Category: Case law
16 September 2016
R (o.t.a. CPRE Kent) v. Dover District Council  EWCA Civ 936, 14 September 2016, read judgment
The Court of Appeal has just given us a robust vindication of the importance of giving proper reasons when granting planning permission, by way of a healthy antidote to any suggestion that this is not really needed as part of fairness.
It is, as we shall see, very context-specific, and Laws LJ, giving the main judgment, was careful not to give the green light to floods of reasons challenges – common enough as they are in planning judicial reviews. Nonetheless it is a decision of significance.
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15 September 2016
Photo credit: the Guardian
V.M. v. the United Kingdom, Application no. 49734/12, 1 September 2016: read judgment.
The European Court of Human Rights has ruled that part of an individual’s detention pending deportation violated the right to liberty protected by Article 5, ECHR. This judgment is the second recent ruling to find a lack of “due diligence” on behalf of UK authorities following the Court’s judgment in J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 (see my previous UKHRB post here).
by Fraser Simpson
The applicant, VM, entered the UK illegally on 18 November 2003 with her son (S). Soon after, her son became the subject of an interim care order and the applicant was charged with child cruelty under the relevant legislation. Following an unsuccessful application for asylum due to fears for her life back in Nigeria, VM pleaded guilty to the child cruelty charges in August 2004. However, following the granting of bail pending the next hearing in February 2005, VM absconded for a period of over two years.
In September 2007 the applicant was again arrested, this time on charges relating to possession of false documentation with intent to commit fraud. Following conviction she was sentenced to nine months in prison. The applicant was also eventually convicted of the child cruelty charges in April 2008. Before sentencing, a psychological report was produced that indicated the applicant suffered from depressive and psychotic symptoms. However, such symptoms were being adequately managed through therapy and medication. Accordingly, there was no need to consider specialised treatment in a hospital or prison healthcare wing under the Mental Health Act 1983. The applicant was therefore sentenced to twelve months imprisonment, with an additional three months due to the failure to surrender to bail, in July 2008. At this point, due to the severity of the offences, the domestic judge recommended that the applicant be deported.
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29 July 2016
The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland)  UKSC 51 – read judgment here
The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).
by David Scott
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19 July 2016
In the news
Theresa May has been sworn in as Prime Minister of the United Kingdom, prompting speculation about the impact her leadership will have on human rights.
The former Home Secretary has been a vocal and long-standing critic of the Human Rights Act. In a 2011 speech she insisted that the legislation “needs to go”, making controversial reference to what legal commentators argued was a “mythical example” of an immigrant who could not be deported because “he had a pet cat”. Her appointment of Liz Truss as Justice Secretary, who has previously spoken out against the HRA, suggests that the Government will continue with plans to replace the Act with a British Bill of Rights.
Nonetheless, it appears that the UK will remain a signatory to the European Convention on Human Rights, at least in the near future. During her campaign to be Prime Minister, Theresa May stated that she would not pursue pulling out of the ECHR, describing the issue as divisive and lacking majority support in Parliament. Amnesty International have said that they “warmly welcome” this commitment, and have called on the Prime Minister to “turn the corner on human rights” in the UK.
In an examination of “Theresa May’s Eight Human Rights Highs and Lows”, RightsInfo has noted that in 2012 May “came out strongly in support of the proposal to change the law so people of the same sex could marry”. Pink News charts her evolution on LGBT rights to become the “unsung hero” of equal marriage, while pointing out criticisms that conditions for LGBT asylum-seekers have worsened under her tenure as Home Secretary.
On the issue of freedom of religion, commentators have similarly looked to Teresa May’s actions as Home Secretary for an indication of her position. David Pocklington provides an overview for Law & Religion UK, noting her recent launch of an independent review into the operation of sharia law in England and Wales.
Meanwhile, the Government’s review into whether victims of trafficking have effective access to legal advice has yet to be published. Writing in the Justice Gap, Juliette Nash has called on Theresa May to deliver on her promise to tackle modern slavery and implement any recommendations of the review as soon as possible: “the spotlight is now on …the Prime Minister…to ensure that justice is done”.
