Category: Case law
2 December 2013 by David Hart KC
Fulmen & Mahmoudian v. Council of the European Union,28 November 2013, read judgment
I posted last year on a decision by the General Court in Luxembourg, in which Fulmen successfully challenged sanctions taken against it as part of EU policy to apply pressure on Iran to end nuclear proliferation.
Fulmen was said to have supplied electrical equipment on the Qom/Fordoo nuclear site and Mr Mahmoudian was said to be a director of Fulmen. Hence all of their assets were frozen by the EU.
The CJEU has now roundly dismissed the appeal by the EU Council from the ruling of the General Court. The sanctions order has been annulled – over 3 years after it was made. The Council has been told that if it wants to uphold such orders, it must adduce evidence to the Court, however sensitive the subject matter, and even if not all of that evidence is passed on to those affected.
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29 November 2013 by Rosalind English
Zoumbas (Appellant) v Secretary of State for the Home Department (Respondent) On appeal from the Inner House of the Court of Session, [2012] CSIH 87 [2013] UKSC 74 – read judgment
The Supreme Court has clarified the principles to be applied when considering the welfare of children in deportation cases. The following summary is based on the Supreme Court’s Press Summary.
The appellant (Mr Z) and his wife (Mrs Z) are nationals of the Republic of Congo currently living in Glasgow with their three children, now aged 9, 5 and 2. Mr Z entered the UK illegally in May 2001 using a French passport that did not belong to him. He married Mrs Z in November 2003 after she had entered the previous year using a forged French passport and both their asylum claims had been refused. Their appeals were unsuccessful . In October 2005 Mrs Z and the couple’s daughter (A) were detained and removed to Congo. For the following ten months, Mr Z was treated as an absconder having failed to report to the authorities.
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27 November 2013 by David Hart KC
Mitchell v. News Group Newspapers 27 November 2013, CA read judgment
We all know the story about how Andrew Mitchell MP may, or may not, have tried to barge past policeman in Downing Street with the memorable phrase “you’re f…ing plebs”. Like a lot of good stories, it may not be true, and like a lot of good stories it was picked up by The Sun. So Mr Mitchell sues The Sun in libel on the basis that it is untrue.
But this decision of the Court of Appeal is all about the reforms initiated by the man to my left, Sir Rupert Jackson, also a judge in the CA, who has shaken up the whole system of legal costs in civil litigation. And one of the major steps he has taken is to compel litigants to say what they intend to spend on a case early on – the costs budget – so that the judges can make some assessment of whether the thing is to be run sensibly or extravagantly.
Cue the present argument, where our MP’s lawyers do not file their costs budget on time, which is 7 days before the relevant hearing. So the parties go before the court, and The Sun says – we did our bit on time but we only got their budget yesterday, and we are not ready. To cut a long story short, The Sun now stand to recover a budgeted figure of £589,555 if they win, but our hapless MP (or his lawyers) will only recover his court fees if he wins.
How so?
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27 November 2013 by Rosalind English
Bull and another (Appellants) v Hall and another (Respondents) [2013] UKSC 73 (27 November 2013) – read judgment
This appeal concerned the law on discrimination. Mr and Mrs Bull, the appellants, own a private hotel in Cornwall. They are committed Christians, who sincerely believe that sexual intercourse outside traditional marriage is sinful. They operate a policy at their hotel, stated on their on-line booking form, that double bedrooms are available only to “heterosexual married couples”.
The following summary is taken from the Supreme Court’s press report. See Marina Wheeler’s post on the ruling by the Court of Appeal in this case. A full analysis of the case will follow shortly.
References in square brackets are to paragraphs in the judgment.
The respondents, Mr Hall and Mr Preddy, are a homosexual couple in a civil partnership. On 4 September 2008 Mr Preddy booked, by telephone, a double room at the appellants’ hotel for the nights of 5 and 6 September. By an oversight, Mrs Bull did not inform him of the appellants’ policy. On arrival at the hotel, Mr Hall and Mr Preddy were informed that they could not stay in a double bedroom. They found this “very hurtful”, protested, and left to find alternative accommodation.
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26 November 2013 by David Hart KC
Putistin v. Ukraine, ECtHR, 21 November 2013 read judgment
An extraordinary story, with a twist, and an interesting decision by the Strasbourg Court that lack of respect for the honour and dignity of a dead relative may give rise to a breach of Article 8 and its right to family life.
