Category: Case law
17 September 2018 by Conor Monighan
Credit: The Guardian
Conor Monighan brings us the latest updates in human rights law
In the News:
The CPS has said there is enough evidence to charge two Russian men with conspiracy to murder Sergei and Yulia Skripal. Although the Skripals survived, another lady called Dawn Sturgess later died of exposure to Novichok.
The two men visited Salisbury last March, at the same time the nerve agent attack took place. It is believed the two men, Alexander Petrov and Ruslan Boshirov, are military intelligence officers for GRU, the Russian security service. The CPS has not applied for their extradition because of Russia’s longstanding policy that it does not extradite its own nationals. A European Arrest Warrant has been obtained in case they travel to the EU.
In response, the two men have claimed they were merely tourists. In an appearance on Russia Today (RT), they said the purpose of their visit to Salisbury was to see its cathedral. Arguing that their presence was entirely innocent, the two men said they were following recommendations of friends. Petrov and Boshirov went on to say that, whilst they had wanted to see Stonehenge, they couldn’t because of “there was muddy slush everywhere”. The men insisted they were businessmen and that, whilst they might have been seen on the same street as the Skripals’ house, they did not know the ex-spy lived there. The Russian President, Vladimir Putin, has said they are “civilians” and that “there is nothing criminal about them”.
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13 September 2018 by Conor Monighan
Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018
This year’s ALBA conference featured an impressive list of speakers and they did not disappoint. Delegates heard from a Supreme Court judge, an Attorney General, top silks, and some of the best legal academics working in public law.
The conference dedicated much of its time to public international law, a discipline which is often thought to have little relevance for most public lawyers. In fact, the conference showed that domestic public law is heavily intertwined with international law. This post summarises the key points from the conference, with a particular focus on human rights.
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27 May 2018 by Eleanor Leydon
Image Credit: The Guardian
In a landmark moment for women’s rights, the Irish electorate has voted in favour of abolishing the 8th Amendment by a stunning two-thirds majority of 1,429,981 votes to 723,632.
Whilst abortion has long been illegal in Ireland under the Offences Against the Person Act 1861, the notorious 8th Amendment, which gives the foetus’ right to life absolute parity with that of the woman carrying it, was enacted after a 1983 referendum lobbied for by pro-life activists. By virtue of the amendment:
“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
Lawyers for Yes emphasised that the amendment created ‘absolute legal paralysis in dealing with crisis pregnancies’ and had to be repealed if women in Ireland were to receive ‘appropriate’ and ‘compassionate’ healthcare. Also on the UKHRB, Rosalind English shares a powerful analysis of the extraordinary nature of the legal obligations imposed on women’s bodies by this provision.
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16 May 2018 by David Hart KC
R (o.t.a. Gallaher et al) v. Competition and Markets Authority [2018] UKSC 25, 16 May 2018, read judgment
UK public law is very curious. You could probably write much of its substantive law on a couple of postcards, and yet it continues to raise problems of analysis and application which tax the system’s finest legal brains.
This much is clear from today’s Supreme Court’s decision that notions of public law unfairness and equal treatment are no more than aspects of irrationality.
The CMA (then the OFT) were investigating tobacco price-fixing. Gallaher et al reached an early settlement with the OFT, at a discount of their fines. Another price-fixer, TMR, did likewise, but extracted an assurance from the OFT that, if there were a successful appeal by others against the OFT decision, the OFT would apply the outcome of any appeal to TMR, and accordingly withdraw or vary its decision against TMR.
6 other parties then appealed successfully. TMR asked and got its money back from the OFT relying on the assurance.
Gallaher et al tried to appeal out of time, and were not allowed to. They then turned round to the OFT and said, by reference to TMR: why can’t we have our money back?
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30 April 2018 by Eleanor Leydon
Image Credit: Guardian
The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor: Liberty’s challenge to Part 4 of the Investigatory Powers Act, on the ground of incompatibility with EU law, was successful. In particular, Liberty challenged the power bestowed on the Secretary of State to issue ‘retention notices’ requiring telecommunications operators to retain communications data for up to 12 months (detail at [22]). This engaged three EU Charter rights: the right to private life, protection of personal data, and freedom of expression and information.
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23 April 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The legal battle between Sir Cliff Richard and the BBC has begun in the High Court.
In August 2014, police raided Sir Cliff’s home based on an allegation of historic child sexual abuse. The BBC broadcast live footage of the raid filmed from a helicopter. The singer was interviewed under caution, but never charged.
Sir Cliff alleges that the BBC’s coverage of the police raid on his home was a serious invasion of his right to privacy, for which there was no lawful justification. He also alleges breaches of his data protection rights. The singer seeks substantial general damages, plus £278,000 for legal costs, over £108,000 for PR fees which he spent in order to rebuild his reputation, and an undisclosed sum relating to the cancellation of his autobiography’s publication. He began giving evidence on the first day of the hearing.
