Category: In the news
21 June 2012 by Rosalind English
HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent); PH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent) [2012] UKSC 25 – read judgment
These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three was whether extradition would be incompatible with the rights of the appellants’ children to respect for private and family life under Article 8 of the ECHR.
Put very briefly, HH and PH had been arrested in Italy on suspicion of drug trafficking. They left Italy in breach of their bail conditions and went to the United Kingdom. They were convicted in their absence. European arrest warrants were later issued. They challenged their extradition on the basis of the effect that it would have on their three children, the youngest of whom was 3 years old.
FK was accused of offences of dishonesty alleged to have occurred in 2000 and 2001. She had left Poland for the UK in 2002 and European arrest warrants had been issued in 2006 and 2007. F had five children, the youngest of whom were aged eight and three. She has not been tried or convicted of the alleged offences yet.
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21 June 2012 by Rosalind English
Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor v Attorney General of Canada (2012 BCSC 886) 15 June 2012 – read judgment
Interest in the “locked-in syndrome” cases currently before the High Court runs high. We posted here on the permission granted to locked-in sufferer Tony Nicklinson to seek an advance order from the court that would allow doctors to assist him to die under the common law defence of necessity.
He is also arguing that the current law criminalising assisted suicide is incompatible with his Article 8 rights of autonomy and dignity. The other case before the three judge court involves another stroke victim who is unable to move, is able to communicate only by moving his eyes, requires constant care and is entirely dependent on others for every aspect of his life. (Philip Havers QC of 1 Crown Office Row is acting for him)
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20 June 2012 by David Hart KC
In my post of today about checks on EU legality, I made the point that no institution formally monitors the EU apart from EU institutions. Moves are afoot to change that, though not in a form that diehard Eurosceptics are likely to relish. Article 6 of the Lisbon Treaty of European Union says that the EU shall accede to the ECHR. As and when that occurs, the European Court of Human Rights will assume a formal role in adjudicating upon the legality of EU measures. The details of accession could not be settled by the purely EU Treaty of Lisbon, hence the ongoing negotiations.
However, things have been happening very recently. Yesterday, 19 June, a joint informal body of members of the European Parliament and Council of Europe parliamentarians welcomed the prospect of talks resuming on EU accession to the European Convention on Human Rights, and, last week, the Committee of Ministers of the Council of Europe decided to pursue negotiations with the European Union with a view to finalising the legal instruments setting out the way in which the EU would accede to the ECHR.
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20 June 2012 by Guest Contributor
The real “democratic deficit” in the courts is about limited public access not “unelected judges“, Adam Wagner argued on the UK Human Rights Blog at the weekend, challenging a recent political and media narrative.
In his view, the internet age necessitates “a completely new understanding of the old adage ‘Not only must Justice be done; it must also be seen to be done‘”.
Wagner is one of 14 authors who contributed to a new working publication entitled ‘Justice Wide Open’, produced by the Centre for Law, Justice and Journalism (CLJJ), City University London, following an event on February 29 2012. The individual chapters can be accessed electronically.
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18 June 2012 by Wessen Jazrawi
Welcome back to the UK Human Rights Roundup, your weekly smörgåsbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The news
This week has seen the Home Secretary Theresa May take on Article 8 – and the courts – with the announcement that she was seeking the backing of Parliament on the limits of Article 8, the right to private and family life, and that she would expect judges to “follow and take into account” the views of Parliament. In other news, the Church of England submitted its opposition to gay marriage in response to the Government consultation, which has now ended, a judge in the Court of Protection ordered that an anorexic woman should be force-fed, and the Supreme Court dismissed an application by Julian Assange to reopen his appeal against extradition.
by Wessen Jazrawi
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17 June 2012 by Adam Wagner
Updated | Today the Sunday Telegraph (ST) has named and shamed the “three judges who allowed the most appeals” in cases involving the deportation of foreign criminals (Judges who allow foreign criminals to stay in Britain).
Apparently:
The investigation looked at all 184 appeals against deportation by foreign criminals in the 12 months up to June 1 which were brought under Article 8, in whole or in part, in the Upper Tribunal of the Immigration and Asylum Chamber.
