Category: Case law

Materiality in environmental judicial review

18 November 2013 by David Hart KC

Gemeinde Altrip et al v. Land Rheinland-Pfalz, CJEU, 7 November 2013 – read judgment

When you challenge a decision in the courts on the basis that it was unlawful, you must show that the wrong is material. The other side may say that the wrong led to no difference in the decision; it would have inevitably have been the same even if the defendant had acted lawfully. The onus is on you the claimant, but it is not at the moment a high one. Only a possibility of a different outcome is enough to get you home and the decision quashed.

This materiality issue was one of the points in this challenge by local landowners to a flood retention scheme affecting some 320 ha of their land in the former Rhine flood plain. The scheme had undergone an environmental impact assessment which the locals said was defective. But did the locals have to show that correcting the defects might have made a difference to the ultimate decision? That was one of the questions which the German federal administrative court referred to the EU Court.

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Renewable energy ambitions of the Scottish Ministers “trounce the law of the land”

11 November 2013 by David Hart KC

The sequel to this Scottish judicial review decision in Sustainable Shetland, (Lady Clark of Calton, read judgment, and my post) is another unedifying example of executive government ignoring courts when it suits them.

In this case, the judge (a former Law Officer in Scotland) quashed the grant of a wind farm consent, for two reasons, the relevant one being that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which was a pre-condition for such an application. Readers will recall that Scottish Ministers had also resisted the highly controversial planning appeal being heard at public inquiry – or the Scottish equivalent.

If you are an ordinary citizen, and you get an adverse judgment, you can only do one thing – appeal it and wait for the decision on appeal. The Scottish Ministers plainly do not like the decision. They have sought to reverse it by a legislative amendment, which did not find favour in the House of Lords. But, rather less attractively, they are simply ignoring the decision pending that appeal on the basis that it is wrong. Judges, rather than ministers, might be thought to be a reasonable judge of that. But the Scottish Ministers think not.

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Watch that Charter

8 November 2013 by Rosalind English

AB, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin) – read judgment

Here unfolds a story of sophisticated abuse of the asylum system in this country by an individual skilfully shamming persecution. Nor did the security agents who escorted the claimant on his departure come up smelling of roses: it emerged during the course of these proceedings that they had falsified a room clearance certificate to boost the defence case.

The judgment also points up the potentially far-reaching effect of the Charter of Fundamental Rights of the European Union and how this might render all the handwringing about the European Convention on Human Rights  irrelevant, and a home grown Bill of Rights otiose.

Factual background

The claimant, whom Mostyn J describes as “a highly intelligent, manipulative, unscrupulous and deceitful person”, arrived  in this country in 2005, was refused asylum and was deported in 2010. He sought judicial review of the Home Secretary’s decision to refuse his claim and return him to his state of embarkation, “Country A” (so designated because there was a reporting restriction order made in the original proceedings anonymising both the claimant, his country of origin, and the political organisation of which he claimed to be a member. Mostyn J “reluctantly” went along with that order in this proceedings, since neither of the parties applied to have it reviewed.)

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The “uneasy” co-existence of public interest immunity and closed material procedure

7 November 2013 by Rosalind English

CF v Security Service and others and Mohamed v Foreign and Commonwealth Office and others [[2013] EWHC 3402 (QB) – read judgment

The High Court has today made the first court ruling on the use of the Justice and Security Act 2013 in a civil claim for damages.

In a ruling on preliminary issues, Irwin J made a declaration that the government can make a closed material application to the court in this case. The Court also ruled on PII. The following summary is based on the Court’s press release.

Factual background

CF and Mohammed Ahmed Mohamed are both British citizens of Somali descent. CF left the United Kingdom in 2009, Mohammed Ahmed Mohamed having left in 2007. They were both detained by the Somaliland Authorities on 14 January 2011. They were then detained until removal to the UK on 14 March 2011. Each claims that they were unlawfully detained, tortured and mistreated during the period of detention in Somaliland.
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Tax avoiders don’t have human rights – Philippa Whipple QC

6 November 2013 by Guest Contributor

R (on the application of Ingenious Media Holdings plc and Patrick McKenna v Her Majesty’s Revenue and Customs [2013] EWHC 3258 (Admin) –  read judgment 

Sales J has rejected an application for judicial review by Ingenious Media Holdings plc and Patrick McKenna, who complained that senior officials in HMRC had identified them in “off the record” briefings.

