Category: Case law
16 May 2017 by David Hart KC
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 27 April 2017, judgment here
Last November (here) the judge decided that the UK’s air pollution plans under EU and domestic laws were not good enough. The case has a long, and unedifying back-story of Government not doing what the law says it should do – see the depressing list of posts at the bottom of this post.
The pollutant was nitrogen dioxide, a product of vehicle exhaust fumes. And as the judge reminded us in this latest instalment, the Department for Transport’s own evidence suggests that 64 people are dying everyday as a result of this pollutant.
The particular issue might seem legally unpromising. Government wanted to delay the publication of its latest consultation proposal from 24 April 2017 (the date ordered by the judge last November) until after the Council elections on 4 May, and, then, once the general election had been called, until after 8 June 2017. It accepted that it had its report drafted, but did not want to release it.
But the only justification for the delay was Purdah.
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6 May 2017 by David Hart KC
R (o.t.a T) v. HM Senior Coroner for West Yorkshire [2017] EWCA 187 (Civ), 28 April 2017 – read judgment
A sad story of human frailty posed two difficult problems for the Coroner, and the Court of Appeal.
A 19-year old mother went into hospital, with a shoebox. In the shoebox was the 6-days dead body of her daughter. She told the hospital and the police that she had been raped, hence the shame about reporting the death. She had given birth in her bedroom at home, and she said that the baby had been cold when born.
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6 April 2017 by Fraser Simpson
SS (Congo) v Entry Clearance Officer, Nairobi, [2017] UKSC 10 – read judgment.
The Supreme Court has ruled that, in principle, the need for spouses or civil partners in the UK to have an annual minimum income of £18,600 in order to obtain entry clearance for their non-EEA spouse/civil partner to be compliant with the European Convention on Human Rights (“ECHR”). However, the Supreme Court stated that the relevant Immigration Rules relating to such Minimum Income Requirements (“MIR”) failed to adequately take account of the need to safeguard and promote the welfare of children when making an entry decision. Finally, the prohibition on taking into account prospective earnings of the foreign spouse or civil partner when applying the MIR was inconsistent with the evaluative exercise required under Article 8, ECHR.
by Fraser Simpson
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21 February 2017 by David Hart KC
R (o.t.a. Oakley) v. South Cambridgeshire District Council [2017] EWCA Civ 71, 15 February 2017, read judgment
There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.
And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.
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9 February 2017 by Fraser Simpson
Mucaj, Re Judicial Review, [2017] CSOH 17 – read judgment.
Asylum seeker’s claim that he cannot be returned to Belgium under the Dublin III Regulations due to non-compliance with time limits by authorities fails.
by Fraser Simpson
The petitioner in this case, Bahri Mucaj, was an Albanian that arrived in Belgium in November 2011. After unsuccessfully claiming asylum in Belgium, the petitioner entered the UK and sought asylum here in late December 2014. The petitioner then sent a “take back” request to Belgium under The Dublin III Regulations (“Dublin III” – available here) in order for the Belgian authorities to reconsider his original application. This request was accepted on 7 January 2015 by the Belgian authorities. Consequently, the Secretary of State refused to consider the petitioner’s asylum application due to the fact that there was the possibility to send the individual back to a “safe” country – Belgium. The petitioner then wrote to the Secretary of State alleging that sending him back to Belgium would result in violations of both Article 3 and 8 of the European Convention on Human Rights. This claim was based on the living conditions that they had endured whilst originally in Belgium and the likelihood that they would be subject to similar conditions on return. This claim was refused and removal directions were issued to return the petitioner and his family to Belgium. The petitioner subsequently challenged this removal decision.
As was her policy at the time, the Secretary of State cancelled her removal directions pending the court’s decision. At this point, in mid-2015, there were a number of similar Judicial Review requests concerning the return of asylum seekers to European countries under Dublin III and the potential violation of Article 3. Following the leading decision in AL v Advocate General for Scotland, [2015] CSOH 95, which found in favour of the respondents, the petitioner in the current proceedings made amendments to their arguments. Instead of pursuing substantive challenges to the removal decision based on human rights grounds, the petitioner argued that the authorities had not complied with the time limits for return in Dublin III.
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26 January 2017 by Jim Duffy
In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.
Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.
