Category: In the news

No Article 10 breach by anti-corruption NGO

3 February 2012 by Guest Contributor

Růžový Panter, OS v. Czech Republic (App No 20240/08) – read judgment (only available in French)

The European Court of Human Rights (Fifth Section) decided yesterday that there was no violation of Article 10 as a result of a defamation judgment against a Czech anti-corruption NGO, “Pink Panther”. The case arose out of a press release concerning a widely publicised case concerning tax evasion in relation to light heating oils (called “LTO”). The press release asked a number of questions in relation to the case. the

Background

The press release published by the applicant was addressed to IL, the then Vice-President of the Chamber of Deputies, (later Interior Minister) and invited him to clarify his relationship with certain persons, including TP. The relevant part read as follows [6]:

About five years ago IL took part in an expedition to Kilimanjaro where he met, according to him by coincidence, VK who sold light heating oils and who had just been sentenced for preparing a murder. 
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Aarhus and environmental judicial review: cracking legal costs per Jackson LJ

2 February 2012 by David Hart KC

In October 2011, I posted on an important consultation, Cost Protection for Litigants in Environmental Judicial Review Claims, in which  the Ministry of Justice wheeled out its proposals to get it out of the various scrapes caused by the expense of environmental challenges.  The Aarhus Convention requires that environmental challenges not be “prohibitively expensive”, and both the European Commission and the Aarhus Compliance Committee don’t think that the English system complies – it costs way too much.

In a nutshell, MoJ were suggesting that there should be a starting point in the form of costs orders designed to protect unsuccessful claimants against excessive costs incurred by successful defendants – unsurprisingly called Protective Costs Orders. If a Claimant got permission to challenge an environmental decision, but then lost on a full judicial review hearing, he or she should have to pay no more than £5,000. In return, he should not be able to recover any more than £30,000 if he won. MoJ’s consultation period has now closed, and a very significant response has been received from Lord Justice Jackson, who recently carried out a set of mammoth reviews of litigation costs in all areas of the law.

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Coogan and Phillips v NGN – give a thought to the under-privileged – Kirsten Sjovoll

1 February 2012 by Guest Contributor

Coogan and Philips v News Group Newspapers [2012] EWCA Civ 48 –read judgment

The Court of Appeal today dismissed Mr Glenn Mulcaire’s appeal against an order that he provide information to claimants in the phone hacking litigation. The Court (Lord Judge, Lord Neuberger and Maurice Kay LJ) unanimously upheld the rulings of Mann J and Vos J that, as a result of the operation of section 72 of the Senior Courts Act 1981, Mr Mulcaire was not entitled to rely on his privilege against self-incrimination (“PSI”).

Background

Ms Philips, a former assistant to the publicist Max Clifford and Mr. Coogan each brought proceedings against News Group Newspapers Limited (“NGN”) and Mr Mulcaire for damages for breach of confidence and misuse of private arising out of “phone hacking”. Ms Phillips sought an order that Mr Mulcaire swear an affidavit giving information about the individuals who had instructed him, the interception he was instructed to carry out and other matters. He refused, invoking PSI.
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Julian Assange: from the UK Supreme Court to The Simpsons

1 February 2012 by Adam Wagner

The Julian Assange circus rolls back into London today for the UK Supreme Court’s 2-day hearing of his appeal against extradition. It will be broadcast on Supreme Court live from 10:30am.

The Wikileaks founder was granted permission in November 2011 to appeal to the Supreme Court under Section 32 of the Extradition Act 2003. If he loses, unless he brings a claim at the European Court of Human Rights, he will have to face charges of sexual assault and rape in Sweden.

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The princess and the actor: two important right to privacy rulings – Inforrm

31 January 2012 by Guest Contributor

The European Court of Human Rights has announced today that it will deliver two Grand Chamber judgments, in the cases of Axel Springer AG v Germanyand von Hannover v Germany (No.2) on 7 February 2012.  The cases were both heard more than 15 months ago, on 13 October 2010.

We had a post about the hearing at the time (and an earlier preview).Both cases concern the publication in the media of material which is alleged to be private.  The Axel Springercase concerned the publication in “Bild” of an article about a well-known television actor, being arrested for possession of cocaine. The article was illustrated by three pictures of the actor. The German court granted him an injunction to prohibit the publication of the article and the photos. The applicant company did not challenge the judgment concerning the photos.  The newspaper published a second article in July 2005, which reported on the actor being convicted and fined for illegal possession of drugs after he had made a full confession.

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Attorney General nuances the PM’s dig at European Court

31 January 2012 by Alasdair Henderson

The Prime Minister’s speech at the Council of Europe (see our coverage here) has attracted significant press attention over the past week – ranging from flag-waving, sabre-rattling support to criticism from Sir Nicholas Bratza (the British President of the Court).