Ingenious Media is an investment and advisory group which promotes film investment schemes which allow participators to take advantage of certain tax reliefs and exemptions.  HMRC has long been fighting to close down these “film schemes”, with some success (see the Eclipse 35 appeal).
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You can’t be disabled when you’re dead – a footnote to R (Antoniou)

31 October 2013 by

A somewhat curious additional point arises out of the case of R (Antoniou) – see my earlier post for the main issue – in which the court decided that Article 2 ECHR does not require an independent investigation into deaths in state detention prior to a coroner’s inquest. There was therefore no obligation to ensure that there was an independent investigation into the suicide, or death resulting from self-harm, of a mentally ill person detained under Section 3 of the Mental Health Act 1983. There is such an investigation when a prisoner commits suicide. The Claimant thought this smacked of discrimination against the mentally disabled. The Court disagreed – on the somewhat surprising ground that you can’t be disabled once you’re dead.

Where a prisoner commits suicide, or dies as a result of self-harm, there will be an independent investigation from the outset. Any death in prison or in probation custody is automatically referred immediately to the Prisons and Probation Ombudsman for independent investigation. The Independent Police Complaints Commission performs a similar role for deaths in police, immigration or Customs & Excise detention. There is no equivalent independent investigator of deaths in mental health detention, which are investigated by the hospital where they occurred. The Claimant said this distinction discriminates between people who are mentally disabled and those of sound mind.

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1940 Soviet massacre outside reach of European Convention, rules Strasbourg

29 October 2013 by Dominic Ruck Keene

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Wind farms, birds, and that pesky thing called the rule of law

28 October 2013 by David Hart KC

Sustainable Shetland, Re Judicial Review, 24 September 2013, Lady Clark of Calton  read judgment

The current storms brought down a turbine in Teignmouth: see here for good pics of this and other mayhem. And the rule of law recently brought down a massive wind farm proposed for Shetland. The Scottish Ministers had waved aside a request for a public inquiry, and ended up drafting reasons which ignored the obligations in the Wild Birds Directive in respect of this bird – the whimbrel. Lady Clark quashed the consent on this ground, and also decided that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which she concluded was a pre-condition for such an application. 

And there is a very good chance that the NGO which brought this challenge would not be entitled to do so if Mr Grayling gets his way, because it might well not have been held to have “standing”. Such a change he would regard as “firmly in the national interest”: see my post of last week on proposed reforms to judicial review rules. There are, to say the least, two sides to that argument about national interest, hence the importance of responding to his consultation paper, with its closing date of 1 November 2013.

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When a decision-maker gives retro-reasons

25 October 2013 by David Hart KC

Lanner Parish Council (R ota) v. the Cornwall Council [2013] EWCA Civ 1290 read judgment

This planning judicial review tackles the problem posed by an authority who says one thing in its formal reasons granting planning permission, and another thing in the court proceedings when the grant is challenged.

Coastline wanted to construct 25 affordable dwellings in Lanner. The Parish in Lanner objected, on the basis that 25 was too many. It referred to a local planning policy (H20) which said that there should be no more than “about 12” houses on any new development in a large village such as Lanner.

The planning officer supported the grant of planning permission, and the Council agreed. The Council’s reasons for grant said that the proposal “accords with” policy H20. But it didn’t, because the policy referred to 12 houses, and the proposal was for 25 houses, and this error in the reasons was one of the Parish’s main points on the judicial review.

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Richard III on the move again – pitched into the current judicial review debate

23 October 2013 by David Hart KC

The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 18 October 2013 (PCO) read judgment, and on permission, 15 August 2013  read judgment

I posted here on the original judgment giving the Plantagenet Alliance permission to seek judicial review of the Secretary of State’s decision to re-bury Richard III in Leicester. At the time, the judge had made a full Protective Costs Order in favour of the Alliance, so that it would not have to pay costs if it lost. The judge had also ordered what he envisaged to be a short hearing to determine in what sum the Alliance’s costs should be capped. if it won. 

The judge was then somewhat surprised to be faced by a full-blown attempt by MoJ (Chris Grayling) to discharge the PCO, and seek an order for security of costs against the Alliance. The written argument in support was signed by the top barrister doing work for the Government, and the hearing about it took a day (think of the costs of that).

