Category: Case law


Shouting is a lawful interrogation technique, says High Court

11 February 2013 by

10_03-the-smoking-compartment--the-interrogation-room-1Ali Hussein v Secretary of State for Defence [2013] EWHC 95 (Admin) – read judgment

Collins J has dismissed a claim that the MOD’s policy of allowing interrogators to shout at a captured person in order to obtain information is unlawfully oppressive. Not only did the complaint fail but it was denounced as “misconceived” and one which should never have been pursued.

Background

 British armed services have two policies for questioning captured persons (CPERS) who are believed to possess valuable information which may protect the lives of other members of the forces or civilians, for example the location of roadside bombs.
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Does the state owe a duty to inform the wronged? And Ullah revisited

10 February 2013 by


timthumb.phpThe Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice, G4S and Serco plc, 6 February 2013 – read judgment 

The Court of Appeal dismissed this claim by a children’s NGO for an order that the Secretary of State provide information to certain children to the effect that the SoS and his contractors had unlawfully used bodily restraint upon them whilst they were “trainees” in Secure Training Centres. The facts and Foskett J’s judgment under appeal was fully analysed by Rosalind English in her post, so I shall concentrate on the two points of wider interest: 

1. is there a duty on the state to tell someone of their legal rights against the state?

2.  should domestic human rights case law ever go wider than its Strasbourg equivalent?


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No cash from the UK to avoid Indonesian firing squad

8 February 2013 by

Lindsay SandifordSandiford, R(on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] 168 (Admin) – read judgment

In this highly publicised case, the Administrative Court has come up with some firm criteria for the scope of the Convention’s protective reach for UK citizens abroad. The judgment is also something of a body blow for those who are looking to the EU Charter of Fundamental Rights and Freedoms for a wider human rights umbrella.

Lindsay Sandiford, the 56 year old claimant, was arrested for drug smuggling in Indonesia and sentenced to death. She issued judicial review proceedings seeking an order requiring the FCO to provide and fund an “adequate lawyer” on the basis that she had not had proper representation in Indonesia. The broad basis of this claim was that the UK government should back up its opposition to the death penalty by putting its money where its mouth is.
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Another Iranian bank released by the EU – Wikileaks here as well

7 February 2013 by

Bank_SaderatBank Saderat Iran v Council of the European Union, EU General Court, 5 February 2013 read judgement

Last week I posted on the Bank Mellat case where an Iranian Bank succeeded in persuading the General Court to unfreeze its assets from orders made by EU institutions. The Bank Saderat case is virtually identical, and annulment was duly granted by the General Court. But it is troubling that the EU Council should go so wrong in wielding its draconian powers more than once. It does rather support the suspicions of the Bank (common to this and the Bank Mellat case) that pressure was brought to bear on the Council ultimately emanating from the US – hence the Wikileaks cables again – such that the EU did not robustly analyse the assertions made to them before making the orders. Basic errors were made again, and, as will emerge, the EU had no evidence for much of what it said.

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Another critique of the new Immigration Rules’ codification of Article 8

4 February 2013 by

aeroplane in sunsetIzuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) – read judgment

The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.

This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.

Background

The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8.
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Ryanair’s right under EU Charter to profit from its customers?

1 February 2013 by

ryanair-planeDenise McDonagh v Ryanair Ltd [2013] EUECJ C-12/11 (31 January 2013) – read judgment

“Congratulations! You have arrived on yet another ontime Ryanair flight. Ryanair – for the lowest fares and the best ontime record. Outstanding”

… or maybe not so outstanding.

On 11 February 2010, Ms McDonagh booked a flight with Ryanair from Faro (Portugal) to Dublin (Ireland) scheduled for 17 April 2010. On 20 March 2010, the Eyjafjallajökull volcano in Iceland began to erupt. On 14 April 2010, it entered an explosive phase, casting a cloud of volcanic ash into the skies over Europe. On 15 April 2010, the competent air traffic authorities closed the airspace over a number of Member States because of the risks to aircraft.  Ms McDonagh’s flight was cancelled following the closure of Irish airspace. Ryanair flights between continental Europe and Ireland resumed on 22 April 2010 and Ms McDonagh was not able to return to Dublin until 24 April 2010. In the intervening week, no efforts were made by the airline to provide Ms McDonagh with the care to which she was entitled under the relevant  EU Regulation No 261/2004, providing rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
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EU Court annuls EU freezing orders on Iranian bank – and Wikileaks again

30 January 2013 by

bank_mellat-2Bank Mellat v Council of the European Union (supported by EU Commission), EU General Court, 29 January 2013 read judgment

In October 2009, Bank Mellat, an Iranian bank, was effectively excluded from the UK financial market by an Order made by the Treasury, on the basis that it had or might provide banking services to those involved in Iran’s nuclear effort. The Bank challenged the Order, and the challenge failed in the Court of Appeal, albeit with a dissent from Elias LJ: see Rosalind English’s post and read judgment.  The Bank’s appeal to the Supreme Court is due to be heard in March 2013; it raises some fascinating issues about common law unfairness, Article 6, and the right to property under A1P1 , given that the Bank was not told of the intention to make the Order prior to its making. 

