Category: In the news

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).
Continue reading →

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.

Continue reading →

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? 
Continue reading →

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.
Continue reading →

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.

Continue reading →

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.

Continue reading →

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.)

Continue reading →

Hospital closures and the rule of law

8 November 2013 by David Hart KC

Trust Special Administrator appointed to South London Healthcare NHS Trust v. LB Lewisham & Save Lewisham Hospital Campaign [2013] EWCA Civ 1409, 8 November 2013  – read judgment

Jeremy Hyam of 1 Crown Office Row acted for Save Lewisham Hospital Campaign. He was not involved in the writing of this post.

It takes a bit of time to close a hospital or make major changes to it. This is because you must go through a complicated set of consultations with all those likely to be affected before action can be taken. Many, if not most, people say this is a good thing, and Parliament has embedded these duties of consultation in the law.

In this case, the Department of Health said it could close the A&E Department of Lewisham Hospital, as well as limiting maternity services to midwives alone and reducing paediatric services – without going through the formal consultation process. The Borough of Lewisham, and a local campaigning group, said that the DoH had no power in law to do this.

The judge, Silber J, agreed with them, and so now does the Court of Appeal. It dismissed Jeremy Hunt’s appeal 10 days ago, and published its reasons today.

If Mr Grayling has his way, it seems unlikely that the Save Lewisham Hospital Campaign would have had “standing” to bring this claim, however meritorious in law it may have been: see my post on this. I dare say this lesson will not be lost on him, though, sadly, many think that such wins against the government make it more rather than less likely that he will implement his changes to the rules in judicial review.

Continue reading →

Sexual liaisons by undercover police officers could be authorised by RIPA

6 November 2013 by Rosalind English

AJA and others v Commissioner of Police for the Metropolis  [2013] EWCA Civ 1342 – read judgment

The words “personal or other relationship” in the section 26(8)(a) Regulation of Investigatory Powers Act 2000 included intimate sexual relationships so that the Investigatory Powers Tribunal had jurisdiction to hear the appellants’ claims that their human rights had been violated by undercover police officers who had allegedly had sexual relationships with them

There were two groups of claimants in this case. The first three were represented by Birnberg Pierce & Partners (referred to as “the Birnberg claimants”). The second three were represented by Tuckers (referred to as “the Tuckers claimants”). Both groups alleged that they had suffered violations of their rights under Articles 3 and 5 by the officers for whom the respondents were responsible and that such conduct was contrary to the Human Rights Act 1998 s.6(1). They appealed against a decision that the Investigatory Powers Tribunal had jurisdiction to decide their human rights claims and that High Court proceedings should be stayed pending the IPT’s determination.
Continue reading →

Limiting the scope of injunctions in family cases – Hugh Tomlinson QC

5 November 2013 by Guest Contributor

Re J (A Child) ([2013] EWHC 2694 (Fam) – read judgment

In this case  the President of the Family Division, Sir James Munby, considered an application for a contra mundum injunction by Staffordshire County Council. He emphasised that the only proper purpose of such an injunction was to protect the child and refused to make an order in the wide terms sought by the Council. As a result, he allowed the publication of video footage and photographs of a baby being removed from its parents.
Continue reading →

Government Losses, HRA Repeal & Secular Courts – The Human Rights Roundup

4 November 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular great bright firework display of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.

Some crucial judgments were handed down this week in the sphere of judicial review, with mixed results for the government.  Elsewhere discussions continued about the future of human rights under a Tory government in 2015, as well as religious rights within the family courts.  Keep an eye out for the upcoming Grand Chamber hearing on the full-face veil, as well as the open government consultation on the Balance of Competences Fundamental Rights Review.

Continue reading →

Al Quaida list and the use of prerogative powers

1 November 2013 by Rosalind English

Youssef v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 1302, 29 October 2013 – read judgment

There was nothing unlawful in the Foreign Secretary’s decision to allow a UK resident to be added to the UN’s Consolidated List of members of Al-Quaida and its associates .

This was an appeal against the Administrative Court’s dismissal of the appellant’s claim for judicial review of the secretary of state’s decision to allow him to be added to a list of persons subject to sanctions under UN Security Council Resolution 1617. This Resolution required UN member states to freeze the assets on those named on the Consolidated List of members of Al-Qaida and its associates. The relevant UN committee was asked to add the name of the appellant, an Egyptian national resident in the UK, to the list. The secretary of state placed a hold on the appellant’s designation so the UK could consider whether he met the criteria for designation. The Foreign Secretary subsequently accepted that he did meet the criteria and released the hold, which meant that he was added to the list. Once a designation is made, it lasts until all members of the Security Council can be persuaded that it should be lifted.

Continue reading →

The difference between public and private law – on a beach near me

1 November 2013 by David Hart KC

More naturism and the law, in the light of Mr Gough’s travails: see my post of yesterday.

For many years, the beautiful beach upon which Ms Paltrow was seen in Shakespeare in Love (my pic) has been a haven for naturists, even on the chilliest of days when the wind whips in from the north-east. However, things have changed this year. Initially, naturism was banned from the beach completely. The ban has now been lifted for the area of sand below the mean high water mark, but remains in place for the sand dunes.

How so?

Continue reading →

EU Balance of Competences Fundamental Rights Review

31 October 2013 by Adam Wagner

The Ministry of Justice is calling for evidence on the Review of the Balance of Competences between the United Kingdom and the European Union, specifically relating to fundamental rights. The consultation document is here and main website here.

The deadline for responses is 13 January 2014, but if you want to take part in one of the four discussion groups (three in London, one in Edinburgh), you need to email by tomorrow – all details below.

And don’t let the obscure-sounding title put you off. This review is potentially very important. Just look how broad question 1 is: 
Continue reading →

Freedom of expression – nakedness in a public place

31 October 2013 by David Hart KC

Gough v. Director of Public Prosecution [2013] EWHC 3267 – read judgment

Mr Gough wishes to walk up and down the UK naked. Others do not approve of this, so his progress has been somewhat stop-start. This appeal concerns a brief and inglorious autumnal outing in Halifax. He was released from the local nick at 11.30 am on 25 October 2012,  wearing only walking boots, socks, a hat, a rucksack and a compass on a lanyard around his neck. “He was otherwise naked and his genitalia were on plain view.” He then walked through Halifax town centre for about 15 minutes.

In the words of the judgment, he received a “mixed reaction” from its inhabitants.  At least one female member of the public veered out of his way. Evidence from two women was to the effect that they were “alarmed and distressed” and “disgusted” at seeing him naked. One of the women was with a number of children at least one of whom, 12 years old, she reported as “shocked and disgusted”. The district judge found that it caused one of the women to feel at risk, and, further, based on the evidence, that it caused alarm or distress.

Continue reading →