Category: In the news
31 October 2012 by Rosalind English
Secretary of State for Foreign and Commonwealth Affairs and another (Appellants) v Yunus Rahmatullah (Respondent). (Read judgment)
The Supreme Court has ruled that the law of habeas corpus should not be used to order the US to return a Pakistani national held in US custody to the UK.
Yunus Rahmatullah was captured by British forces in Iraq in 2004 and later taken to Bagram airbase in Afghanistan having been the subject of “extraordinary rendition”. As a suspected insurgent he remains in US custody, without charge.
The charity Reprieve challenged the Court of Appeal decision to cancel a release order in favour of Mr Rahmatullah after they received notification from the US authorities that they intended to return him to Pakistan and would be dealing with the Pakistani authorities directly. The UK Government also appealed, arguing that the Court of Appeal erred in finding that a writ of habeas corpus can be issued where a respondent has sufficiently arguable control of an applicant, and failed to have proper regard to the implications for foreign relations in requiring a request for release to be made to a foreign sovereign state.
The following summary of the facts and reasoning is based on the Supreme Court’s press summary. See my previous post on the Court of Appeal’s ruling on habeas corpus in the case of Rahmatullah.
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30 October 2012 by Rosalind English
R (on the application of J) v the Chief Constable of Devon and Cornwall [2012] EWHC 2996, 26 October 2012 – read judgment
Close on the heels of last week’s decision regarding disclosure of information from the Child Sex Offenders Register comes this ruling on the police decision to disclose certain information from a nurse’s enhanced criminal records certificates without affording her an opportunity to make representations before the information was released.
The Legal Framework
Section 113B of the Police Act 1997 provides for enhanced criminal record checks to be carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults. The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicant’s criminal or other behaviour which have not been tested at trial or led to a conviction.If the information satisfies certain threshold tests in the relevant statute, it must be given to the Secretary of State who must include it in the relevant individual’s Enhanced Criminal Record Certificate or “ECRC.”
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29 October 2012 by Rosalind English
X (South Yorkshire) v Secretary of State for the Home Department and Chief Constable of Yorkshire [2012] EWHC 2954 (Admin)- read judgment
The High Court has made an important ruling about the disclosure of information under the Child Sex Offender Disclosure Scheme (CSOD).
This non statutory arrangement has been in place since March 2010. It allows members of the public to seek details from the police of a person who has some form of contact with children with a view to ascertaining whether that person has had convictions for sexual offences against children or whether there is other “relevant information” about them which ought to be made available. This request could come from any third party such as a grandparent, neighbour or friend. The aim of the scheme is described thus:
This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer. In the event that the subject has convictions for sexual offences against children, poses a risk of causing harm to the child concerned and disclosure is necessary to protect the child, there is a presumption that this information will be disclosed.
Anya Proops’ post on the Panopticon blog sets out a clear summary and analysis of the ruling by the President of the Queen’s Bench Division and Hickinbottom J. Here are a few more details about the judgment.
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28 October 2012 by Guest Contributor
In its foreign policy, the UK Government is a keen advocate of national human rights institutions (NHRI’s). The Brighton Declaration, drafted by the UK, encourages Council of Europe States to consider ‘the establishment, if they have not already done so, of an independent National Human Rights Institution’. In June 2012 the UK signed a UN General Assembly resolution ‘Reaffirming the important role that such national institutions play and will continue to play.’
Yet at the same time, Navi Pillay, UN High Commissioner for Human Rights wrote to Theresa May MP raising concerns about proposals to reform Britain’s own NHRI, the Equality and Human Rights Commission (EHRC):
While fully respecting your Government’s priority to improve EHRC’s financial and operative performance as a public body, I would like to call on your Government to review some of the proposals with a view to preserving EHRC’s independence and to ensuring its continued compliance with the (Paris) Principles.
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26 October 2012 by Guest Contributor
Public Inquiries and inquests have dominated the headlines recently, with members of One Crown Office Row appearing in many of them, including:
- The Leveson Inquiry into the ethics of the press
- The Mid Staffordshire NHS Foundation Trust Public Inquiry
- The Baha Mousa Public Inquiry
- The Al-Sweady Public Inquiry
- The 7/7 Inquests
- The Victoria Climbié Inquiry.
On 8 November 2012 One Crown Office Row will be hosting a mock trial and panel discussion on this important subject. The event will draw on the latest case law concerning the scope of Article 2 investigations, the grounds for a public inquiry, and the test for re-opening inquests.
The speakers will be Neil Garnham QC, Jeremy Hyam, Richard Mumford, Caroline Cross, Adam Wagner and Matthew Hill .
The full flyer for the event is available here (PDF).