In other news:
The Guardian: Lawyers acting on behalf of a British citizen are seeking to challenge the lawfulness of the Government triggering Article 50 of the Treaty on the European Union without parliamentary approval. We have posted on the “divorce” process here. The UK Constitutional Law Association Blog provides extensive academic discussion of the constitutional issues surrounding the UK’s withdrawal from the EU.
Law Society’s Gazette: In a report on the impact of tribunal fees published on 20 June, the House of Commons Justice Committee made a number of recommendations, including that the fees charged in the employment tribunal should be ‘substantially reduced’. In the meantime, Unison has continued to pursue its quest for judicial review of the lawfulness of the fees, with an appeal to the Supreme Court set for December 2016.
BBC: An investigation is under way following the death of 18 year-old Mzee Mohammed in police custody, who had been detained by security staff at a shopping centre. The charity Inquest has called for “the most thorough and robust scrutiny of the actions of the security guards and the police” who were in contact with Mr Mohammed before his death.
Daily Telegraph: Figures released by the CPS show that the number of prosecutions for hate crimes against disabled people has increased by 41.3% in the last year, while prosecutions for homophobic and transphobic crime have risen by 15% over the same period.
In the courts:
Taddeucci and McCall v Italy (judgment in French only)
This case concerned the refusal of Italian authorities to grant a residence permit to a gay couple, on the basis that they did not constitute family members. The Court found that the restrictive interpretation of the notion of family member applied by the authorities did not take into account the fact that under Italian law the couple were unable to marry. In deciding to treat homosexual couples in the same manner as unmarried heterosexual couples, Italy was in breach of article 14 (freedom from discrimination) taken together with article 8 (right to respect for private and family life).
Buzadji v the Republic of Moldova
This case concerned the detention of a businessman for ten months, pending trial on an allegation of attempted fraud. The Court affirmed that judicial authorities were required to give relevant and sufficient reasons for detention, in addition to having a “reasonable suspicion” that the relevant individual had committed an offence. Importantly, this requirement was held to apply already at the time of the first decision ordering detention, and “promptly” after the arrest.
On the particular facts, the Court found that the reasons given for detention had been stereotyped, abstract and inconsistent. As such there had been a violation of article 5 (the right to liberty).
UK HRB posts
Whose fair trial prevails? – David Hart QC
Justice for everyone: another Grayling reform bites the dust – Gideon Barth
Book review: “The Inquest Book: The Law of Coroners and Inquests” edited by Caroline Cross and Neil Garnham – Michael Deacon
The Chilcot Report – an Illegal War? – Dominic Ruck Keene
Another door closes for the Chagossians – Dominic Ruck Keene
Get out the back, Jack? make a new plan, Stan? – Rosalind English
6 July 2016
In R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs  UKSC 35, the Supreme Court last week dismissed the attempt to set aside the House of Lord’s controversial 2008 decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  UKHL 61. The challenge was grounded in the disclosure of documents in the parallel proceedings of Bancoult No 3 relating to the reliability of a feasibility study into the long term viability of settlement in Chagos Islands.
The Chagos Saga
Those who have followed David Hart and Rosalind English’s posts on the long running saga of the Chagossians will be familiar with the extremely unedifying tale of the British Government’s removal and resettlement between 1968 and 1973 of the Chagossians from their homes in the British Indian Ocean Territories in order to enable the construction of the key US base of Diego Garcia. In 2000 the Divisional Court upheld a challenge to the original statutory ordinance prohibiting the Chagossians from entering or being resident in the BIOT on the grounds that the Commissioner for the BIOT’s power to legislate for the peace, order and good government of the BIOT did not include a power to expel its inhabitants. However, following the completion of a feasibility study into the resettlement of the Chagossians a new statutory order was enacted in 2004 again prohibiting them from living in the islands. The 2008 decision rejected a challenge to the rationality, legality and procedural fairness of that order.
