Category: Case law
31 May 2012 by David Hart KC
Assange v. The Swedish Prosecution Authority [2012] UKSC 22, read judgment
Today, the Supreme Court held that Julian Assange should be extradited to Sweden for alleged rape. This is subject to further submissions on one point (concerning the Vienna Convention on Treaties), well covered by Joshua Rozenberg in his post on the lively proceedings when the judgment was handed down.
The whole of the appeal turned on one technical point, simple to state, but it took the Court 266 paragraphs to answer. Was the European Arrest Warrant which triggered the extradition request signed by a”judicial authority,” given that it was signed by a prosecutor? Most English lawyers, unburdened with the detail, would say – no, a prosecutor is not a judicial authority, indeed he or she is the opposite of that, a party. But, according to the Supreme Court, they are wrong, and so are the ministers who told Parliament that a judicial authority has to be some sort of judge or court.
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30 May 2012 by Rosalind English
R(on the application of Yunus Bakhsh) v Northumberland Tyne and Wear NHS Foundation Trust [2012] EWHC 1445 (Admin) – read judgment
This fascinating short judgment explores the extent to which a judicial review claim, or a free-standing claim under the Human Rights Act, may be precluded by a statute covering the same issue.
If Parliament has decided on a particular avenue of appeal in a certain context, and settled upon a sum in compensation, do the courts have any room for manoeuvre outside those statutory limits? There is very strong authority to the effect that the courts have no discretion to grant any relief going beyond the remedy which Parliament has seen fit to provide (see Johnson v Unisys Ltd [2003] 1 AC 518). But on arguability grounds at least, this short permission decision by Foskett J suggests that public law must attend to the policy behind the statute. If the redress provided by the legislation does not fully serve the aims of that policy, it may be that public law has to come to the rescue.
Background
In essence the claimant, a former mental nurse who had been sacked because of his trade union activities and not granted reinstatement, was seeking to challenge the decision by his employer, a public NHS trust, not re-engage him after it had been ordered to do so by an Employment Tribunal in 2010. The reason they failed to do so was not put forward but was probably because of his anticipated continued trade union militancy.
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29 May 2012 by David Hart KC
I posted recently on the continuing legal see-saw in France arising from the prosecution of Total and other parties for their responsibility for the loss of the Erika on 12 December 1999. The Erika sank off the Brittany coast, spilling some 20,000 tonnes of heavy fuel oil, polluting some 400 km of the French coastline, and killing this poor guillemot, amongst many.
Last week, on 24 May, this criminal case reached the highest French court, the Cour de Cassation. Some thought that the court was going to rule immediately on whether Total and the others were criminally liable for the oil pollution. Previously, the Criminal Court of First Instance, and the Court of Appeal in Paris had said that Total and others were responsible. But now the prosecutor, Advocate-General Boccon-Gibod, was of the view that Total had no criminal liability. His written opinion appears not to have surfaced on the ‘net, but from the decision of the Court of Appeal (for the brave, and not for those with slow broadband, all 487 pages), you can see the points that Total was making, and which he seems to have accepted.
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28 May 2012 by David Hart KC
Last week Rosalind English did a summary post on the important Supreme Court case of Lukaszewski and others, R (on the application of Halligen) v Secretary of State for the Home Department [2012] UKSC 20 – read judgement.
The technicalities of this decision about extradition time limits are set out in her post. Here, I explore the potential implications for other cases.
The Extradition Act contains firm rules that appeals need filing and serving within 7 or 14 days, depending on the procedure. The Supreme Court decided that there should be a discretion in exceptional circumstances for judges to extend time for service of appeal, where the statutory time limits would otherwise operate to impair the right of appeal and therefore be in breach of the right to a fair trial afforded by Article 6(1) of the Human Rights Convention. And it is this discretion which is important for a whole range of appeals where mandatory time limits are laid down by statutes.
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24 May 2012 by Guest Contributor
Last Tuesday saw the latest episode in the prisoner voting legal saga with the European Court of Human Rights’ Grand Chamber’s judgment reversing the Chamber judgment which found Italy’s automatic ban on voting for prisoners serving over 3 years in prison (and a lifetime ban with the possibility of future relief for those sentenced to more than 5 years) in breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
Adam Wagner has compared the prisoner voting issue to a ping-pong ball in a wind tunnel, noting that ‘the ball is now back on the UK’s side of the table’. Indeed, the UK must still allow at least some prisoners the vote, as required by the 2005 judgment in Hirst v UK (No.2) and the 2010 judgment in Greens & MT v UK. Over at EJIL: Talk!, Marko Milanovic rightly accounts for the unholy mix of law and (inter)national politics that has generated the Grand Chamber’s unprincipled judgment. Indeed, as Carl Gardner suggests on the Head of Legal blog all that logically remains of the Hirst judgment is that automatic disenfranchisement of prisoners that are sentenced for less than 3 years (probably) breaches the convention.