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21 April 2018 by Eleanor Leydon
Image Credit: Tobias Schreiner, PIEL UK
On Friday 6th April, Public Interest Environmental Law (PIEL) UK hosted their 12th annual conference. The student-led association, which was founded in 2007, is inspired by the US conference of the same name which has attracted ever-growing numbers of delegates since it began in 1983.
This year’s conference boasted three panels packed with academics and practitioners, and a keynote address from Richard Macrory CBE. In light of the movement’s snowballing strength, it seemed apposite that this year’s conference be themed ‘Environmental Litigation: Has the Green Revolution Reached the Courts?’
In fact, speakers ranged beyond this brief, partly due to recognising that it would take the coalescence of strategic litigation with procedural reform and public interest to truly ignite the ‘green revolution.’
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9 April 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
The High Court, Court of Appeal and Supreme Court are not sitting at present (Easter Term will begin on Tuesday 10th April). Accordingly, this week’s Round Up focuses largely on the ECHR.
Credit: The Guardian
Correia De Matos v. Portugal
This week, the ECHR held that requiring defendants to have legal representation does not violate Article 6. The vote was split by nine votes to eight.
The applicant, a lawyer by training, alleged a violation of Article 6 s.3(c) of the Convention. This was on the basis of a decision by Portuguese domestic courts which (i) refused him leave to conduct his own defence in criminal proceedings against him, and (ii) required that he be represented by a lawyer.
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2 April 2018 by Eleanor Leydon
Image Credit: Guardian
R (On the application of) DSD and NBV & Ors v The Parole Board of England and Wales & Ors & John Radford: in a landmark ruling, the High Court has quashed the Parole Board’s decision to release black cab driver and serial sex offender John Worboys, on grounds of irrationality. The Board acted irrationally in that it “should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability” [201].
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19 March 2018 by Eleanor Leydon
Image credit: Guardian
DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions: The Court of Appeal by a 2:1 majority allowed the government’s appeal against a ruling that their benefits cap unlawfully discriminated against lone parents with children under the age of two.
Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:
the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.
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11 March 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
Photo credit: The Guardian
In the News:
Over 100 female detainees have gone on hunger strike at Yarl’s Wood Immigration Removal Centre.
The women began their strike on the 21st February, over “inhuman” conditions, indefinite detentions, and a perceived failure to address their medical needs. The UK is the only European state that does not put a time limit on how long detainees can be held.
This week, the strikers were given a letter from the Home Office warning their actions may speed up their deportation. Labour criticised the letter, but Caroline Nokes, the Immigration Minister, said the letter was part of official Home Officer guidance and was published last November on its website.
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5 March 2018 by Eleanor Leydon
Photo credit: Guardian
In the News
UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.
Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.
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25 February 2018 by Conor Monighan
In the News:
Credit: Garry Knight, Flickr
Commissioner of Police of the Metropolis v DSD
The Supreme Court ruled that the police have a positive obligation to conduct an effective investigation into crimes involving serious violence to victims, in line with Article 3 of the ECHR. In this case the obligation had been breached.
The case concerned the police’s investigation into the ‘black cab rapist’, John Worboys. Two of his victims brought a claim for damages against the Commissioner of the Metropolitan Police Service (MPS), on the basis of an alleged failure of the police to conduct an effective investigation into Worbys’ crimes. The victims were awarded compensation in the first instance. The Court of Appeal dismissed the MPS’ appeal, and the case came before the Supreme Court.
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23 February 2018 by David Hart KC
R (ClientEarth No.3) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 21 February 2018, judgment here
DEFRA has been found wanting again, in its latest attempt to address nitrogen dioxide in air. This is the third time. Yet DEFRA’s own analysis suggests that some 23,500 people die every year because of this pollutant.
I have told the story in many posts before (see list at bottom), but the UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) since 2010. The Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”: Article 23.
We have now had 3 Air Quality Plans, the first produced in 2011 and quashed in 2015, and the second produced later in 2015, declared unlawful by Garnham J in November 2016.
The third, in this judgment, was dragged out of DEFRA in July 2017, after various attempts to delay things.
So why was it decided to be unlawful?
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11 February 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law.
Credit: Wiki Commons
In the News:
Robinson v Chief Constable of West Yorkshire
Covered by the Blog here
There is no general immunity for police officers investigating or preventing crime. In this case, Mrs Robinson suffered injuries when two police officers fell on top of her, along with a suspected drug dealer resisting arrest. The officers had foreseen Williams would attempt to escape but had not noticed Mrs Robinson (who was represented by 1 Crown Office Row’s academic consultant Duncan Fairgrieve).
The recorder found that, although the officers were negligent, Hill v Chief Constable of West Yorkshire [1989] gave them immunity from negligence claims. The Court of Appeal ruled the police officers owed no duty of care, and even if they did they had not broken it. It also found most claims against the police would fail the third stage of the Caparo test (i.e. it would not be fair, just and reasonable to impose a duty of care upon the police in these situations). The Court found Williams had caused the harm, not the police, so the issue was based on omission rather than a positive act. Finally, even if officers had owed the Appellant a duty of care, they had not breached it.
Mrs Robinson appealed successfully to the Supreme Court.
It held:
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