The present claim sought to overturn the 2008 decision on the basis that (1) the Foreign Secretary failed in breach of his duty of candour in public law proceedings to disclose relevant documents containing documents that would have been likely to affect the factual basis on which the House of Lords made its decision; and (2) there was new material that undermined that factual basis. Specifically, further documents had been disclosed that cast significant doubt on the conclusions of the feasibility study that any long term resettlement on the Chagos Islands was infeasible except at prohibitive cost. Accordingly, the Claimant would have been in a position to challenge the reliability of those conclusions, it was highly likely that the challenged would have succeeded, and that if the 2008 judgment was set aside, a new hearing would reach a different conclusion.
Lord Mance gave the leading judgment for the majority. He began by addressing the alleged breach of duty of candour, and emphasised that a party’s failure to disclose relevant documentary information was clearly capable of subjecting another party to an unfair procedure. However, when considering whether to re-open an appeal it had to be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy. Similarly, where fresh evidence has been discovered after a judgment that could not be appealed, then there had to be a powerful probability that an erroneous result was reached in the earlier proceedings.
Lord Mance analysed the 2008 judgment and set out citations from it that showed that the conclusions of the feasibility study had been given significant (perhaps even conclusive) weight by the majority. He summarised the issue as to whether it was probable or likely (he did not need to decide which it should be) that the material now available would have led the House of Lords to conclude that it was irrational and unjustified for the Foreign Secretary to accept and act on the feasibility study’s conclusions.
Lord Mance then turned to the feasibility study and to the documents disclosed that shed additional light on the degree to which the content of its ultimate conclusions had been influenced by pressure from the government and/or had not be based on sound science. Lord Mance noted that the critical conclusions had remained unchanged from the draft written by the consultancy who authored the report and the final version produced following comment and input from the FCO. Accordingly he held that there was no probability, likelihood or even possibility that the court would have seen anything in the new material that would or should have caused the Foreign Sectary to doubt the report’s conclusions, or made it irrational or otherwise unjustifiable to act on them in June 2004. The issue was whether the Foreign Secretary was justified in acting as he did on the material that was or should have been available to him, not whether his decision could be justified on a revisiting of the whole issue of resettlement in the light of any other material which either party could adduce in 2016.
Lord Mance went on to hold that even if the threshold test for setting aside the House of Lords’ decision had been met, it would have been decisive that a new 2015 feasibility study has found that there is scope for settled resettlement. According “in practical terms., the background has shifted, and logically the constitutional ban needs to be revisited… it is open to any Chagossian now or in the future to challenge the future to abrogate the 2004 orders in light of all the information now available.
Lord Kerr’s powerful dissent (with which Baroness Hale agreed) is worth reading. He began by stating that if the decision on the feasibility of resettlement was reached on information that was plainly wrong, or was open to serious challenge, and it was at least distinctly possible that a different decision would have been formed if the full picture had been known, then the rationality of the 2004 Order should be re-examined.
Lord Kerr identified that in light of the Divisional Court holding that the government was no legal obligation to fund a resettlement, the feasibility study’s conclusions had to be capable of sustaining the Foreign Secretary’s decision that the risk of the government coming under pressure to meet the cost of, and to permit the resettlement of the Chagossians was such that they had to refused the right to return to their homes. That was the decision whose rationality was being challenged. Accordingly he held that “any reservations about the veracity of the claims made in the report assume an unmistakable significance. Unless the report was compelling and irrefutable in its conclusions, its capacity to act as the sole justification for the denial of such an important right was, at least, suspect.” Lord Kerr also analysed the study, and the light shed by the new documents on how it had reached its final form. However, unlike Lord Mance, he concluded that there were questions raised about the validity of its conclusions. Therefore it was at least questionable that the majority of the House of Lords would have placed such heavy reliance on its conclusions, and a distinct possibility that there would have been different outcome. The appeal should therefore be re-opened.
The most trenchant part of Lord Kerr’s dissent is his categorical (and in my opinion compelling) argument that there was no possible juridical basis to deny a remedy solely because the Chagossians might be allowed to resettle in entirely different circumstances and for completely different reasons as underlay the original decision.