In 1942 various professional footballers who had previously played for FC Dynamo Kyiv but who were now working in a bakery, ran out in the strip of FC Start. Their opponents (Flakelf) were pilots from the German Luftwaffe, air defence soldiers and airport technicians.
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25 November 2013 by Rosalind English
A Local Authority v SY [2013] EWHC 3485 COP (12 November 2013] – read judgment
A judge in the Court of Protection has ruled that a man who had “exploited and took advantage” of a young woman for the purpose of seeking to bolster his immigration appeal had engaged in an invalid marriage ceremony. The man, said Keehan J, had
“deliberately targeted” the respondent because of her learning difficulties and her vulnerability.
The courts would not tolerate such “gross exploitation.”
This was an application by a local authority in the Court of Protection in respect of the capacity of the respondent, SY, to litigate and to make decisions in relation to her life.
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24 November 2013 by Matthew Flinn
Elosta v Commissioner of Police for the Metropolis [2013] EWHC 3397 – Read Judgment
The High Court has held that a person detained for questioning under the Terrorism Act 2000 is entitled to consult with a solicitor in person prior to answering questions.
The right to consult with a lawyer before one is interviewed by law enforcement officers might be fairly characterised as a “pop culture” right. Reality television shows, crime dramas, even block buster films (I’m thinking Neo in the first Matrix film – pictured) have all played a part in ensuring that the right to legal advice in that context is ingrained in the consciousness of the masses.
This case dealt with a specific and rather technical variation on that theme.
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21 November 2013 by Guest Contributor
Söderman v. Sweden – (application no. 5786/08) – Read judgment
The European Court of Human Rights has decided that it is a violation of the right to privacy if a country does not have a law prohibiting surreptitious photography of people. The ruling has serious implications for paparazzi, and would have been useful to Princess Diana. A ready-made bill exists in the form of a draft published by the Law Commission for England and Wales in 1981.
On 12 November the Grand Chamber of the European Court of Human Rights ruled that Sweden’s lack of a legal ban on invading personal privacy by surreptitious photographs violated the right to privacy. The case involved a camera hidden in the bathroom by the stepfather of a fourteen-year old girl. (Söderman v. Sweden,application no. 5786/08).
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21 November 2013 by Rosalind English
R (on the application of London Christian Radio Ltd & Christian Communications Partnerships) v Radio Advertising Clearance Centre (Respondent) & Secretary of State for Culture, Media and Sport (Interested Party) [2013] EWCA Civ 1495 – read judgment
The ban on Christian Radio’s proposed advert seeking data on the “marginalisation of Christians” in the workplace was lawful and did not constitute an interference with free speech, the Court of Appeal has ruled. When determining whether a radio or television advertisement was “political” fur the purposes of Section 321(2)(b) of the Communications Act 2003 the court should consider the text objectively; the motives of the advertiser were irrelevant.
This was an appeal against a ruling by Silber J ([2013] EWHC 1043 (Admin)) that a proposed radio advertisement was directed towards a political end, and therefore fell foul of the prohibition on political advertising which meant that it could not be given clearance for broadcast (see my previous post on this decision).
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21 November 2013 by Guest Contributor
Updated | The relationship between the UK and the European Court remains turbulent and fractious. The Court has been the subject of significant criticism, notably from some politicians and commentators in the UK, relating to its supposed interference in domestic, sovereign questions and the quality of its judges.
Some commentators say that the UK may have to withdraw from the jurisdiction of the court. Michael Pinto-Duschinsky argues that if (as is highly likely) the Council of Europe refuses to institute a “democratic override” for states of European Court of Human Rights decisions, withdrawal should be seriously considered. MP Nick Herbert argues that the UK should withdraw immediately.
Others have proposed withdrawing from the European Convention altogether. For example, in April, the Home Secretary, Theresa May, said that temporary withdrawal from the Convention was one option being considered by the UK government in its efforts to deport the Islamic cleric Omar Mohammed Othman (also known as Abu Qatada). Two members of the Commission tasked with investigating the creation of a UK Bill of Rights advocated withdrawal from the Convention unless the Court ceased its ‘judicially activist approach’ (p. 182).
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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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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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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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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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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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Fulmen & Mahmoudian v. Council of the European Union,28 November 2013, read judgment
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