The application was conspicuously unsuccessful, as we shall see, but what was all this about?  Something to do with proposed judicial review changes, I suspect – for reasons which will become evident.

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Coroners inquest enough to satisfy Article 2 in mental health suicide case

22 October 2013 by

R (Antoniou) v (1) Central and North West London NHS Foundation Trust; (2) Secretary of State for Health; (3) NHS England [2013] EWHC 3055 (Admin) – read judgment

Where a patient, detained in hospital under Section 3 of the Mental Health Act 1983, takes their own life, Article 2 imposes procedural obligations on the State to investigate the circumstances of the death. These obligations are fulfilled by a coroner’s inquest. Unlike in prison and police station deaths, there need not be any independent investigation system prior to the inquest stage, and nor does Article 2 require one.

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The latest prisoner votes judgment may be our Marbury v Madison – Jamie Fletcher & Charlie Eastaugh

20 October 2013 by Guest Contributor

At first glance, prisoner voting proponents may interpret the Supreme Court’s R (Chester) v Justice Secretary decision (see Adam Wagner’s previous post)  as a defeat for advancing prisoner voting rights in the UK. This blog post offers a different perspective. By comparing Chester to the seminal US Supreme Court case of Marbury v. Madison, we summarise that such proponents should take a step back and see the wood, rather than merely the trees. This is because Lord Mance’s Chester judgment offers human rights advocates, and therefore supporters of prisoner voting rights, an unequivocal foundation from which to defend future human rights claims.

Chester does not achieve the same ends as Marbury. Marbury established the institution of judicial review in the United States, against Congressional legislation. Chester does not disturb the supremacy of the UK Parliament. Comparison arises within the strategies of the leading judgments in each case. Chief Justice Marshall’s judgment in Marbury is celebrated not only for its conclusion, that the Constitution of the United States is the highest form of law and therefore “it is emphatically the province and duty of the judicial department to say what the law is”, but also for how it reached that conclusion.

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Court orders MMR vaccine for children

18 October 2013 by Rosalind English

F v F [2013] EWHC 2683 (Fam) – read judgment

The High Court has ruled that two sisters must receive the MMR vaccine against their wishes and the wishes of their mother.

This was an application by the father for a declaration and a specific issue order concerning his daughters both receive the MMR vaccination. This was opposed by their mother.

Background

Following the breakdown of their parents’ marriage, the girls (aged 11 and 15 respectively) lived with their mother, and the father had contact every alternate weekend and half the school holidays. After publication of the now discredited paper published by Dr Andrew Wakefield in the Lancet connecting the MMR vaccine with autism, both parents agreed not to have a booster arranged for the older daughter (who had been inoculated against MMR at birth) and to forego a vaccination for the other daughter completely.
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This Supreme Court prisoner voting decision really is a victory for common sense

16 October 2013 by Adam Wagner

R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent), McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland) [2013] UKSC 63  – read judgment / press summary

The Lord Chancellor Chris Grayling recently told The Spectator that he wants “to see our Supreme Court being supreme again“. In light of his respect for the court, he should read today’s judgment on prisoner votes very carefully indeed, as should David Cameron who has already endorsed the decision as a “great victory for common sense”.

The Supreme Court dismissed two claims by prisoners who argued their European Convention (Chester) and European Union (McGeogh) rights were being breached because they weren’t allowed to vote in various elections. I won’t summarise the detail of their arguments, which can be found in our previous posts on the Court of Appeal and Scottish Outer House Court of Session decisions.

We will aim to cover the substance of the decisions in due course. But what I find really interesting was the Justices’ views on the European Court’s various decisions on prisoner votes, which the Government argued were poorly reasoned.

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Aarhus, A-G Kokott’s opinion, and the PCO reciprocal cap

15 October 2013 by David Hart KC

Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013              read opinion here 

Forgive me for returning to this case, but it raises all sorts of questions. On the face of it, it concerns 2 specific environmental directives, but it has implications for costs generally in environmental cases.

And why do I go on about costs? Because the prospect of being seriously out of pocket deters even the most altruistic environmentalist if they lose. Some may be purely NIMBYs, but most have a rather wider sense of the things that matter and that is not just about protecting their own assets. Claimants are normally up against public authorities and/or developers, so the balance of power has to be struck in the right place between them.

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