Category: Case summaries
16 June 2010 by Adam Wagner
Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010) – Read judgment
The Supreme Court have given the latest judgment on the controversial control order scheme, and in this case have allowed the appeal of a man suspected of terrorism on the grounds that confinement to a flat 150 miles away from his family amounted to a breach of his human rights.
The Appellant was an Ethiopian national who was the subject of a control order. This confined him to a flat for 16 hours a day in a Midlands town 150 miles away from his family in London.
The Supreme Court unanimously allowed the appeal, set aside the decision of the Court of Appeal and restored the High Court’s order. Lord Brown gave the leading judgment. Lord Rodger and Sir John Dyson SCJ delivered concurring judgments. The press summary of the judgment can be read here and the summary below is drawn from it.
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7 June 2010 by Matthew Hill
Louisa Watts v UK [2010] ECHR 793 (4 May 2010) – Read judgment
A 106-year-old woman has lost her challenge in the European Court of Human Rights to the closure of her care home. This is a latest in a line of unsuccessful human rights challenges by care home residents facing similar scenarios. Are the courts providing enough protection to this vulnerable section of society?
Louisa Watts, a 106 year-old resident of Underhill House, a care home owned and managed by Wolverhampton City Council, challenged the Council’s decision to close the home and move her to alternative accommodation. Her application for judicial review was refused, as was her appeal against that decision to the Court of Appeal. As a last resort, she took her case to the European Court of Human Rights on the basis that her Convention rights, including her rights to life and to respect for private life, had been breached.
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4 June 2010 by Adam Wagner
R (on the application of ASO MOHAMMED) v CHIEF CONSTABLE OF WEST MIDLANDS [2010] EWHC 1228 (Admin) – Read Judgment
A man who was arrested and cautioned for taking naked pictures of his girlfriend’s child has had his caution quashed and has been awarded £500 damages under the Human Rights Act. The case demonstrates that human rights claims can be successful against the police, and raises questions as to whether sex offender laws are being used overzealously.
We posted last month on the difficulty of bringing human rights claims when the police have made mistakes. This case provides an example of where human rights law can assist, and demonstrates what kinds of questions a court must ask itself before awarding damages under section 8 of the Human Rights Act 1998.
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3 June 2010 by Elspeth Wrigley
DH NHS Foundation Trust v PS (by her litigation friend, The Official Solicitor) [2010] EWHC 1217 (Fam) – Read judgment
The head of the Family Division, Sir Nicholas Wall, has ordered that a woman with learning disabilities be forced under sedation to undergo surgery in order to save her life.
This case brought to the fore the complex balance between allowing those who lack the capacity the autonomy to make decisions about how they wish to live their lives, and enabling the State to step in when such decisions are not only unwise but actually life threatening. It treads a delicate path between a number of human rights, in particular Article 2 (right to life), Article 5 (right to liberty and security) and Article 8 (right to privacy).
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1 June 2010 by Adam Wagner
The European Court
The UK Supreme Court Blog has posted a useful round-up of key European Court of Human Rights judgments from the past few months.
The following cases catch the eye (all summaries courtesy of the UK Supreme Court Blog):
Al-Saadoon and Mufdhi v. the United Kingdom(Application no. 61498/08) (2 March 2010) This was a case about two Iraqis taken prisoner by the British troops in Iraq and handed over to the Iraqi authorities against the ECtHR’s previous orders. The ECtHR found a violation of Article 3 (prohibition of torture) as the two prisoners had been exposed to the death penalty which they would face in Iraq. This judgment is important in the context of a series of decisions and judgments on the death penalty (see paragraph. 123 of the judgment).
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28 May 2010 by Adam Wagner
General Dental Council v Rimmer [2010] EWHC 1049 (Admin) (15 April 2010) – Read judgment
A dentist has been ordered to hand over his patients’ medical records to a court in order to help his regulator prosecute him for misconduct. The case raises interesting questions of when the courts can override patient confidentiality which would otherwise be protected by the Human Rights Act.
When health professionals are being prosecuted for misconduct,their patients’ confidential records will almost invariably be disclosed to the court if requested, even without the patients’ consent. Some may find this surprising, given the fact that medical records almost invariably contain highly private and potentially embarrassing information which a person would justifiably not want disclosed in a public court. However, the situation is not as simple as it first appears, as demonstrated by the recent case of an allegedly dodgy dentist.