There are still a few places remaining to attend this event. If you are currently practising within the field of public and administrative law and/or inquests and would like to attend please contact Charlotte Barrow, Marketing Executive at One Crown Office Row (events@1cor.com) stating your name and organisation. Places will be allocated on a first-come-first-served basis.
CPD has been applied for and debate, drinks and snacks will of course follow.
25 October 2012 by David Hart KC
R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion
In my post of yesterday, about this opinion of the Adocate-General, I set out the context in which the Supreme Court was asking for guidance from the CJEU on how to provide for costs in environmental cases, given that the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”
As I put it, the first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Roman Abramovich. Any costs liability may deter someone on state benefits.
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25 October 2012 by Adam Wagner
No means no
The Government has until 22 November to put forth legislative proposals in order to comply with the court’s rulings on prisoner votes.
I will not retrace the bizarre flip-flop which took place yesterday afternoon as the Attorney General appeared to say one thing about implementing the judgment (it’s complicated) and then the Prime Minister another (no way). Joshua Rozenberg has it right when he calls the situation “profoundly depressing”. For the full background, see my post on Scoppola No. 3, the last judgment on the issue.
I do have three thoughts on the current situation. First, it has become popular to say that there may be a way of solving the crisis which doesn’t require the UK to give any more prisoners the vote, which would be to tell the European Court of Human Rights that we already let remand prisoners and others who haven’t paid fines vote. The argument has been made variously by the BBC’s Nick Robinson, The Independent’s John Rentoul and even last night by a member of the Justice Select Committee, Nick de Bois MP – he told BBC Radio 4 (from 26:25) that “you could almost argue that there isn’t a blanket ban… for example someone on prison on remand or.. for not paying a fine doesn’t lose their right to vote” (I am interviewed immediately afterwards).
In short, unless I am missing something, this argument seems bound to fail.
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24 October 2012 by David Hart KC
R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated
In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention.
My further thoughts on this case are found here.
The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.
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24 October 2012 by Guest Contributor
Debate about whether the Human Rights Act (HRA) might be replaced by a new UK Bill of Rights often dwells on the potential loss, or at least weakening, of the legal route to accountability and redress for victims of human rights violations. An event next month in Liverpool reminds us how much more might be lost if the HRA were to be scrapped or watered down. In particular, it highlights the significance of section 6 of the Act, which requires all public authorities to act in a way which is compatible with European Convention rights unless primary legislation requires them to act otherwise.
The event in question is the launch of the latest results of the Human Rights in Healthcare programme. The programme was set up in 2006 by the Department of Health and the British Institute of Human Rights; in 2011-12, it was led by Lindsey Dyer of Mersey Care NHS Trust. Under its leadership, pilot NHS Trusts have used human rights to design and run services in areas as diverse as dementia care, acute hospital settings, district nursing and care homes.
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23 October 2012 by Matthew Flinn
Litigation relating to information rights can sometimes seem very dry and obscure, entailing lengthy analysis of the merits of public authorities disclosing or withholding information which is highly specialised or obtuse, and of little real interest to the general population. But this case – the case of the “Black Spider Letters” – really is a fascinating one, involving an examination not just of the legislative provisions relating to the disclosure of information, but also a consideration of the existence and extent of constitutional conventions pertaining to the role of the monarchy in government. At the same time, it has the potential to generate such controversy as to make for perfect tabloid fodder. It has been the subject of international news coverage. And it’s not over yet.
It all stems from a request for information made under the Freedom of Information Act 2000 (“the Act”) and the Environmental Information Regulations 2004 (“the Regulations”) by a Guardian journalist, Mr Rob Evans. In April 2005 he wrote to seven Government Departments, and asked for a list of correspondence between Prince Charles and the ministers for those Departments between 1 September 2004 and 1 April 2005, as well as copies of each piece of correspondence. Many of the Departments initially relied on exemptions contained in the Act in order to refuse to confirm or deny whether or not they held such information. Ultimately however, all the Departments admitted that such correspondence did exist, but they refused to disclose it.
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23 October 2012 by Rosalind English
Chabauty v France 4 October 2012 – read judgment
I have posted previously on cases involving the ethical objection of landowners to being forced to allow hunting over their property.
These objections have generally found favour with the Strasbourg Court in the balancing of private and public interests under the right to property. Mr Chabauty puts the issue into another perspective. He also complained that he was unable to have his land removed from the control of an approved municipal hunters’ association. The difference was – and this proved to be critical to the outcome of the case – Mr Chabauty is not himself against hunting on ethical grounds. Since no conscience was underlying his Convention complaint, the Court found it not to be disproportionate for the French state to require small landowners to pool their hunting grounds. As such, there had been no violation of Article 1 Protocol 1 or Article 14.
