Category: Case law
15 January 2012 by Karwan Eskerie
British Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad (Rev 1) [2012] EWHC 13 (Admin) – Read judgment
The High Court ruled that the Justice Secretary’s refusal to grant the BBC permission to have and to broadcast a face-to-face interview with terrorism suspect Babar Ahmad was unlawful.
The BBC and one of its home affairs correspondents, Dominic Casciani, had applied for permission to conduct the interview with Mr Ahmad, who is currently detained at HMP Long Lartin, and is fighting extradition to the USA. The BBC also wished to broadcast the interview. The Justice Secretary refused the permission, which refusal the BBC challenged in a judicial review claim.
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12 January 2012 by Rosalind English
AMP v Persons unknown – read judgment
If you lose your mobile phone with highly confidential and private information on it, all may not be lost. The unscrupulous finder may be prevented from blurting its contents all over the web, even if the identity of that person is unknown to you or the court. It requires considerable input of computer expertise, but it is possible, as this case (cleverly taken in the Technology and Construction Court) illustrates.
The applicant’s mobile phone was reported to the police as stolen after she lost it at university in 2008. It contained digital images of an explicit sexual nature which were taken for the personal use of her boyfriend at the time. The applicant was alone in the photos and her face was clearly visible.
Invoking the right to privacy under Article 8, and the Protection from Harassment Act 1997, she applied for an interim injunction to prevent transmission, storage and indexing of any part or parts of certain photographic images taken from the phone, and an anonymity order under CPR r.39.2(4), which meant that the application, which was heard in private on the basis that publicity would defeat the object of the hearing, would preserve the anonymity of the applicant. Both applications were granted.
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9 January 2012 by Guest Contributor
On Friday 6 January 2012, a historic case came to a conclusion in Courtroom 7 of Southwark Crown Court. Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.
Peacock had been charged under the Obscene Publications Act 1959 for allegedly distributing ‘obscene’ ‘gay’ DVDs, which featured fisting, urolagnia (‘watersports’) and BDSM.
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9 January 2012 by Rachit Buch
Mr Abdullah Manuwar and Secretary of State for the Home Department IA26/543/2010 – Read decision
We have posted on this blog previously on some of the poor reporting of human rights cases. Alarm bells were ringing as the Sunday Telegraph reported student Abdullah Munawar’s appeal on human rights grounds against a refusal to grant him leave to stay in the UK, citing his playing cricket as a reason he had a private life under Article 8 of the ECHR.
However, considering the judgment, the Telegraph article makes a valid point on the limits provided by human rights on immigration decisions, and shows that not all journalism critical of the Human Rights Act is inaccurate.
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2 January 2012 by David Hart KC
Case C-366/10 The Air Transport Association of America and Others, judgment of the CJEU, 21 December 2011 Opinion of Advocate-General Kokott, 6 October 2011
On 1 January 2012, the EU Emissions Trading Scheme started applying to airlines for real. So it was perhaps no coincidence that just before Christmas, and rather more speedily than usual, the EU Court (the CJEU) effectively threw out a challenge by US airlines to the scheme brought in the UK Courts which was referred to the CJEU. The airlines had said that a raft of international rules and conventions were inconsistent with the scheme. The UK denied the unlawfulness; it said, if you want to land in the EU, you have to obey EU rules. I posted on the Advocate-General’s opinion, and the Court has come to the same conclusion albeit by a slightly different route. But, first, what are these emissions trading schemes about?
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1 January 2012 by Guest Contributor
Denry Okpor v London Borough of Lewisham, Bromley County Court 25 October 2011 [Transcript not publicly available]
Adam Wagner represented Mr Okpor in this case. He is not the author of this post.
This was a rolled up permission to appeal and appeal hearing (on which more later) for appeal to a Circuit Judge from a possession order made by a District Judge at Bromley. At issue was whether the District Judge was wrong to reject a) a proportionality defence and b) a gateway B public law defence arising from Lewisham’s failure to follow its own policy. It is interesting as an example of proportionality/gateway B defences in action in the County Court, but also somewhat frustrating, for reasons which will become clear.