It should be noted that the Supreme Court has given permission to appeal in Bancoult No 3 – in a challenge surrounding whether the Marine Protection Zone created around the Chagos Islands was created for the improper purpose of ensuring that the Chagossians would not be able to return. One day the Chagossians may yet be vindicated in their search for justice.
On another note – for those interested in the duty of candour see also a recent judgment of Sir Kenneth Parker in R (Biffa Waste Management Services Ltd) v the Commissioners for Her Majesty’s Revenue and Customs  EWHC 1444 (Admin).
2 July 2016
Photo credit: The Guardian
O’Neill and Lauchlan v. United Kingdom, nos. 41516/10 and 75702/13, 28 June 2016 – read judgment.
The European Court of Human Rights has ruled that criminal proceedings concerning two Scottish individuals ran beyond the “reasonable” period of time permitted under Article 6, ECHR. Despite considering that the individual stages of the proceedings were all reasonable in length, the cumulative time was excessive and in violation of Article 6(1).
by Fraser Simpson
In August 1998, the applicants were sentenced to periods of imprisonment of eight and six years following convictions for various sex offences. During their incarceration, the police wished to question the applicants about the disappearance, and suspected murder, of their ex-housemate (AM) after she had been reported missing six months earlier. On 17 September 1998 the applicants were detained by police and interviewed separately for over five hours. During these interviews they were directly accused of the murder of AM but, subsequently, neither applicant was arrested or formally charged.
Following release from prison, and subsequent re-arrest and recall to prison due to the apparent abduction of a fourteen year old boy, the applicants were again convicted of various sex offences and sentenced to a further three years in prison. During this period of incarceration the applicants were also placed on petition in relation to the murder of AM in early April 2005. Formal charges were brought on 5 April 2005 whilst the police continued with their investigations. However, in late 2005, Crown Counsel raised concerns about the sufficiency of evidence. Accordingly, a decision to take “no proceedings meantime” was made in December 2005 and subjected to continuous review as investigations continued.
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24 May 2016
J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 – read judgment.
Photo credit: The Guardian
The European Court of Human Rights has ruled that the general system for detention of individuals prior to deportation in the United Kingdom, which lacks specific maximum time-limits, complies with Article 5, ECHR (Right to liberty and security of the person). However, in the proceedings involving J.N., the authorities had not acted with sufficient “due diligence”, which resulted in a violation of Article 5.
by Fraser Simpson
The applicant, known as J.N., arrived in the UK in early 2003 and unsuccessfully sought asylum soon after. In February 2004 he was convicted of indecent assault and sentenced to 12 months imprisonment. Following his release he was subjected to a number of conditions which he failed to comply with. This led the Secretary of State to issue an order deporting J.N. back to Iran. On 31 March 2005 the applicant was detained pending deportation.
Complications arose when attempts were made to obtain the necessary travel documents from the Iranian Embassy. Eventually, in November 2007, the Embassy agreed to issue the documents if the applicant signed a “disclaimer” consenting to his return. The applicant refused to sign this disclaimer.
Despite being released for one month following review of his detention by the Administrative Court in December 2007, the applicant was once again detained in January 2008. He continued to refuse to sign the disclaimer that was necessary to obtain the travel documents and to effect the deportation. During this second period of detention the authorities considered prosecuting the applicant for failing to comply with the Secretary of State’s request to take specific action to obtain a travel document (under s. 35, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004). But no prosecution was forthcoming. Additionally, J.N. agreed to sign the disclaimer if he was compensated for the periods of detention. However, the UK Border Agency refused to do so.
J.N.’s refusal to sign the disclaimer continued until late-2009 when J.N.’s solicitors began judicial review proceedings challenging the lawfulness of his detention. In considering the lawfulness of the detention pending deportation, the judge considered the four principles established in R v. Governor of Durham Prison, ex parte Hardial Singh,  WLR 704:
- The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
- The deportee may only be detained for a period that is reasonable in all the circumstances;
- If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
- The Secretary of State should act with reasonable diligence and expedition to effect removal.
