Category: Case law

The Niqaab issue is too important to be left to liberal instinct

17 September 2013 by Adam Wagner

Yesterday, before His Honour Judge Peter Murphy ruled that a female Muslim defendant in a criminal trial must remove her face-covering veil (niqaab) whilst giving evidence, Home Office Minister Jeremy Brown said  he was “instinctively uneasy” about restricting religious freedoms, but that there should be a national debate over banning the burka.

Many of us have a gut reaction to the niqaab, which poses particular problems for our mostly liberal, secular society. Arguably, it also prompts less laudable instincts originating in fear of the ‘other’. But trusting in our instincts is never a good way of solving complex problems. As I have suggested before, when politicians appeal to their gut they are often just avoiding making an intellectually sound case for their position.

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Aarhus: UK seems to be in trouble again, this time with the CJEU

13 September 2013 by David Hart KC

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

“It is well known that in United Kingdom court proceedings are not cheap” – a masterly understatement opening this opinion from our pictured AG to the CJEU about whether the UK system on legal costs complies with the obligation now in two EU Directives about environmental assessment and pollution control. The AG thinks that our way of doing costs is not up to scratch – with the origin of this obligation to be found in  the UN-ECE Aarhus Convention to which the EU has subscribed (albeit abstemiously when the EU comes to its own affairs – funny that). 

Bit of context – the EU has been warning the UK about costs for some years, with formal warnings going back to 2007 – and the Aarhus Convention Compliance Committee has been doing likewise from Geneva. But the EU courts are more scary – all the ACCC can do is wrap the odd knuckle. And on this topic, we have one individual case which has been to the CJEU (Edwards, where the UK does not look in good shape – see my post), and now this case saying that the UK has a systemic problem with excessive costs.

But one thing we must remember. The law according to the AG looks at the law before the UK had a go at sorting the problem out – see my post, as above. on the new UK regime. There is some important stuff about how the old system did not comply, which will have implications for the new rules.

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Court of Appeal laments systemic failures in family justice

9 September 2013 by Rosalind English

Re A (a child) [2013] EWCA Civ 1104 – read judgment

Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8.  Whilst this particular appeal was  not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”,  McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.

The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start.  As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges.  Nevertheless, as the Court of Appeal points out,  “substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”  
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Aarhus watch: a UK breach, and a fudge

7 September 2013 by David Hart KC

ACCC/C/2012/68 read draft findings here and ACCC/C/2010/45 read findings here

Two interesting decisions from the Geneva-based Aarhus Convention Compliance Committee (ACCC) about whether the UK planning system complies with the UN-ECE Aarhus Convention.

The first was given excellent recent coverage in the Independent – a Scottish wind farm case where UK plans for renewable energy had not received the public consultation which Article 7 of the Convention required. The second, which promised much (see my previous post), ducked the issues in a rather unsatisfactory way.

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Health protection “not a warrant for lifestyle fascism”

7 September 2013 by Rosalind English

CM, Re Judicial Review [2013] CSOH 143 – read judgment

The Scottish Court of Session has ruled that the prohibition of smoking and possession of tobacco products by patients at a mental hospital was unlawful. Whilst being careful to emphasise that this ruling did not spell out a specific right to smoke, the Court considered that the ban infringed the patients’ right to respect for home under Article 8.

The petitioner, a patient in a high security psychiatric hospital, sought judicial review of the policy adopted by the State Hospitals Board to ban smoking not just inside the hospital but also in the hospital grounds.  He claimed that the ban amounted to a breach of his right to respect for private life and home under Article 8, both as a stand‑alone claim and in combination with Article 14 (enjoyment of Convention rights without discrimination). He also argued that the ban constituted an unlawful and discriminatory infringement of his right to peaceful enjoyment of possessions under Article 1 Protocol 1.

The petitioner further based his position on compassionate grounds, pointing out that there are few diversions available in the State Hospital; that he derived pleasure from smoking; and that as an individual with relatively few liberties the removal of his ability to smoke had had a disproportionately large impact on him.
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More developments under Schedule 7

28 August 2013 by Rosalind English

Sylvie Beghal v Director of Public Prosecutions, [2013] EWHC 2573 (Admin) – read judgment

In a judgment with implications for the detention of David Miranda, the High Court has today dismissed an appeal against a conviction for wilfully failing to comply with a duty imposed by virtue of Schedule 7 to the Terrorism Act 2000.

