Category: In the news
12 December 2014 by Rosalind English
R (on the application of the European Federation for Cosmetic Ingredients) v Secretary of State for Business, Innovation and Skills and the Attorney General, British Union for the Abolition of Vivisection and the European Coalition to End Animal Experiments (intervening) [2014] EWHC 4222 (Admin) 12 December 2014 – read judgment
Conscientious shoppers who check the labelling of shampoos and other cosmetic products for the “not tested on animals” legend may not be aware that there is in place an EU Regulation (“the Cosmetics Regulation”), enforceable by criminal sanctions, prohibiting the placing on the market of any product that has been tested on laboratory animals. Any comfort drawn from this knowledge however may be displaced by the uncertainty concerning the status of cosmetics whose ingredients have been tested on animals in non-EU or “third” countries. (Incidentally the Cruelty Cutter app is designed to enable consumers to test, at the swipe of a smart phone, whether the product they are contemplating purchasing has been tested on animals.)
This case concerned the question of whether, and if so in what circumstances, that Regulation would prohibit the marketing of products which incorporate ingredients which have undergone testing on animals in third countries. It was a claim for judicial review seeking declarations relating to the marketing of cosmetic ingredients which had been thus tested.
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11 December 2014 by David Hart KC
R (Haney and others) v. Secretary of State for Justice, 10 December 2014 – read judgment
Indeterminate sentences and the inadequate funding of rehabilitation during them has posed problems since Imprisonment for Public Protection (IPP) sentences hamstrung the system. The courts here and in Strasbourg have been in two minds what to do about cases where prisoners have not received the assistance they ought to have received – and hence are not, by domestic standards, ready for release.
Two solutions have been proposed to date. The House of Lords in R (James) [2009] UKHL 22 decided that this did not amount to a breach of Article 5 of the Convention. When James got to Strasbourg, the ECtHR (2013) 56 EHRR 12 disagreed; continued detention was unlawful.
The Supreme Court found a third way, as we shall see. Another example of our courts’ increasing confidence when confronted with a Strasbourg decision they think to be wrong.
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11 December 2014 by Hannah Noyce
R (on the application of Gordon-Jones) v Secretary of State for Justice and Governor of HM Prison Send [2014] EWHC 3997 (Admin) – read judgment
Contrary to what some media reports would have us believe, Prison Service Instruction (“PSI”) 30/2013 did not impose an absolute ban on books in prisons. It did, however, impose severe restrictions on the possession or acquisition of books which a prisoner can treat as his or her own. The High Court has found that those restrictions could not be justified by the limited provision of prison library services and are therefore unlawful.
The Claimant is a prisoner serving an indefinite sentence for the protection of the public at HMP Send. She has a doctorate in English literature and a serious passion for reading. The books she wants to read are often not the sort which are required by fellow prisoners or readily available through the prison library (the Dialogues of Marcus Aurelius and Brewer’s Dictionary of Phrase and Fable, for example, crop up in the judgment) and she therefore relies on having books sent or brought to her by people outside the prison.
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11 December 2014 by Rosalind English
Liberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal [2014] UKIPTrib 13_77-, 5 December 2014 – read judgment
Robert Seabrook QC is on the panel of the IPT and David Manknell of 1 Crown Office acted as Counsel to the Tribunal in this case. They have nothing to do with the writing of this post.
This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character.
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9 December 2014 by Martin Downs
Photo credit: guardian.co.uk
For some reason, this post originally appeared in the name of Colin Yeo. It is not by Colin Yeo, but by Martin Downs. Apologies for that.
The future of civil partnerships is again in the news. In October, Rebecca Steinfeld and Charles Keidan tried to register a Civil Partnership at Chelsea Town Hall but were rebuffed on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. Their lawyer, Louise Whitfield of Deighton Pierce Glynn Solicitors has announced their intention to seek a judicial review and the couple have also started a petition.
Steinfeld and Keidan have rightly identified that CPs provide virtually the same rights and responsibilities as marriage that it is within the gift of government to provide. One of the few differences concerns pension rights and even this will be considered by the Court of Appeal in February 2015.
However, the couple are attracted by civil partnership as a social construct that comes without the historical baggage of patriarchal dominance/subjection of women. They also take aim at the sexist customs that surround it such as “giving the bride away,” virginal white dresses and hen and stag do’s.
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9 December 2014 by David Hart KC
Ali Samatar and others v. France, 4 December 2014, ECtHR, Fifth Section, read judgment
There is a good deal of froth about this case in the media, with little of it looking at what our pirates got their damages for. I also suspect that some of the hostility comes from elements who may not wish to trouble themselves with a judgment only in French. So let’s have a quick look at what the case was actually about.
