Category: In the news
16 October 2012 by Rosalind English
R (on the application of the Metropolitan Police Service) v the Chairman of the Inquiry into the Death of Azelle Rodney and Interested Parties [2012] EWHA 2783 (Admin) – read judgment
The public inquiry into the death of Azelle Rodney, which commenced in 2010, was still under way when it was interrupted by the present dispute. It concerned the issue whether police surveillance footage taken from the air, showing Azelle Rodney’s movements in the two hours before his death, should be disclosed to the legal team representing his mother at the Inquiry.
The Chairman of the Inquiry decided to permit disclosure and the Metropolitan Police Service (MPS) took these proceedings to challenge the decision.
The footage was shot during a 2005 drug heist operation involving Mr Rodney, 25, who was shot six times at point-blank range after a car chase. One of the issues of importance to the deceased’s mother (Ms Alexander, the First Interested Party) was whether there had been a better opportunity to stop the car and its occupants at any time before the hard-stop which resulted in Mr Rodney’s death. This issue involved consideration by the Inquiry of the management of the surveillance/stop operation by senior officers. The officer in charge of the operation is due to give his evidence and to be questioned by Ms Alexander’s counsel.
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14 October 2012 by David Hart KC
Why do judges disagree and publish their disagreements when cases get decided? After all, the Cabinet does not do so (openly at least), and our FTSE-100 companies do not generally do so, when their executives propose a merger or launch a new product. Surely, judicial dissent is a recipe for diminishing the authority of the majority answer, and an invitation to self-indulgence on the part of the minority to re-fight lost and irrelevant battles.
Lord Kerr has given a very persuasive answer to both concerns in the Birkenhead lecture on 8 October 2012. But it is worth thinking about the alternative way of doing things, before making up your mind on whether the current way is the best way.
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12 October 2012 by Rosalind English
Wednesday’s debate on current key topics in the Court of Protection was a hard-hitting discussion on matters which elicit strong views, such as voluntary euthanasia, assisted suicide, the role of “dignity” and “sanctity of life”, and whether the latter two principles can ever be reconciled.
The fact that these are not essentially legal issues was underscored by the inclusion of ethics philosopher on the interventionist panel, Professor Anthony Grayling, who fielded the questions put to him alongside Philip Havers QC and Leigh Day solicitor Richard Stein. A video of the event will shortly be available on the 1 Crown Office Row website so I shall try to refrain from any spoilers, but here is a brief trailer to whet the appetite for a full recapitulation.
The evening started with a consideration of the Nicklinson and Martin cases, on voluntary euthanasia and assisted suicide respectively. There were a number of questions put to the panel which essentially rolled up into this:
Should voluntary euthanasia be a possible defence to murder, or can we justify action with a primary purpose of killing a person on the grounds of preventing that person’s harm or suffering?
The panel was broadly in agreement that it should. Richard Stein observed that the argument that there can never be adequate safeguards to protect the vulnerable is being used as a “smokescreen”, and, equally, the notion that disabled people cannot exercise their free will to die because it reduces the value of disabled lives is a “hugely patronising” one.
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10 October 2012 by Rosalind English
R.P. and others v United Kingdom (9 October 2012) – read judgment
The day before our seminar on the Court of Protection and the right to autonomy, the Strasbourg Court has ruled on a closely related issue in a fascinating challenge to the role of the Official Solicitor in making decisions on behalf of individuals who are for one reason or another unable to act for themselves.
The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. This particular case involved child care proceedings, but the question before the Court was the vital one that arises out of any situation where an individual is deemed to have lost capacity to represent his or her own interests in court. What the parties asked the Court to consider was whether
the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court.
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9 October 2012 by Adam Wagner
Updated x 2 | A 20-year-old has been sent to prison for twelve weeks for posting offensive and derogatory comments about missing five-year-old April Jones on his Facebook page. His attempts at humour were undoubtedly stupid, offensive and exhibited incredibly poor taste and timing. But is a long spell in prison really the way we should be dealing with offensive idiots? Is a law which was passed before social media existed now placing a significant chill on our freedom of expression rights?
Matthew Woods pleaded guilty to an offence under s.127 of the Communications Act 2003, which prohibits a person sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character“. He was sentenced at Chorley Magistrates’ Court.
I will not republish Woods’ comments here, but some of them are quoted in this Evening Standard article.
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8 October 2012 by Rosalind English
Print Media South Africa v Minister of Home Affairs ([2012] ZACC 22) – read judgment.
In a “momentous” ruling on freedom of speech, the Constitutional Court has struck down a legislative provision on prior restraint, “based on vague and overly broad criteria”, as offensive to the right to freedom of expression.
