like Loading...
8 November 2012 by Rosalind English
MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment
This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see Adam’s post on the Home Office’s proposals earlier this year).
Before the new immigration rules were introduced in July, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act 2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions to the automatic deportation regime, “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.
But then there was a move to set out an extensive, codified definition of the Article 8 balancing factors, in order to
unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.
Continue reading →
Like this:
Like Loading...
2 November 2012 by Lois Williams
Irene Wilson v. The United Kingdom (Application no. 10601/09) – read admissibility decision
Sadly barely a month seems to go by without a report in the media about the police and the justice system failing to protect the victims of domestic violence.
The Strasbourg Court has been required on a number of occasions to assess whether the response of domestic authorities to domestic violence has been compatible with their positive obligations under Article 8 (right to respect for family and private life) of the Convention. Given that such individuals are of a particular vulnerability, Strasbourg has repeatedly emphasised the need for active state involvement in their protection. However, in this particular admissibility decision, the Court held that the Northern Irish authorities had not failed in their duty under the Convention to protect the applicant.
Background Facts
The applicant, Irene Wilson, was assaulted by her husband after they had been out drinking. She suffered a severed artery on her head, requiring eight stitches as well as multiple bruising. Her husband was arrested and charged with causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. He was granted bail and required to reside at an alternative address to the matrimonial home.
Continue reading →
Like this:
Like Loading...
1 November 2012 by Rosalind English
The Queen on the application of Totel Ltd v The First-Tier Tribunal (Tax Chamber) and The Commissioners for Her Majesty’s Revenue and Customs [2012] EWCA Civ 1401 – read judgment
Tax litigation is not the most obvious hunting ground for human rights points but if claimants feel sufficiently pinched by what they perceive as unfair rules, there is nothing to stop them appealing to the courts’ scrutiny of the lawfulness of those rules.
Human rights were not raised per se in this appeal but constitutional principles which arguably play the same role made all the difference to the outcome.
This case concerned the removal of a right of appeal by an Order in Parliament that stopped the appellant company (T) in its tracks, so naturally it turned to judicial review to find a remedy that the tax tribunal was not prepared to grant. T prayed in aid a fundamental principle of our unwritten constitution set out in R (Spath Holme Ltd) v Secretary of State for Transport, the Environment and Regions [2000] 2 WLR 15:
Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation. When it does so the enabling power should be scrutinised, should not receive anything but a narrow and strict construction and any doubts about its scope should be resolved by a restrictive approach.[35]
Continue reading →
Like this:
Like Loading...
30 October 2012 by Rosalind English
R (on the application of J) v the Chief Constable of Devon and Cornwall [2012] EWHC 2996, 26 October 2012 – read judgment
Close on the heels of last week’s decision regarding disclosure of information from the Child Sex Offenders Register comes this ruling on the police decision to disclose certain information from a nurse’s enhanced criminal records certificates without affording her an opportunity to make representations before the information was released.
The Legal Framework
Section 113B of the Police Act 1997 provides for enhanced criminal record checks to be carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults. The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicant’s criminal or other behaviour which have not been tested at trial or led to a conviction.If the information satisfies certain threshold tests in the relevant statute, it must be given to the Secretary of State who must include it in the relevant individual’s Enhanced Criminal Record Certificate or “ECRC.”
Continue reading →
Like this:
Like Loading...
29 October 2012 by Rosalind English
X (South Yorkshire) v Secretary of State for the Home Department and Chief Constable of Yorkshire [2012] EWHC 2954 (Admin)- read judgment
The High Court has made an important ruling about the disclosure of information under the Child Sex Offender Disclosure Scheme (CSOD).
This non statutory arrangement has been in place since March 2010. It allows members of the public to seek details from the police of a person who has some form of contact with children with a view to ascertaining whether that person has had convictions for sexual offences against children or whether there is other “relevant information” about them which ought to be made available. This request could come from any third party such as a grandparent, neighbour or friend. The aim of the scheme is described thus:
This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer. In the event that the subject has convictions for sexual offences against children, poses a risk of causing harm to the child concerned and disclosure is necessary to protect the child, there is a presumption that this information will be disclosed.
Anya Proops’ post on the Panopticon blog sets out a clear summary and analysis of the ruling by the President of the Queen’s Bench Division and Hickinbottom J. Here are a few more details about the judgment.
Continue reading →
Like this:
Like Loading...
25 October 2012 by Rosalind English
Whiston, R (on the application of) v Secretary of State for Justice – read judgment
When a prisoner is recalled from home detention curfew he does not suffer a fresh deprivation of liberty so as to engage Article 5(4)of the Convention.
Since this part of Article 5 confers a right on any person who is detained to challenge the legality of the detention determined by a body sufficiently judicial in character, the lack of review would render the decision unlawful. As Lord Elias says in his opening remarks,
This is one of a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage that Article. Problems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices.
Continue reading →
Like this:
Like Loading...
23 October 2012 by Rosalind English
Chabauty v France 4 October 2012 – read judgment
I have posted previously on cases involving the ethical objection of landowners to being forced to allow hunting over their property.
These objections have generally found favour with the Strasbourg Court in the balancing of private and public interests under the right to property. Mr Chabauty puts the issue into another perspective. He also complained that he was unable to have his land removed from the control of an approved municipal hunters’ association. The difference was – and this proved to be critical to the outcome of the case – Mr Chabauty is not himself against hunting on ethical grounds. Since no conscience was underlying his Convention complaint, the Court found it not to be disproportionate for the French state to require small landowners to pool their hunting grounds. As such, there had been no violation of Article 1 Protocol 1 or Article 14.
Continue reading →
Like this:
Like Loading...
19 October 2012 by Rosalind English
EM (Eritrea) and others v Secretary of State for the Home Department – read judgment
A member state was entitled to return a refugee to the EU state of first embarkation unless it is proved that there are “systematic deficiencies” in the asylum procedures of the receiving state.
These four cases raised one central question: was it arguable that to return any of the claimants to Italy, either as an asylum-seeker pursuant to the Dublin II Regulation or as a person already granted asylum there, would entail a real risk of inhuman or degrading treatment in violation of Article 3 of the ECHR? In determining that question, the evidence provided by the UN Refugee Agency was decisive for the court.
The Dublin II Regulation provides for a system whereby asylum claims are processed and acted on by the first member-state in which the asylum-seeker arrives. Under this Regulation asylum-seekers and refugees may be returned to that state if they then seek asylum or take refuge elsewhere in the EU. The assumption underlying this system is that every member state will comply with its international obligations under not only the 1951 Refugee Convention and the European Convention on Human Rights but also the Qualification Directive and the EU Charter.
Continue reading →
Like this:
Like Loading...
18 October 2012 by Adam Wagner
Last month I posted on the troubling case of Rachel Corrie, a 23-year-old protester killed by an Israeli military bulldozer in 2003. In August, an Israeli court ruled that the Israeli Defence Ministry bore no responsibility in civil law for her death.
I complained that the reporting of the ruling had been poor, despite a reasonably good summary in English produced by the court. One of the main problems undoubtedly was the lack of an English translation of the 73-page Hebrew ruling. Until now, that is. Through the magic of the internet – and a huge amount of work – Irène Solomon, a legal advisor at Ofgem and reader of this blog, has translated the judgment from Hebrew into English. She has taken on this mammoth task for free in her personal capacity and has given me permission to publish her work online as a UKHRB exclusive.
You can download the translation here (PDF) and it is also reproduced after the break below. I should emphasise that this is not an official translation, but it does appear to me to be a very good effort indeed.
Continue reading →
Like this:
Like Loading...
Recent comments