The surrounding facts are terrifying but France’s liability to pay damages occurred for mundane reasons, as we shall see.
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4 December 2014 by David Hart KC
Hoon v. United Kingdom, 13 November 2014, ECtHR, read judgment
Most people’s political memories are short, but we may recall Geoff Hoon’s exquisite discomfiture when he was duped by a journalist, and then criticised by a Parliamentary Committee for his conduct in trying to drum up work. Still piqued, he complained of his treatment to Strasbourg, but, as we shall see, to no avail.
In February 2010, Hoon was an MP and a former Secretary of State for Defence. He had also taken up a voluntary position as one of twelve special advisors to the Secretary-General of NATO. He then announced he would not be contesting the May 2010 elections. He was contacted by Claire Webster on behalf of “Anderson Perry Associates”, an organisation that purported to be a “US communications company”. The company was looking to hire consultants who had an intimate and expert knowledge of government affairs.
Hoon was indeed interested.
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4 December 2014 by Adam Wagner
Dominic Grieve QC was appointed as the Coalition Government’s Attorney General in May 2010. He remained in post until July 2014 when he was sacked. He said he would “happily” have stayed on, but the reality was that he could not support the Conservative Party’s radical plans to reform UK human rights law.
Since then he has become a fierce and impassioned critic of the Tory plans, somewhat surprisingly given his public persona which is otherwise calm and lawyerly. He has produced two detailed, and devastating, critiques: the first in Prospect Magazine and then last night in a lecture at University College London. Both are highly recommended as measured and unarguably correct analyses of the Tory plan.
To my mind, Dominic Grieve QC is a bit of a hero. He has stood up for principle at the expense of his political career. He did not just resign in disgust, he then made it his business to explain to people – and particularly those on the Right – why the Tory plans would be “devastating both for ourselves domestically as it will be for the future of the Convention” (p.24).
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1 December 2014 by David Hart KC
Secretary of State for Communities and Local Government v. Venn, Court of Appeal, 27 November 2014 – read judgment
Back to Aarhus and the constant problem we have in the UK making sure that the cost of planning and environmental litigation is not prohibitively expensive.
Article 9 of the Aarhus Convention (to which the EU has subscribed) says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. If this means nothing to you, you might want to limber up with my bluffers guide to Aarhus – here -not least on how to pronounce it and how it fits into domestic law.
Ms Venn wanted to stop the owner of land next door to her London property “garden-grabbing”, namely building another dwelling in his garden. The local authority had refused permission, the landowner successfully appealed to a planning inspector, and on further review, Ms Venn said that the inspector had failed to have regard to emerging planning policy in determining the appeal against her.
Lang J gave Ms Venn a protective costs order (PCO), limiting her costs exposure to £3,500 if she lost. The CA reversed this. As ever, the devil is in the detail. Had her appeal been by way of judicial review, she would have got an order in her favour. So why didn’t she?
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1 December 2014 by Martin Downs
Photo credit: guardian.co.uk
Over the last month Mr Justice Keehan has made a series of injunctions at the behest of Birmingham City Council designed to protect a vulnerable child in care from being groomed. It seems that the Orders are of such breadth that they are believed to have entered uncharted territory but there are questions whether there is any authority for this development.
Much attention has been given to a series of hearings in October and November during which the press have having been permitted to name six of the men (in the teeth of opposition from West Midlands Police) subject of these injunctions. However, no Judgment has yet been placed in the public domain. On that basis, there appears no choice but to try and piece together what has occurred from the media coverage.
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1 December 2014 by Celia Rooney
Photo credit: Guardian.co.uk
Welcome back to the UK Human Rights Roundup, your regular winter wonderland of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
Human Rights Week 2014
Next week (8-12 December) is Human Rights Week 2014. There is a bumper programme of events – full details on the Law Society mini site or the Human Rights Week Twitter account. Of interest to readers of the UKHRB, Adam Wagner is speaking at a panel event on Tue 9 December, along with Liberty’s Rachel Robinson and Anthony Speight QC: Protecting Human Rights in the UK: Is there a case for major change
Also, on Monday 8 December (busy week!), Adam is speaking at the Human Rights Lawyers Association event – Regional Human Rights Systems: Under Siege, along with Prof. Douglass Cassel (University of Notre Dame), Jessica Simor QC (Matrix) and Dr Michael Pinto-Duschinsky (Policy Exchange).