The Court rejected the submission that the Schedule 7 powers in question violated the Appellant’s right under Articles 5, 6 and 8 of the ECHR. However, the Court urged consideration of a legislative amendment introducing a statutory bar to the introduction of Schedule 7 admissions in subsequent criminal trials.

Part of the following report is taken from the Court’s press summary, part is based on the judgment itself.

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“Law is no trade, briefs no merchandise”

27 August 2013 by David Hart KC

In Re Rameshwar Prasad Goyal, Advocate, Supreme Court of India, 22 August 2013, read judgment

For the moment, at least, the idea of Stobart-law, supermarket-law, or call-centre-law as the solution to the increasing cost of criminal justice seems to be on hold. But this broadside from the Indian Supreme Court (including my title) helpfully reminds us that the relationship between judges, advocates and their clients fits with difficulty into the bilateral model of most of the entirely commercialised world. The advocate owes a more complex set of duties to the court as well as to his or her client than are typically found in a haulage contract.

Shri Rameshwar Prasad Goyal, Advocate-on-Record or AOR in this case, is, according to Indian court statistics, a very busy man. He was acting  in 1678 cases in 2010, 1423 cases in 2011, and 1489 cases in 2012. But he has never actually appeared in court on behalf of his clients. Indeed a request from the Court in the present case for him to appear to explain himself was refused – try that in the High Court in the UK. It did not go down well in New Delhi either. The Court, having chucked out his hapless client’s application, declared that Goyal was guilty of conduct unbecoming an advocate, and told him that if he did not do better over the next year (i.e. turn up to court for his clients) he would get struck off.

The underlying facts show the dangers of allowing all of law to be run completely on business lines. Goyal had found an excellent and cost-efficient business niche. But as the Court explained

The  UK system still has to crack the costs of litigation, given the  conflicting difficulties of litigating properly and cost-efficiently for clients, but it is at least working on that hard, But we do seem to have sorted the time it takes to get to answer problems which we set our judges. Timing has been ruthlessly policed by our courts in recent years, so that you need a pretty good excuse for doing something late or slowly. So, unlike the gloomy picture presented by the Indian Supreme Court, most people know whether they have won or lost before they die – so astrologers are not generally necessary.

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Related posts:

• Legal Aid Outcry, Political Disasters and a Mau -Mau Settlement
• The CJEU on “prohibitively expensive” and the new protective costs order regime
• Costs budgets now with sharp teeth. If you want more than your budget, apply
• Electronic plagiarism? The dangers of the cut-and-paste
• Why we allow dissent – by our judges

They paved Plantagenet ‘n put up a parking lot

22 August 2013 by David Hart KC

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

I spent long hot summers in the 1970s digging up the remains of Saxons and prehistoric Greeks. In Greece, skeletons were good time-consuming cannon-fodder for incompetent interns, whilst real archaeologists got on with the serious stuff of looking for walls and post-holes. So I can understand the impulse which took the Plantagenet Alliance to court about the bones of Richard III with its diagnostic severe scoliosis. 

The judge gave the Allliance permission to seek judicial review of the Secretary of State’s decision about re-burial. But I question the result –  does the Alliance really have a legal right to be consulted about where Richard III is to be re-buried?

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Judicial review proceedings may be terminated by government

12 August 2013 by Rosalind English

Ignaoua, R (On the Application of) v Secretary of State for the Home Department  [2013] EWHC 2512 (Admin) – read judgment

The Government’s termination of existing judicial review proceedings via certification under the Justice and Security Act was “troubling” but lawful. Parliament’s  intention was clear, even though there were no new rules in force yet.

The claimant was challenging her exclusion from the UK on national security grounds in proceedings commenced in 2010. The proceedings were terminated under special powers conferred by the Act. The challenge could proceed instead before the Special Immigration and Appeals Commission (SIAC), which has all the powers of the divisional court to conduct a judicial review of his exclusion.

The question before the court was whether the certificate had been lawfully made and not an abuse of process.
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Rihanna wins against Topshop but does she have a right to her image? – Emily Goodhand

2 August 2013 by Guest Contributor

Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor [2013] EWHC 2310 (Ch) – Read judgment

The ruling in the Rihanna/Topshop case marks a significant trend, both in case law and society, towards equating image with commodity. Increasingly, celebrities and sports personalities earn large sums of money from sponsorship and advertising deals because companies recognise that their image sells products. So how can so-called image rights be protected?