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26 January 2017 by David Hart KC
In November 2016, the Government responded in rather disappointing terms (here) to a consultation about amending its costs rules in civil cases to reflect the requirements of the Aarhus Convention.
Article 9 of this Convention says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive“. Aarhus starters may want to have a look at my bluffers guide to Aarhus – here.
First, the limited bit of good news in the governmental response.
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23 November 2016 by David Hart KC
R (ClientEarth No.2) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 21 November 2016, transcript awaited
A quick follow-up ruling to the judgment of 2 November (here) in which the UK’s air pollution plans under EU and domestic laws were found wanting by the Administrative Court. The pollutant was nitrogen dioxide – a major product of vehicle exhaust fumes.
This Monday’s hearing was to decide precisely what the Government should be ordered to do in respect of the breach. The judgment was extempore, but the short reports available (e.g. here) suggest that the ruling is of some interest.
The parties had already agreed that it was unnecessary to quash the existing plan, which could remain in place until the following year whilst DEFRA prepared a new plan – presumably on the basis that a defective plan was better than no plan at all.
This week’s disputed issues related to timing for a new plan and whether and how the court could or should keep a watchful eye on Governmental progress.
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23 November 2016 by Jonathan Metzer
Armes v Nottinghamshire County Council [2016] EWHC 2864 (QB) – read judgment
In a nutshell
The right of a claimant to name the people who abused her prevailed over the rights of the perpetrators and others to private and family life.
The claimant, Natasha Armes, applied to set aside an anonymity order granted at the start of a previous trial to protect the identities of witnesses accused of physically and sexually abusing her in foster care.
Mr Justice Males undertook the balancing exercise between the rights to private and family life under Article 8 of the European Convention on Human Rights and the right to freedom of expression under Article 10.
Freedom of expression won the day. Males J lifted the anonymity order, accepting that since most of the allegations had now been proven anonymity was no longer justified.
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9 November 2016 by Fraser Simpson
Photo credit: The Guardian
Beggs, Re Judicial Review, [2016] CSOH 153 – read judgment.
The refusal to allow a Scottish prisoner to purchase a laptop for use in prison has been successfully challenged in the Outer House of the Court of Session. However, the Outer House decision focused on the flawed decision making process as opposed to the substantive conclusion reached by prison authorities.
by Fraser Simpson
Background
In 2001, the petitioner was convicted of murder and sentenced to life imprisonment. Whilst in prison, the petitioner, Mr Beggs, made a number of requests to be allowed to purchase a laptop. Mr Beggs intended for this laptop to be used to prepare responses to his lawyers in connection to a number of civil and criminal court actions in which he was involved. Additionally, Mr Beggs intended for the laptop to be used for educational purposes. However, each request made by Mr Beggs was refused.
This issue had been raised as early as 2002. The Scottish Prison Complaints Commissioner had stated that Mr Beggs “is a highly educated, intelligent man whose literacy is excellent”. The formal recommendations stemming from the Commissioner’s consideration of the matter was that Mr Beggs should be provided with a word processor and a printer to assist with his legal casework. However, no such access was forthcoming. As a result, Mr Beggs raised a first set of judicial review proceedings. Such proceedings were halted prior to the first hearing after the authorities agreed to provide computer facilities and a printer. This arrangement between Mr Beggs and the authorities at HMP Peterhead did not operate smoothly. Mr Beggs was allowed to access a communal laptop provided by the prison. However, another prisoner was often using this laptop. As a result, Mr Beggs made a request for permissions to have his own personal laptop.
Scottish Policy on personal laptops
The Governors and Managers Action Notices 84A of 1998 and 15A of 1999 (“GMA 1998” and “GMA 1999”) are the relevant policy documents covering prisoner ownership of computers/word processors. Under GMA 1998 there was a prohibition on prisoners in closed establishments from owning such devices (which would include laptops). However, GMA 1999 relaxed this position and allowed a prisoner to own a laptop in “exceptional cases” if “compelling reasons” had been shown. Additionally, there was the need to demonstrate that any security concerns could be adequately addressed.
