Category: Case law

Should people with low IQs be banned from sex?

3 February 2011 by Adam Wagner

D Borough Council v AB [2011] EWHC 101 (COP) (28 January 2011) – Read judgment

In a case which is fascinating both legally and morally, a judge in the Court of Protection has ruled that a 41-year-old man with a mild learning disability did not have the mental capacity to consent to sex and should be prevented by a local council from doing so.

The case arose when a local council, following allegations that a mentally disabled man made sexual gestures towards children, sought a court order stating that “Alan” (a false name) did not have the mental capacity to consent to sexual relations. The council ultimately wanted Alan to be banned from having sexual relations with his former house-mate and sexual partner.

Continue reading →

Analysis: Children’s “best interests” and the problem of balance

2 February 2011 by Rosalind English

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment

This case (see yesterday’s summary) is illustrative of two misconceptions about rights that we are all in thrall to from time to time.

One is that there is a fundamental hierarchy of human rights which allows certain interests to prevail over others in all situations; the other is that this hierarchy is determined by considerations that are morally and politically neutral. A prime example of this kind of principle is the idea of the “overriding rights of the child”, a consideration with a perfectly orthodox role in family law, but one whose application to human rights as a whole is questionable.
Continue reading →

Supreme Court bolsters rights of children in deportation cases

1 February 2011 by Adam Wagner

Updated | ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment / press summary / our analysis

The Supreme Court has unanimously ruled that in cases where a parent is threatened with deportation, the best interests of their child or children must be taken into account, particularly when the children are citizens by virtue of being born in this country.

Following her leading judgment in last week’s domestic violence case, for which she has been dubbed the “Brilliant Baroness”, Baroness Hale has delivered another wide-ranging, principled judgment which will bring immigration courts into line with current thinking on child welfare and article 8 of the European Convention on Human Rights (the right to family life). The basic point is that children’s views must be taken into account, and this should include asking them what they think.

Continue reading →

Case Law: JIH v News Group Newspapers, anonymity regained – Edward Craven

1 February 2011 by Guest Contributor

The Court of Appeal yesterday handed down judgment in the case of JIH v News Group Newspapers Ltd ([2011] EWCA Civ 42). In allowing the appeal against the order of Tugendhat J ([2010] EWHC 2818 (QB)) the Court ordered that the claimant’s anonymity should be restored.

Although the Court stressed that each decision is fact sensitive, this approach seems likely to be followed in most types of privacy injunction cases. This eagerly awaited decision adds to the growing body of case law concerning reporting restrictions where an injunction has been granted to restrain publication of information about a claimant’s private life.

Continue reading →

Fair trial rights in Licensing Proceedings

1 February 2011 by Rosalind English

R on the application of Hope and Glory Public House v City of Westminster Magistrates Court [2011] EWCA Civ 31  Read judgement

It was not unfair in terms of Article 6 to require of a party aggrieved by a licensing decision to bear the responsibility of persuading the court hearing the appeal that the original decision was wrong.

This appeal raises a question about how a magistrates’ court hearing an appeal from a decision of a licensing authority under the Licensing Act 2003 (“the Act”) should approach the decision.

Continue reading →

No religion in court please

31 January 2011 by Adam Wagner

Shergill v Purewal & Anor [2010] EWHC 3610 (QB) (15 December 2010) – Read judgment

Continue reading →

Disabled volunteers can be discriminated against

28 January 2011 by Isabel McArdle

X v Mid Sussex Citizens Advice Bureau [2011] EWCA Civ 28 – Read judgment

The Court of Appeal has ruled that disabled people are not protected by domestic or European legislation against discrimination when they undertake voluntary work.

In this decision the specific question was whether volunteers at Citizens Advice Bureaus are protected from disability discrimination. X, the anonymised claimant, argued that CAB had terminated her role as a volunteer adviser because she had a disability. She claimed that:

Continue reading →

Supreme Court extends meaning of domestic violence

26 January 2011 by Adam Wagner

Yemshaw (Appellant) v London Borough of Hounslow (Respondent) [2011] UKSC 3 – Read judgment / press summary

The Supreme Court has unanimously ruled that “domestic violence” in section 177(1) of the Housing Act 1996 includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.

The effect of the decision is that anyone threatened with domestic violence, within the Supreme Court’s wider meaning, will not be expected to remain in local authority housing with their abuser. Although the judgement, given by Baroness Hale, did not mention human rights, it clearly impacts on article 8 rights to family life, and alongside the recent decision in Pinnock, could greatly increase the number of people to which local authorities are obliged to provide housing.

Continue reading →

A Cornish hotel and the conflict between discrimination law and religious freedom

24 January 2011 by Catriona Murdoch

Hall & Anor v Bull & Anor [2011] EW Misc 2 (CC) (04 January 2011) – Read judgment

Judge Andrew Rutherford in the Bristol County Court has held that the devout Christian couple who ran their Cornish hotel according to their Christian principles directly discriminate against a homosexual couple in a civil partnership, when they refused accommodation to them on the basis that they only let double rooms to married couples.

The couple had planned for a short break in Cornwall and, after some internet research, chose the Chymorvah Private Hotel. They booked two nights over the telephone and arrived a few days later. They were met by the owner of the hotel and told in the public reception area in front of at least one other guest, the hotels policy with regard to double rooms. The online booking form stated

Continue reading →

States Not Obliged to Assist Persons Wishing to Commit Suicide – Antoine Buyse

23 January 2011 by Guest Contributor

Last week, the European Court of Human Rights decided in the case of Haas v. Switzerland (judgment in French only) that the right to private life is not violated when a state refuses to help a person who wishes to commit suicide by enabling that person to obtain a lethal substance.