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27 May 2010 by Adam Wagner
AC v Berkshire West Primary Care Trust [2010] EWHC 1162 (Admin) (25 May 2010) – Read Judgment
An NHS Trust acted rationally in refusing to provide breast enlargement surgery to a transsexual, the High Court has ruled, even though there was credible medical evidence that the surgery would have been beneficial. The case raises issues as to when treatment can truly be said to be “necessary” in light of increasingly tight purse strings, and whether NHS policy could be discriminatory towards transsexuals.
The Claimant, AC, had been diagnosed with gender identity disorder (GID). As part of its GID treatment program the PCT had been prepared to provide genital reassignment surgery, which AC had refused.
As part of her treatment, AC was given hormone therapy but was disappointed with her subsequent breast development. Her GP wrote in 2006 that AC had found that her lack of breasts made it “much more difficult for her to feel feminine. It tends to get her down although she does not have a history of significant depression… Whilst we can offer her what support we can with this, this is never clearly going to be as effective as a surgical solution.”
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25 May 2010 by Adam Wagner
Human rights challenges to deportation and extradition seem to be constantly in the public eye. Gary McKinnon’s battle against extradition has caught the public, as has the now notorious “Pathway Students” terrorist deportation case. An examination of three recent decisions highlights the various ways in which the courts approach the human rights arguments in such cases.
There have been a steady stream of high-profile deportation and extradition decisions in the past few weeks, none more controversial than the “Pathway students” case, where two suspected terrorists were saved from deportation to Pakistan as they were thought to be at risk of torture or death upon their return. The Daily Telegraph reports that the Human Rights Act is being invoked in a growing number of asylum and immigration case, although it does not say whether the number of successful uses of the Act has increased.
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20 May 2010 by Adam Wagner
KENNEDY v. THE UNITED KINGDOM – 26839/05 [2010] ECHR 682 (18 May 2010) – Read judgment
The European Court of Human Rights has held that the UK’s Regulation of Investigatory Powers Act (RIPA) does not breach Article 8 of the European Convention on Human Rights, the right to private life or Article 6, the right to a fair trial. The judgment is timely, with the new Government debating at present whether intercept evidence should be allowed to be used in court.
The case has a long and intriguing history. On 23 December 1990, Mr Kennedy was arrested for drunkenness and taken to Hammersmith Police Station. He was held overnight in a cell shared by another detainee, Patrick Quinn. The next day, Mr Quinn was found dead with severe injuries. Mr Kennedy was charged with his murder. He alleged that the police had framed him for the murder in order to cover up their own wrongdoing. He was subsequently was found guilty of the murder of Mr Quinn and was sentenced to life imprisonment.
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20 May 2010 by Isabel McArdle
R (on the application of Dennis Gill) v Secretary of State for Justice – Read judgment
The Secretary of State for Justice should have done more to enable a prisoner with learning difficulties to participate in programmes which could have helped him gain an earlier release. In finding that the prisoner was discriminated against, the High Court has set down a precedent which will affect many other learning disabled prisoners.
Mr Justice Cranston held that participation in offender behaviour programmes would have made it easier for Mr Gill to persuade a Parole Board that he was suitable for release. His participation in them had been recommended but his learning difficulties had prevented him from taking part, and as such the Secretary of State for Justice had discriminated against him contrary to the Disability Discrimination Act 1995.
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18 May 2010 by Adam Wagner
British Airways Plc v Unite the Union Queen’s Bench Division, 17 May 2010 – Read judgment
Update (07/06/20) – this decision was reversed by the Court of Appeal on 20/05/10. We will comment on the Court of Appeal decision when it is available.
The High Court has granted an injunction for the second time in 6 months against a strike planned by British Airways cabin crew, scheduled to begin today. Those who had trips planned will be delighted, but the Unite trade union who represented the workers have called the decision a “landmark attack on free trade unionism and the right to take industrial action” and are to appeal the judgment.
The union argued that a recent series of similar injunctions against strike action ran foul of the Human Rights Act 1998. Article 11 of the European Convention on Human Rights grants the right to freedom of assembly. However, the right can be restricted in certain limited circumstances, as it was in this case.
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5 May 2010 by Adam Wagner
… but not too blind
Home Office v Tariq [2010] EWCA Civ 462 – Read judgment, Bank Mellat v HM Treasury [2010] EWCA Civ 483 – Read judgment
[Updated 7/5/10]
The Court of Appeal has told the Government three times in 24 hours that it cannot keep evidence secret in civil proceedings. Similar reasoning was applied in three different contexts; the employment tribunal, a case relating to Iranian nuclear proliferation and a claim for damages for foreign torture.