The current case concerns an EU set of measures initiated in 2010, which led to the freezing the Bank’s assets on essentially the same grounds, namely involvement with the Iranian nuclear effort. And the EU General Court (i.e. the first instance court)  has just annulled the measures – for lack of reasons, lack of respect for the rights of the defence, and for manifest error. So keep an eye on these two parallel cases, in the Supreme Court and in the EU Court of Justice on appeal from this decision.

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No anonymity for bankers involved in Libor scandal

30 January 2013 by

jXfojqnuU1RNrMC35iMDoxOm1qO4kO9DGraiseley Properties Ltd and others (Claimants) v Barclays Bank Plc (Defendant); Various employees and ex-employees of Barclays Bank plc and Telegraph Group and others (interveners) [2013] EWHC 67 (Comm) 21 January 2013 – read judgment

The Commercial Court has resisted an application to anonymise those individuals at Barclays involved in the LIBOR scandal.

In his firm dismissal of the arguments Flaux J has confirmed the principle that anonymity orders will only be made in cases where the applicant for the order has established that it is strictly necessary for the proper administration of justice. The employees’ claim they should remain anonymous until trial failed at the first hurdle, “because they had simply not established by clear and cogent evidence, or at all, that the order they seek or any aspect of it is strictly necessary for the proper administration of justice.”
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Blanket disclosure requirement for minor past convictions breaches Convention

30 January 2013 by

criminal-background-check T, R on the application of) v Chief Constable of Greater Manchester, Secretary of State for the Home Department and Secretary of State for Justice; AW, R (on the application of) v Secretary of State for Justice and JB, R (on the application of) v Secretary of State for Justice  [2013] EWCA Civ 25 – read judgment

The Court of Appeal has ruled that the statutory requirement that criminal convictions and cautions must be disclosed in an enhanced criminal record check (“ECRC”) in the context of particular types of employment interfered with the appellants’ right to respect for private life under Article 8.

Neither of the disclosure provisions, under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, were  proportionate since they went beyond the legitimate aims of protecting employers and vulnerable individuals.

See Panopticon’s post on the ruling and their previous post (republished on our blog) on the dismissal of T’s application for judicial review in the Administrative Court. We add a few words of our own.
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Joint tenancy rule has nothing to do with Convention rights

25 January 2013 by

first-home-buyersMichael Sims v Dacorum Borough Council [2013] EWCA Civ 12 – read judgment

This was a property dispute which broke out on the marriage breakdown of two joint tenants of council property.  The wife who sought termination of the periodic secure joint tenancy by unilateral notice. The husband, as the other joint tenant still living in the property, maintained that he was entitled remain there as a sole tenant.

In fact, the point had already been settled in the case of Hammersmith and Fulham LBC v. Monk [1992] AC 478 which established that at common law, a periodic joint residential tenancy is terminated automatically, if one joint tenant, without the concurrence of the other joint tenant, or tenants serves a notice to quit on the landlord.
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Legal advice privilege should not extend to accountant’s advice, says Supreme Court

24 January 2013 by

tax-erase-remove-lower-270x167Prudential plc and another , R (on the application of) v Special Commissioner for Income Tax and another [2013] UKSC 1 23 January 2013 – read judgment

The Supreme Court has ruled that legal advice privilege should only apply to advice given by a member of the legal profession; that this is what the common law has always meant, and that any wider interpretation would lead to uncertainty. Two strong dissents do not find any principled underpinning for the restriction of the privilege to advice from solicitors or barristers.

The following summary is based on the Supreme Court’s press release (numbers in square brackets denote paragraphs in the judgment).


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Judging people – and a case about a Porsche 917

23 January 2013 by

AT-30012 McQUEEN LO RESPiper v. Hales, HHJ Simon Brown QC, 18 January 2013 read judgment

Two types of readers may be interested in this case; the first, who are interested in the age-old judging problem of whom to believe when faced with a conflict of evidence, and the second (and I don’t want to do any gender-stereotyping) those who are fascinated in whether a replica Porsche 917 (think Steve McQueen in Le Mans) over-revved and blew because (a) it had a gearbox fault or (b) the Defendant driver missed a gear.

I will disappoint the second set of readers – but the judgment is short and well-written, so, chaps, read it for yourselves  to find out why the gearbox was acquitted of all charges laid against it.

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Child radiotherapy case: “one cannot enjoy even diminished quality of life if one is not alive”.

19 January 2013 by

Sally+Roberts+arriving+at+the+High+CourtAn NHS Trust v SR [2012] EWHC 3842 (Fam) – read judgment

The highly publicised case about a seven year old boy whose estranged parents could not agree about the necessary treatment following surgery for his brain tumour was resolved by a firm ruling in favour of orthodox medicine by Bodey J, four days before Christmas.

