Category: Case law
9 July 2010 by Adam Wagner
Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom – 24027/07 [2010] ECHR 1067 (6 July 2010) – Read judgment
The European Court of Human Rights has delayed the extradition of four men, including the notorious Mustafa Kamal Mustafa (Abu Hamza), from the United Kingdom to the United States due to concerns that long prison sentences and harsh conditions in a “supermax” prison could violate their human rights.
In this admissibility application, the four men mounted a wide-ranging attack on the US Justice system to the Strasbourg court, in terms usually reserved for lawless rogue states. The men claimed their extradition would put them at risk of harsh treatment, extraordinary rendition and the death penalty, amongst other draconian penalties. They said that the trial of non-US citizens on terrorism charges would lead to a “flagrant denial of justice”.
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9 July 2010 by Rosalind English
In two recent but separate developments, homosexuals fleeing persecution have been granted a lower threshold for refugee status and the Strasbourg Court has rejected a complaint by a same sex couple that Austria was in violation of the Convention for not granting them the right to marry.
We posted earlier on the case of HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010), in which the Supreme Court ruled as unlawful the government’s policy of sending refugees back to their home countries because they could avoid persecution if they acted discreetly.
There are two questions raised by this judgment and its implications. One concerns the extraterritorial reach of rights observed by signatory states to the Refugee and Human Rights Conventions. The second is the sheer practical difficulty of examining the veracity of a persecution claim based on these particular grounds.
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8 July 2010 by Guest Contributor
A v (1) East Sussex County Council (2) Chief Constable of Sussex (2010) – Read judgment
The Administrative Court has held that the removal of a baby from her mother due to fears that she was fabricating symptoms was not a breach of human rights. The court did, however, identify ways in which the situation could have been handled less heavy-handedly.
Elizabeth-Anne Gumbel QC, who appeared in the case for the Appellant, analyses the judgment
This case involved a claim under the
Human Rights Act 1998 for damages for breach of
Article 8 of the European Convention. The Claimant was a young mother who had taken her baby into hospital when she was worried he appeared to have episodes when he stopped breathing. The baby was admitted to hospital and the medical assessment was there was nothing wrong with the baby. The paediatrician was concerned that the mother, having reported incidents that were not observed by medical staff, might be suffering from factitious illness, i.e. that she was deliberately fabricating the symptoms. He alerted social services who held a meeting on 29 December.
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8 July 2010 by Adam Wagner
HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010) – Read Judgment
The Supreme Court has ruled that the government’s “Anne Frank” policy of sending back gay refugees to their home countries where they feared persecution is unlawful as it breached their human rights..
HJ and HT are both homosexual men and had been persecuted in their home countries – Iran and Cameroon respectively – after their sexual orientation had been discovered.
The court criticised the controversial policy, practised since 2006, of telling gay asylum seekers who feared prosecution in their home countries to hide their sexuality upon their return, rather than granting them asylum. In the Court of Appeal the men’s barrister had referred to this as an “Anne Frank” policy, in that, like Anne Frank, the men would be safe if they hid from authorities but not if they didn’t.
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7 July 2010 by Adam Wagner
A recent Supreme Court decision has reopened a debate on whether it can properly be said that there is a human right to education under the European Convention on Human Rights.
We posted last week on the decision in the Norther Ireland matter of JR17, where The Supreme Court found that there was no breach of a pupil’s right to education where he was unlawfully suspended from school but was provided with work to do and home tutoring.
Today Aidan O’Neil QC, writing on the UK Supreme Court Blog, provides an interesting analysis of the European case-law on the right to education. He also points out that the right to education exists as a protocol (effectively an appendix) rather than in the main body of the European Convention as “no consensus could initially be reached about the recognition of these claims as being fundamental rights.”
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3 July 2010 by Rosalind English
Regina v Budimir and another; Interfact Ltd v Liverpool City Council [2010] EWCA Crim 148; [2010] EWHC 1604 (Admin); [2010] WLR (D) 166
CA and DC: Lord Judge CJ, David Clarke, Lloyd Jones JJ: 29 June 2010 – read judgment
A new High Court decision has struck a blow for legal certainty and enforced the sometimes forgotten right under human rights law against retrospective criminal sanctions, which applies even in cases where the UK had failed to enact European Community legislation. In this case, the lack of retroactivity meant that a company and two men could not have their convictions for supplying videos illegally quashed.