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22 October 2012 by Rosalind English
The recognition of a right to life, liberty, and the autonomy of the individual and the mandate of government to secure these rights is being threatened by an increasingly illiberal notion of “human dignity”, says evolutionary psychologist Stephen Pinker.
His 2008 broadside in The New Republic took to task a now defunct body, the US President’s Council on Bioethics whose publication Human Dignity and Bioethics is shot through with disquiet about advances in biotechnology. It could not be more different from the enlightened report issued earlier this year by the Council’s successor calling on the current administration not to stifle biomedical research with over-restrictive regulation (see my post). Does the contrast between the present advisory body’s recommendations and the report put before the previous President signal a fundamental change in the way we approach progress in this field? Probably not. Only two weeks ago, Sir John Gurdon (the Nobel physiologist whom schoolteachers had written off as a scientist) bemoaned the regulatory restrictions that make important therapies too costly to pursue. Pinker’s dismay at the “scientific illiteracy” of society rings true today:
Ever since the cloning of Dolly the sheep a decade ago, the panic sown by conservative bioethicists, amplified by a sensationalist press, has turned the public discussion of bioethics into a miasma of scientific illiteracy. Brave New World, a work of fiction, is treated as inerrant prophesy. Cloning is confused with resurrecting the dead or mass-producing babies. Longevity becomes “immortality,” improvement becomes “perfection,” the screening for disease genes becomes “designer babies” or even “reshaping the species.” The reality is that biomedical research is a Sisyphean struggle to eke small increments in health from a staggeringly complex, entropy-beset human body. It is not, and probably never will be, a runaway train.
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20 October 2012 by Alasdair Henderson
Black & Morgan v. Wilkinson (unreported, 18 October 2012, Slough County Court) – Read judgment
The Christian owner of a B&B in Berkshire was found to have discriminated against a gay couple by refusing to allow them stay in a double-bedded room because of her belief that all sexual activity outside of marriage is wrong.
Although a county court judgment, this case has been splashed all over the headlines, partly because of BNP leader Nick Griffin’s comments on Twitter (about which see more below) but also because it is so factually similar to the high-profile case of Bull v. Hall and Preddy which is currently before the Supreme Court (see our analysis of the Court of Appeal judgment here). This judgment has also come along at a time when the European Court of Human Rights’ decision is awaited in the four conjoined cases of Ladele, Eweida, Macfarlane and Chaplin, all of which involve issues of religious freedom and two of which involve the same potential conflict between the right not to be discriminated against on grounds of sexual orientation and the right to religious freedom (see our posts here, here and here). Moreover, Recorder Moulder’s comprehensive and careful judgment has helpfully been made available online (see link above), so it can be considered in detail.
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18 October 2012 by Guest Contributor
There has been much in the press recently about the UK Government being minded to opt out, and/or in, of EU criminal justice measures. The implications of this decision will be significant to the UK’s ability to investigate and prosecute crime. So what does it all mean?
Opting out of what?
The UK managed to negotiate the quite remarkable article 10 to protocol 36 of the Lisbon Treaty which allows for the UK to exercise a power that no other member state of the Union holds. The Lisbon Treaty finally incorporates EU criminal justice measures (which are referred to as the area of police and judicial cooperation in criminal matters) into the main body of treaty law.
In order to do so, it allowed a transitional period of five years (which expires in December 2014), at the end of which, all measures adopted under the earlier treaty provisions (in what was known as the third pillar) are ‘Lisbonised.’ What this means is they become directives rather than framework decisions (and various other equivalents). The difference between the two is that directives are enforceable before the Court of Justice of the European Union (CJEU) and decisions are not.
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18 October 2012 by Adam Wagner
Last month I posted on the troubling case of Rachel Corrie, a 23-year-old protester killed by an Israeli military bulldozer in 2003. In August, an Israeli court ruled that the Israeli Defence Ministry bore no responsibility in civil law for her death.
I complained that the reporting of the ruling had been poor, despite a reasonably good summary in English produced by the court. One of the main problems undoubtedly was the lack of an English translation of the 73-page Hebrew ruling. Until now, that is. Through the magic of the internet – and a huge amount of work – Irène Solomon, a legal advisor at Ofgem and reader of this blog, has translated the judgment from Hebrew into English. She has taken on this mammoth task for free in her personal capacity and has given me permission to publish her work online as a UKHRB exclusive.
You can download the translation here (PDF) and it is also reproduced after the break below. I should emphasise that this is not an official translation, but it does appear to me to be a very good effort indeed.
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Secretary of State for Foreign and Commonwealth Affairs and another (Appellants) v Yunus Rahmatullah (Respondent). (Read judgment)
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