Category: Case summaries
12 August 2010 by Caroline Cross
Shirin Jisha v The Secretary of State for the Home Department [2010] EWHC 2043 (Admin) – Read judgment
When is a human rights claim a human rights claim in an immigration context? The High Court has recently considered this question in the case of a Bangladeshi citizen who had her visa cancelled when returning from a trip abroad.
This case related to the proper meaning of section 113(1) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State had argued that the claimant’s claim was not a “human rights claim” because the claim was not made “at a place designated by the defendant” but served as part of her appeal to the Asylum and Immigration Tribunal against the defendant’s refusal to grant her leave to enter. It was held that the claim was a “human rights claim” within the terms of section 113(1).
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11 August 2010 by Adam Wagner
Ken Clarke
The Ministry of Justice (MoJ) is to cut £2bn from its £9bn or so budget. But where will this 20% cut come from?
Kenneth Clarke’s MoJ are said to have got in early in agreeing spending reduction targets with the Treasury, and yesterday it was reported by the Public and Commercial Services Union that senior staff were informed by email that the cuts will amount to around £2bn of the overall budget. The Union suspect that around 15,000 of the MoJ’s 80,000 staff may have to be axed.
However the MoJ makes the cuts, a reduction of around 20% is likely to have severe effects on access to and provision of justice in the United Kingdom. Various MoJ-funded bodies have already been lining up to explain why their departments could not survive on much less. The criminal legal aid system has long been said to be in crisis, the President of the Family Division indicated last week that the child protection system is in grave danger of imploding, and the Chief Executive of the Supreme Court has said the cuts could cripple the new court.
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11 August 2010 by Adam Wagner
Redaction in Al Rawi
Gradwick v IC and the Cabinet Office (EA/2010/0030) – Read decision
The Panopticon Blog has highlighted an interesting recent case in the General Regulatory Tribunal which may prove to be useful in the many different situations where documents are disclosed in redacted form.
The General Regulatory Tribunal (‘the Tribunal’) regulates information rights, amongst other things. Simply, the Tribunal held that if parts of documents disclosed under the Freedom of Information Act 2000 are to be redacted (blacked out), it is not good enough to transcribe a new document with the offending parts removed. This is because, as the Tribunal said:
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3 August 2010 by Adam Wagner
Worth lying for?
(1) MS JENNY PATON (2) C2 (3) C3 (4) C4 (5) C5 and POOLE BOROUGH COUNCIL, Investigatory Powers Tribunal – Read ruling
The Investigatory Powers Tribunal (IPT) has ruled that a local council acted unlawfully in spying repeatedly on parents suspected of lying about where they lived in order to get their child into a sought after school. The ruling may not, however, prevent local authorities from spying on families for similar reasons in the future.
The IPT exists to investigate complaints about conduct by various public bodies, including in relation to surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA). Section 28 of RIPA allows a public body to apply to conduct direct surveillance if the authorisation is necessary on various grounds, including the detection of crime.
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2 August 2010 by Adam Wagner
For those of you looking for more information on last week’s Supreme Court judgment on UKIP party funding (see our previous post), we have been sent an interesting analysis of the judgment from Lucy Colter at Four New Square Chambers.
Patrick Lawrence Q.C. and Can Yeginsu, also of Four New Square, appeared for UKIP. The judgment was only of tangential importance in respect of human rights, but Coulter addresses this towards the end of her article. The main point was that a court in future would have leeway as to how much it could order a party to forfeit. As such, the court was satisfied that the party funding legislation is sufficiently flexible so as not to contravene human rights law:
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29 July 2010 by Adam Wagner
Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) – Read judgment
The Court of Appeal has ruled that secretly obtained documents can no longer copied and then used in divorce proceedings, overturning a rule dating back almost twenty years. The case will have a significant impact for divorcing couples, but has the court left itself open to a Supreme Court reversal on human rights grounds?
The appeal related to the divorce proceedings between Vivian and Elizabeth Imerman, in which Mrs Imerman’s brothers brothers had downloaded documents from Mr Imerman’s office computer in order to prove that he had more assets than he had disclosed to the court. Mr Justice Moylan ruled in the High Court that seven files of documents should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege. Mr Imerman appealed against the decision that he would then have to give the documents back, and Mrs Imerman argued that she should be given more control over the privilege process.
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29 July 2010 by Adam Wagner
AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010) – Read judgment
The Court of Appeal has held that control orders of three men suspected of terrorism revoked by the Government should in fact be quashed altogether. The decision opens the door for the men to claim compensation, and deals another blow to the controversial control order scheme.
This is the latest in a long and tortuous series of court judgments which have chipped away at the controversial control order scheme. This latest decision arises from a 2009 House of Lords (now the Supreme Court) decision that it was a breach of the right to a fair trial under Article 6 (the right to a fair trial) to hold someone under a control order without sufficient information about the allegations against him, even where the case against the “controlee” was based on closed materials, the disclosure of which would compromise the country’s national security (see our summary).
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26 July 2010 by Adam Wagner
Medical Justice, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin) (26 July 2010) – Read judgment
The High Court has ruled that a fast-track scheme for the removal of failed asylum seekers with little or no notice is unlawful as it does not provide sufficient access to justice.
Permission to appeal has been granted but the decision could put a stop to the policy being implemented for the time being.
