Category: In the news
27 August 2014 by Rosalind English
Hounga v Allen [2014] UKSC 47 – read judgment
The Supreme Court has ruled that victims may in some circumstance recover damages from their traffickers. Overturning the judgment of the Court of Appeal that the illegality of the underlying contract ruled out the claim for compensation, the majority held that to permit the trafficker to escape liability would be “an affront” to public policy. The judgment has far reaching implications in this area because, by its very nature, human trafficking often involves illegality. Both the majority and the dissenters provide an interesting analysis and refinement of the law on illegality; as Lord Hughes observes:
It is in the nature of illegality that, when it succeeds as a bar to a claim, the defendant is the unworthy beneficiary of an undeserved windfall. But this is not because the defendant has the merits on his side; it is because the law cannot support the claimant’s claim to relief.
Conversely, when the illegality is not sufficiently closely connected to the claim, and can properly be regarded as collateral, or as doing no more than providing the context for the relationship which gives rise to the claim, the bar of illegality will not fall, as was decided in this case.
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18 August 2014 by Celia Rooney
Welcome back to the UK Human Rights Roundup, your regular sizzling summer show 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.
This week, former leaders of the Khmer Rouge face life imprisonment for crimes against humanity committed in Cambodia. In other news, the on-going conflict in Gaza sparks controversy at home, while the Lords inquiry into social media offences reaches an unexpected conclusion.
In the News
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15 August 2014 by Adam Wagner
As a brief update to my post from last week. The Tricycle Theatre and the UK Jewish Film Festival have settled their differences after an agreement was struck to end the theatre’s refusal to host the festival.
Despite its previously robust defence of the decision, the Tricycle appears to have entirely relented on the issue of Israeli Embassy funding. A joint statement has been published, stating amongst other things:
‘Some weeks ago the UKJFF fell out, very publicly, with the Tricycle over a condition imposed by the Tricycle regarding funding. This provoked considerable public upset. Both organisations have come together to end that. Following lengthy discussions between the Tricycle and UKJFF, the Tricycle has now withdrawn its objection and invited back the UK Jewish Film Festival on the same terms as in previous years with no restrictions on funding from the Embassy of Israel in London. The UKJFF and the Tricycle have agreed to work together to rebuild their relationship and although the festival is not able to return in 2014, we hope to begin the process of rebuilding trust and confidence with a view to holding events in the future.
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12 August 2014 by David Hart KC
JSC BTA Bank v. Ablyazov et al 8 August 2014, Popplewell J, read judgment
What you say to your lawyers is truly confidential; no-one, not even a regulator or prosecutor can see it. This is protected by the right to privacy under Article 8, and the right to a fair trial under Article 6 (which includes the right to access to lawyers).
Well, that is the general rule. And this case reminds us that there is an exception to this – when the relationship between client and lawyer is affected by “iniquity”.
As we will see, Mr Ablyazov fell foul of this exception, and papers which he sent to his various solicitors have been ordered to be produced. As we will also see, he appears to be a very bad boy indeed. It is however more difficult to draw the line between his sort of case and that in which a defendant says he has a defence, though in the end is disbelieved by the court.
And one interesting aspect of this judgement is Popplewell J’s clear explanation of this difference – a fine line indeed.
So now to Mr Ablyazov, and his badness.
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7 August 2014 by David Hart KC
Oao Neftyanay Kopaniya Yukos v Russia 31 July 2014 read this damages judgment and read violation judgment
A good week, to say the least, for Mikhail Kordokovsky, recently released from a Russian jail. A complex story of punitive tax assessments on his former company, Yukos, has led to a judgement of €1.866 bn in Strasbourg against Russia.
I shall concentrate on the Strasbourg case, although for sheer numbers the story is perhaps elsewhere; on 28 July 2014 shareholders had obtained awards from the Permanent Court of Arbitration in The Hague ordering Russia to pay $51.57 bn to shareholders in Yukos Oil, saying officials had manipulated the legal system to bankrupt the company.
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7 August 2014 by Adam Wagner
Updated | It emerged on Tuesday the Tricycle Theatre in Kilburn has refused to host the UK Jewish Film Festival (UKJFF) for the first time in eight years. The theatre told UKJFF that they must reject longstanding funding from the Israeli Embassy if they wanted to use the venue. UKJFF refused and the relationship ended.
There has already been some excellent writing: see Nick Cohen, Archie Bland and Dorian Lynskey. Cohen makes a powerful case for the decision being anti-Semitic. I’m not going to go there, although as I have been saying on Twitter, in my view this is a bad move by the Tricycle. I thought it would be interesting, however, to investigate whether the Tricycle may have broken any laws.
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5 August 2014 by Guest Contributor
Last week Justice Secretary Chris Grayling reported on how often closed material proceedings (CMPs) have been sought under the Justice and Security Act 2013 (JSA), as he is required to do annually under the Act. As the first and only official consolidated presentation of how the new CMP regime is being used, this two-page written ministerial statement warrants close attention.
The Secretary of State’s report provides only numbers. In the Bingham Centre’s Review of the First Report by the Secretary of State, we have tried to match cases to those numbers and, when read in light of the cases, have found good reasons to be concern about the difficulty of verifying the accuracy of the report, the ways that CMPs are being used, and the adequacy of the reporting requirements.