The legal regime around image rights has arisen out of common law concepts of property, trespass and tort (civil wrong). The common law system means that precedents for the protection of an individual’s likeness have arisen from judges’ decisions in cases involving unauthorised exploitation of a likeness where an individual has suffered damage as a result. Some US states have enacted specific legislation equating celebrities’ personality rights with property rights, where expiration of the rights occurs 70 years following the death of the celebrity.

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No trade unions for clergy if the Archbishop says no, rules European Court

1 August 2013 by Alasdair Henderson

Sindacutul ‘Pastorul Cel Bun’ v. Romania [2013] ECHR 646 – read judgment here.

The Orthodox Archbishop of Craiova in Romania, that is, not the Archbishop of Canterbury. The European Court of Human Rights recently handed down an interesting ruling on Article 11 (freedom of assembly and association) that could also have more far-reaching consequences for the application of Article 9 (freedom of religion).

The Grand Chamber, overruling the earlier decision of the Third Section, held by a majority that it was not a breach of the right to freedom of association for the Romanian Government to refuse to register a trade union formed by a group of Orthodox priests, after the Archbishop and Holy Synod (the governing body of the Romanian Orthodox Church) had decided formal trade unions should not be allowed within the church.

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Disabled challenge to bedroom tax fails

31 July 2013 by Rosalind English

MA and others (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 2213 (QB) (30 July 2013) – read judgment

The High Court has unanimously dismissed an application for a declaration that the so-called “bedroom tax” discriminates unlawfully against disabled claimants.

The arguments

This was a challenge by way of judicial review to regulations that came into force last year, reducing the amount of housing benefits by reference to the number of bedrooms permitted by the relevant statute (the Social Security Contributions and Benefits Act 1992 ).  These new rules, which have applied to claimants of housing benefit since April 2013, restrict housing benefit to allow for one bedroom for each person or couple living as part of the household. Discretionary housing payments are available for certain qualifying individuals to mitigate the effect of the new rules, in particular the effects on disabled people and those with foster caring responsibilities.
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Appeal court shies away from right to die issue

31 July 2013 by Rosalind English

R (on the application of) Nicklinson and Lamb v Ministry of Justice [2013] EWCA Civ 961   – read judgment

The Court of Appeal has today unanimously dismissed appeals by Jane Nicklinson and Paul Lamb challenging the legal ban on voluntary euthanasia.

We have posted previously on the Hight Court ruling in the Nicklinson case, here and here. The following is based on the Court’s press summary. An analysis of this case will follow shortly.

Summary of the facts and the ruling

These appeals concern two individuals who suffer from permanent and catastrophic physical disabilities. Both are of sound mind and acutely conscious of their predicament. They have each expressed a settled wish to end their life at a time of their own choosing in order to alleviate suffering and to die with dignity.
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Keep it short, judges: no need to churn to earn

27 July 2013 by David Hart KC

Neumanns v. Adronikou [2013] EWCA (Civ) 916, 24 July 2013  read judgment

This time of year, high court and appellate judges will have been trying to clear their desks – to stop the complex half-finished judgment from skulking around in their minds and spoiling their holidays.

So they must relish this advice from Mummery LJ, a long-standing member of the Court of Appeal, about brevity – in particular, what to do when the CA is dismissing an appeal from an immaculate judgement below: 

What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.

Quite so.

But Mummery LJ did a little more than this in an attempt to stifle down at least some of the words pouring out from the courts, as we shall see.

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HS2 challenges fail but powerful dissent

26 July 2013 by David Hart KC

R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, 24 July 2013, Court of Appeal – read judgment 

HS2 is the proposed high speed rail link to Birmingham and beyond.  Its opponents sought to challenge the decision to promote it by way of a hybrid Bill in Parliament, saying that the process as a whole breached the various EU rules, including the need for Strategic Environmental Assessment under the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Impact Assessment Directive 2011/92/EU.

The Court of Appeal rejected these contentions, as had the judge before them. But Sullivan LJ, a highly experienced planning judge, was far from convinced. He thought that a key question about the SEA Directive ought to be determined by the EU Court (the CJEU) before domestic judges could form a settled view on it.

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