Category: Case law
30 March 2012 by Isabel McArdle
Bourgass and others v Secretary of State for Justice [2012] EWCA Civ 376 Read decision
The ability to interact with other prisoners is a major part of prison life, and not one many prisoners would give up willingly. But there are circumstances where prisoners have to be segregated from the rest of the prison population, such as where they are posing a violent threat to another prisoner or planning an escape. The Court of Appeal has recently looked into the question of how decisions to segregate are made, including the initial decision, the review of the decision and ultimately judicial review, in a human rights context.
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30 March 2012 by Matthew Hill
Reynolds v United Kingdom [2012] ECHR 437 – read judgment
What – if anything – can a claimant do when she suspects that the domestic law is not only out of kilter with Strasbourg jurisprudence but is also denying her even an opportunity to bring a claim? Taking arms against a whole legal system may be an heroic ideal, but the mundane reality is a strike out under CPR rule 3.4 by a district judge in the County Court. It is a long way from there to the European Court of Human Rights.
This was the position in which Patricia Reynolds and her daughter Catherine King found themselves following the sad death of (respectively) their son and brother. David Reynolds suffered from schizophrenia. On 16 March 2005 he contacted his NHS Care Co-ordinator and told him that he was hearing voices telling him to kill himself. There were no beds available in the local psychiatric unit, so Mr Reynolds was placed in a Council run intensive support unit. His room was on the sixth floor and at about 10.30 that night Mr Reynolds broke his (non-reinforced) window and fell to his death.
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30 March 2012 by David Hart KC
R (o.t.a Cornwall Waste Forum, St Dennis Branch) v Secretary of State for Communities and Local Government, Court of Appeal, 29 March 2012, read judgment
The CA has just held that Collins J was wrong to hold (per my previous post) that the local NGO had a legitimate expectation that the Secretary of State would decide an air pollution issue, rather than leave it to the Environment Agency. In a nutshell, the Inspector (and hence the Secretary of State) was entitled to change his mind on this issue. So the expectation crumbled, and so did this judicial review to quash a decision to allow a waste incinerator to proceed.
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29 March 2012 by Rosalind English
Hilal Abdul-Razzaq Ali Al‐Jedda v Secretary of State for the Home Department March 29 – read judgment
The Court of Appeal has allowed the suspected terrorist Al‐Jedda’s appeal against the Home Secretary’s decision to deprive him of his British nationality.
The appellant, an Iraqi refugee, was granted British nationality in 2000. Four years later however he was detained by British forces in Iraq on grounds of suspected terrorist activities. At the end of 2007 he was released from detention without charge, but just prior to his release, on 14 December 2007, the Secretary of State for the Home Department made an order under the British Nationality Act 1981 depriving him of his British nationality. As a consequence of this order the appellant has not been able to return from Turkey to the United Kingdom. His appeal against this order has been upheld on the basis that he had not regained Iraqi nationality when his British nationality was revoked. He thus requalifies for citizenship in this country.
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29 March 2012 by David Hart KC
Berky, R (on the application of) v. Newport City Council, Court of Appeal, 29 March 2012, read judgment
Two first-instance cases last year (Buglife, and Broads) considered whether a defendant to a judicial review involving a European point can complain that the proceedings were not commenced “promptly” even though they were commenced within the 3 month time limit. Both judges decided that this argument could not be advanced, even though the wording in CPR rule 54.5(1) reads “promptly and in any event not later than 3 months.” The Court of Appeal has now (by a whisker) approved these cases, though there was a vigorous dissent on one important point from Carnwath LJ. The point was in one sense academic, because the Court thought there was no merit in the underlying proceedings, but the ruling is still important.
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29 March 2012 by Daniel Sokol
Gas and Dubois v France (2012) (application no 25951/07). Read judgment (in French).
The French government did not violate articles 8 (right to respect for private and family life) and 14 ECHR (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms) in not allowing one partner in a homosexual couple to adopt the child of the other. And the Daily Mail goes off on another frolic of its own.
Ms Valerie Gas and Ms Nathalie Dubois, now in their 50s, lived together as a lesbian couple, obtaining the French equivalent of a civil partnership (the pacte civil de solidarité, or PACS) in 2002. Ms Dubois, through artificial insemination in Belgium using an anonymous sperm donor, gave birth to a girl in September 2000. Together, they took care of the child and, in 2006 , Ms Gas, applied to adopt the girl with the consent of her partner, Ms Dubois.
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27 March 2012 by Rosalind English
Barr v. Biffa, CA, 19 March 2012, read judgment
The reverse suffered by the claimants in the noisy motor racing case case before the Court of Appeal last month was something of a body blow to common lawyers and environmentalists. So this latest development in nuisance litigation should be welcome news.
As David Hart’s report suggests, the Court of Appeal pulls no punches in its critique of the High Court judgment which dismissed the claims of 152 households on the basis that a landfill operator had abided by the terms of its permit. Reasserting the private law rights of individuals in nuisance actions, Carnwath LJ observes that this case has been
a sad illustration of what can happen when apparently unlimited resources, financial and intellectual, are thrown at an apparently simple dispute such as one about nuisance by escaping smells. The fundamental principles of law were settled by the end of the 19th century and have remained resilient and effective since then.
The common law, he notes, is best when it is simple. And in this judgement he returns nuisance to the simple statement of reciprocity and neighbourliness where it belongs.
There are a few propositions – not many – in Carnwath LJ’s judgment which will serve as a clear, short checklist for the viability of a nuisance action.