What are the reporting requirements?
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4 August 2014 by Adam Wagner
With the May 2015 General Election looming, the battle for the future of human rights in the UK is hotting up. The Prime Minister has just sacked his long-standing Attorney General apparently because he disagreed with a mooted Tory manifesto policy which would, he rightly suggested, breach the UK’s international law obligations.
Meanwhile, over on what used to be Fleet Street,we can expect plenty of human rights misinformation and misrepresentation, as per usual. The Sun, a longterm offender, has been at it again with two recent articles. I thought it would be useful to respond in a bit of detail as they contain a number of common misrepresentations. And because they are behind a paywall, the usual army of Twitter fact checkers are left somewhat powerless.
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1 August 2014 by Guest Contributor
Angela Patrick, Director of Human Rights Policy at JUSTICE provides a summary of the House of Lords debate on Government proposals to reform judicial review in Part 4 of the Criminal Justice and Courts Bill.
As the House of Lords closes its gilded doors for the long recess, the Westminster village enters its equivalent of the school holidays. Yet, as Ministers pack their red boxes and MPs head diligently back to their constituency business, the House of Lords – debating the Committee Stage of controversial judicial review proposals in Part 4 of the Criminal Justice and Courts Bill – may have suggested that officials and Ministers yet have some homework to do.
Summing up the debate – and thanking Lord Faulks, the Minister responding to a barrage of criticism from all benches, for his efforts – Lord Pannick acknowledged that many of the Government’s proposals on judicial review had been driven by the Secretary of State for Justice and Lord Chancellor, Chris Grayling. He suggested that both Ministers would do well to get together over the summer to digest the Peers’ concerns – perhaps on a convenient beach. There were so many flaws in the Bill that Lord Faulks should pack a red pen with his sunscreen (HL Deb, 30 July 2014, Col 1650).
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28 July 2014 by Celia Rooney
Welcome back to the UK Human Rights Roundup, your regular fracktastic frisson 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.
In recent weeks, the Prime Minister’s cabinet reshuffle has sparked fears of human rights reform, while Parliament has come under fire for the speed at which it passed emergency legislation on data retention. In other news, the residence test for legal aid faced legal challenges, while Lindsay Sandiford lost her final appeal in the UK courts in her attempt to stop her execution in Indonesia.
In the News
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27 July 2014 by David Hart KC
DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 2493 (QB), Green J – read judgment
This is an important summary of the principles applicable to HR damages, particularly in circumstances where there have been other payments already made arguably in respect of the acts in question. So it should be first port of call if you have an HR damages problem, not least because it gathers all the learning together.
Green J decided in March 2014 that the police had a duty to conduct investigations into particularly severe violent acts in timely and efficient manner, and that there had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so-called “black cab rapist”, one John Worboys. This amounted to a breach of the of the victims’ rights under Article 3 of the ECHR. See Rosalind English’s post on the liability judgment here
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23 July 2014 by David Hart KC
Coventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment
Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases. Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.
Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small” local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.
Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.
In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).
So each case is about a costs burden, which is capable of causing injustice to one or other party.
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22 July 2014 by Rosalind English
Johnson, R (on the application of) the Secretary of State for the Home Department [2014] EWHC 2386 (Admin) 17 July 2014 – read judgment
The proposed deportation to Jamaica of a man convicted of drug smuggling and manslaughter would breach his rights under Article 8 and Article 14 because he had not obtained British citizenship on grounds of illegitimacy, the High Court has ruled.
The claimant challenged his proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence. He submitted that deportation would violate his right to private and family life under Article 8 combined with the prohibition on discrimination under Article 14. The discrimination was said to arise because the claimant did not become a British citizen when he was born in Jamaica as the illegitimate child of a British citizen, whereas he would have been a British citizen if he had been a legitimate child, and a British citizen cannot be deported.
Following his conviction for manslaughter the claimant was sentenced to 9 years’ imprisonment. The length of his sentence meant that he was subject to automatic deportation as a foreign criminal pursuant to Section 32 of the UK Borders Act 2007. On his appeal against the respondent’s notice, the issue of discrimination arose because of the fact that the claimant would not have been a foreign national had his British father been married to his Jamaican mother when he was born (in Jamaica).
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20 July 2014 by David Hart KC
O (R o.t.a) v. Secretary of State for International Development [2014] EWHC 2371 (QB) 14 July 2014 read judgment
One proposal of the Lord Chancellor on reforming judicial review last year was the narrowing of the tests for standing, namely the ability to come to court and complain about some public law unlawfulness: see, e.g. here. The idea of statutory reform of standing was later shelved, but the current case is an interesting example of the Government probing the boundaries of the tests laid down by the courts.
The underlying dispute concerns the funding of international aid to Ethiopia by DFID. Mr O is an Ethiopian citizen who says he was the victim of human rights abuses in the course of a programme to re-settle villagers in new and larger communes – this programme (the Commune Development Programme or CDP) is said to involve forced internal relocation. As a result, O fled to Kenya, leaving his family behind. There is evidence of widespread human rights abuses perpetrated in this process of “villagisation”.
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18 July 2014 by Rosalind English
MM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor [2014] EWCA Civ 985 (11 July 2014) – read judgment
Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.
Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise.
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Hounga v Allen [2014] UKSC 47 – read judgment
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