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Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Court of Appeal, 7 May 2014 read judgment
The Court of Appeal has reversed the robustly expressed view of Haddon-Cave J (see my post here) that the grant of planning permission to a proposed “exclusive” golf club in Surrey should be quashed.
The local planning authority had originally granted permission by the barest of majorities – 10-9, and against its planning officer’s recommendation. The judge had thought that the authority’s decision was irrational, and had misinterpreted or misapplied the concept of “need” in the applicable planning policies.
The Court of Appeal roundly disagreed with these and the other grounds on which the judge quashed the decision.
Barnes v. The Eastenders Group [2014] UKSC 26 read judgment
Not Albert Square, but it could be. The Crown Prosecution Service suspect two individuals of a massive duty/VAT fraud in their cash and carry businesses. The CPS go to the Crown Court (in the absence of the individuals) and get an order to appoint a receiver (i.e. a paid manager) to run the affairs of companies (Eastenders) in which the individuals are involved, as well as a restraint order against the individuals. Both receivership and restraint orders are set aside some months later by the Court of Appeal, on the basis that the HMRC investigator’s statements were largely “broad and unsupported assertions”. Problem: by then the receiver had run up £772,547 in fees.
Simple issue. Who bears those fees? The receiver, the CPS or the companies against whom the order was made? And A1P1 (the right to possessions) made the difference.
On 28 April 2014 I debated Dr Lee Rotherham of the Taxpayers’ Alliance at NYU London. The motion was: This House believes the human rights agenda is promoting unfairness in the UK. I was against the motion (as you may have guessed).
G (Adult), Re [2014] (Associated Newspapers Limited intervening) EWCOP 1361 (1 May 2014) – read judgment
Sir James Munby, President of the Court of Protection has ruled that the Daily Mail has no standing to be joined as a party in welfare proceedings in relation to a vulnerable adult who has been declared by the courts as lacking capacity under the Mental Capacity Act.
Background to the application
The court was concerned with a 94 year old woman, a British African Caribbean who lives in her own home in London. G is 94 years old. G has never married and has no children. She has no family living in the UK. She suffers from conditions that have limited her mobility; arthritis, rheumatism, a dislocation of her left knee and carpal tunnel syndrome. She also has high blood pressure and double incontinence. G rarely leaves home now, except for hospital appointments. Continue reading →
A (Respondent) v British Broadcasting Corporation (Appellant) (Scotland)[2014] UKSC 25 – read judgment
This appeal related to whether the Scottish Courts took the correct approach to prohibit the publication of a name or other matter in connection with court proceedings under section 11 of the Contempt of Court Act 1981, and whether the court’s discretion was properly exercised in this case. The Supreme Court unanimously dismissed the appeal by the BBC.
The following report is based on the Supreme Court’s Press Summary. References in square brackets are to paragraphs in the judgment.
Background
A, a foreign national, arrived in the UK in 1991. He was later granted indefinite leave to remain, but in 1996 was sentenced to four years’ imprisonment for sexual offences against a child. In 1998, he was served by the Home Secretary with a notice to make a deportation order [4]. He appealed against the decision and protracted proceedings followed in which A cited risks due to his status as a known sex offender of death or ill-treatment (contrary to Articles 2 and 3 of the European Convention on Human Rights should he be deported. A’s identity was withheld in the proceedings from 2001 onwards [5]-[9]. Continue reading →
A judge has halted a serious fraud trial after defendants claimed they could not get adequate representation because cuts to legal aid, and as a result they would not get a fair trial under common law or Article 6 of the Convention. This case could be the first of a number of reversals following the government’s legal aid reforms with seven further trials due to start before September 2015 involving 28 defendants in similar positions.
The defendants were charged with offences of conspiracy to defraud, possessing criminal property and offences where the evidence was complex and substantial. The the case against the five men amounted to more than 46,000 pages of documents and the case summary itself covered 55 pages. In essence, the Crown alleged that the defendants had been involved in a fraudulent land selling scheme. Some purchasers were given good title, some were not, and some sub-plots were sold more than once. Various interventions by the FSA (as it then was) to stop the practices were subverted by transferring the fraudulent scheme to a new company.
Background
In July the Legal Aid Authority notified the parties that the case had been classified as a Very High Cost Case (VHCC).Shortly after this the Ministry of Justice (“MoJ”) announced their intention to cut fees paid to counsel by 30%. The Bar announced their dissatisfaction with this decision and their intention to undeem VHCC cases.
During this same period the MoJ and the Bar were negotiating over proposed reductions in graduated fees. The Public Defender Service (“PDS”), a department of the LAA, began actively to recruit a pool of employed advocates to take on work that might otherwise have been done by independent advocate.
At a hearing on 14th November 2013 the defence raised concerns that they would not have counsel for the trial and that there was insufficient time for any counsel who might now be instructed to be ready by April 2014. By the end of November all counsel had returned their briefs.