This scheme for ownership of laptops operated separately from the various schemes allowing prisoners to access prison-owned laptops. The relevant protocol was most recently updated in March 2013. It only afforded prisoners access for legal work and required completion of a written application form. Access would not be provided unless the individual could show “real prejudice to his case” if access were restricted. Additionally, resources were limited as prisons only owned a certain number of laptops (which cost £1,000 to purchase). All in all, the scheme for accessing prison owned laptops was very restrictive and of little practical use.
Requests for a laptop
Mr Beggs initial request to the governor of HMP Peterhead was refused. Whilst recognising that “compelling circumstances” under GMA 1999 existed to depart from the general ban of laptops contained in GMA 1998, the governor refused the request due to the fact that the protocol for accessing communal computer equipment adequately met Mr Beggs’ needs.
Mr Beggs made a number of similar requests following this initial refusal. All requests were unsuccessful and often referenced the fact that the ability to access a communal laptop was sufficient.
In March 2014, having been moved to HMP Edinburgh, the petitioner made another request to be allowed a laptop. Again, he emphasised that a laptop was necessary to allow him manage the vast amount of legal documents that had amassed from various legal actions and also to allow him to further his academic interests. The governor of HMP Edinburgh refused this request. This time, Mr Beggs’ request was refused due to a failure to show that “exceptional circumstances” justifying the provision of a laptop existed as required under GMA 1999. The governor also noted that there were other individuals in the prison who were able to manage their cases without utilising a laptop.
It is this decision of March 2014 that the petitioner sought to have judicially reviewed.
Outer House Decision
Lord Malcolm began his decision by considering the relevant policy documents. As discussed above, GMA 1998 and 1999 established a system that required the individual to show “compelling circumstances” to justify departing from the general ban on prisoners in closed establishments owning laptops and that the relevant security concerns could be addressed. Lord Malcolm noted that only one individual had previously applied for a personal laptop, namely the man convicted of the Lockerbie bombings, Abdelbaset Ali Mohmed al-Megrahi. he had been allowed a laptop. Accordingly, it was clear that the relevant security concerns could be addressed.
Further, the existence of prison-owned laptops was irrelevant. The protocol allowing access to communal laptops existed independently of the scheme for personal laptops under GMA 1998 and 1999. The “very restrictive” prison laptop protocol could not be relied upon as a justification for refusing a personal laptop (despite the fact that such reasoning had been adopted by numerous decision makers in response to Mr Beggs’ previous requests prior to March 2014).
In considering the specific refusal reviewed by Mr Beggs, that of March 2014, Lord Malcolm noted that the governor of HMP Edinburgh merely stated that the petitioner’s circumstances were not “exceptional” and therefore there was no need to provide a personal laptop. But Lord Malcolm, whilst not explicitly disagreeing with the conclusion, empathised with Mr Beggs. Due to a number of factors, including the early positive response of the Scottish Prisons Complaints Commissioner, the undertaking agreed in the context of the first judicial review proceedings, and the initial decision of the governor of HMP Peterhead that “compelling circumstances” existed, Mr Beggs could reasonably expect his position to be considered “exceptional”. A decision that all of the above, amongst other considerations, did not amount to “compelling circumstances” should be be afforded “a more considered, detailed, and reasoned response than anything provided [to Mr Beggs] so far”.
As a result, Lord Malcolm reduced the decision of March 2014 and all subsequent decisions.
Comment
Ultimately, this decision of the Outer House relates purely to the decision making process adopted by the prison authorities. It’s easy to have sympathy with Mr Beggs. Despite previous assurances and, at first glance, clear “exceptional circumstances” he was repeatedly refused permission to buy his own personal laptop. These refusals included no reasons which effectively prevented Mr Beggs from being able to assess the height of the hurdle he had to clear in order to be successful.
The result of this judgment is that the governor of HMP Edinburgh will have to consider Mr Begg’s request afresh. In considering the substantive question of whether Mr Begg’s should be allowed a laptop there appears a number of factors in favour of granting permission. First, Mr Beggs has always offered to pay for the laptop himself. Instead of costing the authorities money, this would actually result in less reliance being placed on the limited number of communal laptops provided by the prison. Secondly, there is clearly no insurmountable issues regarding security; Mr al-Megrahi was provided a laptop, and numerous prisoners use communal laptops under the relevant protocol whilst in closed establishments. Finally, it may appear inconsistent to allow prisoners to enjoy Xboxes and PlayStations, which can also potentially access wifi and are explicitly permitted, whilst refusing to allow Mr Beggs to purchase a laptop for legal and educational purposes.
