Category: Case law
29 July 2011 by Guest Contributor
On Thursday 28th July, the Supreme Court heard a “permission to appeal” argument in the British nuclear testing case. The judgment to be appealed is that of the Court of Appeal Civil Division in Ministry of Defence v AB and others[2010] EWCA Civ 1317 – (Smith and Leveson LJJ and Sir Mark Waller).
In terse legalese, the issue to be appealed is whether the Court of Appeal – (1) applied the wrong legal test for knowledge in section 14 of the Limitation Act 1980, and (2) adopted the wrong legal approach to the exercise of discretion under section 33 of the Act. The Supreme Court granted permission for the appeal – see BBC 28th July and The Independent 28th July.
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28 July 2011 by Adam Wagner
Condliff, R (on the application of) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910 – Read judgment
A morbidly obese man has lost his appeal against his local Primary Care Trust’s (PCT’s) refusal to fund his anti-obesity surgery. The Court of Appeal ruled that the PCT had no obligation under Article 8 of the European Convention on Human Rights to consider social or non-clinical factors when deciding whether to grant a request for exceptional funding.
In his discussion of the case, Lord Justice Toulson began by saying that “Human rights law is sometimes in danger of becoming over complicated“. Underlying this point is the fact that it is already complicated enough. This is a good example: how could a court find that this case, which clearly involves the dignity and family life of a man whose life is difficult and miserable, not engage the protection of human rights law? I will try to explain.
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25 July 2011 by Rosalind English
A A O v Entry Clearance Officer [2011] EWCA Civ 840 – read judgment
1 Crown Office Row’s Sarabjit Singh appeared for the Respondent in this case. He is not the writer of this post.
“No”, seems to be the Court of Appeal’s answer to the question posed by the heading above; indeed Rix LJ goes as far to say that “the provision of such money can be as much an insulation against family life as evidence of it.”
In this case the appellant, a 69 year old Somalian national who had been living in Kenya, appealed against the respondent entry clearance officer’s refusal to grant her leave to enter the UK to join her daughter. The daughter, who sponsored this claim, had been granted British citizenship. She had seven children and was living on benefits, out of which she sent a monthly contribution to her mother. The appellant, who was said to be in poor health and dependent on a neighbour for daily care, had applied for indefinite leave to join her daughter as a relative and financial dependant of a person settled in the UK under the Immigration Rules r.317. The entry clearance officer refused her request, having found that she did not satisfy r.317(iva) in respect of her ability to be maintained without recourse to public funds and that any interference with her rights under Article 8 of the European Convention on Human Rights was justified and proportionate for the purpose of maintaining effective immigration control.
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21 July 2011 by Rosalind English
Jakobski v Poland (December 2010) – read judgment
Mahayana Buddhists have profound moral objections to eating meat. According to the rules, a Mahayana Buddhist should avoid eating meat to cultivate compassion for all living beings.
Even peaceable Buddhists commit crimes sometimes and go to prison. Meat free diets however are not available in all European penitentiaries. Should committed vegetarians be made to forfeit their beliefs once their offences against society have committed them to penal servitude?
In Poland, apparently, the answer is yes. The refusal to provide a Buddhist prisoner with a meat-free diet was not unlawful under local law which provided only that prisoners should receive meals taking into consideration their employment, age and where possible religious and cultural beliefs. That let-out clause allowed the Polish government to issue an ordinance requiring the provision of special meals for diabetics and a “light diet”. Both contain meat products.
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19 July 2011 by Adam Wagner
Attorney General v Associated Newspapers Ltd & Anor [2011] EWHC 1894 (Admin) – Read judgment
The High Court has handed down fines of £15,000 each and to Associated Newspapers and News Group Newspapers (NGN), owners of The Daily Mail and The Sun, for contempt of court. The companies will also have to pay £28,117.23 to cover the Attorney General’s costs. This blog’s co-editor Angus McCullough QC appeared for the Attorney General in the case but is not the writer of this post.
The newspapers’ owners, particularly NGN, probably have other things on their minds at the moment. But the fines, which relate to contempt proceedings decided in March (read judgment / my post) represent something of a landmark, as they are the first relating to online publication. In this case, The Sun Online and Mail Online published pictures of Ryan Ward holding a gun whilst he was on trial for murder.
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17 July 2011 by Rosalind English
1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.
On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here. Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case. In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.
The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.
In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases.
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14 July 2011 by Alasdair Henderson
The decisions by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda, handed down last Thursday, have generally been hailed as leap forward for human rights protection. We have already provided a summary of the decisions and pointed to some of the commentary here.
However, it is worth considering the core parts of these rulings a little more carefully. Without wishing to put too much of a dampener on the initial excitement from human rights campaigners about the outcome, the Court’s reasoning is perhaps not quite the radical breakthrough it first appeared to be. In fact, as Judge Bonello pointed out in his concurring opinion (which has drawn a lot of attention for his comments about ‘human rights imperialism’), the principles governing jurisdiction under Article 1 of the ECHR are not that much clearer following these decisions.
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14 July 2011 by Rosalind English
Farouk Sabeh el Leil v France (29 June 2011) – read judgment
When a diplomatic employee takes action for compensation for unfair dismissal, the host country’s courts cannot simply rule out the possibility of a claim on the basis that the employer has state immunity. This would impair the very essence of his right of access to a court under Article 6 of the Convention.