David Barrett (who has form on this blog for poor reporting) and Josie Ensor, who wrote the piece, do not reveal the source of the investigation. Why ever not?
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17 June 2012 by Adam Wagner
The current Government often complains about a “democratic deficit” in the courts. It seems that “unelected judges” are making important decisions on social policy without any kind of democratic mandate, particularly in controversial human rights cases.
I agree that there is a democratic deficit in the courts. But it isn’t about elections. It is about access.
The Government seeks to solve the problem by involving Parliament more in the judicial process, the latest and most striking example being the Home Office’s attempt to codify Article 8 ECHR, the right to private and family life, in immigration cases. The Home Office wants fundamentally to alter the role of the courts, hoping that it will “shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules” (see para 39). The argument is that since judges are unaccountable, those who are accountable must be more central in the decisions they make, particularly in sensitive areas such as immigration.
This is attempt to take power away from judges. But why?
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15 June 2012 by Guest Contributor
At the heart of the Church of England’s (CoE) response to the Government’s Equal marriage: a consultation is an argument about the existence and importance of canon law on marriage. The CoE pins its objection to same-sex marriage on the assertion that its ‘teaching on marriage is embodied in law’ and that the Government has failed to consider the significance of canon law in its proposal to change the statutory organization of civil marriage.
What exactly is canon law and how does it relate to marriage?
Canon law (or Canons Ecclesiastical), as set out in the Canons of the Church of England, is primary legislation that determines inter alia the doctrine and form of worship of the CoE. Since the First Act of Supremacy 1534, canon law has been formally subservient to ‘state law’ – it has become progressively subsumed by both common and statutory law – but has often retained a strong influence, particularly in respect of marriage.
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12 June 2012 by Rosalind English
Preliminary reference in the case of Łukasz Marcin Bonda – Case C-489/10 – read judgment
Fraud is wrong, right? In most countries with more or less sophisticated criminal codes, it is an offence to obtain money by false representations, just as it is to thump an old lady over her head and grab her handbag.
In law, these two somewhat disparate actions add up to the same thing: theft, punishable by fines or imprisonment. It is not sufficient, in the latter case to return the poor old party’s handbag, even with the wallet intact. There has to be something more to discourage privateering of this sort. Punitive measures usually follow restitution in such cases. So why is Luxembourg telling us that theft in the form of subsidy fraud is an administrative matter, not a criminal one? And if it isn’t criminal, why don’t we all do it (those of us with sufficient agricultural land to qualify, that is)
This was a reference from the national court to the Court of European Union (CJEU) for a preliminary reference in relation to criminal proceedings against Mr Bonda for fraud in his declaration of the agricultural area eligible for the single area payment.
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12 June 2012 by Adam Wagner
The Government’s Consultation on Equal Civil Marriage ends on Thursday 14 June: you can fill in the brief online survey here if you haven’t already. In the meantime, the Church of England is on the front pages this morning with its own response, which amongst other things, warns that “it must be very doubtful whether limiting same-sex couples to non-religious forms and ceremonies could withstand a challenge under the European Convention on Human Rights”
The Church’s argument is set out on pages 10 to 13 of its response. It is interesting, and there might be something in it. However, it is clear from the rest of the document that the Church is, in its introduction, inflating the likelihood of a successful court challenge. This has of course made its way into the press coverage, where it is being suggested that a challenge would “probably” succeed. But even the Church’s own response, reading a little further, does not go this far.
Let’s consider the argument. The Church puts a number of propositions. First,
It remains the case that member states of the Council of Europe are not obliged to make legal provision for same-sex marriage.
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5 June 2012 by David Hart KC
R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD & RURAL AFFAIRS, Court of Appeal 30 May 2012, on appeal from Mitting J, 13 December 2011,
A newsflash, really, confirming that ClientEarth’s claim for a declaration and mandatory order against Defra in respect of air pollution was refused by the Court of Appeal, in line with the judgment below. And the lack of a link to the CA’s judgment because it is not available, I imagine, because the judgment was extempore, and it is being transcribed at the moment. Sadly, that does not necessarily mean it gets onto the public access site, Bailli, in due course: the first instance decision still languishes on subscription-only sites. So all I know is that ClientEarth’s appeal did not find favour with Laws and Pitchford LJJ, sitting with Sir John Chadwick, but this, as ClientEarth explains, may not be the end of the line.
