Category: In the news
28 February 2012 by Rosalind English
Moore v British Waterways Board [2012] EWHC 182 (Ch) – read judgment
From time to time, the courts are called upon to explain who holds the power to order people about, and why they have it. In Roger Deakin’s classic celebration of swimming the wild waterways of Britain, his one grouse is against the officiousness and overweening behaviour of the government bodies in charge of this country’s network of streams and rivers. If Deakin had been alive today he would have applauded the dedication of Mr Moore, a scholarly litigant in person whose challenge to the British Waterways Board elicited from Hildyard J this massively detailed and scrupulous analysis of the source of the BWB’s powers.
The appropriately-named Mr Moore’s primary claim was that the BWB simply lacked the power to issue notices of intended removal of his boats moored on the Grand Union Canal. His argument, that BWB’s actions were unlawful and unenforceable, required not only a ” trawl through numerous statutes affecting the GUC since the Act which authorised the construction of the canal, the Grand Junction Canal Act 1793″ , but a deep consideration of all the ancient pre-existing water rights that may or may not have been extinguished by that and later acts of parliament.
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27 February 2012 by Rosalind English
Social networking sites may now be used to serve claims where there are difficulties in locating one of the parties.
In a commercial case involving claims against a broker for overcharging commission, the claimants were not sure of the broker’s last known address. They served a claim at this address but also sought permission from Teare J to serve via the broker’s Facebook address, after providing evidence of the account being updated. The judge extended the time for the defendant to respond to the claim because of uncertainty as to how frequently he checks his Facebook account.
The Telegraph reports that Facebook “is routinely used to serve claims in Australia and New Zealand, and has been used a handful of times in Britain.”
In 2009 Lewison J allowed an injunction to be served via Twitter in a case where the defendant was only known by his Twitter-handle and could not easily be identified another way. But this is the first time that a claim (as distinct from an order) has been permitted at such a high level to be served in this way.
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26 February 2012 by Sam Murrant
Welcome back to the human rights roundup, your weekly buffet 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.
In the news
Legal aid reforms
The proposed reforms to legal aid are divisive: they are either necessary to combat a society of blame and litigation, or a disastrous reduction of access to justice for those who can’t afford legal fees. The subject is given in-depth treatment on BBC Law in Action with Joshua Rozenberg. The podcast, discusses what effects the reform bill will have on lawyers, claimants and defendants. This post on The Justice Gap, by Alice Forbes, explores some of the more specific effects the reforms will have on the type of advice (and more importantly, legal remedies) available to claimants.
UKHRB news
In exciting news for this blog, UKHRB editor Adam Wagner has been appointed to the Attorney-General’s C panel of Counsel. See here for more detail on what this involves.
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23 February 2012 by Maria Roche
News of the deaths of Sunday Times reporter Marie Colvin and French photographer Remi Ochlik and the serious injuries of photographer Paul Conroy and Edith Bouvier, a freelance journalist reporting for Le Figaro, from a mortar shell that hit the building in Homs, Syria that they were using as makeshift media centre has saddened and shocked reporters and readers. So does a sobering list of more than fifteen of their professional colleagues who have also died reporting the Arab Spring. Worse still are reports that the journalists may have been deliberately targeted by the Syrian government forces. It is a reminder that journalists are offered too little protection by international law.
It is clear from the many tributes to her that Ms Colvin was an extraordinary person: a woman of verve, replete with humanity, she was fearless in the face of carefully assessed and weighed risk. In 2001 after losing an eye in a grenade attack by a Sri Lankan government soldier whilst reporting on the Tamil Tigers, she wrote:
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22 February 2012 by Karwan Eskerie
Hurley and Moore v Secretary of State for Business, Innovation and Skills [2012] EWHC 201- read judgment
This judgment, the latest in an expanding list of decisions on challenges to the Coalition government’s spending cuts, is an interesting example of judicial restraint and deference to the government on issues of macro-policy, at a time when the extent of judicial intervention into political decision-making is the subject of much debate in the legal profession and academia, thanks to Lord Sumption’s FA Mann Lecture on the subject late last year (see our post) and its recent rebuttal by Sir Stephen Sedley (discussed here).
The High Court (Elias LJ and King J) dismissed an application by two sixth form students for a quashing order against the regulations implementing the Government’s decision to raise the statutory cap on University tuition fees to £6,000 per year generally and £9,000 per year for qualifying courses. It did, however, grant a declaration that in reaching that decision, the Secretary of State for Business, Innovation and Skills had failed fully to comply with his public sector equality duties.
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22 February 2012 by Rosalind English
R v N; R v LE [2012] EWCA Crim 189 – read judgment
This was the first occasion when the Court of Appeal has considered the problem of child trafficking for labour exploitation. It has not previously been subject to any close analysis following the coming into force in 2005 of the European Convention on Action against Trafficking in Human Beings . In this particular case the Court concluded that the Crown Prosecution Service was entitled to prosecute foreign national youths with drug offences, despite the UK Border Agency accepting that they may have been smuggled or trafficked into the UK. But it sets out clear principles and authorities for the application of the protective mechanism of the Trafficking Convention for future prosecutions where there is evidence of human trafficking.
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22 February 2012 by Adam Wagner
The Trade Union Congress have sent me the full letter (download here) which Education Secretary Michael Gove sent to its leader Brendan Barber in relation to a complaint about seemingly homophobic booklets distributed to Roman Catholic schools in Lancashire. The letter which Mr Barber sent to Mr Gove is here.