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3 November 2016 by David Hart KC
R (ClientEarth No.2) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 2 November 2016, judgment here
This is all about nitrogen dioxide in air, an unwanted byproduct of the internal combustion engine. Its effect on UK mortality has been estimated at 23,500 deaths per year.
The long way of telling the story involves circling around 6 hearings, to the Supreme Court, twice, to the CJEU in 2014 (C404-13, my post here), and now to a trenchant judgment from Garnham J.
The short version is this.
The UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) over the last 6 years. Art.23 of the Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”.
The UK Air Quality Plan (AQP) produced in 2015 (and responding to the 2nd Supreme Court judgment here) was simply not up to ensuring that urgently required result.
In so concluding, Garnham J started with the construction of Art.23, in response to a Defra argument that it imports an element of discretion and judgment.
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1 November 2016 by David Hart KC
This blog has covered a number of claims for damages arising out of the misuse of private information. The Mirror Group phone hacking case is one example (see my post here and the appeal decision here), and the fall-out from the hapless Home Office official who put private information about asylum-seekers on the Internet, being another – (Gideon Barth’s post on TLT here). See also below for related posts.
But this post is to give a bit of context, via the wider and scarier cyber crime which is going on all around us. It threatens the livelihoods of individuals and businesses the globe over – and has given and will undoubtedly give rise to complex spin-off litigation.
So let’s just start with the other week. On 21 October 2016, it seems nearly half the Internet was hit by a massive DDoS attack affecting a company, Dyn, which provides internet services infrastructure for a host of websites. Twitter, Reddit, Netflix, WIRED, Spotify and the New York Times were affected. DDoS, for cyber virgins, is Distributed Denial of Service, i.e. an overloading of servers via a flood of malicious requests, in this case from tens of millions of IP addresses. No firm culprits so far, but a botnet called Mirai seems to be in the frame. It is thought that non-secure items like cars, fridges and cameras connected to the Internet (the Internet of Things) may be the conscripted foot soldiers in such attacks.
And now to the sorts of cases which have hit the headlines in this country to date.
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13 October 2016 by David Hart KC
R (o.t.a Soma Oil & Gas) v. Director of the Serious Fraud Office [2016] EWHC 2471 (Admin) 12 October 2016 – read judgment
Soma are investing heavily ($40m spent on seismic work) in looking at oil and gas extraction in Somalia, so it was a bit of a set-back, to say the least, when their “capacity-building” efforts – funding infrastructure in the relevant Ministry – were alleged to fall under the Bribery Act 2010, and this led to a fraud investigation by the UK SFO. The investigations, as investigations do, dragged on, and Soma brought these, somewhat ambitious, proceedings to get an order telling the SFO to stop them.
As you may have guessed, the claim failed, though, as we will see, it may have achieved rather different benefits.
The judgment of the Administrative Court is a concise account of when the private challenger can and cannot seek orders in respect of investigations and prosecutions – whether to stop or start them. Here Soma wanted to stop the investigation. In other circumstances, a victim may want the authorities to start an investigation or prosecution into another party: see, e.g. Chaudhry, decided earlier this week.
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5 October 2016 by Thomas Beamont
In the news
The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.
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30 September 2016 by Fraser Simpson
Simon Price v. the United Kingdom, Application no. 15602/07, 15 September 2016 – read judgment.
In a unanimous decision, the European Court of Human Rights has held that the proceedings that lead to the conviction of an individual for drug trafficking charges were entirely compliant with Article 6, ECHR. Despite the inability to cross-examine a key prosecution witness, the Court considered that in light of the existence of supporting incriminating evidence (amongst other factors) the proceedings as a whole were fair.
by Fraser Simpson
Background
In June 2004 a ship, entering the port of Rotterdam, was searched by customs officials and found to contain a quantity of cocaine worth £35 million. The applicant, Simon Price, was arrested after he made enquiries into the container shortly after. He was subsequently charged with an offence under s.20, Misuse of Drugs Act 1971, and with the attempted importation of drugs from Guyana to the United Kingdom via the Netherlands and Belgium.
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