Category: In the news

Plebgate and costs budgets – The Sun off the hook for big bucks

27 November 2013 by David Hart KC

Mitchell v. News Group Newspapers 27 November 2013, CA  read judgment

We all know the story about how Andrew Mitchell MP may, or may not, have tried to barge past policeman in Downing Street with the memorable phrase “you’re f…ing plebs”. Like a lot of good stories, it may not be true, and like a lot of good stories it was picked up by The Sun. So Mr Mitchell sues The Sun in libel on the basis that it is untrue.

But this decision of the Court of Appeal is all about the reforms initiated by the man to my left, Sir Rupert Jackson, also a judge in the CA, who has shaken up the whole system of legal costs in civil litigation. And one of the major steps he has taken is to compel litigants to say what they intend to spend on a case early on – the costs budget – so that the judges can make some assessment of whether the thing is to be run sensibly or extravagantly.

Cue the present argument, where our MP’s lawyers do not file their costs budget on time, which is 7 days before the relevant hearing. So the parties go before the court, and The Sun says – we did our bit on time but we only got their budget yesterday, and we are not ready. To cut a long story short, The Sun now stand to recover a budgeted figure of £589,555 if they win, but our hapless MP (or his lawyers) will only recover his court fees if he wins.

How so?

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The latest challenge to the badger cull extension

27 November 2013 by Rosalind English

Updated: The extended badger cull has been called off after Natural England revoked licence over failure to meet greatly reduced targets (November 28). Experts say that the failed cull may have increased TB risk for cattle.

A new challenge was filed yesterday to the badger cull extension presently under way in the South West of England.

An eight week extension to the Gloucestershire pilot cull was granted by Natural England after the initial trial period failed to reach its 70% target, and began on 23 October.  Brian May’s Save Me organisation, represented by John Cooper QC, has put in an “exceptionally urgent” application for judicial review of the extension of the licence for the cull in Gloucestershire. The Secretary of State For Environment Food and Rural Affairs, DEFRA, and Natural England are named as defendants. Other interested parties are the National Farmers Union and the Badger Trust.

According to the Save Me organisation, the call for an urgent review is based on the reasoning that with the Gloucestershire extension already operative, and unless this is urgently addressed the period of the extension might elapse before a formal review can be applied.
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Supreme Court upholds gay discrimination ruling in hotel case

27 November 2013 by Rosalind English

Bull and another (Appellants) v Hall and another (Respondents) [2013] UKSC 73 (27 November 2013) – read judgment

This appeal concerned the law on discrimination. Mr and Mrs Bull, the appellants, own a private hotel in Cornwall. They are committed Christians, who sincerely believe that sexual intercourse outside traditional marriage is sinful. They operate a policy at their hotel, stated on their on-line booking form, that double bedrooms are available only to “heterosexual married couples”.

The following summary is taken from the Supreme Court’s press report. See Marina Wheeler’s post on the ruling by the Court of Appeal in this case. A full analysis of the case will follow shortly.

References in square brackets are to paragraphs in the judgment.

The respondents, Mr Hall and Mr Preddy, are a homosexual couple in a civil partnership. On 4 September 2008 Mr Preddy booked, by telephone, a double room at the appellants’ hotel for the nights of 5 and 6 September. By an oversight, Mrs Bull did not inform him of the appellants’ policy. On arrival at the hotel, Mr Hall and Mr Preddy were informed that they could not stay in a double bedroom. They found this “very hurtful”, protested, and left to find alternative accommodation.
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Strasbourg: defaming the dead, football and historical revisionism

26 November 2013 by David Hart KC

Putistin v. Ukraine, ECtHR, 21 November 2013  read judgment

An extraordinary story, with a twist, and an interesting decision by the Strasbourg Court that lack of respect for the honour and dignity of a dead relative may give rise to a breach of Article 8 and its right to family life.

In 1942 various professional footballers who had previously played for FC Dynamo Kyiv but who were now working in a bakery, ran out in the strip of FC Start. Their opponents (Flakelf) were pilots from the German Luftwaffe, air defence soldiers and airport technicians.

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Islamic “marriage” ceremony at home declared invalid by Court of Protection

25 November 2013 by Rosalind English

A Local Authority v SY [2013] EWHC 3485 COP (12 November 2013] – read judgment

A judge in the Court of Protection has ruled that a man who had “exploited and took advantage” of a young woman for the purpose of seeking to bolster his immigration appeal had engaged in an invalid marriage ceremony. The man, said Keehan J, had

 “deliberately targeted” the respondent because of her learning difficulties and her vulnerability.