In the News
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25 November 2014 by David Hart KC
Islamic Investment Co v. Symphony Gems & Mehta, 19 November 2014, Hamblen J – judgment here
Hamblen J observed that “the facts…are so extraordinary that they could have come from one of A.P. Herbert’s “Misleading Cases”. Yes indeed. A solicitor decided to make up three years of litigation, writing some fake judgments, pretending to instruct barristers, and churning out fictitious correspondence.
Why? It is not clear from the judgment, though one or two clues are given.
The fraud surfaced in a long-running dispute between a claimant finance company seeking repayment of a loan, and the first defendant, diamond traders, and the second and third defendant guarantors. The defendants now owe the claimant $14m. The defendants do not want to pay $14m, and have taken every point in resisting the claimant’s attempts to secure its money – so much so that in October 2010 David Steel J decided that the second defendant, Mr Rajesh Mehta go to prison for his refusal to explain where his assets were, by activating a previously suspended committal order.
The current application was Mr Mehta’s application to set aside all adverse court orders. His reasons – my solicitor had acted against me, and was deliberately trying to prejudice me in my affairs in making up all this litigation.
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23 November 2014 by David Hart KC
Magna Carta Uncovered, Hart Publishing, October 2014 – details here
Two old friends, Lord Judge (former Lord Chief Justice) and Anthony Arlidge QC have written a compelling and scholarly account of the 1215 political settlement known as the Magna Carta. This instrument has become something of a missile in the dust-up over the European Convention versus “rights brought home”.
The authors have taken on the task of tracing the way in which the Magna Carta has played a part in political challenges since its inception, critically in 17th century clashes between King and Parliament (think the Five Knights and Ship Money cases and the 1689 Bill of Rights). And the Charter then formed the background for the US Bill of Rights and many constitutional settlements since.
Magna Carta (strictly the first Magna Carta, as others followed in 1216, 1217 and 1225, to similar effect) was “granted” by King John in June 1215. Initial negotiations about the monarch’s relationship with the Church concluded on 23 November 1214 (800 years today) within the Temple in London – our authors are past and current Treasurers of the Middle Temple. The “grant” was not really that. John had been forced to make peace with his rebel barons, and the liberties forced out of the king were unwillingly conferred.
We know or think we know what Magna Carta says. But this book strips off some of the varnish which later thinkers have imposed upon it.
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23 November 2014 by Guest Contributor
R (on the application of Nakash) v Metropolitan Police Service and General Medical Council [2014] EWHC 3810 (Admin) – read judgment
The High Court has ruled that although information obtained unlawfully by the police is admissible in regulatory proceedings (even if not in criminal proceedings), it “carries little weight” in the assessment of competing interests required by Article 8(2).
The General Medical Council [“GMC”] has wide powers under section 35A Medical Act 1983 to require disclosure of information which appears relevant to the discharge of the Council’s statutory functions in respect of a practitioner’s fitness to practise.
Where the police are in possession of confidential material that they are reasonably persuaded is of some relevance to an investigation being conducted by the GMC, a doctor’s rights under Article 8 of the ECHR are not breached by the police disclosing that information, even where it was unlawfully obtained. However, the police must undertake the careful scrutiny and balancing exercise required by Article 8 before the decision as to disclosure is made.
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21 November 2014 by Rosalind English
Rochdale Metropolitan Borough Council v KW (by her litigation friend Celia Walsh) [2014] EWCOP 45 – read judgment
Mostyn J has pulled no punches in rejecting an application for a declaration that an incapacitated person, being looked after in her own home, has been deprived of her liberty contrary to Article 5. There is a very full account of the judgment on the Mental Capacity Law and Policy blog so I will keep this summary short.
The first respondent, KW, is a 52 year old woman who is severely mentally incapacitated. She suffered brain damage while undergoing surgery to correct arteriovenous malformation in 1996. This resulted in a subarachnoid haemorrhage and long term brain damage. She was left with cognitive and mental health problems, epilepsy and physical disability. She was discharged from hospital into a rehabilitation unit and thence to her own home, a bungalow in Middleton, with 24/7 support. Physically, KW is just about ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). As Mostyn J says,
Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7 [who] attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back.
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R (on the application of the European Federation for Cosmetic Ingredients) v Secretary of State for Business, Innovation and Skills and the Attorney General, British Union for the Abolition of Vivisection and the European Coalition to End Animal Experiments (intervening) [2014] EWHC 4222 (Admin) 12 December 2014 – read judgment
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