The judge considered that the authorities responsible for the deportation had acted with a “woeful lack of energy and impetus”. They had failed to change their approach to the situation, they refused to bring a prosecution under the relevant legislation. Further, they had not approached the Iranian authorities to see if they would change their position regarding the need for a disclaimer. The Secretary of State had fallen short of the fourth requirement established in Hardial Singh. Accordingly, the judge found that the applicant’s detention had been unlawful from 14 September 2009 onwards.
The Strasbourg Court
Article 5 protects the right to liberty and security of persons. Restrictions of liberty are permissible if they fall within one of the specific grounds highlighted in Article 5(1). Article 5(1)(f) relates to detention “of a person against whom action is being taken with a view to deportation or extradition”. Any detention in pursuance of this objective must be prescribed by, and comply with, domestic law. Additionally, the domestic law must be “sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness”. To satisfy this “quality of law” requirement, domestic law should include clear provisions on the ordering and extension of detention as well as effective remedies that can be used by the individual to challenge the lawfulness of their detention. These requirements act as safeguards against arbitrary detention.
The applicant complained that the UK system for detention pending deportation did not specify maximum time limits for such detention and that this led to a violation of Article 5(1). Additionally, there was a need for automatic judicial scrutiny of any detention as opposed to requiring the individual to initiate judicial review proceedings themselves. Finally, the applicant submitted that if the UK’s system was said to satisfy the “quality of law” requirement, then the entirety of his detention had been unlawful, and in violation of Article 5, as at no point had there been a realistic prospect of removal (see paras. 59-63).
Lack of time-limits within the UK system (paras. 90-93)
The ECtHR had previously held that Article 5(1)(f) does not impose maximum time limits for detention pending deportation. However, the absence of such time-limits will be a factor in assessing whether domestic law satisfies the “quality of law” requirement. But other protections against arbitrariness, including the ability to review the lawfulness of the detention, are equally important.
The “EU Returns Directive” (see Article 15 here) does set down a maximum time limit of 18 months for detention pending deportation. However, the UK has opted out of this Directive and it is therefore not binding. The ECtHR considered that despite this Directive creating a uniform approach over the majority of Council of Europe States, it could not be considered that such a position was required by Article 5(1)(f) or that this is the only position compatible with such a provision. Additionally, two Council of Europe instruments had addressed detention pending deportation and refrained from imposing time limits (see Twenty Guidelines on Forced Return, 2005 and Parliamentary Assembly Resolution 1707 on the detention of asylum seekers and irregular migrants in Europe, 2010).
The ECtHR held that Article 5(1)(f) does not require states to establish time-limits for detention pending deportation. The UK has sufficient procedures to allow the lawfulness of detention to be tested. Accordingly, the failure of the UK system to establish such limits, in light of the other procedural safeguards against arbitrariness, was not in violation of Article 5(1).
Lack of automatic judicial review of immigration detention (paras. 94-96)
The ECtHR refused the applicant’s submissions that Article 5(1)(f) required automatic judicial scrutiny of immigration detention. Article 5(4) provides all individuals who have been detained or had their liberty deprived with a right to take proceedings to examine the lawfulness of the detention. An entitlement to take proceedings, as opposed to automatic review, is all that is required by Article 5.
Was J.N.’s detention in accordance with Article 5? (paras. 102-108)
Finally, the ECtHR considered whether J.N.’s second period of detention, from 14 January 2008 to 14 September 2009 (the date on which the domestic court ruled that the detention had become unlawful) was in compliance with Article 5(1)(f) (for the reasons for restricting the scope of review to this period see paras.48-57)
The ECtHR saw no justification for the domestic courts to have restricted the “unlawful detention” to the period following 14 September 2009. Despite the repeated refusal of J.N. to cooperate, this could not be “be seen as a ‘trump card’ capable of justifying any period of detention” (para. 106). The ECtHR considered that the authorities had shown, to use the language of the domestic court, a “woeful lack of energy and impetus” from mid-2008 onwards. As a result, the detention had not been pursued with “reasonable diligence and expedition” from mid-2008 and therefore was not in accordance with domestic law and the principles established in Hardial Singh.
