Category: Case summaries
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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29 April 2010 by Adam Wagner
McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010) – Read judgment
Gary McFarlane, a Christian relationship counsellor, has lost his application to appeal his Employment Appeal Tribunal decision in the High Court. Mr McFarlane was sacked by a marriage guidance service after he said he would not promote gay sex. He claimed he had been discriminated against on religious grounds.
The case caused a furore as the former Archbishop of Canterbury Lord Carey submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the High Court has now rubbished that suggestion. He said:
18. Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”. Nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.
19. It is possible that Lord Carey’s mistaken suggestions arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination. In cases of indirect discrimination (such as are provided for by paragraph 3(1)(b) of the 2003 Regulations, which is centre stage in the present case) the law forbids discriminatory conduct not by reference to the actor’s motives, but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects – outcomes – as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where (in a carefully controlled legislative setting) it can be shown to have justifiable effects. Accordingly the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey’s position.
Read more:
- More posts on religious discrimination
- Judgment in Mcfarlane v Relate Avon Ltd.
- Update 30/4/10 – Lord Carey responds: legal battle against believers is “”a deeply unedifying collision of human rights””
28 April 2010 by Elspeth Wrigley
A (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) v INDEPENDENT NEWS & MEDIA LTD & ORS [2010] EWCA Civ 343 – Read judgment
This appeal was bought on behalf of a severely disabled adult (known as “A”), against the order of Hedley J of 19 November 2009 that the media should be granted access to a hearing in the Court of Protection. The Lord Chief Justice has refused the appeal.
The case was unconventional, largely because of A’s own situation. A had been totally blind from birth and suffered from acute learning difficulties associated with Autism Spectrum Disorder, which meant that he was not able to lead an independent life and was dependent on others for his care. Despite this, however, A had taught himself the piano and had gone on to become an extraordinary gifted musician, and was described by the judge as ‘a man of remarkable accomplishment’.
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27 April 2010 by Adam Wagner
Frodl v Austria (Application no. 20201/04) 8 April 2010 – Read judgment
The European Court of Human Rights has taken another opportunity to criticise a European state for not allowing a prisoner, in this case convicted of murder, to vote. Prisoners will not be voting in the upcoming UK General Election, which may yet lead to a slew of compensation claims against the Government.
We posted recently on the continuing refusal of the UK Government to comply with the 2005 judgment of Hirst v UK, where the European Court held that the ban on prisoners voting in the UK was a breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
In Frodl v Austria the Court said that any restriction on voting rights must be proportionate to the end pursued, and
“must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.”
The Court went on to find a violation of the European Convention, for the reason that “it is inconceivable… that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction“.
The Court added that a prisoner’s right to vote could in some cases be taken away, but only in the limited scenario where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. In other words, there needs to be a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“.
In the UK, the Government have shown little willingness to enfranchise prisoners and convicts. This may well be because it prefers the risk of thousands of compensation claims, as well as continuing criticism from Europe, to taking the politically unpopular decision of allowing convicted criminals to vote.
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23 April 2010 by Isabel McArdle
Adetoro v United Kingdom (Application no. 46834/06, ECtHR)
The European Court of Human Rights has ruled that there was no violation of of the European Convention on Human Rights when a man was convicted after the judge failed to direct a jury properly in relation to the Defendant’s silence in a police interview.
Read judgment
The Court found there was no violation of Article 6 as the Defendant had not been convicted on the strength of his silence alone and there had been no unfairness in the trial as a whole.
The Applicant had been convicted of offences relating to a string of robberies. When interviewed by the police he had answered “no comment” to questions in relation to his movements recorded by police surveillance, association with other persons and whereabouts when the robberies were occurring. At trial, he admitted involvement in dealing in stolen cars and claimed that this explained the matters which the police had observed. He explained his silence on the basis that he did not wish to incriminate others.
In summing up, the judge omitted from his direction to the jury words to the effect that no inferences could be drawn from the Applicant’s silence unless its members were satisfied that the reason for his silence was that he had no answer to the questions asked or none that would stand up to scrutiny.
