Category: Case summaries
5 March 2010 by Adam Wagner
Re W (Children) [2010] UKSC 12 [On appeal from [2010] EWCA Civ 57]
The Supreme Court has ruled that refusing an application for a child to give evidence in a trial may contravene Article 6 of the European Convention on Human Rights (ECHR).
At issue in this case is the care of five children. All the children were taken into foster care and the four younger children are having supervised contact with both parents. The father has since been charged with 13 criminal offences and is currently on bail awaiting trial.
In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. In November 2009 the judge decided to refuse the father’s application for her to be called. Instead, she would rely on the other evidence, including a video-recorded interview with the child.
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25 February 2010 by Elspeth Wrigley
R(on the application of Binyam Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65
This appeal was brought by the Secretary of State for Foreign and Commonwealth Affairs (“the Foreign Secretary”) against a decision of the Divisional Court to include seven short paragraphs in the open version of a judgment, notwithstanding the fact that the Foreign Secretary had started in a number of Public Interest Immunity Certificates that such publication would lead to a real risk of serious harm to the national security of the UK.
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24 February 2010 by Adam Wagner
The Queen on the Application of Ghai v Newcastle City Council & Others [2009]EWHC 978 (Admin)
Read the 1COR case comment
A devout Hindu man has won the right to have his body to cremated in accordance with his religious beliefs as a Hindu.
In the previous hearing, the Judge, Cranston J, proceeded on the assumption that the cremation desired by Mr Ghai would be in the open air, i.e. not within any structure. It was accepted by Mr Ghai that such an open air cremation would have been precluded by the legislation relating to cremation, at least if interpreted without reference to section 3 of the Human Rights Act 1998. Mr Ghai’s primary case before the Judge was that, if this was the right interpretation of the legislation, there would be an impermissible interference with his right to manifest his religion or belief under Article 9 of the European Convention. Although the Judge accepted that Article 9 was engaged, he went on to hold that the interference was justified . Mr Ghai also relied on Article 8 and Article 14 of the Convention, but the Judge held that they were not engaged.
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9 February 2010 by Adam Wagner
Binyam Mohamed
Read our case comment here
The Government has lost its appeal (see the BBC report) against the Divisional Court’s decision to order it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by the Americans. The Foreign and Commonwealth Office (FCO) had previously argued that to release the full email would damage national security. The full email can now be read on the FCO website.
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9 February 2010 by Adam Wagner
R (Degainis) v Secretary of State for Justice [2010] EWHC 137 (Admin)
Mr Justice Saunders
When deciding whether to award damages under Article 5(5) of the European Convention on Human Rights (ECHR) for breach of Article 5(4), regard has to be paid to Article 8 and the limits on damages in that provision. Articles 5 and 8 are not, however, incompatible. There was no basis for the claim that Article 5(4) compensation can only be monetary, and in some cases a finding of a breach can be sufficient compensation.
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4 February 2010 by Adam Wagner
Huitson, R (on the application of) v Revenue and Customs [2010] EWHC 97 (Admin)
Robert Huitson brought a Judicial Review against HM Revenue and Customs in order to challenge under the Human Rights Act 1998 sections 58(4) and (5) of the Finance Act 2008. He contended that these sections of the 2008 Act were incompatible with Article 1 of the First Protocol to the European Convention of Human Rights (“the ECHR”).
The claim related to a tax avoidance scheme based on the Isle of Man, which sought to take advantage of the UK and Isle if Man double taxation arrangement. The Claimant challenged HM Revenue’s attempt to retrospectively claw back taxation under the 2008 Act.
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13 January 2010 by Adam Wagner
Today the European Court of Human Rights ruled that section 44 of the Terrorism Act 2000 (the broad police power for stop and search without suspicion) violates the right to respect for private life guaranteed Article 8 of the Convention on Human Rights.
See the full story on the Liberty Website
Read the Times Law Report
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13 December 2009 by Adam Wagner
R (on the application of Rex Cart) (2) U (3) XC (Claimants) v (1) Upper Tribunal (2) SIAC (Defendants) & (1) Secretary of State for Justice (2) Secretary of State for the Home Department (3) Public Law Project (Interested Parties) & (1) Child Maintenance and Enforcement Commission (2) Wendy Cart (Interveners) DC (Laws LJ, Owen J) 1 December 2009 [2009] EWHC 3052 (QB)
The supervisory jurisdiction of the High Court, exercisable by way of judicial review, extended to decisions of the Special Immigration Appeals Commission that were not amenable to any form of appeal. It did not, however, extend to decisions of the Upper Tribunal, unless it had acted beyond its statutory remit.
Read the judgment or click the “continue reading” link below to see a comprehensive summary and case comment by Rosalind English.
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Re W (Children) [2010] UKSC 12 [On appeal from [2010] EWCA Civ 57]
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