An identically constituted court as in the Al-Rawi and others judgment had already held on the same day that evidence in a high-profile torture compensation claim should not be kept entirely secret.
In two further decisions, the same judges held that the Treasury must give sufficient disclosure to allow a bank accused of involvement in Iranian nuclear proliferation to not just deny but refute the allegations (Bank Mellat v HM Treasury), and that the Home Office must provide the “gist” of material it had wanted to keep secret from an employment tribunal (Home Office v Tariq). The court did not, however, go as far as saying that evidence can never be kept secret in cases involving national security.
All three cases revolve around the controversial “closed material procedure“, which allows certain evidence to be kept from the public and sometimes a defendant, and the use of “special advocates” (SA). As the Court of Appeal said in para 1 of the judgment, these procedures, developed as part of the fight against terrorism, represent “exceptions to the fundamental principle of open justice.” We have posted about the issues surrounding the special advocate system in relation to control orders (read post).
The cases higlight the strong line the courts have taken towards open justice since the AF case in 2009, a criminal matter in which the House of Lords (now the Supreme Court) held that it was a breach of the right to a fair trial under Article 6 to hold someone under a control order without sufficient information about the allegations against him even where disclosure would compromise the country’s national security (read our case comment).
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4 May 2010 by Adam Wagner
Binyam Mohamed
Al Rawi & Ors v Security Service & Ors [2010] EWCA Civ 482 (04 May 2010) – Read judgment
The Court of Appeal has roundly rejected a request by the Government that evidence in a high-profile torture compensation claim should be kept secret from the public. It has also used the opportunity to emphasise that the interests of open justice would be serious compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.
This compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment.
The judgment is the latest in a series of reverses suffered by the Government in matters involving Binyam Mohamed and others in relation to their alleged torture. In February the Court of Appeal ordered it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by American authorities.
In the latest judgment, the Court of Appeal rejected the previous judgment of Mr Justice Silber in the High Court. The issue was whether the judge was right to conclude that it is open to a court, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty.
The appeal judges concluded that it was not open for a court to order a closed material procedure, stating that:
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4 May 2010 by Elspeth Wrigley
BJ (Incapacitated Adult) sub nom Salford City Council V BJ (By His Litigation Friend The Official Solicitor) [2009] EWHC 3310 (Fam) – Read judgment
Where there is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights, regular reviews by the court are not merely desirable but essential.
This case concerned the application of Article 5 of the European Convention on Human Rights to the ongoing review of the continuing detention of persons lacking capacity. The individual in question was a 23 year old man, BJ. As BJ lacked capacity, it was found that his best interests would be served by his continued residence at a location referred to as “MH”.
As such, the care plan devised by the local authority and approved by Lord Justice Munby (in the original hearing of 16 May 2008), required the deprivation of BJ’s liberty within the meaning of Article 5 of the European Convention on Human Rights.
Summary
Given that BJ was being deprived of his liberty, Article 5 required a review by the court of the lawfulness of his detention at ‘reasonable intervals’. Munby LJ had set out the frequency and nature of any review at the previous hearing and at paragraph 10 of this judgment the LJ again highlighted the importance of regular reviews in such circumstances,
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2 May 2010 by Adam Wagner
M and Others v Her Majesty’s Treasury, Case C‑340/08, 29 April 2010 – Read judgment
The European Court of Justice (ECJ) has ruled that social security benefits cannot be withheld from family members of those suspected of being associated with the Al Qaeda terrorist network.
The Government will probably now have to change the law, although The Times reports that the judgment will only affect less than a dozen people living in Britain.
Summary
The United Nations implemented measures shortly after the 11 September 2001 attacks to freeze all assets of terror suspects. The UK had up to now taken a wide view of these measures, and had frozen not just the benefits of the suspects themselves, but also of their families.
The Treasury’s reasoning had been that money spent by, for example, a suspect’s wife on the running of the family household will be “for the benefit” of him. For example, if she buys food for a communal meal in which he participates, the money will have been spent for his benefit.
The case was referred to the ECJ by the House of Lords (now the Supreme Court) in 2008 (M, R (on the application of) v Her Majesty’s Treasury [2008] UKHL 26). The question of interpretation was whether the words “for the benefit of” in article 2.2 of Council Regulation (EC) No 881/2002 have a wide meaning which covers any application of money from which a listed person derives some benefit, or whether they apply only to cases in which funds or assets are “made available” for his benefit, so that he is in a position to choose how to use them.
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Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010) – Read judgment 
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