Mr Okpor was the secure tenant of Lewisham. At the age of 15 he had been taken into care by Lewisham following abuse. He left care aged 18 in 2006. In 2009, aged 21, he was given the secure tenancy. Mr O went into full time higher education later that year and has remained in full time higher education. This meant that the relevant Children Act 1989 provisions for care leavers continued to apply and would do until he was 24, if still in full time higher education. Mr O was receiving support from the Lewisham Leaving Care Team.
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29 December 2011 by David Hart KC
R (on the application of (1) Homesun Holdings (2) Solar Century Holdings (3) Friends of the Earth) v Secretary of State for Energy and Climate Change
Admin. Ct, Mitting J, 21 December 2011, extempore judgment, so no transcript available
This successful challenge to a proposal to modify subsidies for solar power arose out of the decision by the climate change Department to amend the rules under which the subsidies were to be payable. The essential questions were whether DECC could do this whilst a statutory consultation period was running, and further whether judicial review lay against a proposal to change the system, as distinct from a challenge to the change itself.
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28 December 2011 by Guest Contributor
Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title.
The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law.
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22 December 2011 by David Hart KC
R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD & RURAL AFFAIRS (2011), QBD (Admin) Mitting J, 13 December 2011, extempore so transcript not available.
For some time now, the United Kingdom has known that it is in trouble under EU legislation, Directive 2008/50, limiting the amount of nitrogen dioxide in the air we breathe. The date for meeting these levels was 1 January 2010. ClientEarth, an environmental NGO, brought proceedings to enforce this obligation. They failed, despite an admitted breach by the UK. Why?
ClientEarth sought a declaration and mandatory orders against the Government for failing to comply with the levels set out in Article 13 of the Directive. Only 3 out of 43 areas and conglomerates in the UK met that target. Under Article 22, it was possible to extend the time for compliance with the limits by a maximum of five years. Recital nine to the 2008 Directive stated that where the objectives were not met, Member States were required to take steps to ensure compliance. In particular Articles 22 and 23 said that where an extension to the compliance time was sought, a Member State should publish an air quality plan indicating how compliance with the limits would be reached.
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20 December 2011 by Matthew Flinn
Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538 – Read Judgment
The Court of Appeal has decided that a failure to provide a life sentence prisoner with a minimum of one hour in the open air each day did not constitute a breach of his human rights under Article 8 of the European Convention of Human Rights (“ECHR”).
Oliver Sanders of 1 Crown Office Row represented the Secretary of State in this case. He is not the author of this post.
Between 26 April and 2 October 2007, a period of 159 days, Mr Leslie Malcolm was detained in the Segregation Unit at HMP Frankland. During that time, he was provided with an average of 30 minutes in the open air each day. However, paragraph 2(ii) of Prison Service Order 4275 (“PSO 4275”), which contained policy guidance for prison officers operating under the Prison Rules 1999, stated that he should have had the opportunity to have at least one hour each day in the open air.
When Mr Malcolm first brought his claim, he complained that not only had his human rights under the ECHR been infringed, but also that the prison officers at HMP Frankland were liable for misfeasance in a public office. Both aspects of the claim were rejected by Sweeney J at first instance, and it was only the human rights question that was considered on appeal.
The judgment of Richards LJ, in leading a unanimous Court of Appeal, is an elucidating one insofar as it breaks down and draws attention to the various questions which need to be addressed when a human rights claim under Article 8 is brought.
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17 December 2011 by Alasdair Henderson
Edwards v Chesterfield Royal Hospital and Botham (FC) v Ministry of Defence [2011] UKSC 58 – read judgment.
Although not strictly speaking a human rights case, the Supreme Court handed down an important employment law decision this week which has significant impact on employees’ ability to claim damages if they are sacked unfairly or if an internal disciplinary process isn’t properly followed by their employer.
Both cases, which had been conjoined for the purposes of the appeal, dealt with situations where an employee had a contractual right to a particular disciplinary procedure but the procedure was not properly followed. The employees argued that as a result of the flawed disciplinary process, incorrect and highly damaging findings of fact were made against them, which prevented them from finding future employment. In both cases the incorrect findings of fact concerned allegations of inappropriate sexual conduct, in the case of Mr Edwards (a surgeon) with patients and in the case of Mr Botham (a youth worker) with teenage girls in his care, so the employees’ upset is readily understandable.