The facts of the case are well known, but it may be instructive to lay out some of the details of the procedure that follows in a situation like this, and to point up the approach of the courts to a matter where orthodox science lies flat against the claims of complementary medicine. Where the life of a child is at stake, there is no polite equivocation between the two.

Background

Briefly, the mother would not agree to the recommended post-operative course of chemo- and radiotherapy (carrying an 80% chance of success), believing instead that her son would fare better with alternative forms of treatment and would avoid or reduce the undoubtedly detrimental long-term side effects of the treatment package being proposed. In a serious matter such as this, where the parents cannot agree, an application has to be made to the court for a declaration that the procedure in question is lawful. That involves a decision as to the child’s best interests, being the court’s paramount consideration. Hence it was incumbent on the NHS Trust concerned to apply to the High Court to determine the issue of N’s treatment following on from his brain surgery two months previously.
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Gypsies not entitled to full housing benefit to cover private rent

18 January 2013 by

a-gypsy-caravan-site-in-wales-powys-could-be-set-for-a-major-revamp-$7070874$326Knowles and another, R (on the application of) v Secretary of State for Work and Pensions [2013] EWHC 19 (Admin) – read judgment

The High Court has rejected a claim that Gypsies occupying caravans on private land were discriminated against by legislation which resulted in them not being able to claim full Housing Benefit to cover their rent.

Occupiers of caravans on a site owned by a local housing authority receive a Housing Benefit rent rebate of the whole of the rent charged. But if the caravan is on a private site, then the rent on which HB can be claimed is subject to determination by a rent officer, and that is normally substantially less than the full contractual rent charged. The claimants maintained that this scheme fails to meet the essential housing needs of Gypsies on private sites, who have particular site infrastructure and management needs – which result in additional costs, and hence a legitimately higher rent, not reflected in the HB awarded.  They contended that the scheme was therefore discriminatory, and in breach of article 14 of the European Convention on Human Rights, when read with article 1 of the First Protocol 1 (the right to property) and article 8 of the substantive Convention (the right to respect for family and private life).
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Semi-naked RocknRoll pics can’t be published in Sun, rules High Court

18 January 2013 by

Kate Winslet and Ned RocknrollRocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) – Read judgment

Earlier this month, Rocknroll came to the Chancery Division.  Mr Justice Briggs set out his reasons yesterday for granting Kate Winslet’s new husband an interim injunction prohibiting a national newspaper from printing semi-naked photographs of him taken at a party in July 2010 and later posted on Facebook.

In Edward Rocknroll v. News Group Newspapers Ltdthe Judge decided that the Claimant was likely to succeed at a full trial in establishing that his right to respect for his family life (protected by article 8 of the European Convention on Human Rights) and his copyright over the photographs should prevail over The Sun’s right to freedom of expression (protected by article 10 ECHR).  As such, the photographs cannot be published nor their contents described pending a full trial.

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A2P1 Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity appeal Appeals Arrest Article 1 Article 1 Protocol 1 Article 2 article 3 article 3 protocol 1 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos Assisted Dying assisted suicide assumption of responsibility asylum Attorney General Australia autism benefits Best Interest Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Business care orders Caster Semenya Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Closed Material Proceedings Closed proceedings Coercion common law confidentiality consent conservation constitution contempt contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Arbitration for Sport Court of Protection covid crime Criminal Law Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability discipline disclosure Discrimination disease divorce DNA domestic violence DPA DSD Regulations duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment environmental rights Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice euthanasia evidence extradition extraordinary rendition Extraterritoriality Fair Trials Family family law Fertility FGM Finance findings of fact football foreign criminals foreign office Foster France freedom of assembly Freedom of Expression freedom of information freedom of speech Free Speech Gambling Gay marriage Gaza gender Gender Recognition Act genetics Germany gmc Google government Grenfell Hate Speech Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration immunity India Indonesia information injunction injunctions inquest Inquests international law internet interview Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Journalism Judaism judicial review jury jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legal ethics legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health mental health act military Ministry of Justice Mirror Principle modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland NRPF nuclear challenges nuisance Obituary open justice Osman v UK ouster clauses PACE parental rights Parliament parliamentary expenses scandal Parole patents Pensions Personal Data Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Procedural Fairness procedural safeguards Professional Discipline Property proportionality Protection of Freedoms Bill Protest Protocols Public/Private public access public authorities public inquiries public law reasons regulatory Regulatory Proceedings rehabilitation Reith Lectures Religion Religious Freedom RightsInfo Right to assembly right to die Right to Education right to family life Right to life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia S.31(2A) sanctions Saudi Arabia school Schools Scotland secrecy secret justice Section 55 separation of powers Sex sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Sports Law Standing statelessness Statutory Interpretation stop and search Strasbourg Strategic litigation suicide Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture Transgender travel travellers treaty TTIP Turkey UK UK Constitutional Law Blog Ukraine UK Supreme Court Ullah unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability voting Wales war War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WINDRUSH WomenInLaw World Athletics YearInReview Zimbabwe