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5 June 2012 by Adam Wagner
Updated | In stark contrast to the pageantry surrounding the Royal Jubilee, here is a somewhat sombre update on the Justice and Security Bill, which was published on 28 May 2012 and is currently receiving its second reading in the House of Lords. The Bill aims to introduce Close Material Procedures, that is secret hearings, into civil trials.
Three key documents were published shortly after the Bill, presenting the Government’s case in response to the forceful criticism which the initial proposals generated. First is the Government’s response to the Joint Committee on Human Rights’ scathing report on the proposals. Secondly, the Government’s response to the 90 submissions received in response to the Justice and Security Green Paper consultation. Thirdly, a summary of European Convention on Human Rights issues relating to the Bill, also published by the Government.
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31 May 2012 by Rosalind English
Mohammed Othman v Secretary of State for the Home Department, 28 May 2012 – read judgment
This was a further application for bail to the Special Immigration Appeals Commission (SIAC) after the appellant had failed in his application to the Grand Chamber of the Strasbourg Court earlier this month, but had launched an appeal to be heard by SIAC, against the Home Secretary’s refusal to revoke his deportation order.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.
A full hearing will take place in October. Until then, bail has been refused and Abu Qatada will remain in detention.
Given the evidence before him, Mitting J had to base his judgment on the assumption that the Secretary of State would not have maintained the deportation order unless convinced that she was in possession of material which could support her resistance to the appellant’s appeal and which could satisfy “the cogently expressed reservations of the Strasbourg Court about the fairness of the retrial”which the appellant would face in Jordan.
Two consequences flowed from these developments, according to the judge. One is that SIAC’s final decision in October is likely to put an end to this litigation. The second is that the risk of Qatada absconding has increased, if he assumes, in the light of the expressed determination of the Secretary of State, that he would not avoid deportation to Jordan by litigation in and from the United Kingdom.
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30 May 2012 by Rosalind English
R(on the application of Yunus Bakhsh) v Northumberland Tyne and Wear NHS Foundation Trust [2012] EWHC 1445 (Admin) – read judgment
This fascinating short judgment explores the extent to which a judicial review claim, or a free-standing claim under the Human Rights Act, may be precluded by a statute covering the same issue.
If Parliament has decided on a particular avenue of appeal in a certain context, and settled upon a sum in compensation, do the courts have any room for manoeuvre outside those statutory limits? There is very strong authority to the effect that the courts have no discretion to grant any relief going beyond the remedy which Parliament has seen fit to provide (see Johnson v Unisys Ltd [2003] 1 AC 518). But on arguability grounds at least, this short permission decision by Foskett J suggests that public law must attend to the policy behind the statute. If the redress provided by the legislation does not fully serve the aims of that policy, it may be that public law has to come to the rescue.
Background
In essence the claimant, a former mental nurse who had been sacked because of his trade union activities and not granted reinstatement, was seeking to challenge the decision by his employer, a public NHS trust, not re-engage him after it had been ordered to do so by an Employment Tribunal in 2010. The reason they failed to do so was not put forward but was probably because of his anticipated continued trade union militancy.
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29 May 2012 by David Hart KC
I posted recently on the continuing legal see-saw in France arising from the prosecution of Total and other parties for their responsibility for the loss of the Erika on 12 December 1999. The Erika sank off the Brittany coast, spilling some 20,000 tonnes of heavy fuel oil, polluting some 400 km of the French coastline, and killing this poor guillemot, amongst many.
Last week, on 24 May, this criminal case reached the highest French court, the Cour de Cassation. Some thought that the court was going to rule immediately on whether Total and the others were criminally liable for the oil pollution. Previously, the Criminal Court of First Instance, and the Court of Appeal in Paris had said that Total and others were responsible. But now the prosecutor, Advocate-General Boccon-Gibod, was of the view that Total had no criminal liability. His written opinion appears not to have surfaced on the ‘net, but from the decision of the Court of Appeal (for the brave, and not for those with slow broadband, all 487 pages), you can see the points that Total was making, and which he seems to have accepted.
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HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent); PH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent) [2012] UKSC 25 – read judgment
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