Category: Case law
20 April 2011 by Rosalind English
R (on the application of K and AC Jackson and Son) v DEFRA – read judgment.
An interesting ruling in the Administrative Court this week touches on some issues fundamental to public law – the extent to which “macro” policy (such as EC law) should trump principles of good administration; the role of factual evidence in judicial review proceedings, and the connection between public law wrongs and liability in tort.
It all started with Boxster the pedigree bull and notices issued by DEFRA which sealed his fate, or at least appeared to do so when his owners received them in April and July 2010. They were directed to arrange the slaughter of the animal as a result of a positive bovine tuberculosis (bTB) test that had been carried out by DEFRA technicians earlier in the year. The notices of intended slaughter were issued under paragraph 4 of the Tuberculosis (England) Order 2007, an Order made under powers contained in the Animal Health Act 1981.
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19 April 2011 by Isabel McArdle
H and L v A City Council [2011] EWCA Civ 403 – Read judgment
In a decision bound to stir up strong feelings, the Court of Appeal has found that disclosures made by a local authority to other organisations of a person’s conviction for a sex offence against a child and future disclosures proposed by the authority were unlawful. The Court considered that the “blanket” approach to disclosure, even though the person with the conviction and his partner did not work directly with children, was not proportionate to the risk posed. Further, making disclosures without first giving the persons concerned the opportunity to make representations on the matter was unfair.
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15 April 2011 by Guest Contributor
The recent rejection, by a panel of the Grand Chamber of the European Court of Human Rights, of the British government’s attempt to overturn the ruling in Greens and MT v United Kingdom (prisoner voting) case, brings into focus the role of the Strasbourg Grand Chamber.
In this post I attempt to highlight how the idea of a Grand Chamber came about, and its role under the ECHR. Building on Adam Wagner’s earlier posts, I also offer a possible explanation as to why the panel of the Grand Chamber refused a rehearing of the Greens case.
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15 April 2011 by Rosalind English
In a very short judgment about asset freezing orders the Court of Appeal has made some tart observations about the inchoate nature of Strasbourg’s rulings. These will no doubt have a certain resonance given the current fervid discussion about the competence of that court.
It was all in the context of an apparently esoteric argument about the precise nature of judicial review proceedings and whether or not they are covered by the fair trial guarantees of Article 6. The respondents’ names been placed on a United Nations list of persons believed to be associated with terrorism. The purpose and effect of listing was to freeze the listed person’s assets, to place the release of any funds at the discretion of the executive, and thereby to make him a prisoner of the state.
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14 April 2011 by David Hart KC
Here we are, back with the access to environmental information question…From rape, bees and lettuces , a coda, involving a diversion via a new road scheme planned for Aberdeen taking in pearls and badgers, crossing the River Dee Special Area of Conservation.
An opponent of the project brought a claim against the UK government before the Aarhus Compliance Committee; findings of the Committee were adopted on 25 February 2011. The complaints ranged far and wide but the point of interest arose under an exemption to disclosure in Article 4 of the Aarhus Convention, namely that disclosure would adversely affect “(h) the environment to which the information relates, such as the breeding sites of rare species.” This has found its way into reg.12(5)(g) of the Environmental Information Regulations 2004/3391, shorn, in a typically English way, of the helpful explanatory words underlined. Wouldn’t want the reader to get its meaning at a glance, would one?
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13 April 2011 by Adam Wagner
The clock is ticking again on prisoner votes. The European Court of Human Rights has rejected the UK government’s latest appeal in the long-running saga.
The UK had attempted to appeal the recent decision in Greens and M.T. v. the United Kingdom. The full background can be found in my previous post, in which I predicted that the European court would find the UK’s appeal unappealing. It has, and the result is that the UK has just under six months to remove the blanket ban on prisoners voting.
Incidentally, Rosalind’s post from earlier today relates to a separate but also interesting Scottish court judgment on prisoner votes.
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13 April 2011 by Adam Wagner
Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (07 April 2011) – Read judgment
What happens when the money for medical treatment runs out? The National Health Service has a limited budget. It also is obliged by law to provide necessary medical services to the public. Inevitably, some treatments will be considered unaffordable, and this sometimes leads to court challenges.
Two such challenges have arisen recently. One is interesting because it has been rejected (unless it is appealed) by the High Court, and the reasoning behind that rejection highlights how difficult it is to succeed in such claims, especially on human rights grounds. The other, because of the way it, and in particular its human rights aspects, has been reported. Not quite bad enough to merit placing on the legal naughty step, but not far off.
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13 April 2011 by Rosalind English
George McGeogh for Judicial Review of the Compatibility with the Petitioner’s EU law rights of the Decision of the Electoral Registration Officer , Outer House, Court of Session [2011] CSOH 65, 08 April 2011 (Lord Tyre) – Read opinion
This was an attempt by a prisoner to argue that his disenfranchisement under Section 3 of the Representation of the People Act breached his human rights, not under the ECHR, but his rights under EU law. The case illustrates the widespread (and probably correct) perception that if you can bring your claim under European law by persuading the court that one or other of its principles and freedoms are involved, you have a better chance of getting home on the rights argument than if you are restricted to the weaker authority of the Council of Europe and its Convention.