As the attorney for the amicus curiae Dario Milo explains in the Weekly Mail and Guardian (reposted on Inforrm), the court went even further than the relief contended for by the applicants, by striking down the entire provision as unconstitutional, rather than allowing certain criteria to be clarified in accordance with the Bill of Rights.
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5 October 2012 by Rosalind English
Ndiki Mutua and others v the Foreign and Commonwealth Office – read judgment
1 Crown Office Row’s Guy Mansfield QC acted for the Defendant, Henry Witcomb assisted by Maria Roche acted for the Claimants and Elizabeth-Ann Gumbel QC acted for intervener. None of them had anything to do with the writing of this post.
Although any claims regarding alleged acts of torture on Kenyan detainees during the 1950s state of emergency are technically time barred the High Court has allowed three of the claims to go ahead.
This was a trial of a preliminary issue in the Mau Mau detention camps case concerning the matter of limitation of claims for personal injury. In principle, the primary limitation periods in respect of the claims respectively ended in September 1960, 3 March 1962 and on dates in 1963 which are unclear. The period of delay was approximately fifty years in duration, i.e. from between 1960/1963 to the issue of these proceedings on 23 June 2009. The events to be investigated at any trial would extend back to 1952 at least, a period of 60 years or more by the likely date of trial.
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5 October 2012 by Adam Wagner
Updated | Abu Hamza and others -v- Home Secretary – Read official summary
Abu Hamza, Babar Ahmad, Syed Talha Ahsan, Adel Abdul Bary and Khaled al-Fawwaz have lost their High Court Judicial Review challenges to their extradition to the United States to face terrorism related charges. The court refused permission to apply for Judicial Review.
Two weeks ago the European Court of Human Rights refused the men’s requests to refer their extradition appeal to its Grand Chamber for another hearing. This meant that their case, which was decided in the Government’s favour in April (see our post) became final and there were in theory no remaining barriers to their extradition to the United States to face terrorism charges [Update, 7.10.12 – they are already in the United States, so no more legal shenanigans on these shores].
The men each brought different judicial review claims as a final challenge to their extradition, and those claims have – quite rightly – been dealt with rapidly by the High Court, which rejected the claims outright. As the court’s summary says, these proceedings are “the latest, and if we refuse permission, the last, in a lengthy process of appeals and applications that has continued for some eight years in the case of three and 14 years in the case of two.”
When dealt with at an oral hearing, refusals by the court of permission to apply for Judicial Review are not appealable. So pending any legal shenanigans (I can’t think of anything more they can do but as Julian Assange has taught us all, anything is possible), the (this time really) final barrier to extradition looks to have been removed.
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1 October 2012 by Rosalind English
The US Supreme Court’s term begins today, and race relations is at the top of the court’s agenda. The US press hails Fisher v University of Texas as the most important case the Court has agreed to hear thus far. Word is out that it could sound the death knell for affirmative action in the United States.
The justices are being asked to decide whether race-based affirmative action in college admissions is still constitutional. The petitioner is a white student who was turned down by the University of Texas in 2008. She claims she was a victim of illegal race discrimination under their policy of affirmative action.
In 1997 the Texas legislature enacted a law requiring the University of Texas to admit all Texas high school seniors ranking in the top ten percent of their classes. Whilst this measure improved access to tertiary education for many, the colleges protested at having their hands tied with regard to highly talented students who showed promise in certain subjects but did not come in to the top ten percent (including minority students in highly integrated high schools). To redress this balance the Supreme Court ruled in 2003 that universities could consider a minority student’s race as a “plus factor” in admissions. The Court based its ruling on the need for colleges to ensure a diverse student body. Following this judgment, the University of Texas added a new affirmative action policy to go along with the automatic admission rule with race being a “plus factor” in admission.
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28 September 2012 by David Hart KC
R (o.t.a Badger Trust) v. Defra, Ouseley J, 12 July 2012, read judgment, and on appeal, CA, 11 September 2012, not yet available online.
It is impossible to drive through the narrow and high-hedged lanes of Herefordshire without coming across the sad and inevitable outcome of car meeting badger. One estimate is that we may lose as many as 50,000 badgers a year this way. But this case is about whether we should kill a lot more badgers – deliberately.
For many years there has been a debate about whether, and if so, to what extent, badgers cause the spread of tuberculosis in cattle, and, if it does, what should we do about it. Recently, a decision was made by the Department for Environment, Food and Rural Affairs to cull some of them. And this challenge is to the lawfulness of that decision.
At which point we immediately run up against a bit of an institutional accident. Defra, is, when you scratch it, the old Ministry of Agriculture, Fisheries and Food spliced together with bits of the old Department of Environment. And, a bit like the sad nocturnal collision of badger and vehicle, badgers tend to come off worse when farming interests encounter nature, particularly where, as in this context, the science appears equivocal. That sounds rather contentious, but is not meant to. Let me explain why.