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27 March 2012 by David Hart KC
Kolyadenko v. Russia
EHCtR, 28 February 2012
This was the scene in the riverbed lying below a large reservoir near Vladivostok. There had been very heavy rain, causing the managers of the reservoir to let water through into that riverbed for fear that the reservoir might collapse. But the channel beneath was not exactly clear of obstructions, as the image shows. 6 flooded applicants obtained no redress in the Russian Courts, and had to go to Strasbourg to get damages – nearly 11 years after the flood in August 2001.
It might be thought that similar claimants here would not go uncompensated. But that is far from clear, as English law on flooding liabilities is by no means straightforward. Hence, the interest of the case, in which claims under Articles 2 (right to life), 8 (right to private and home life) and Article 1 Protocol 1 (right to possessions) were successful.
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23 March 2012 by Isabel McArdle
JD (Congo) and others v Secretary of State for the Home Department, Public Law Project [2012] EWCA Civ 327
The Court of Appeal has considered the test for granting permission at the second stage of appeal in immigration cases, when someone wishes to appeal from the Upper Tribunal to the Court of Appeal. The test requires showing that:
“(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the [Court of Appeal] to hear the appeal.”
But these test cases were of special interest, because they involved situations where the appellant has succeeded before the First-Tier tribunal but failed in the UT after the Secretary of State’s appeal succeeded, or where the appellant was unsuccessful at both levels, but the FTT had made a material error of law and the UT made the decision afresh. Previous authority showed no clear approach in these circumstances. The Court stressed that the test for permission at the second stage of appeal is higher than the first stage test.
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22 March 2012 by David Hart KC
Cases T-439/10 and T-440/10, Fulmen & Mahmoudian v. Council of the European Union, read judgment
Fulmen, as many of you will know, means thunderbolt in Latin. So it must have seemed when this Iranian company had its assets frozen. This case is a good example of how general principles of European law were applied to annul measures taken against these Iranian applicants. The measures were 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 is a director of Fulmen. Hence they were both listed in Council Decision 2010/413/CFSP. The upshot was that all of their assets were frozen by the EU.
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21 March 2012 by David Hart KC
Kennedy v. Charity Commission et al, Court of Appeal, 20 March 2012, read judgment
Tangled web, this one, but an important one. Many will remember George Galloway’s Mariam Appeal launched in response to sanctions imposed on Iraq in 1998, and the famous picture of GG with Saddam Hussein. Well, the Appeal was then inquired into by the Charity Commission, and this case concerns an attempt by a journalist, unsuccessful so far, to get hold of the documents which the Inquiry saw. But the Commission took the 5th amendment – or rather, in UK terms, a provision in the Freedom of Information Act (s.32(2))which exempted from disclosure any document placed in the custody of or created by an inquiry. Cue Article 10 ECHR, and in particular the bits which include the freedom to receive information.
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19 March 2012 by David Hart KC
Barr v. Biffa, CA, 19 March 2012, read judgment
For the last year or so, the law of nuisance has been in a state of flux pending this appeal. In this case about an odorous landfill, Coulson J had ruled that compliance with the waste permit amounted to a defence to a claim in nuisance, and that a claimant had to prove negligence in the operation of the landfill before he could claim in nuisance. The Court of Appeal has today reversed this decision.
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15 March 2012 by Rachit Buch
Malik v United Kingdom 23780/08 [2012] ECHR 438 (13 March 2012) – Read judgment
The European Court of Human Rights held that the suspension of a GP from the Primary Care Trust (PCT) Performers List did not violate his right to peaceful enjoyment of possessions under Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights. The Court declined to decide whether there was a possession that could be interfered with in this case, but held that suspension did not affect Dr Malik.
Dr Malik ran a general practice from premises he owned in London. He was under a general medical services contract with his PCT so that he had to ensure patients on his list were provided with GP services (whether by himself or a salaried doctor); his premises was rented (for a notional amount) so that it could be used for NHS services. Dr Malik was also on the PCT’s performers list so that he personally could provide GP services.
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15 March 2012 by David Hart KC
Welsh Ministers v. RWE Npower Renewables Ltd [2012] EWCA Civ 311 read judgment, reversing RWE Npower Renewables v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment
In my previous post on this case, I summarised the judge’s findings as to why this Planning Inspector had gone wrong at the wind farm inquiry. The Inspector turned down the appeal because the positioning of individual turbines might lead to damage to deep deposits of peat found on this site. The judge, Beatson J, thought the inspector had not explained his reasons for his conclusions in sufficiently clear a form. Nor did the Inspector give the wind farm developer an opportunity to deal with his concerns.
So said the judge. But the Court of Appeal disagreed – showing how it is not easy to “call” the merits of these reasons challenges.
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14 March 2012 by Henry Oliver
The Court of Appeal has ruled that there is no “near miss” principle in the application of the Immigration Rules. People who miss the five years’ continuous residence requirement – even if by two weeks – will not have met the rules. There is no exception.
Mr Miah’s application for further leave to remain as a Tier 2 (General) migrant was refused by the Home Secretary. As was his application under Article 8 (right to private and family life) of the European Convention on Human Rights, and the application of his wife and child to be his dependents. His appeal to the First Tier Tribunal was unsuccessful, as was his appeal to the Upper Tribunal.
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The ability to interact with other prisoners is a major part of prison life, and not one many prisoners would give up willingly. But there are circumstances where prisoners have to be segregated from the rest of the prison population, such as where they are posing a violent threat to another prisoner or planning an escape. The Court of Appeal has recently looked into the question of how decisions to segregate are made, including the initial decision, the review of the decision and ultimately judicial review, in a human rights context.
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