Category: In the news
15 August 2012 by Adam Wagner
The legal blogosphere has been aflame this week with the news, first published on a magistrate’s blog, that the Senior Presiding Judge has sent new guidance to judges banning them from blogging in their judicial capacity. The SPJ has also threatened disciplinary action unless they remove existing content with breaches the new rules.
The key section of the purported guidance is this:
Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.
The guidance applies to those who blog anonymously because “it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered“.
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15 August 2012 by David Hart KC
The Geneva-based Aarhus Compliance Committee is considering a wide-ranging pair of challenges to the planning system claiming that it does not comply with the Aarhus Convention on Environmental Matters. The Committee (ACC) heard oral submissions on 27 June 2012, and on 12 August received what should be the last of the written submissions of the parties. A decision may emerge before the end of the year, but there is so much interesting material in the papers before the Committee (for which see this and this link) which is worth having a look at.
The challenges raise a whole host of issues – the key ones are:
(i) not all planning committees allow objectors to address them orally before making a planning decision – when they do, they get a bare 3 minutes to say their piece;
(ii) an objector cannot appeal the grant of planning permission; all he can do is seek judicial review if the planning authority err in law, with the potential costs consequences which that involves; compare the developer who has a full appeal on fact and law;
(iii) an objector cannot enforce planning conditions attached to a grant; all he can do is challenge the local authority if it refuses to enforce, again on a point of law;
(iv) the UK does not comply with Article 6 of the Convention in that not all projects likely to have an effect on the environment are properly challengeable;
(v) the UK does not comply with Article 7 of the Convention in respect of public participation in all plans which may relate to the environment.
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14 August 2012 by Lucy Series
Eleven Winterbourne View staff have pleaded guilty to 38 charges of ill-treatment and neglect of a mental health patient under s127 Mental Health Act 1983 (MHA). In this post I want to consider why we need ‘special’ offences like s127 MHA and also s44 Mental Capacity Act 2005 (MCA), rather than prosecuting crimes in care settings using more ‘mainstream’ offences.
The UN Convention on the Rights of Persons with Disabilities (CRPD), with articles emphasising access to justice (Article 13) and equal recognition before the law (Article 12) encourages us to think about how we can ensure disabled people have effective access to the law that protects us all before we develop parallel ‘special’ systems of rights protection (see, for example, Inclusion Europe, European Disability Forum). So my question is: why are we using ‘special’ offences of ill-treatment and neglect to prosecute crimes that occur in care, rather than the ordinary ‘offences against the person’ those outside of care rely upon?
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8 August 2012 by Rosalind English
In his recent book Harvard philosopher Michael Rosen poses the question: what is dignity, exactly, and do we know it when we see it? We are all familiar with the mantra that all humans are endowed with equal dignity, but do we really understand what it means? Since it is a formulation that is increasingly advanced in justifying universal human rights, we should try to get to grips with it, rather than reversing into circularities such as defining it as an intrinsic quality from birth. What makes it intrinsic? And at what point is it acquired? And why do we owe the dead a duty of dignity when they have no rationality and make no choices, autonomous or otherwise?
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4 August 2012 by Rosalind English
A fascinating article by SOAS EU law specialist Dr Gunner Beck lays bare some of the important problems created by British hostility to Germany, which, by contrast to the profound social and economic changes that have taken place in both countries in the seven decades since WWII, appears “timeless and unchanging.”
In a wide ranging analysis of the abiding obsession with Nazi Germany in the British media and elsewhere, as well as the “strange sado-masochism” of Germany itself, Gunner Beck demonstrates how effectively this prejudice creates and fosters confusion about the current crisis in the Eurozone and the reaction of some of its members to German demands for closer scrutiny. He asks us to question why German history
is still largely reduced to the twelve years from 1933 to 1945, and why it still seems impossible in Britain to criticise any aspect of German economic or foreign policy, especially on EU matters, without some kind of Nazi connotation or similar historical insinuation lurking somewhere in the background… Why has nearly a lifetime of peaceful and liberal-democratic development in Germany done so little to put the Third Reich into some kind of historical perspective?
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4 August 2012 by David Hart KC
A Mother v. A Father HHJ Platt, Romford County Court, 11 May 2012, read judgment
I recently dared to enter religious territory in a post about religious no-go zones declared by the courts – they should not pronounce on the intricacies of Sikh succession because it raised doctrinal issues which the courts should not decide. Compare and contrast this family law case.