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28 September 2012 by Matthew Flinn
Re J (A Child: Disclosure) [2012] EWCA Civ 1204 – read judgment
The Court of Appeal has ordered the the disclosure of serious allegations made against a parent by an anonymous third party in contact proceedings. In doing so, it has demonstrated the correct approach to balancing the many different human rights considerations involved.
Every day, family courts across the UK are required to determine the difficult question of how much contact there should be between a child and his or her parents. It is the norm for these cases to be factually complicated and emotionally draining. However, this case was exceptional. It was an appeal relating contact proceedings in respect of a ten year old girl (A). The court had made various orders for contact over a number of years, with a final order being made in 2009 that the she was to stay with her father for two weeks each February and four weeks each summer.
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27 September 2012 by Adam Wagner
UPDATED | I have been sent the Statement of Facts and Grounds for Judicial Review on behalf of Abu Hamza, dated 25 September 2012. These are open court documents and have been obtained directly from the Royal Courts of Justice.
Abu Hamza’s extradition has been put on hold whilst this Judicial Review claim is being dealt with this coming Tuesday [update – I understand that another issue is being dealt with on Tuesday, and that the passport point is not the one which has held up the extradition]. I think this may be a ‘permission hearing’ (the first hurdle a JR claim has to surmount) although it may well be a ‘rolled up’ hearing, which means the permission and substantive aspects will be dealt with all at once. A few points to note (nb. this is my quick summary, and is only of course of one side of the case – Abu Hamza’s):
This particular claim is very limited. He applied for and was granted a passport on 11 November 2011 and although this was sent on 20 November 2011 to Belmarsh Prison, where he was located, the passport has not yet been given to him. He has also requested photocopies, to no avail.
He claims that the failure to provide him with his passport or copies of it is contrary to Home Office Guidance Note 20, as well as potentially Article 8 of the European Convention on Human Rights (the right to private and family life) and the EU Citizen’s Directive 2004/38/EC. For what it’s worth, this is fundamentally a legality challenge under ordinary public law principles – the human rights aspect of it is likely to be in the background. So although it would technically be correct to say he is challenging this decision on human rights grounds, that aspect is only likely to play a small part in the claim.
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27 September 2012 by Adam Wagner
The British Academy have today published a very interesting new report by Colm O’Cinneide considering the workings of the UK human rights law, the relationship between the ECHR, UK courts and the Parliament and the potential effect of a bill of rights.
The report (full report / executive summary) had a prestigious steering committee, including Professor Vernon Bognodor, who knows a bit about the British constitution, and Professor Conor Gearty. The conclusions represent – at least in my experience – the mainstream view amongst legal academics, lawyers and indeed judges on the human rights system. In summary, and with apologies if this is an over-simplification of the report’s detailed findings:
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26 September 2012 by Maria Roche
Attitudes changing, slowly
DORDEVIC v. CROATIA – 41526/10 – HEJUD [2012] ECHR 1640 – read judgment
The European Court of Human Rights has declared in Đorđević v Croatia that the failure of the Croatian State to prevent the persistent harassment of a severely disabled young man was a breach of his Article 3 ECHR right not to be subjected to torture, inhuman or degrading treatment or punishment.
It also amounted to a breach of his mother’s Article 8 ECHR right to respect for her family and private life. The applicants had no effective remedy in the domestic courts in breach of Article 13 ECHR.
This is an important judgment on the protection from harassment that the State must ensure for disabled people and their families.
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25 September 2012 by David Hart KC
Earlier today, 25 September 2012, (judgment here, in French) the Cour de Cassation in Paris ruled on the long-running question of whether Total is criminally and civily liable for the loss of the Erika on 12 December 1999 and the consequent spillage of some 20,000 tonnes of heavy fuel oil, affecting some 400 km of the French coastline.
The case has see-sawed so far. The Criminal Court of First Instance, and the Court of Appeal in Paris had said that Total and others were responsible, though the Court of Appeal did not make this finding in respect of the civil claims. Next, the prosecutor, Advocate-General Boccon-Gibod, expressed his view to the Cour de Cassstion that Total was not liable at all. But his view was not shared by 80 parties who appeared before the court, including the affected communes Now, the court has finally ruled in favour of those polluted, both under the criminal and civil laws, as against Total and other responsible parties – all these issues have been decided in the same decision, in a way which may seem a bit odd to UK lawyers who generally put criminal and civil law in different boxes.
The judgment is pretty weighty, some 330 pages of legal French – as is standard, this is all written as one huge sentence – broken up by multitudinous semi-colons. it is not easy to digest, to say the least, but I shall try and give the bare bones of the decision.
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R (on the application of the Metropolitan Police Service) v the Chairman of the Inquiry into the Death of Azelle Rodney and Interested Parties [2012] EWHA 2783 (Admin) – read judgment
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