I complained in this post that the excerpt of the response published by The Observer appeared to misunderstand the provisions of the Equality Act which apply to schools. I also said that the quote in the article could have been out of context. In short, it was. Here is the full paragraph, which presents a much fairer representation of the law:
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19 February 2012 by Adam Wagner
Updated, 20 Feb 2012 | Following the news recently it would seem that the UK is convulsed by a raging battle between religious observers and, in the words of Baroness Warsi, militant secularists. On the same day, the High Court ruled that Christian prayers held before a council meeting were unlawful, and the Court of Appeal upheld the decision of the High Court that two Christian hotel owners had discriminated against gay clients by not offering them a double room.
Today’s spat, according to The Guardian, involves a letter sent to the Education Secretary Michael Gove by the Trade Union Congress leader “expressing alarm that a booklet containing “homophobic material” had been distributed by a US preacher after talks to pupils at Roman Catholic schools across the Lancashire region in 2010.” From the quotes provided in The Observer, the book sounds pretty offensive:
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17 February 2012 by Richard Mumford
Sir Stephen Sedley, until last year of the Court of Appeal, has launched a stinging rebuttal to the speech of Lord Sumption (Jonathan Sumption QC as was) in which the soon-to-be Supreme Court Justice rebuked the judiciary for failing to stay out of the political arena.
This blog covered Lord Sumption’s speech here. Sir Stephen’s response in the London Review of Books takes issue with Lord Sumption’s assertion of excessive judicial interference in political matters, with the words:
there is a repeated insinuation that judicial interference in the political process regularly occurs: ‘The judicial resolution of inherently political issues is difficult to defend.’ It is not only difficult to defend; it does not happen.
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16 February 2012 by Guest Contributor
R (T) v (1) Chief Constable of Greater Manchester Police, (2) Secretary of State for the Home Department (Secretary of State for Justice an interested party) [2012] EWHC 147 (Admin) – read judgment.
In July 2002, the Claimant was 11 years old. He received a warning (a private procedure, under the Crime and Disorder Act 1998) from Greater Manchester Police for the theft of two bicycles. His subsequent conduct was apparently exemplary. By section 113B of the Police Act 1997, Enhanced Criminal Record Certificates (ECRCs) must contain all convictions, cautions and warnings. The Claimant, a 20-year old student applying for a sports studies course, obtained his ECRC in December 2010. It contained details of the bike theft warning.
He argued that the inflexible requirement under the 1997 Act for all convictions, cautions and warnings to be disclosed in ECRCs was incompatible with Article 8 of the ECHR.
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15 February 2012 by Rosalind English
There are those who think that the Strasbourg Court sometimes talks through its fundament. Others are of the view that the sun shines out of it.
This may of course have something to do with the Court’s jurisdictional basis, whose proper name is the Convention for the Protection of Human Rights and Fundamental Freedoms. Be that as it may, over the years the Court has become increasingly inclined to describe so many rules, principles, aspects of people’s relationships with each other and sundry other understandings and agreements of civil society as “fundamental” that the word has ceased to resonate with its original meaning as basic, essential, primary, central, or even foundational.
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15 February 2012 by David Hart KC
Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012 read judgment
This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.
As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.
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14 February 2012 by Adam Wagner
65 responses to the Justice and Security Green Paper consultation, which proposes introducing “Closed Material Procedures” – secret trials – into civil courts, have been published on the official consultation website. According to the site there are potentially 25 more to come.
Whilst it is a good thing that the responses have been published at all, the low number of responses is a little depressing. In a country of over 60 million people, and given the proposals could amount to a significant erosion of open justice, 90 responses seems a little thin. Granted, many of the responses are from organisations or groups of individuals, such as the 57 Special Advocates who have called the proposals a “departure from the foundational principle of natural justice“. But the low number surely represents the fact that as yet the proposals have failed to capture the public imagination.
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13 February 2012 by Rosalind English
We have posted previously on controversial plans to build a US-style mega pig-farm in South Derbyshire. It will be remembered from that post that Midland Pig Producers (MPP) applied for permission to build the farm – which could house up to 25,000 animals – on a greenfield site west of the historic village of Foston.
The Soil Association formally objected to the plans because of the ‘increased disease risk and poor welfare conditions” of intensive units. Despite being made within the privileged context of planning proceedings, the Soil Assocation received a threatening letter from solicitors Carter-Ruck – acting for MPP – saying its objection was defamatory.
The Guardian now reports that the campaigning local groups, Foston Community Forum and Pig Business, the film makers who exposed the abuses and environmental costs of intensive pig farming, have joined forces with the Soil Association and Friends of the Earth to bolster their original argument with claims under the Human Rights Act.
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12 February 2012 by Sam Murrant
Welcome back to the human rights roundup, your recommended weekly intake 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.
In the news
Abu Qatada released on bail
Abu Qatada was released on “very restrictive” bail conditions this Monday in a decision by the Special Immigration Appeals Commission on the basis of both British legal precedent and Strasbourg human rights case-law. This also follows from the recent ruling by the European Court of Human Rights that he should not be returned to his native Jordan, where torture-derived evidence may be used against him in trial.
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Moore v British Waterways Board [2012] EWHC 182 (Ch) – read judgment
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