Accordingly, the detention from mid-2008 to 14 September 2009 was in violation of Article 5(1).
Despite concerns as to the unlimited nature of detention pending deportation being generally raised by a number of UN and European human rights bodies, as well as specific recommendations for the UK to adopt such limits (see UN Human Rights Committee, HM Chief Inspector of Prisons, and a UK All Party Parliamentary Group), the ECtHR refused to recognise that such limits were required by Article 5.
Undoubtedly the EU Returns Directive has resulted in the majority of Council of Europe states having limits for such detention. But as argued by the Government, recognising that Article 5 imposed such time limits may have “subvert[ed] the democratic process” by imposing time limits modelled on the EU Returns Directive from which the UK had lawfully opted out (para. 66).
During parliamentary scrutiny of the recent Immigration Act 2016 (which received Royal Assent on 12 May 2016) amendments were proposed by the House of Lords to limit immigration detention to 28 days – it should be noted that this would not have covered J.N.’s situation as it was not applicable in the event that the Secretary of State had made a deportation order – see para. 84 here). However, this amendment was rejected. In the final version of the Immigration Act a duty to arrange consideration of bail is placed upon the Secretary of State for all individuals detained pending deportation (which would cover J.N.) after four months (Sch. 10, para. 11, Immigration Act 2016). This would clearly act as a further, important safeguard against arbitrariness.
24 May 2016
Photo credit: RT
In the news
The absence of fixed time limits in the UK system of immigration detention does not breach Article 5 of the Convention (the right to liberty), according to a recent decision of the European Court of Human Rights in JN v United Kingdom.
The applicant was an Iranian national who was refused asylum in the UK and issued with a deportation order. He was detained in an immigration removal centre for more than four and a half years, following completion of a custodial sentence for indecent assault. The applicant complained that in the absence of fixed time limits, domestic law was unclear and did not produce foreseeable consequences for individuals.
This argument was rejected by the Court, which re-iterated that Article 5 does not lay down maximum time limits for detention pending deportation. The issue was said to be whether domestic law contained sufficient procedural safeguards against arbitrariness, and in this regard the UK did not fall short of Convention requirements. However, the Court did find that between January 2008 and September 2009 deportation of the applicant had not been pursued with “due diligence”, and his detention during this period was therefore in breach of his right to liberty.
The decision will come as a disappointment to campaigners, who point out that the UK is the only EU Member State which places no time limit on the detention of foreign nationals. According to the UNHCR, detention can have “a lasting, detrimental impact on the mental and physical health of asylum seekers”, and both a cross-party Parliamentary Inquiry and a recent report of the UN Human Rights Committee have called on the UK to adopt an upper limit.
It remains open to the Government to do so. However, in light of the judgment in JN, the introduction of a statutory time limit would now appear unlikely. A spokeswoman told the Guardian that the Home Office were pleased with the outcome of the case: “We maintain that our immigration detention system is firm but fair”.
In other news
The Queen’s Speech has declared that “proposals will be brought forward for a British Bill of Rights” – wording that is near identical to last year’s commitment to ‘bring forward proposals for a British Bill of Rights”. Speaking to the Huffington Post, Policy Director at Liberty, Bella Sankey remarks that if this “felt like groundhog day, it was because little progress has been made” towards the scrapping of the Human Rights Act. UKHRB founder Adam Wagner provides a useful list of reactions and coverage here.
A report from the European Commission points to evidence that “the migration crisis has been exploited by criminal networks involved in trafficking in human beings”, who target the most vulnerable. According to official figures, in 2013-2014 there were 15,846 registered victims of trafficking in the EU, although the true number is considered to be “substantially higher”. The BBC reports on the findings.