The applicant, a French national, had been employed as an accountant in the Kuwaiti embassy in Paris since August 1980. He was promoted to head accountant in 1985. In March 2000, the Embassy terminated his contract as part of a cost-cutting exercise. His application to the local employment tribunal was initially successful but ultimately failed before the Paris Court of Appeals which found that the State of Kuwait enjoyed jurisdictional immunity on the basis of which it was not subject to court actions against it in France.
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13 July 2011 by Guest Contributor
R (NM) Secretary v of State for Justice [2011] EWHC 1816 – Read judgment
This case concerned whether the prison authorities were in breach of the Disability Discrimination Act 1995 and the Equality Act 2010 when they failed to conduct a form investigation into a sexual assault against a prisoner with learning disabilities, NM.
It was further considered whether the failure to conduct a formal investigation was in breach of NM’s Article 3 rights. The claimant was assisted in bringing his case by the Howard League for Penal Reform. The court found in relation to all points that the defendant had acted lawfully.
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13 July 2011 by Rosalind English
1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.
Al Rawi and others (Respondents) (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 – read judgment; read press summary
At the centre of this appeal was the court’s power to order a “closed material procedure” for the whole or part of the trial of a civil claim for damages. The question arose as a “preliminary issue” – a point to be determined on its own – in the appellants’ compensation claim for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay.
In countering the respondents’ claim for compensation, the appellant security services claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They therefore sought a “closed material procedure” for this part of their defence – a procedure whereby a party can withhold certain material from the other side where its disclosure would be contrary to the public interest.
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9 July 2011 by David Hart KC
RWE Npower Renewables Ltd v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment
There are two things which public law fairness demands of a judge or a planning inspector before they rule against a party. The first is to make sure that any doubts about a party’s case is put to that party so he can respond. The second is that the judge or inspector explains his reasons for his conclusions in summary form. Unfortunately, in this case, the inspector did neither, and hence the decision was quashed by Beatson J. The judgment, at [37], contains a very good summary of the current cases on the adequacy of reasons in both planning and non-planning contexts.
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8 July 2011 by Martin Downs
R (on the application of G) v The Governors of X School [2011] UKSC 30 – Read judgment
On 4 October 2007 the parents of a 15 year old boy complained that he had been kissed by his 22 year old school sessional music teaching assistant (G).
After an (inconclusive) Police investigation, the school held a disciplinary hearing and dismissed G. They also referred his case to the Secretary of State with a view to him being barred from working with children. The Claimant appealed to the school governors. He also sought to be represented by his solicitor. In this he was successful on judicial review and at the Court of Appeal.
The question for the Supreme Court was, did Article 6 of the European Convention of Human Rights (the right to a fair trial) mean that G was entitled to be legally represented at the hearing before the school governors?
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7 July 2011 by Adam Wagner
Updated | The legal blogs have been busy reporting on this morning’s important decisions of the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda – see my post.
There has been coverage already from PHD Studies in Human Rights, the Human Rights in Ireland Blog (update – see also EJIL: Talk: “Let me put this as strongly as I can: this is as close as we’ve ever come to the European Court overruling Bankovic. And good riddance – except, as we will see, the Court’s disavowal of Bankovic is only half-hearted at best.”). The Guardian has also published an article on the case in which Phil Shiner of Public Interest Lawyers claims that the decisions will reopen the case for a wider public inquiry into alleged detainee mistreatment in Iraq; the firm recently failed in a judicial review of a decision not to hold a public inquiry on behalf of 127 Iraqis.
Many thanks to Antoine Buyse of the ECHR Blog for highlighting the lyrical and eminently quotable concurring opinion of Maltese Judge Giovanni Bonello, who since writing the judgment has retired from the court. Bonello said that he would have applied a slightly different “functional jurisdiction” test to decide whether the applicants fell within the jurisdiction of the United Kingdom.
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7 July 2011 by Adam Wagner
Al-Skeini v. United Kingdom, European Court of Human Rights Grand Chamber (Application no. 55721/07) – Read judgment / press release
Al-Jedda v. the UK (Application No. 27021/08)- Read judgment / press release
The Grand Chamber of the European Court of Human Rights has ruled that from 1 May 2003 to 28 June 2004 the UK had jurisdiction under Article 1 (obligation to respect human rights) of the European Convention on Human Rights in respect of civilians killed during security operations carried out by UK soldiers in Basrah.
The court went on to find in Al-Skeini that there had been a failure to conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 (right to life) of the Convention. The court awarded 17,000 euros to five of the six applicants, in addition to 50,000 euros in costs jointly.
In Al-Jedda, the court found a violation of Article 5 (1) (right to liberty and security) of the European Convention in relation to the internment of an Iraqi for more than three years (2004- 2007) in a detention centre in Basrah.
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3 July 2011 by David Hart KC
Many will remember the batch of e-mails hacked in 2009 that caused delight in climate change sceptic circles (see this example from James Delingpole), and considerable embarrassment to UEA; some of it concerned the famous or infamous hockeystick graph (see below) showing temperature change over the last 1000 years.
This environmental information case is the sequel. And, as we shall see, strange is the territory into which the right to information leads us: so far I have posted on pearls and badgers and oilseed rape, bees, lettuces and mobile phone masts. Now we are into global weather data going back to 1850.
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