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24 May 2012 by Rosalind English
BSkyB and another, R(on the application of) v Chelmsford Crown Court [2012] EWHC 1295 (Admin) – read judgment
The police failed to satisfy the court that their need for footage taken by TV organisations was likely to be of substantial value to criminal investigations and therefore would be a justified interference with the rights of a free press under Article 10 of the Human Rights Convention.
Sky, BBC, ITN etc. succeeded in quashing an order to produce of 100+ hours of video footage to Essex Police of the Dale Farm protesters on the grounds that there were no “reasonable grounds” for believing that the footage of over 100 hours included material likely to be of substantial value to the investigation.
Background facts
After the Dale Farm evictions and the disorder that ensued, the police sought an order for the recordings taken by the claimant organisations to help identify those who had committed indictable offences when attempting to prevent the eviction. They submitted that it was necessary, not least for the prevention of similar disorder on future occasions, to identify as many as possible of those who committed indictable offences in attempting to frustrate the lawful enforcement procedures. Production orders were duly made by Chelmsford Crown Court, defendant in this action.
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22 May 2012 by Adam Wagner
CASE OF SCOPPOLA v. ITALY (No. 3)(Application no. 126/05) – Read judgment / press release / press release on UK implications
The Grand Chamber of the European Court of Human Rights has ruled that states must allow for at least some prisoners to vote, but that states have a wide discretion as to deciding which prisoners. This amounts to a retreat on prisoner votes, but certainly no surrender. As I predicted, the court reaffirmed the principles set out in Hirst No. 2, that an automatic and indiscriminate bans breach the European Convention on Human Rights, but also reaffirmed that it was up to states to decide how to remove those indiscriminate bans.
I have compared the prisoner voting issue to a ping-pong ball in a wind tunnel. Today’s ruling means that the ball is now back on the UK’s side of the table.
Although Scoppola is a case which arose in Italy, the decision is of critical important to the UK for two reasons. First, the Court has made clear to the UK Government that it now has six months from today to bring forth legislative proposals which will end the blanket disenfranchisement of prisoners – see the Court’s helpful press release which explains the effect on the UK. Secondly, the Grand Chamber has now clarified the basic outline of how it expects states to comply with the original prisoner votes ruling, also of the Grand Chamber, in Hirst No. 2. For the full background, see my post from last week or Joshua Rozenberg’s excellent article on Guardian.co.uk.
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22 May 2012 by Isabel McArdle
AHK and Others v The Secretary of State for the Home Department [2012] EWHC 1117 (Admin) – Read judgment
Secrecy and secret justice are rarely out of the public eye. The Queen’s speech included plans to allow secret hearings in civil claims, at a time when their use is highly controversial. The government argues they are necessary to safeguard national security. Civil liberties groups and even the Special Advocates who help administer them, regard them as a bar to real justice and fair hearings.
So it seems appropriate at this time that the High Court has handed down an important decision on the use of Closed Material Procedures (CMP) in Judicial Review claims relating to naturalisation (the process by which foreigners can be ‘naturalised’ as British citizens). In simple terms, this is a variety of procedure where the government can rely on evidence which it has not disclosed to the opposing party, in a closed hearing. In the closed proceedings, the Claimants are represented by Special Advocates, who are subject to strict rules relating to what they can and cannot tell their clients.
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22 May 2012 by David Hart KC
DCLG v. Information Commissioner & WR [2012] UKUT
I have previously posted on the decision leading to this successful appeal by the Planning Inspectorate, against an order that they produce their legal advice concerning a planning appeal. The decision of the First-Tier Tribunal in favour of disclosure was reversed by a strong Upper Tribunal, chaired by Carnwath LJ in his last outing before going to the Supreme Court. So the upshot is that PINS can retain whatever advice which led them to refuse this request for a public inquiry in a locally controversial case.
Now for a bit of background. The claim for disclosure of documents arose out of a planning application by a wind farm operator to install an 80m tall anemometer (and associated guy wires radiating over about 0.5ha) near Fring in North Norfolk. This was to assess the viability of a wind farm near the site. The local planning authority refused permission for the anemometer, and the wind farmer appealed. There are three ways of deciding such an appeal – a full public inquiry with oral evidence and submissions, an informal hearing or written representations. The locals people wanted a public inquiry. They were supported in that by the council, and the local MP thought that the council was the best body to judge that. PINS said no; no complex issues arose for which a public inquiry was necessary.
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19 May 2012 by Alasdair Henderson
Burnip v. Birmingham City Council, Trengrove v. Walsall Metropolitan Council, Gorry v. Wiltshire Council [2012] EWCA Civ 629 – read judgment
In the same week that the Secretary of State for Work and Pensions, Iain Duncan-Smith, announced his intention to implement sweeping reforms of the current system of disability benefits, the Court of Appeal has ruled that housing benefit rules were discriminatory against disabled people, in breach of Article 14 read with Article 1 Protocol 1 of the European Convention.