The High Court held that where defendants had been convicted of criminal offences under national legislation which was unenforceable owing to a failure by the UK to comply with a pre-enactment procedural requirement imposed by EU law, it was not incumbent upon the Court of Appeal to re-open their cases out of time unless their convictions had given rise to any substantial injustice.
The Video Recordings Act 1984 made it an offence to supply pornographic videos “from” rather than “in” a licensed sex shop (Section 12); it was also an offence under the Act (Section 10 (1)) to supply videos with no classification certificate. The applicants had been convicted under these sections in 2004 and 2008 respectively.
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1 July 2010 by Angus McCullough KC
Even if technically obiter, it is suggested that the reasoned decision of the majority of the Supreme Court in Smith is likely to be regarded as binding in practice, if not in strict theory.
This is a postscript to Adam Wagner’s post this morning on the UKSC decision in R (Smith) v. MOD (see our post summarising the decision or read the judgment), commenting on the debate as to the authority of the judgment of the majority on the jurisdictional issue.
It may be worth bearing in mind the weight likely to be accorded by any lower court to the views of the majority of a 9 judge constitution of the Supreme Court. Even if not technically binding, it is hard to imagine any judge at first instance, or even the Court of Appeal, having the courage to depart from the reasoned views of the majority on this point, unless arising in some unforeseen or unusual factual context.
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30 June 2010 by Adam Wagner
The Mayor of London v Hall & Ors [2010] EWHC 1613 (QB) (29 June 2010) – Read judgment
The Mayor of London has won a court order to evict a camp of protesters from Parliamentary Square, with the High Court stating that his response to the protest was proportionate and not a breach of the protesters’ human rights.
The protesters have gained a temporary reprieve by appealing the decision, and according to their website have therefore delayed their eviction until at least 4pm on Friday 2 July
As we posted earlier this month, during the build-up to the General Election a number of protesters erected tents and flags in Parliament Square, a green outside the Houses of Parliament. The protesters named the site “Democracy Village”. Boris Johnson, the Mayor of London, launched an action for possession against the protestors, who he claimed were trespassing on Parliament Square.
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30 June 2010 by Adam Wagner
R (Smith) v Secretary of State for Defence & Anor [2010] UKSC 29 – Read judgment
The Supreme Court has ruled by a 6-3 majority that the Human Rights Act does not apply on the battlefield and soldiers are not automatically entitled to inquests arising from deaths in foreign conflicts.
The case related to Private Jason Smith, a member of the Territorial Army who died from heatstroke in Iraq in 2003.
The decision has come as a relief to the Ministry of Defence. In recent years, coroners have been highly critical of the armed forces’ protection of soldiers on the battlefield, and this case had the potential to open up the Government to a series of claims for compensation by soldiers and their relatives. However, the Supreme Court has (narrowly) taken the view that the Human Rights Act 1998 was not designed to apply in such cases.
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30 June 2010 by Rosalind English
The Queen on the Application of Janet Harris (Appellant) v London Borough of Haringey (Respondent) and Grainger Seven Sisters Ltd (2) Northumberland And Durham Property Trust Ltd (Interested Parties) and The Equality and Human Rights Commission (Intervener) [2010] EWCA Civ 703 22 June 2010 – read judgment
In granting planning permission for redevelopment of a site in an area made up predominantly of ethnic minority communities, a local authority had failed to discharge its duties under the Race Relations Act 1976 s.71(1)(b) as the requirements of s.71 had not formed, in substance, an integral part of the decision-making process –
The appellant challenged a decision to grant planning permission to the first interested party (“Grainger”) for the development of a site in Tottenham which incorporated an indoor market. The grant permitted the demolition of all the business and residential units on the site, and erection of mixed use development with parking and “public realm improvements”.