The Applicant argued that
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21 April 2010 by Adam Wagner
R (JF (by his litigation friend OF)) & Anor v SSHD [2010] UKSC 17
(Read Judgment or Supreme Court press summary)
The Supreme Court has unanimously ruled that lifelong requirements for sex offenders to notify the police when they move house or travel abroad are a breach of Article 8 of the European Convention on Human Rights. 24,000 former offenders will potentially be affected by the decision.
Under section 82 of the Sexual Offences Act 2003 all persons sentenced to 30 months’ imprisonment or more for a sexual offence become subject to a lifelong duty to keep the police notified of where they are living and when they travel abroad. Crucially, there is no right to a review of the necessity for the notification requirements.
The Respondents were convicted sex offenders. Both challenged the notification requirements by way of judicial review, on the basis that the requirements were a disproportionate manner of pursuing a legitimate aim of preventing crime and therefore breached their rights under Article 8.
Lord Philips gave the leading judgment. He emphasised that the question (as in the case of all human rights claims involving a “qualified” right in general and Article 8 in particular) was one of proportionality, and that the correct test, as had been set out in previous decisions, was:
whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective (para 17)
The Court went on to discuss UK and European authorities, and in particular referred to the Marper judgment, which we discussed earlier this week in relation to the retention of DNA samples (para 31). The European Court of Human Rights had been particularly concerned that in cases involving DNA there was no provision for independent review, as was the case with the notification requirements in this appeal.
The Court were concerned about risks of disclosure to third parties inherent in offenders having to visit police stations to report. They said:
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14 April 2010 by Adam Wagner
Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)
Read judgment
It would seem that legal aid is the topic of the day. Mr Justice Hickinbottom in the High Court has quashed the decision of the Legal Services Commission (LSC) not to grant an applicant for Judicial Review, Mrs Humberson, legal aid for representation at the inquest enquiring into the death of her son, Dante Lee Kamara. The judge took the opportunity set out five criteria which the LSC should apply when considering future applications (listed after the page break below).
Dante died in hospital on 1 July 2008 after an asthma attack. He was aged 10. The judge criticised the LSC’s decision not to grant funding to his mother, saying:
95. I regard the failure of the Commission to take into account the true nature and seriousness of the allegations Miss Humberstone faces at the inquest as a particularly serious defect in the decision making process: one reason why this case is unusual and essentially exceptional is because of the serious allegations Miss Humberstone faces, at the instigation of the agents of state who, she suspects, may have caused or contributed to her son’s death. This case does not open up any floodgate. I do not demur from the view in the Lord Chancellor’s Guidance, which itself reflects comments in Khan, that “in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above). Given the nature of an inquest, and the specialist nature of coroners, that must be so.
Article 2(1) of the European Convention on Human Rights provides: “Everyone’s right to life shall be protected by law“. That primary obligation includes not only a duty on the state not to take life, but also a duty on the agents of the state to take appropriate legislative and administrative steps to protect individuals from threats to life when in their care. This also encompasses a duty, in some circumstances, to investigate a death, and if necessary, provide funding so that the investigation, including an inquest, functions properly.
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13 April 2010 by Adam Wagner
The conviction of the “Heathrow heist four” at the Old Bailey has raised serious concerns that the historic right to trial by jury may be slipping away.
For the first time in 350 years, the four men were convicted in the Crown Court by way of a trial without a jury. On March 31st each received long prison sentences for their part in the robbery.
Henry Porter, writing in The Guardian, has severely criticised the reforms which allowed the trial to proceed with no jury. He says:
A profound change has occurred in Britain where it is now possible for counsels and a judge to decide the fate of defendants without the involvement of 12 ordinary citizens – the fundamental guarantee against arbitrary state punishment represented so well by the use of the star chamber under King Charles I.
The right to trial by jury has been steadily eroded in recent years. Civil courts now operate almost entirely without juries, as do some lower-level criminal courts such as Magistrates’ courts, which are only able to impose custodial sentences up to a maximum length of one year.