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12 April 2011 by Rosalind English
R(New London College) v Secretary of State for the Home Department [2011] EWHC 856 (Admin) – read judgment
When she introduced the latest changes to the points-based system for allowing entry into the United Kingdom the Home Secretary Theresa May said that “this package will stop the bogus students, studying meaningless courses at fake colleges…it will restore some sanity to our student visa system” (March 22 2011)
Whether these changes will alleviate any of the difficulties of applying the criteria to institutions that provide study courses for foreign nationals, only time will tell. This case illustrates some of these problems of enforcement.
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11 April 2011 by David Hart KC
A little cluster of cases has recently been decided which bear on the nature and extent to which environmental information is accessible to the public. They involve Somerset oilseed rape, pesticide residues in Dutch lettuces, and Scottish mobile phone masts. And we visit some German apiarists to consider the implications of such information being or not being provided. So hold on to your hat.
In G.M. Freeze v. DEFRA (8 March 2011), the aptly-named appellant wanted to obtain the six-digit National Grid reference for a field in Somerset. The farmer had sown some supposedly conventional oilseed rape seed in which there was, unbeknownst to him and the seed manufacturer, some genetically-modified seed at a concentration of 5 plants per 10,000. The crop thus grown then cross-pollinated with the neighbouring field of oilseed rape, contaminating the latter to 1 part per 10,000.
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7 April 2011 by Adam Wagner
BM v Secretary of State for the Home Department [2011] EWCA Civ 366 (05 April 2011) – Read judgment
Another control order has been ruled unlawful and quashed by the court of appeal, on the basis that the evidence relied upon to impose it was “too vague and speculative”.
Control orders are a controversial anti-terorrism instrument (see this post) which are soon to be replaced with Terrorism Prevention and Investigation Measures. These will impose less onerous restrictions upon a terrorist suspect. No doubt they will be approached by the courts at some stage. In the meantime, there are still 9 control orders in operation under the current regime. One has just been quashed by the court of appeal.
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5 April 2011 by Guest Contributor
The decision of the Supreme Court in Jones v Kaney (see earlier post by Rosalind English) removes the immunity previously enjoyed by those who have acted as experts from suit by their former clients. To understand the significance of the decision, a number of important points should be kept in mind.
- The immunity from suit for damages for a former client in respect of the retained expert’s activity in a civil action was already a limited one. In Palmer v Durnford Ford, [1992] QB 483, the High Court held that an expert witness was not immune from suit in respect of work done primarily for the purpose of advising the client.
- Expert witnesses have, since the decision of the Court of Appeal in Meadow v General Medical Council [2007] QB 462, been liable to disciplinary sanction in respect of their activity and evidence as experts in courts and tribunals. That flows from the public interest in the fitness to practice of the professional (particularly, but not only, a medical practitioner).
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5 April 2011 by Isabel McArdle
Commission for Equality & Human Rights v Griffin, Lumby, Darby
[2011] EWHC 675 (Admin) Read judgment
The Commission for Equality & Human Rights has been ordered to pay costs of court proceedings to two members and a former member of the British National Party. Although the decision is a technical one relating only to costs of proceedings, it highlights the financial risks which must be borne by those seeking to police and enforce compliance with the requirements of human rights law.
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30 March 2011 by Rosalind English
Lumba v Secretary of State for the Home Deparment – a case of driving government policy further underground?
We have already reported on this appeal by three foreign nationals who have served sentences of imprisonment in this country (“FNPs”). They were detained pursuant to Schedule 3 of the Immigration Act 1971 and their challenge to the legality of this detention was successful. But the appeal was secured by a majority of 3 with strong dissenting opinions which merit close consideration here.
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28 March 2011 by Alasdair Henderson
The Mayor of London v. Brian Haw & others [2011] EWHC 585 (QB) – read judgment.
The High Court has ruled that it would not be a breach of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) to grant a possession order in respect of Parliament Square Gardens (“PSG”) and an injunction compelling protesters to dismantle and remove all tents and other structures erected on PSG. The potential effect of this might be to remove Brian Haw, the peace campaigner who has been protesting almost non-stop outside Parliament for the best part of a decade.
This is the latest in a long-running series of cases exploring the extent of the freedom to protest. We have analysed the previous court decisions about the Parliament Square protesters here and here. The issue of restrictions on freedom of assembly and freedom of expression has been a hot topic in recent months more generally, having also come up recently in the contexts of the student protests last year, political asylum seekers and hate speech.
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R (on the application of K and AC Jackson and Son) v DEFRA – read judgment.
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