In this hearing Alex Cameron QC appeared bro bono to advance the argument on behalf of the defendants that Leonard HHJ should stay the proceedings because they are unrepresented through no fault of their own and that he should not grant an adjournment because the possibility that at some unknown date in the future an adequately funded advocate may become available is no basis on which to grant an adjournment. The Crown accepted that involuntary lack of representation would be inconsistent with the European Convention on Human Rights and common law rights and they acknowledged that a fair trial could not be held now. But they submitted that there was a reasonable prospect that advocates would be available to represent the defendants in the future and that the judge should adjourn the trial to a future date rather than staying the indictment. A stay as an abuse of process is an exceptional remedy, but nor should the defendants in this case become “victims of a dispute between the Bar and the government” (para 24):
my decision on how to proceed in this case is taken without regard to the continuing dispute between the Bar and the MoJ. I am only concerned with the merits of the arguments put before me and to ensure that a trial is only held if it can be conducted fairly in accordance with the principles long established in this country and which are, additionally, enshrined in Article 6 of the European Convention on Human Rights.
The efforts to find representation included contact with 70 sets of chambers with barristers who hold themselves out as competent to undertake this sort of work in and outside London. By 15th January 2014 there was one silk who put himself forward as willing to accept instructions. He withdrew on 16th January. Enquiries were made without success with the Bar of Northern Ireland and the Faculty of Advocates in Edinburgh.
The efforts put in by the defence to find trial advocates had been, in the judge’s words, “very substantial indeed” and in the end, unsuccessful. There was no compromise solution in this case:
Criminal trials of this complexity rely on the skills of highly competent and experienced advocates on both sides to reduce issues, make matters understandable to a jury and keep trials to a reasonable length.
The judge was referred to Croissant v. Germany (1993) 16 E.H.R.R. 135 in respect of the right to a choice of representation where the state pays for legal assistance.In that case it was considered sufficient that the court appoints a lawyer to defend and individual; the right of a defendant to choose his own counsel cannot be considered absolute. In the present case the judge was of the view that the defendants could not hold out for independent counsel of their choice to become available.
In determining whether he should grant an adjournment rather than the more drastic remedy of a stay, Leonard HHJ had to consider a number of factors:
Failure to grant an adjournment will deprive the victims of crime of the opportunity to see those that they judge responsible prosecuted.To deny them that opportunity should not be lightly taken.
Against that, there are other methods available to the victims to recover their losses civilly and there are other regulatory offences which could be brought against the defendants which may not meet the gravamen of the conduct alleged but which could mark out their alleged misconduct and prevent them from being able to take a rôle in corporate activity in the future.
On the other hand, the responsibility to provide adequate representation at public expense is also the responsibility of the State. I have considered whether the State should in those circumstances be entitled to benefit from its own failure by being granted an adjournment.
An adjournment of the trial would involve an additional stress on the State’s provision of resources to try crime.
In view of the availability of barristers and the preparation time required the judge was not satisfied that sufficient advocates would be available to assist these defendants at trail, nor did he have any reason to think that there was a realistic prospect tha the Bar would accept contracts in VHCC cases on the present MOJ terms.
Having considered all these matters he was compelled to conclude that, to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place now amounts to a violation of the process of this court. He further found that there was no realistic prospect that sufficient advocates would be available for this case to be tried in January 2015 from any of the sources available to the defence, including the PDS.
Speaking to The Independent, a spokesman for the Ministry of Justice said: “Barristers have refused to work on this case – and a number of other Very High Cost Court Cases – because they do not agree with savings the Government is making to legal aid.
Even after the savings, if a QC picked up a case like this one, they could expect to receive around £100,000 for working on it, with a junior barrister receiving around £60,000.
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Welcome back to the UK Human Rights Roundup, your regular spring bouquet 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 the News
Legal aid, judicial review and the role of the Lord Chancellor dominated the headlines last week – with the Operation Cotton case and the Joint Committee on Human Right’s report on judicial review putting increasing pressure on the Government’s reforms.
L.H. v Latvia [2014] ECHR 453 (29 April 2014) – read judgment
The release of confidential patient details to a state medical institution in the course of her negotiations with a hospital over a lawsuit was an unjustified interference with her right to respect for private life under Article 8.
Background
In 1997 the applicant gave birth at a state hospital in Cēsis. Caesarean section was used, with the applicant’s consent, because uterine rupture had occurred during labour. In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant’s consent.
In 2005, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation. Continue reading →
Angela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.
Proposed Government restrictions to judicial review, including new cuts to legal aid, have already been dissected in detail by this blog (see here, here and here). Controversial Government proposals to limit when legally aided claimant solicitors will be paid in judicial review claims came into force last week (Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations).
Heralding the arrival of the changes, the Lord Chancellor again repeated his now oft-heard refrain that reform is necessary to prevent “legal aid abusers” tarnishing the justice system. Specific restrictions were justified to limit judicial reviews “instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.
Today, the Joint Committee on Human Rights (JCHR) publishes its verdict in a lengthy and considered report on the likely impact on access to justice of the cuts and the proposed changes in Part 4 of the Criminal Justice and Courts Bill. In short, the Committee rejects the case for reform and suggests that the Government go back to the drawing board.