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12 April 2010 by Isabel McArdle
SAMUEL KINGSFORD BUDU v THE BRITISH BROADCASTING CORPORATION [2010] EWHC 616 (QB), 23 March 2010
Read judgment
A claim for libel in respect of three articles in a news website’s archive has been struck out in the Hight Court by Mrs Justice Sharp. When read in context, the articles were incapable of bearing the alleged defamatory meaning, the publisher had attached Loutchansky notices to them, and it would be a disproportionate interference with the publisher’s rights under ECHR Article 10 to allow the claim to proceed where it had been brought after four years had passed since the publication of the articles.
Summary
The Claimant brought proceedings in respect of three archived articles published by the BBC in mid 2004. They related to the decision of Cambridgeshire Constabulary to withdraw an oral job offer made to the Claimant after subsequently investigating the legality of his immigration status. Within weeks of first being published, the articles became accessible only in the archive, via search engines. The action related to the articles in the archive and the related Google snippets.
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7 April 2010 by Adam Wagner
Shirley Chaplin, an NHS nurse who was moved to a desk job for wearing a crucifix at work, has lost her employment discrimination claim against the NHS.
The Employment Tribunal judgment is not available at present, but The Times reports:
John Hollow, the tribunal chairman, ruled that the Royal Devon and Exeter Hospital had acted reasonably in trying to reach a compromise. It had argued that the objection to the crucifix, which Mrs Chaplin, from Kenn, near Exeter, had worn for 30 years, was based on health and safety concerns about patients grabbing the necklace, not religion.
According to the Christian Legal Centre (CLC), which strongly supports Ms. Chaplin’s case, the Tribunal held that Mrs Chaplin had not been indirectly discriminated against by the application of the uniform policy because she could not prove she was part of a group affected by the policy.
The Tribunal applied the reasoning in the previous case of Nadia Eweida v British Airways [2009] EWCA Civ 1025. Ms Ewieda’s claim also involved her being banned from wearing a Christian cross at work, in that case at British Airways. The Court of Appeal made clear that in an indirect discrimination cases brought under Reg. 3(1) of the Employment Equality (Religion or Belief) Regulations 2003, it was necessary to show that there had to be evidence of a “group disadvantage”, i.e. that more than one person had been affected by the policy. Ms Eweida could not establish a ‘group’ and as such her case failed.
The CLC claim that “the Tribunal has now decided that a group must be more than two people as well—leaving the law in a ludicrous level of uncertainty”. Ms Chaplin has already said she plans to appeal the decision.
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1 April 2010 by Adam Wagner
British Chiropractic Association v Dr Singh [2010] EWCA Civ 350
(Read judgment)
Dr Simon Singh has won the first battle in the libel action, brought by the British Chiropractic Association (BCA), in the Court of Appeal. Dr Singh was sued by the BCA in respect of an article he wrote in The Guardian in April 2008, in which he said there was not enough evidence to prove that chiropractic treatment is effective against certain childhood conditions including colic and asthma.
Mr Justice Eady ruled against Dr Singh in May 2009 in relation to two important preliminary issues. Dr Singh appealed to the Court of Appeal, and Lord Judge, Lord Neuberger and Lord Justice Sedley were asked to rule on the preliminary points relating to possible defences.
The Court has used the opportunity to mount a robust and somewhat lyrical defence of the right to freedom of expression.
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1 April 2010 by Adam Wagner
Allen v. The United Kingdom (Application no. 18837/06), Date of judgment: 30 March 2010
(Read judgment)
The European Court of Human Rights (ECtHR) has ruled that, in the circumstances, it was a breach of the applicant Susan Allen’s rights under article 5(4) of the European Convention on Human Rights (ECHR) for a Deputy District Judge to refuse her permission to attend an appeal against the grant of her bail.
In October 2005 Ms Allen was charged with two offences of conspiracy to supply Class A drugs. She was produced at Liverpool City Magistrates’ Court. Following a contested bail application she was granted bail by the Deputy District Judge, and the prosecution subsequently appealed. Her counsel requested that the judge allow her to be present at the appeal. The judge declined the request, reasoning that the applicant could be given a full report of what had happened from her counsel. Moreover, her attendance would be undesirable as one of the applicant’s co-accused had not been present at the hearing of the appeal against the grant of bail to him, and it would therefore be unfair to treat the applicant more favourably.
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