Mr Duncan-Smith has already faced opposition to his reform proposals but has made it clear that he is willing to tackle this controversial issue. However, this week’s ruling is a timely reminder that social security law is extremely complex and that the Government will have to tread very carefully to avoid unwittingly causing further instances of unlawful discrimination.
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17 May 2012 by Guest Contributor
R (on the application of Maria Gallastegui) v Westminster City Council [2012] EWHC 1123 (Admin) – Read judgment
On 27 April 2012, Maria Gallastegui, a peace campaigner and resident of the East pavement of Parliament Square since 2006, lost her legal battle to continue her 24 hour, tented vigil in protest against the folly of war and in particular the UK’s involvement in armed conflict.
The Court’s main task was to construe a new law enacted to bolster the legal armoury available to control long-term protests in the Square. Section 143 of the Police Reform and Social Responsibility Act 2011 – which came into force on 19 December 2011 – gives a local authority the power to stop “prescribed activities” such as using tents (and other structures) to sleep. They are also empowered to seize items used for these prescribed purposes ie the tents.
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16 May 2012 by Rosalind English
Mcgrath v Dawkins, Amazon and others [2012] EWHC B3 (QB) -read judgment
In an interesting ruling on a strike-out action against a libel claim, a High Court judge has delineated the scope for defamation in blog posts and discussion threads where the audience is small and the libel limited.
Background
The claimant, C, is the author of a book entitled “The Attempted Murder of God: Hidden Science You Really Need To Know”. Published at the same time on the same general topic, but taking the opposite side, was “The Grand Design: New Answers to the Ultimate Questions of Life” by the very well-known scientist Professor Stephen Hawking and Leonard Mlodinow. Both books were available for purchase through the Amazon UK website run by the third defendant.
Amazon includes an online public-access facility, through which any member of the public may publish their own review of a book for sale on the site, and others may post comments on that review, or on previous comments, so creating a “thread” which may be read by any internet user worldwide. Since Prof. Hawking’s book was likely to attract far more interest among readers than C’s, he decided to raise the profile of his own work. In September 2010 he posted a purported review of the Hawking book, signed by “Scrooby”, which began by giving the details of his own book, and then went on to claim that this book “answered all doubts raised in [Hawking’s] book” and was an “antidote to this misguided book”. As the judgment continues
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15 May 2012 by Guest Contributor
De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin) – Read judgment
This was a judicial review of RBK&C’s refusal to provide support under s.21 and s.29 National Assistance Act 1948 and indeed to carry out an assessment under s.47 of the National Health Service and Community Care Act 1990.
Mr De A is a Portuguese national. He lived in the UK from 1998 to 2001 and from 2008 to date. He worked during the first period and for a year after his return. Mr De A had contracted HIV and AIDS. His health deteriorated so that he was not able to work. His prognosis in October 2010 was that he had about a year to live. At the time of the first hearing in this case in November 2011, his prognosis was about 6 months.
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7 May 2012 by Guest Contributor
This piece is in response to Rosalind English’s post on this blog arguing that in M.S. v United Kingdom the European Court extended to far the ambit of Article 3 of the European Convention on Human Rights (ECHR), which protects against torture, and inhuman or degrading treatment. This post argues that the European Court’s ruling is both a logical step in the jurisprudence and a welcome one for the protection of those with mental health problems in state detention.
M.S. v United Kingdom identifies a gap in the provision of crisis mental healthcare for those in state detention that has long been recognised by lawyers, campaigning organisations, carers, service users, the police and healthcare providers. The judgment is a welcome recognition of two things: first, that a prolonged and acute mental health crisis while in state detention can amount to degrading treatment for the purposes of Article 3 ECHR. And second, that the state is responsible when delays in the provision of psychiatric care to those in detention cause someone with mental health problems to descend into a crisis that is degrading and undignified.
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7 May 2012 by Rachit Buch
Calver, R (on the application of) v The Adjudication Panel for Wales [2012] EWHC 1172 (Admin) – Read judgment
The decision to censure a Welsh councillor for comments on his blog was a disproportionate interference with his right to freedom of expression, the High Court has ruled. This right requires a broad interpretation of what counts as “political speech” – even when the speech is sarcastic and mocking.
Lewis Malcolm Calver is a councillor on the Manorbier Community Council and Pembrokeshire County Council and the owner/writer of the at www.manorbier.com blog. These proceedings arose when Mr Calver was censured by the Standards Committee for Pembrokeshire County Council for comments or articles on his blog, which criticised the running of Manorbier Council.
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Assange v. The Swedish Prosecution Authority [2012] UKSC 22, read judgment
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