The Supreme Court has upheld an interim injunction in the ‘celebrity threesome’ case, until after the full trial for invasion of privacy. The Court of Appeal had been wrong to enhance the weight attached to freedom of expression (article 10 ECHR) as compared with the right to respect for privacy (article 8 ECHR) – neither article had preference over the other in the balancing exercise. David Hart QC provides an analysis of the decision for the UKHRB – a summary of the main points can be found on RightsInfo
In the courts
The applicants were Hungarian nationals and members of parliament, who had been issued with fines for engaging in protests that were disruptive of parliamentary proceedings. They complained that this had violated their right to freedom of expression (article 10 ECHR).
The Court observed that Parliaments were entitled to react when their members engaged in disorderly conduct disrupting the normal functioning of the legislature. However, on the present facts domestic legislation had not provided for any possibility for the MPs concerned to be involved in the relevant disciplinary procedure. The interference with the applicants’ right to freedom of expression was therefore not proportionate to the legitimate aims pursued, because it was not accompanied by adequate procedural safeguards. Accordingly, the Court found a violation of Article 10.
The applicant’s husband had died in circumstances where there had been a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, although that negligent failure was not necessarily causative. In its Chamber judgment of 15 December 2015, the European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the Convention as to the right to life and, unanimously, that there had been a violation of Article 2.
Analysis of that decision is provided by Jeremy Hyam QC for the UK HRB. On 2 May 2016 the Grand Chamber Panel accepted the Portuguese Government’s request that the case be referred to the Grand Chamber.
Those in need of some summer reading might consider: Five Ideas to Fight For, by Anthony Lester, recently published. The book describes the development of English law in relation to human rights, equality, free speech, privacy and the rule of law, explaining how our freedom is under threat and why it matters.
UK HRB posts
CA says ex-pats cannot say yes or no to Brexit – David Hart QC
The British Bill of Rights Show: Series 14, Episode 9…*Zzzzzzz* – Adam Wagner
Three Way in the Supreme Court: PJS remains PJS – David Hart QC
The National Preventive Mechanism of the United Kingdom – John Wadham
Bank Mellat’s $4bn claim: CA rules out one element, but the rest to play for – David Hart QC
19 May 2016
PJS v. News Group Newspapers Ltd  UKSC 26 – read judgment
The Supreme Court has this morning continued the interim injunction concerning PJS’s extra-marital goings-on until after the full trial of the claim – after a rollercoaster ride for his claim through the courts.
Cranston J refused an injunction on 15 January 2016.
The Court of Appeal granted it on 22 January (Matt Flinn’s post here), and then discharged it on 18 April due to the effect of subsequent publicity which they said had led the injunction to have no remaining purpose (my post here). The subsequent publicity was in US newspapers and via the internet (with, as Lord Toulson commented, some fairly obvious twitter hashtags involved.)
The Supreme Court swiftly convened a hearing on 21 April, leading to today’s judgment reversing the Court of Appeal.
The decision (4-1) was not unanimous, with Lord Toulson dissenting. There are three concurring judgments (all agreed to by the majority).
Continue reading →
11 May 2016
Bank Mellat v HM Treasury  EWCA Civ 452 1258, Court of Appeal, 10 May 2016: read judgment
Bank Mellat’s challenge to the Treasury’s direction under the Counter-Terrorism Act 2008 has been before the courts on a number of occasions. In 2009, the Treasury had concluded that the Bank had connections with Iran’s nuclear and ballistic missile programme. In 2013, the Supreme Court quashed the direction, which had stopped any institution in London from dealing with the Bank.
The Bank claims for damages caused by the unlawful direction. The claim is under the Human Rights Act via A1P1 of the ECHR, (the right to peaceful enjoyment of possessions).
Preliminary issues on damages came before Flaux J (judgment here, my post here). The Treasury appealed, with, as we shall see, some measure of success.
Continue reading →
19 April 2016
PJS v. News Group Newspapers Ltd  EWCA Civ 393 – read judgment
Matthew Flinn posted here recently on an earlier decision in this case, PJS (22 January 2016), in which the Court of Appeal granted an interim injunction banning revelation of PJS’s extra-marital ventures.