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29 June 2010 by Rosalind English
Secretary of State for Home Department (Respondent) v AP (Appellant) (no 2) [2009] EWCA Civ 731 Supreme Court 23 June 2010
AP, who had been subject to a control order and who now continued to live at the same address under bail pending a deportation decision on grounds of national security, was entitled to continuing anonymity because of the risks he faced if his identity were revealed – read judgment
We posted recently on a ruling by the Supreme Court that the social isolation of a suspected terrorist suspect subject to a control order rendered the order unlawful. It will be remembered that the appellant, an Ethiopian national, had been suspected of involvement in terrorist activities. The Secretary of State only withdrew her decision to exclude him from the UK when she was granted permission to make a control order against him, which was later modified to prevent him from contacting extremist affiliates in London by moving him to an address in the Midlands.
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29 June 2010 by Isabel McArdle
In the matter of an application by ‘JR17’ for Judicial Review (Northern Ireland) [2010] UKSC 27
The Supreme Court found that there was no breach of a pupil’s right to education, where he was unlawfully suspended from school but was provided with work to do and home tutoring – read judgment
A pupil was suspended from school after a complaint from a female pupil about the pupil’s alleged misconduct in school. His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a Scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The principal purported to suspend the pupil in accordance with the Scheme but in fact failed to comply with its requirements. The pupil brought proceedings for judicial review, claiming that the suspension was unlawful and breached his right to education pursuant to Article 2 of the First Protocol of the European Convention on Human Rights, which the Human Rights Act 1998 protects. The Article provides:
No person shall be denied the right to education…
The Court of Appeal made a finding that, although the Scheme had not been complied with, the principal had lawfully exercised a common law power to suspend the appellant.The Supreme Court found that there was no such common law power but that the pupil’s right to education had not been breached by the suspension. During his suspension, work was provided to the boy to do at home and home tuition was arranged.
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28 June 2010 by Rosalind English
Christine Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 22 June 2010
A person who had acquired a different gender was entitled under European law to obtain the legal rights, such as an earlier pension, associated with the acquired gender – read judgment
The appellant had undergone male to female reassignment surgery. In 2002 she applied for a state pension, to be backdated to her sixtieth birthday. The Secretary of State decided that she was only entitled to a state pension from her 65th birthday. On appeal to the tribunal it was found that she had not obtained a full gender recognition certificate under the Gender Recognition Act 2004 (“the GRA”) and therefore she was not entitled to legal recognition of her new gender. As a consequence she could not qualify for a state pension from the age of 60. Prior to the Act, the United Kingdom had failed to implement Equal Treatment Directive 79/7/EEC to ensure that any national laws, contrary to the principle of equal treatment, were abolished. The Upper Tribunal rejected her appeal finding that she did not satisfy the criteria to be treated as a woman which could entitle her to receive a pension at the age of 60 under Council Directive 79/7.
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24 June 2010 by Rosalind English
Grzelak v. Poland (no. 7710/02) – read judgment
The European Court of Human Rights has found that A Polish boy who refused to attend religious instruction classes for reasons of personal conviction had been discriminated against human rights because of a policy of reflecting that non-attendance in school reports.
The applicant Mateus Grzelak had been brought up in a non-religious tradition by his parents who were also applicants. Mateus began his schooling at the age of seven, and in conformity with his parents’ wishes, he did not attend religious instruction. Doctrinal classes were scheduled in the middle of the school day, between various compulsory courses.
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23 June 2010 by Rosalind English
(1) Richard Rabone (In his own Right & as Personal Representative of the Estate of Melanie Rabone, Deceased) (2) Gillian Rabone(In her own Right) Appellants v Pennine Care NHS Trust 21 June 2010 [2010] EWCA Civ 698 – read judgment
Court of Appeal rules that health trusts did not have operational obligations under Article 2 of the Human Rights Convention to take all steps to prevent the suicide of voluntary patients.
The appellants, parents of the deceased (Melanie) and administrator of their daughter’s estate, appealed against a decision ([ 2009) EWHC 1827 (QB),(2010) PIQR P2) that the respondent NHS trust had not breached Article 2 of the European Convention on Human Rights 1950. Melanie had suffered from a recurrent depressive disorder and at the age of 24, she agreed to be informally admitted to the Trust’s hospital. Despite the fact that it had been noted by employees of the trust that she had thought of suicide and self-harm, she was later granted two days’ home leave. During that leave, Melanie committed suicide.
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Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom – 24027/07 [2010] ECHR 1067 (6 July 2010) – Read judgment 
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