Judges have to get involved in disputes on divorce, of which the current case is an exquisitely difficult example. Its facts are very simple. C was 10. Her parents and grandparents are Jewish. Her father is a Christian convert, and C wanted to be baptised. Her mother did not want this. She said father had brainwashed C, and it was premature. Mother went to court to stop any baptism proceeding until C was 16. The Court could not simply wash its hands of the case; that would encourage self-help taken by one or other parent, to the lasting resentment of the other.
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27 July 2012 by Isabel McArdle
Paul Chambers v DPP [2012] EWHC 2157 – Read judgment
The famous ‘Twitter joke’ conviction of Paul Chambers has been overturned on appeal, bringing welcome clarity to what is and what is not an offence of this type. On discovering a week before he was due to take a flight that the airport was closed due to adverse weather conditions, he tweeted that “I am blowing the airport sky high!!” unless the situation was resolved by the time of his flight. He was convicted of sending a message of a “menacing character”, but has had the conviction quashed on appeal, on the basis that, as it was a joke, it was not of a menacing character.
“I had decided to resort to terrorism”
Mr Chambers was intending to fly out of Robin Hood Airport on 15 January 2010 to meet a romantic partner he met on Twitter. On 6 January, via Twitter, he became aware that severe weather was causing problems at the airport, and engaged in a conversation on Twitter where he made the following comments:
“…I was thinking that if it does [close due to adverse weather] then I had
decided to resort to terrorism”
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25 July 2012 by Rosalind English
RT (Zimbabwe) and others (Respondents) v Secretary of State for the Home Department [2012] UKSC 38 – read judgment
It is no answer to a refugee claim to say that the individual concerned should avoid persecution by lying and feigning loyalty to a regime which he does not support.
So the Supreme Court has ruled today, considering the relevance to political beliefs of the so-called “HJ(Iran) principle” which was formulated in a case where it was held that it was no answer to an asylum claim by a gay man that he should conceal his sexual identity in order to avoid the persecution that would follow if he did not do so.
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25 July 2012 by Rachel Marcus
Dinah Rose QC
Monday night’s fascinating seminar on Article 9, “Outlawing God”, saw Dinah Rose QC, John Bowers QC, Dr Evan Harris (Liberal Democrat former MP) and Rabbi Michael Laitner (solicitor and Orthodox rabbi) square off over the relationship of the courts to religious belief and believers, refereed (and sometimes stoked) by Joshua Rozenberg in the chair. The seminar, which raised almost £2,000 for legal advice clinics at the Hebrew University, can be listened to here.
There was a clear division in the room: between the lawyers, who felt that the courts in both the UK and Strasbourg afforded less robust protection to Article 9 rights than to the other rights in the Convention; and Dr Harris, who could not accept that a religious belief was any more worthy of protection than any political belief.
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24 July 2012 by David Hart KC
Swift v. Secretary of State for Justice [2012] EWHC 2000 (QB) Eady J, read judgment
This decision involves the intersection of Articles 8 (family) and 14 (discrimination) of the ECHR with the law governing who can recover damages for the death of a relative. This law is the Fatal Accidents Act 1976 (for the text see [10] of the judgment – embarrassingly, the one freely available on the internet is out of date). One does not to think for very long before realising that the FAA is underpinned by an idea that one ought to respect the rights of the family, and to pay the family when one has negligently caused the death of a family member. But like all such laws, there is the problem of where to stop – where does the family stop for these purposes?
Ms Swift had been living with Mr Winters for 6 months when he was killed at work. She was pregnant with their child. Under FAA rules, her child had a claim for financial dependency against his father’s employer – what he expected to derive from his father had his father lived – even though he was not born at the date of his father’s death. Indeed, her son recovered £105,000. But, says the FAA, Ms Swift does not have a claim. s.1(3) requires an unmarried partner to have been living with the deceased for 2 years before his death before they can become a “dependant”, and no amount of re-writing via s.3 of the Human Rights Act (to make the FAA rights-compliant “so far as possible”) can make “2 years” read as “6 months” . Had she qualified as a dependant, she would have had a claim for about £400,000.