The applicant in the case, Ernst Haas, had for two decades been suffering from a serious bipolar affective disorder (more commonly known as manic depression). During that time he attempted to commit suicide twice. Later, he tried to obtain a medical prescription for a small amount of sodium pentobarbital, which would have allowed him to end his life without ain or suffering. Not a single psychiatrist, of the around 170 (sic!) he approached, was willing to give him such a prescription. This would have been necessary, under Swiss law, which allowed for assisted suicide if it was not done for selfish motives (in the opposite case, the person assisting could be prosecuted under the criminal code).

Continue reading →

Court of Human Rights: five recent Article 10 cases – Hugh Tomlinson QC

21 January 2011 by Guest Contributor

Over the past month, the Court of Human Rights has handed down judgment in six Article 10 cases.  We have already posted about the most recent, MGN v United Kingdom. Of the other five, two involved civil defamation claims in domestic cases.  In both civil defamation cases it was held that the State had infringed the right to freedom of expression but there was no finding of violation in any of the other cases.  The reasoning is not straightforward in any of these cases and there are continuing doubts about the quality of the Court’s Article 10 case law.

The only “media case” amongh the five was Novaya Gazeta V Voronezhe v. Russia([2010] ECHR 2104) in which a unanimous First Section found a violation of Article 10 as a result of a domestic defamation award of RUB 25,000 (£525) and an order for the publication of an apology.  The applicant newspaper had published an article which concerned abuses and irregularities allegedly committed by the mayor of Novovoronezh and other municipal officials. It also made references to services supplied by a local businessman. The article relied on and quoted from a town administration audit report.  The domestic court allowed the plaintiffs’ action, holding in particular that the article implied the embezzlement of funds by the mayor and the businessman, of which the newspaper had failed to adduce any proof.  It pointed out that no criminal proceedings against the plaintiffs in connection with the audit of some of the financial matters in question had been opened and that the article thus lacked a factual basis.

Continue reading →

Information is knowledge, knowledge is power

21 January 2011 by Matthew Flinn

R (on the application of Guardian News and Media Limited) v City of Westminster Magistrates’ Court [2010] EWHC 3376 – Read judgment

The Guardian newspaper has failed to convince the High Court that it should be able to see  key documents in the trial of three men threatened with extradition to the United States on charges of corruption and bribery. The case highlights the finely balanced right to freedom of information.

Since the European Convention of Human Rights came into force in 1953, the scope of the rights contained within it has grown along with the jurisprudence it has given rise to. As times have changed, the Article 8 right to respect for private life has, for example, grown to encompass increased rights for both pre- and post-operative transsexuals. More recently, the Article 10 right to freedom of expression has also been said by the European Court of Human Rights to include a right to access certain kinds of information. The scope of human rights, like many legal definitions, appear to have a metastatic tendency. However, in a recent case involving Art 10 the High Court drew a line in the sand, at least as regards the limited sphere of access to court documents in extradition cases.

Continue reading →

Batty behaviour in Hampshire habitat

21 January 2011 by Rosalind English

Morge (FC) (Appellant) v Hampshire County Council (Respondent) on appeal from [2010] EWCA Civ 608- Read judgment

We cannot drive a coach-and-horses through natural habitats without a bit of soul-searching, says the Supreme Court .

The UK has conservation obligations under EU law to avoid the deterioration of natural habitats and this goes beyond holding back only those developments that threaten significant disturbance to species. Detailed consideration must be given to the specific risks to the species in question. But this consideration can be left to the quangos; planning committees are not obliged to make their own enquiries.

Continue reading →

Unlawful mental health detention – who is to blame?

20 January 2011 by Maria Roche

TTM (By his Litigation Friend TM) v London Borough of Hackney, East London NHS Foundation Trust; Secretary of State for Health –  Read judgment

The Court of Appeal has ruled that the local authority, but not the detaining hospital, was liable to pay compensation to a person who had been unlawfully detained under Section 3 of the Mental Health Act  1983.  The case provides important guidance on the liability of mental health and medical professionals in the difficult area of detaining patients, as well as the ability to recover damages where a claimant is unlawfully detained.

The Court held that the patient’s detention had been unlawful from the start when the approved mental health professional [‘AMHP’] erred in whether the patient’s relative objected to admission.  The local authority responsible for the AMHP could not rely on the Section 139(1)of the Mental Health Act 1983 [‘the Act’] statutory protection from civil liability, which had to be read down by virtue of Section 3 of the Human Rights Act 1998 to give effect to the patient’s right to liberty under Article 5 of the ECHR.

Continue reading →

Can release from hospital be a deprivation of liberty?

19 January 2011 by Matthew Flinn

Secretary of State for Justice v RB [2010] UKUT 454 – Read judgment

In a fascinating recent case, the Upper Tribunal has departed from a line of court authority to decide that where a patient has been detained under the Mental Health Act 1983, conditionally discharging that patient from hospital subject to conditions which might themselves amount to a form of detention is compatible with Article 5 of the European Convention of Human Rights, the right to liberty .

RB, who was aged 75, had been detained under the Mental Health Act on 30 June 1999 following a conviction for indecent assault on a boy aged under 16. He suffered from a persistent delusional disorder, which rendered him a “strongly misogynistic”, lifelong paedophile.

Continue reading →