Yesterday’s judgment sets that injunction aside, solely on the basis that those escapades had now been so widely reported on the internet and in a US publication that it was less likely that PJS would get an injunction at any future trial of the claim.
This decision was reported in a somewhat partial way in today’s Times – “the death knell for celebrity privacy injunctions”. Things are not quite as simple as that. The injunction was only discharged because of the wide publication ground which the story had now received, not on the underlying merits of the privacy claims. But then The Times (proprietor NGN) was not necessarily going to give us a fully objective account of a case in which the Sun on Sunday (proprietor NGN) had secured this win.
Continue reading →
19 April 2016
Photo credit: Guardian
“ After this there is no turning back. You take the blue pill: the story ends, you wake up in your bed and believe whatever you want to believe. You take the red pill: you stay in Wonderland and I show you how deep the rabbit hole goes.”
– Morpheus, The Matrix
The explosion of genetic testing in the last half century has produced unquantifiable benefits, allowing scientists to understand the constitution of genetic disorders and dramatically improve disease diagnosis, avoidance and treatment. Consider the near-eradication of Tay-Sachs, a fatal neurodegenerative disease, since the introduction of screening in the 1970s; the standardisation of newborn testing; and the introduction of BRCA1 and BRCA2 testing for inherited cancer genes.
These advances have created challenging ethical and legal questions, however: How much information does each of us want to know about our genetic makeup?; Do we have a responsibility to seek such information out? What should we do with the information once we get it? What about the significant risks of stigmatisation and discrimination?; And, where do doctors’ duties begin and end insofar as they are, or ought to be aware of testing outcomes?
In the High Court last week (judgment available here) McKenna J dealt with the latter question, striking out a claim by a patient’s relatives over a missed diagnosis of a genetic disorder and holding that a third party cannot recover damages for a personal injury suffered because of an omission in the treatment of another.
Continue reading →
11 April 2016
Photo credit: Guardian
Jeremy Hyam QC
Michalak v The General Medical Council & Ors  EWCA Civ 172: This important case deals with the remedies available to individuals who claim to have suffered from discrimination, victimization, harassment or detriment in the treatment they have received from a “qualifications body” under s.53 of the Equality Act 2010 viz. any authority or body which can confer a relevant qualification (e.g. the GMC, ACCA etc.). It also clarifies the understanding of the place of judicial review in the context of internal and statutory appeals in cases of alleged discrimination contrary to the Equality Act 2010.
Dr Eva Michalak’s name may sound familiar. She formerly worked as a consultant physician with an interest in kidney diseases at Pontefract General Infirmary. In 2011, in a widely publicised judgment she recovered record damages in respect of claims for sex and race discrimination and unfair dismissal against the Mid Yorkshire Hospitals NHS trust and three senior staff members. The tribunal panel said that they were “positively outraged at the way this employer has behaved” and concluded the Polish-born doctor would never be able to carry out her work again.
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8 April 2016
PJS v NEWS GROUP NEWSPAPERS LIMITED  EWCA Civ 100
In an anonymised judgment dated 22nd January – but only recently published – the Court of Appeal underscored the importance of the right to privacy in the context of sexual activity.
In the modern digital age – an age when society is grappling with “sexting” and “revenge porn”, and one’s follies may be photographed and uploaded to Facebook for friends and family (and others) to see for years to come – the nature and scope of privacy, and the public’s expectations in relation to it, are being consistently challenged and redefined. This case may therefore be seen as a welcome re-affirmation of the basic point that, at least in normal circumstances, one’s sex-life is inherently private, and not a topic for public consumption.
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30 March 2016
Hammerton v. the United Kingdom, Application no. 6287/10 – read judgment.
The European Court of Human Rights has held that the detention of an individual following his breach of a civil contact order, where he had no legal representation, did not violate his rights under Article 5, ECHR (Right to Liberty and Security of Person). However, the decision not to provide compensation to the individual following a failure to provide him with a lawyer during domestic proceedings resulted in a violation of Article 6 (Right to a Fair Trial).
by Fraser Simpson
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