The courts would not tolerate such “gross exploitation.”

This was  an application by a local authority in the Court of Protection in respect of the capacity of the respondent, SY, to litigate and to make decisions in relation to her life.
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Inquiry Impasse, Charter Confusion and Competition Time – The Human Rights Roundup

24 November 2013 by Sarina Kidd

Updated | Welcome back to the UK Human Rights Roundup, your regular swirling snow flurry of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.

This week, there are criticisms over the delay of inquiries both into the mistreatment of terrorism suspects and the Iraq War. Meanwhile, discussion continues over the relevance of the EU Charter of Fundamental Rights for UK law, and a dying asylum seeker on hunger strike will not be released.

Request for help – religion and law

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Personal consultation with solicitor must be offered before terror questioning, rules High Court

24 November 2013 by Matthew Flinn

Elosta v Commissioner of Police for the Metropolis [2013] EWHC 3397 – Read Judgment

The High Court has held that a person detained for questioning under the Terrorism Act 2000 is entitled to consult with a solicitor in person prior to answering questions.

The right to consult with a lawyer before one is interviewed by law enforcement officers might be fairly characterised as a “pop culture” right. Reality television shows, crime dramas, even block buster films (I’m thinking Neo in the first Matrix film – pictured) have all played a part in ensuring that the right to legal advice in that context is ingrained in the consciousness of the masses.

This case dealt with a specific and rather technical variation on that theme.

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Judicial review proceedings may not be terminated by the government – Court of Appeal

22 November 2013 by Rosalind English

Ignaoua, R (on the application of) v Secretary of State for the Home Department [2013] EWCA Civ 1498  – read judgment

A certificate issued by the Home Secretary under Section 2 C of the Special Immigration Appeals Commission Act 1997  (the “1997 Act”), as inserted by Section 15 of the  Justice and Security Act 2013 (“the 2013 Act”), did not terminate existing judicial review proceedings in relation to an exclusion direction which had been certified.

The appellant appealed against a decision concerning judicial review proceedings he had brought against the respondent secretary of state (see my previous post for the factual background of the case). These proceedings had been terminated by virtue of the 2013 Act. The appellant challenged the certificate, but Cranston J below held that the intention of Parliament was “hard-edged” and left no discretion to the judge, and meant that if an exclusion direction was certified by the secretary of state, any challenge to it had to be advanced to SIAC (the Special Immigration Appeals Commission). The question before the Court of Appeal here was whether the secretary of state’s certificate was effective to terminate the judicial review proceedings relating to the exclusion direction. At the time of the appeal, the procedural rules required for an application to SIAC were not in force.
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When is an advert “political” for the purposes of a ban under the Communications Act?

21 November 2013 by Rosalind English

R (on the application of London Christian Radio Ltd & Christian Communications Partnerships) v Radio Advertising Clearance Centre (Respondent) & Secretary of State for Culture, Media and Sport (Interested Party) [2013] EWCA Civ 1495 – read judgment

The ban on Christian Radio’s proposed advert seeking data on the “marginalisation of Christians” in the workplace was lawful and did not constitute an interference with free speech, the Court of Appeal has ruled. When determining whether a radio or television advertisement was “political” fur the purposes of Section 321(2)(b) of the Communications Act 2003 the court should consider the text objectively; the motives of the advertiser were irrelevant.

This was an appeal against a ruling by Silber J ([2013] EWHC 1043 (Admin)) that a proposed radio advertisement was directed towards a political end, and therefore fell foul of the prohibition on political advertising which meant that it could not be given clearance for broadcast (see my previous post on this decision).
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EU Controversy, Churchill and the Charter – The Human Rights Roundup

20 November 2013 by Celia Rooney

Welcome back to the UK Human Rights Roundup, your regular glass menagerie 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 [note from Adam Wagner – a warm welcome to Celia Rooney, our new rounder upper]

This week, Chris Grayling and the Court of Justice go head to head over the domestic status of the Charter of Fundamental Rights, while the ghost of Winston Churchill comes back to haunt the ‘United States of Europe’ debate.  Meanwhile, Theresa May’s plans to deprive terrorist suspects of their British citizenship are under fire, while calls for press accountability are repeated.