So Ms Swift’s claim was against the Secretary of State for a declaration that the FAA was incompatible with her Article 8 and 14 rights.
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22 July 2012 by Rosalind English
Updated | Mouvement Raëlien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012) – read judgment
This case concerned the Swiss authorities’ refusal to allow an association to put up posters featuring extraterrestrials and a flying saucer on the ground that it engaged in activities that were considered immoral.
The association complained it had suffered a violation of its right to freedom of expression. The Grand Chamber did not agree, ruling that the refusal had met a “pressing social need” and that the authorities had not overstepped the broad margin of appreciation given to them in view of the non-political dimension of the poster campaign.
At first blush there is nothing remarkable about this ruling. But it was a narrow majority (nine votes to eight) and a brief reading of the dissenting opinions gives pause for thought: does the slightly loony nature of a message justify its suppression? Lurking behind the authorities’ refusal to allow the association’s advertising campaign is a sense of disapproval vis a vis their anti-Christian message; one of the campaigns the association wished to conduct featured a poster stating “God does not exist”, and on another, below the association’s website, ran the message “Science at last replaces religion”.
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22 July 2012 by David Hart KC
Khaira v. Shergill [2012] EWCA Civ 893 read judgment
We have become used to the courts getting involved, more or less willingly, in religious issues, not least where religious freedoms conflict with legal rules which are said to be inconsistent with the exercise of those freedoms. But as Adam Wagner pointed out, in an earlier round of this litigation concerning two Sikh places of worship (Gurdwaras), the courts have developed rules stopping themselves from deciding certain cases, not least because the courts recognise they don’t know what they are doing once they get themselves immersed in issues of religious doctrine.
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21 July 2012 by Rosalind English
.. has been discovered and we’ve removed the post. As I observed, there was no link to the Mississippi law online, so this was a prank to stir up momentary fervour in the blogosphere.
In fact, religious sensitivities have a much more insidious role to play in lawmaking, as I discuss in my post on a recent Strasbourg Grand Chamber case on free speech.
20 July 2012 by Adam Wagner
Interested in the interaction between religion and law? If so, you will be interested in an event I am helping to organise this coming Monday 23 July at 6:30 for a 7pm start. There are a few tickets remaining – click here for details and booking , which is essential. The event is raising money for free legal advice clinics run by the Hebrew University in Jerusalem. Nb. the event is separate from the blog and 1 Crown Office Row, but hopefully will be of interest to some of our readers…
OUTLAWING GOD? The clash of the courts with religious believers
A “Question Time” style panel discussion of one of today’s most important and controversial issues:
Featuring a superb expert panel:
- Joshua Rozenberg (chair) – Britain’s best known legal commentator;
- Dr Evan Harris – Former MP and author of The Secular Manifesto ;
- Rabbi Michael Laitner – Assistant Rabbi, Finchley United Synagogue (Kinloss), qualified solicitor;
- John Bowers QC – Deputy High Court Judge and leading barrister with expertise in discrimination law;
- Dinah Rose QC – Leading public law and human rights barrister. Acted for the pupil in ‘the JFS case’.
Monday, 23 July 2012, 6:30pm for 7:00pm, followed by a reception with canapés and wine
Tickets: £20 – all details here
@ Norton Rose LLP, 3 More London Riverside, London SE1 2AQ
18 July 2012 by Richard Mumford
An editorial article published in the British Medical Journal on 12 July 2012 (subscription required) has provoked controversy in right-to-life circles. The article, entitled “Sanctity of life law has gone too far” criticises the ruling of Baker J in the “M” case where an application to authorise the removal of artificial nutrition and hydration (ANH) from a patient in a minimally concscious state was refused. This blog reported on the M judgment in September 2011 here, here and here.
The author of the BMJ article, Dr Raanan Gillon, Emeritus Professor of Medical Ethics at Imperial College London (who describes himself as “a hybrid GP and philosopher”) takes Baker J to task for not according significant weight to the informally expressed views of M on life-sustaining treatment, expressed before she came ill. More widely, Dr Gillon questions the implications of the judgment for decisions about the best interests of patients whose state of consciousness is higher than minimal. Most controversial of Dr Gillon’s comments is likely to be his conclusion on the resource implications of the approach to best interests of incapacitated patients, which is put in the following terms:
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