Category: Case summaries
29 June 2010 by Isabel McArdle
In the matter of an application by ‘JR17’ for Judicial Review (Northern Ireland) [2010] UKSC 27
The Supreme Court found that there was no breach of a pupil’s right to education, where he was unlawfully suspended from school but was provided with work to do and home tutoring – read judgment
A pupil was suspended from school after a complaint from a female pupil about the pupil’s alleged misconduct in school. His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a Scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The principal purported to suspend the pupil in accordance with the Scheme but in fact failed to comply with its requirements. The pupil brought proceedings for judicial review, claiming that the suspension was unlawful and breached his right to education pursuant to Article 2 of the First Protocol of the European Convention on Human Rights, which the Human Rights Act 1998 protects. The Article provides:
No person shall be denied the right to education…
The Court of Appeal made a finding that, although the Scheme had not been complied with, the principal had lawfully exercised a common law power to suspend the appellant.The Supreme Court found that there was no such common law power but that the pupil’s right to education had not been breached by the suspension. During his suspension, work was provided to the boy to do at home and home tuition was arranged.
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28 June 2010 by Rosalind English
Christine Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 22 June 2010
A person who had acquired a different gender was entitled under European law to obtain the legal rights, such as an earlier pension, associated with the acquired gender – read judgment
The appellant had undergone male to female reassignment surgery. In 2002 she applied for a state pension, to be backdated to her sixtieth birthday. The Secretary of State decided that she was only entitled to a state pension from her 65th birthday. On appeal to the tribunal it was found that she had not obtained a full gender recognition certificate under the Gender Recognition Act 2004 (“the GRA”) and therefore she was not entitled to legal recognition of her new gender. As a consequence she could not qualify for a state pension from the age of 60. Prior to the Act, the United Kingdom had failed to implement Equal Treatment Directive 79/7/EEC to ensure that any national laws, contrary to the principle of equal treatment, were abolished. The Upper Tribunal rejected her appeal finding that she did not satisfy the criteria to be treated as a woman which could entitle her to receive a pension at the age of 60 under Council Directive 79/7.
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21 June 2010 by Adam Wagner
Binyam Mohamed
Al Rawi & Ors v the Security Service & Ors [2010] EWHC 1496 (QB) (21 June 2010) – Read judgment
The Government has received another in an increasingly long line of blows in the Al Rawi & Others foreign torture case, with Mr Justice Silber ordering a closed hearing to see whether two key security service documents are to be disclosed to the claimants. If the Government chooses not to claim public interest immunity, which is unlikely, the documents will be disclosed immediately.
The compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment. They claim to have been subjected to false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breaches of their rights under the Human Rights Act 1998.
The Government has recently ordered a public inquiry into the security services’ alleged complicity in torture, but this is not likely to start until after the Al Rawi claims are resolved.
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17 June 2010 by Rosalind English
The Gaza Strip
[2010] UKSC 25, 16 June 2010 – read judgement
The Supreme Court has ruled against a man who challenged his immigration decision to remove him to the Palestinian National Authority on the basis that he could not go back as he would not be allowed back in to the place of his birth.
The challenge was based on the contention that the “country” or the “territory” stated in the notice of the decision was not one that satisfied the requirements of the 1971 Immigration Act 1971, and therefore the decision was unlawful under Section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”)
The appellant, who was born in Gaza in 1985, had been living in Libya since the age of 5. In 2007 he entered the UK clandestinely in a lorry, and subsequently claimed asylum. This was rejected by the Secretary of State. His appeal of this decision was dismissed by the Immigration judge. She also dismissed this appeal insofar as it was based on the contention that the original immigration decision to remove him was “not in accordance with the law”.
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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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In the matter of an application by ‘JR17’ for Judicial Review (Northern Ireland) [2010] UKSC 27 
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