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16 December 2011 by David Hart KC
OBG Ltd et al v. United Kingdom, 29 November 2011
We have become quite used to the Strasbourg Court having a serious go at bits of our statutory law, whether it be prisoners’ rights, anti-terrorist legislation or housing law. A lot of this statute enables the state to do things to private citizens which may or may not offend the Convention. But what is rather rarer in Strasbourg is the case where an applicant challenges judge-made law or common law, and does so where the dispute is between two private parties. Perhaps the best known example is the MGN/Naomi Campbell case in which privacy and costs issues got an intense scrutiny from the Strasbourg Court.
OBG sounds much less glamorous and more obscure, but is nonetheless interesting. The human rights of companies which have been injured by the wrongful exercise of administrative receivership powers have not been minutely examined in the case law, to say the least. But if this case sounds dry, and likely to hoist me by my own petard (should lawyers get named and shamed for being boring?), bear with me. Because it is actually quite a sad story of people being dealt an unjust result – for which neither domestic nor Strasbourg courts felt able to fashion a suitable remedy.
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13 December 2011 by Rosalind English
R v Michael Peter Lyons [2011] EWCA Crim 2808- read judgment
Moral objections to the UK’s involvement in Afghanistan do not constitute a defence to an insubordination charge, the Court Martial Appeal Court has ruled. The appellant was not entitled to disobey a lawful command on the ground of conscientious objection.
At the age of 18 the appellant had volunteered for the Royal Navy and under its auspices was posted to submarines as Leading Medical Assistant. Five years in to his service, he was told that he would be deployed to Afghanistan. He applied for discharge on the basis that he objected to the UK’s role in Afghanistan. His application on grounds of conscientious objection was refused. Before his appeal against this refusal was decided he was ordered to undertake a pre-deployment weapons training course, because of the risk all personnel faced in that theatre, combatant or not. On refusing to submit to this he was convicted of insubordination.
In this appeal against his sentence he argued that Article 9 protected him from active service from the moment when he told his commanding officer of his objections, until his appeal on grounds of conscientious objection was finally determined. He also contended that he had protected status under the Geneva Convention 1949 and it was unlawful to require him to undergo weapons training. His appeal was dismissed.
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8 December 2011 by Alasdair Henderson
R v. H & others [2011] EWCA Crim 2753 – read judgment.
One of the most popular ideas in crime fiction is the ‘cold case’; the apparently unsolved crime which, through various twists and turns, is brought to justice many years after it was committed. Indeed, at least two recent long-running TV dramas (the American show ‘Cold Case‘ and the more imaginatively and morbidly named British show ‘Waking the Dead‘) have been entirely based on this concept.
But what happens when such cases do turn up in real life, get to trial and the perpetrator is found guilty? In particular, how does a judge approach sentencing for a crime which might be decades-old, in the light of Article 7 ECHR? The Court of Appeal recently provided some answers to those questions.
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7 December 2011 by David Hart KC
Leeds Group v. Leeds City Council et al [2011] EWCA Civ 1447
Retrospective legislation often gives rise to claims under Article 1 Protocol 1 of the Convention – you may have some legal advantage (whether it be property or a legal claim) which you then find yourselves losing as a result of the change of law. I have posted on some of these, the ban of the pub fag machine, or the change in the law that meant insurers had to pay compensation for pleural plaques caused by asbestos. These A1P1 cases are not easy to win, not least because the courts are wary in thwarting legislative changes via one of the less fundamental and most qualified rights in the Convention locker.
The Leeds Group case is a good example of this. The Countryside and Rights of Way Act 2000 (CROW) changed the basis on which town and village greens could be registered. Put very shortly, you can register some land as a green if people had “indulged” in “lawful sports and pastimes” on the land for not less than 20 years, in the rather quaint and de haut en bas language of the drafter. The changes under CROW were quite subtle. You now have to show a “significant number” so indulging, but these people can come from “any neighbourhood within a locality”, rather than from a “locality” – a term on which previously masses of ink has been split and by which otherwise meritorious claims for greens disallowed. And the sports and pastimes now had to continue to the date of registration – you and your fellow Morris dancers could not just stop dancing or whatever once you had done your 20 years, if you wanted to register the greens.
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