The challenge was brought by Medical Justice, a charity which advises asylum seekers, represented by the Public Law Project, a legal charity which aims to improve access to public law remedies (see their press release here). The policy being challenged came into effect in January 2010, and gives individuals who fall into certain specified categories and who have made unsuccessful claims to enter or to remain in the United Kingdom, little or sometimes no notice of their removal directions.
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26 July 2010 by Adam Wagner
KS v R [2010] EWCA Crim 1756 (23 July 2010) – Read judgment
J, S, M v R [2010] EWCA Crim 1755 – Read judgment
The Lord Chief Justice has emphasised in two Court of Appeal judgments that the jury-less trials must be a last resort and take place only in truly extreme cases. His comments are clearly aimed at putting the breakers on an accelerating trend of requests for jury-less trials in prosecutions of serious crime, following the ground-breaking but controversial ‘Heathrow heist’ trial.
The Criminal Justice Act 2003 limited for the first time the right to trial by jury in the Crown Court, where trials for serious crimes take place. Section 44 provides for the option of judge-only trials if there is a “real and present danger” of jury tampering.
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23 July 2010 by Matthew Hill
Updated, 1/9/10 | R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment
When faced with conflicting authorities from the European Court of Human Rights and the House of Lords (now the Supreme Court) on the indefinite retention of DNA profiles and fingerprints by the police, the Divisional Court held that they were bound to follow the House of Lords.
This was so despite clear indications from the previous and current governments that the law would be changed to take account of the Strasbourg decision. However, as leave to appeal was granted, the Supreme Court will now have the opportunity to revisit the issue and determine the law in this controversial area.
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23 July 2010 by Isabel McArdle
G v E and others [2010] EWCA Civ 822 – Read judgment
This post was written with the kind help of Jaime Lindsey
The Court of Appeal has held that a person who lacks mental capacity can be detained if the Court of Protection considers that it is in their best interests, without having to meet additional conditions under Article 5 of the European Convention on Human Rights.
This case was a challenge to the decision of Jonathan Baker J in the Court of Protection and raises issues about the relationship between ECHR Article 5 (right to liberty and security) and the Mental Capacity Act 2005 (MCA). It reinforces the point that it is for the Court to decide what is in an incapacitated patient’s best interests, and that Article 5 imposes no further requirements.
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22 July 2010 by Adam Wagner
A (A Child) v The Chief Constable of Dorset Police [2010] EWHC 1748 (Admin) (16 July 2010) – Read judgment
The High Court has ruled that the gist of sensitive evidence in a case involving a child being picked up for being spotted with an “inappropriate adult” must be disclosed in order that the child can bring a claim against the police.
The case is probably the first to follow the significant restriction of the use of secret evidence resulting from the Al Rawi decision (see our previous post), in which the Court of Appeal rejected a request by the Government that evidence in a torture compensation claim be kept secret from the public, and emphasised that the interests of open justice would be seriously compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.
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22 July 2010 by Adam Wagner
Gary Flood
The fall-out from last week’s Court of Appeal judgment in Flood v Times Newspapers Ltd continues as the Times’ long-standing in-house lawyer parts company with the newspaper, and commentators remain unsure as to whether the case marks a significant blow for press freedom.
We posted last week on the Flood case, in which a police officer accused of taking bribes won his battle to prevent the Times relying on the Reynolds defence, which allows allegations to be reported even if they turn out to be wrong. The well-known and much used defence arises from the 1999 case of Reynolds v Times Newspapers in which the House of Lords (now the Supreme Court) extended the defence of qualified privilege to cover the media. Lord Nichols also provided 10 criteria which should be taken into account when deciding whether the defence applies (see the end of his judgment). Since 1999, the defence has been an important weapon in the press’ armoury in libel cases, and has undoubtedly led to greater press freedom.
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19 July 2010 by Rosalind English
Ali Zaki Mousa and others v Secretary of State for Defence and Legal Services Commission 16 July 2010 – Read judgment
Permission has been given to around 100 Iraqi applicants to bring proceedings to compel the Secretary of State to hold a single public inquiry to investigate breaches of Article 3 in relation to each of the claimants with respect to their treatment whilst in detention in Iraq
The claimant was representative of a group of Iraqis numbering about 100 who either have brought, or wish to bring, judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces in breach of Article 3. It is possible that up to 100 other Iraqis may wish to join the group in the future.
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16 July 2010 by Adam Wagner
Updated – 6/8/10
Five activists were recently acquitted for causing £180,000 damage to an arms factory after successfully deploying the defence of lawful excuse. But did the judge’s politically coloured summing up of the evidence to the jury render the trial a miscarriage of justice?
Article 6 of the European Convention on Human Rights guarantee a “fair and impartial tribunal”, and it is sometimes claimed in courts that a judge or judicial panel are biased and therefore cannot preside over a fair trial. While not often successful, the complaints are always taken seriously. As any law student knows, justice must not only be done but also be seen to be done.
To this end, judicial impartiality has been much in the news of late. Cherie Booth QC, an observant Christian, was apparently rapped by the Office for Judicial Complaints for reducing a defendant’s sentence on the grounds that he was a “religious man” who knew what he did was wrong. Meanwhile, in a less successful challenge to a judicial decision, Lord Carey failed to convince the Court of Appeal that a judicial panel of special religious expertise was needed in the case of a Christian marriage councilor sacked for refusing to counsel gay couples.
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Shirin Jisha v The Secretary of State for the Home Department [2010] EWHC 2043 (Admin) – Read judgment
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