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Will Marine “A” keep his anonymity? James Michael

18 November 2013 by Guest Contributor

Five Royal Marines have lodged a challenge against a ruling that they can be named following the conviction of one of them for the murder of an injured insurgent in Afghanistan.

Identification of ‘Marine A’ and two other Marines was prohibited by order of the court-martial which convicted Marine A of murder. At the time of the trial this order was explained in the press as necessary to protect the three defendants from physical attacks.  On 8 November 2013, Judge ­Advocate General Jeff ­Blackett ruled that the names of the defendants and those of Marines D and E, should be identified publicly. The order was not lifted after Marine A’s conviction, and it is now reported that he will oppose any lifting of the order to protect the human right to life of him and his family. A hearing before the Court Martial Appeal Court in London is expected to be held next week. Will he succeed? 
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In South Africa, the not-so-quick and the dead.

13 November 2013 by Rosalind English

There’s a crisis in South Africa’s mortuaries – in the investigation of death.

 This is due to a number of problems – incompetent staff who fail to gather forensic evidence, creaking and inadequate facilities, and the sheer number of dead bodies waiting to be processed. In a gripping but bleak documentary about Salt River Mortuary, which is responsible for processing cadavers in the Western Cape, the figures will make you gasp and stretch your eyes:

For the Western Cape alone, 3,000 bodies are handled by this Mortuary each year. Of this number, 65% are unnatural deaths (accidents, suicides, homicides). Of that number (approx 2,000) a staggering 80% are homicides – in other words, Salt River is responsible for providing the forensic evidence for reconstructing the crime scenes leading to 1,600 murders a year.

Watch the ten minute film here.
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Renewable energy ambitions of the Scottish Ministers “trounce the law of the land”

11 November 2013 by David Hart KC

The sequel to this Scottish judicial review decision in Sustainable Shetland, (Lady Clark of Calton, read judgment, and my post) is another unedifying example of executive government ignoring courts when it suits them.

In this case, the judge (a former Law Officer in Scotland) quashed the grant of a wind farm consent, for two reasons, the relevant one being that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which was a pre-condition for such an application. Readers will recall that Scottish Ministers had also resisted the highly controversial planning appeal being heard at public inquiry – or the Scottish equivalent.

If you are an ordinary citizen, and you get an adverse judgment, you can only do one thing – appeal it and wait for the decision on appeal. The Scottish Ministers plainly do not like the decision. They have sought to reverse it by a legislative amendment, which did not find favour in the House of Lords. But, rather less attractively, they are simply ignoring the decision pending that appeal on the basis that it is wrong. Judges, rather than ministers, might be thought to be a reasonable judge of that. But the Scottish Ministers think not.

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Miranda, Prisoner Votes & Judicial Review Myths – The Human Rights Roundup

11 November 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular unexpected sunny spell of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.

This week, the Parliamentary Joint Committee on the draft Voting Eligibility (Prisoners) Bill took evidence , and there were notable comments from the Secretary General of the Council of Europe, the body which monitors compliance with the European Court of Human Rights. Meanwhile, Baroness Hale weighed in on the proposed judicial review changes and, continuing along the judicial review vein, David Miranda (pictured) began his claim on Wednesday.

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Watch that Charter

8 November 2013 by Rosalind English

AB, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin) – read judgment

Here unfolds a story of sophisticated abuse of the asylum system in this country by an individual skilfully shamming persecution. Nor did the security agents who escorted the claimant on his departure come up smelling of roses: it emerged during the course of these proceedings that they had falsified a room clearance certificate to boost the defence case.

The judgment also points up the potentially far-reaching effect of the Charter of Fundamental Rights of the European Union and how this might render all the handwringing about the European Convention on Human Rights  irrelevant, and a home grown Bill of Rights otiose.

Factual background

The claimant, whom Mostyn J describes as “a highly intelligent, manipulative, unscrupulous and deceitful person”, arrived  in this country in 2005, was refused asylum and was deported in 2010. He sought judicial review of the Home Secretary’s decision to refuse his claim and return him to his state of embarkation, “Country A” (so designated because there was a reporting restriction order made in the original proceedings anonymising both the claimant, his country of origin, and the political organisation of which he claimed to be a member. Mostyn J “reluctantly” went along with that order in this proceedings, since neither of the parties applied to have it reviewed.)

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