Wang Yam v Attorney General [2014] EW Misc 10 (CCrimC) 27 February 2014 – read judgment
It is for the UK government to decide whether to vary an order preventing publication of material heard in private in a murder trial, if the offender goes on to petition the European Court of Human Rights. It is not for the Strasbourg Court to determine whether the right to a fair trial should outweigh the risks to UK national security reasons.
The question regarding a state’s obligation not to impede the right of individual petition to Strasbourg arose where the applicant offender applied for an order permitting him to refer to material, which had been restricted on national security grounds during his murder trial, in an application to the European Court of Human Rights. Continue reading →
A case to get the Sun leader writers confused, in that the Strasbourg Court was making sure that Italy did not get away with refusing to refer a case to the EU Courts.
Mr Dhahbi lives in Italy. He was of Tunisian origin, and was not at the time of this case an Italian citizen. He applied for and was refused a household allowance on the sole ground of nationality. He relied upon an entitlement to this allowance in an association agreement between the EU and Tunisia (known as the Euro-Mediterranean Agreement). The Italian court refused his application to have the case determined by the CJEU in Luxembourg.
Strasbourg decided that there had been a violation of his fair trial rights under Article 6, and discrimination on grounds of status under Article 14, when read with Article 8.
Ashworth and others v the Royal National Theatre [2014] 1176 – read judgment
Anyone who saw one of the early performances of War Horse in its first season at the National Theatre will remember how profoundly moving was the live music, with the musicians visible along the sides of the theatre above the stage. Since that highly successful (and profitable) first season the role of the orchestra had been radically reduced, and now looks as if it is about to vanish altogether.
Background
War Horse opened at the Olivier Theatre in 2007, but since 2009 it has played at the New London Theatre. The claimants were engaged in March 2009 to play their instruments in the new production, as a small company of wind players accompanying recorded music. Productions of War Horse in other parts of the world have relied wholly on recorded music. In light of that, and because both the co-director of War Horse and the composer concluded that it was better for accuracy and impact to deliver the score through recorded music. The National Theatre sent the claimants letters giving notice of termination of their contracts to expire on 15 March 2014. In the letters the National Theatre stated that the grounds were redundancy.
The dispute
The claimants sought an order from the court, prior to the trial of the main action, to require the National Theatre to continue to engage them in the production of War Horse until the trial of their claim. They also relied upon the right to artistic expression protected by Article 10 of the human rights Convention. Continue reading →
Two different bodies in the last week have reflected on issues concerning the fundamental imbalance in the employment relationship. This provides an opportunity to consider what, if any, role human rights principles have in redressing that imbalance:
(1) The Article 11 Case of RMT -v- UK (Application No 31045/10): The European Court Human Rights (Fourth Section sitting as a Chamber) found that Article 11 (the right to freedom of association) was not infringed by the restrictions imposed on trade unions calling on their members to take strike action by the UK Government as part of the statutory scheme which provides for lawful strikes; that is strikes that attract statutory immunity from common law liability. According to the ECtHR, these restrictions on lawful striking were within the wide margin of appreciation enjoyed by the UK Government. The RMT’s case was that the restrictions impermissibly restricted their ability to protect and promote the interests of their members working in industries and for employers with complex corporate structures.
(2) Zero Hour Contracts Consultation: The Government’s consultation on zero hours contract which appears to have been somewhat upstaged by the Parliament’s Scottish Affairs Committee publishing an interim report on zero-hours contracts which while recommending some changes, ultimately concludes that ‘in the majority of cases’ zero-hours contracts should not be used at all. The interim report contends that the lack of job security for workers engaged on zero hours contracts places a practical impediment to the majority of the workers surveyed from enforcing other basic rights including the minimum wage, part-time worker protections, and protection for those with caring responsibilities: see summary here. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular Easter egg hunt 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.
Chris Grayling is on the offensive again over Judicial Review, the Home Secretary has faced a defeat over her decision to maintain a freeze on the money given to destitute asylum seekers, while in other news, the Strasbourg court rejects a challenge to a UK ban on secondary industrial action and the long-running Al-Sweady Inquiry has concluded hearing oral evidence.
Rose, R (on the application of) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) 15 April 2014 – read judgment
Jeremy Hyam of 1 Crown Office Row represented the claimant in this case. He had nothing to do with the writing of this post.
There are times when individual need comes up against the inflexible principles of the law and the outcome seems unjustifiably harsh. This is just such a case – where a relatively modest claim based on individual clinical need was refused with no breach of public law principles. As it happens, since the Court rejected her case, the the young woman concerned has been offered private support for the therapy she was seeking. The case is nevertheless an interesting illustration of the sometimes difficult “fit” between principles of public law and the policy decisions behind the allocation of NHS resources. Continue reading →
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Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Court of Appeal, 7 May 2014 read judgment
Welcome back to the UK Human Rights Roundup, your regular spring bouquet of human rights news and views. The full list of links can be found 
Angela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.
Welcome back to the UK Human Rights Roundup, your regular Easter egg hunt of human rights news and views. The full list of links can be found 
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