Hot on the heels of Cameron’s address on Wednesday, the Attorney-General Dominic Grieve gave a speech on Thursday which set out in further detail the Government’s plans for reform of the European Court of Human Rights and the incorporation of human rights into UK law.

The full text of the Attorney-General’s speech is not yet available (although a similar speech he gave last year and his own speech to the Council of Europe can be found here). However, it was interesting to compare his comments with those of David Cameron just a day before.

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More secret trials? No thanks

31 January 2012 by Adam Wagner

A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the consultation into whether “closed material” (secret evidence) procedures should be extended to civil trials.

Of the responses that I have read, there is very little support for the proposals as they stand and, as journalist Joshua Rozenberg has pointed out, the most damning criticism has come from the very lawyers who are currently involved in “closed” proceedings.

If you are interested in the issue, the Joint Committee on Human Rights is hearing evidence on it today from two special advocates, including my co-editor Angus McCullough QC (see his post on the topic), as well as the current and former independent reviewers of terrorism legislation. The session begins at 2:20pm and can be watched live here.

As I did with the Bill of Rights Commission consultation, I asked people to send me their consultation responses. What follows is a wholly unscientific summary of the ones I received:

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Archbishop on warpath

29 January 2012 by Rosalind English

Dr John Sentamu, the Archbishop of York, has thrown  a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is.  “It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.

Gay rights campaigners have poured scorn on this pronouncement, calling the Archbishop a “religious authoritarian” who wants to  “impose his personal opposition to same-sex marriage on the rest of society.” But this outbreak of bad temper – not unpredictable, given the skirmishing over the consultation on the same issue which took place in Scotland last year – raises the wider issue of the role and influence of church leaders in the process of legal change.

In a secular society, the participation of clerics in the  House of Lords is grudgingly accepted as part of an ancient tradition. And on this issue at least, the general view seems to be that the Church has grounds for complaint.  The current system recognises gay partnerships under the Civil Partnership Act 2004 (CPA). But the main change is to alter the Equality Act so as to allow such partnerships to take place on religious premises, and it is that which is being so bitterly opposed, apparently because it brings the matter within the church’s bailiwick. But even if it does,  we have to ask what it is that privileges Sentamu’s voice over any others in the debate over whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered.
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European Court of Human Rights: is the admissions system transparent enough? – Ben Jones

27 January 2012 by Guest Contributor

Two recent posts on this blog have brought deserved attention to the question of the European Court’s handling of admissibility decisions. In the course of criticising the substantial misrepresentation of the statistics for UK petitions to the European Court, Andrew Tickell’s piece highlighted the significant contribution of “highly discretionary concepts” in the filtering of the Court’s caseload.

Alongside clearer procedural hurdles such as the six month time bar and exhaustion of domestic remedies, the “manifestly ill-founded” criterion may be a clear and meaningful legal term but certainly isn’t manifest exactly what obstacle it sets.

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No removal without access to solicitor

27 January 2012 by Rosalind English

The Queen on the Application of Medical Justice v Secretary of State for the Home Department  [2011] EWCA Civ 1710 – read judgment

People who make unsuccessful claims to enter or remain in the United Kingdom cannot be removed without being given sufficient time for a lawyer to prepare a proper challenge to their claim.   The government has failed in its appeal against the Administrative Court’s finding that government policy unlawfully provided for expedited removal procedures in certain pressing circumstances – for example where there was a risk that the person concerned, if given advanced notification of his removal, might attempt to frustrate those measures of removal. The policy was quashed because it interfered with people’s right of access to a lawyer.

The Home Secretary is responsible for granting or refusing leave to remain in the United Kingdom for those who do not have the right of abode in this country in accordance with the Immigration Rules. It is an important aspect of maintaining immigration control that a credible enforcement process is in force and that those with no right to remain in the United Kingdom are removed from the jurisdiction while not infringing the accepted rights of those about to be removed.
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Small solar: Court of Appeal confirms that changes were unlawful

25 January 2012 by David Hart KC

Secretary of State for Energy and Climate Change v. Friends of the Earth and others, CA, 25 January 2012, read judgment 

So, after an anxious wait for the affected businesses, the Court of Appeal has confirmed today that the Minister was too hasty in the way he went about modifying the scheme for subsidising small solar power schemes. But, as often, the Court went about things differently from the judgment below (see my initial and follow-up posts on this)

The Court held that the Minister had no power to do what he did, which was to say he was going to modify the subsidy rules in respect of schemes which had become eligible prior to the modification coming into effect. The legislation and rules are characteristically impenetrable, but the Minister proposed in a consultation, which closed on 31 October 2011, to reduce the subsidies for schemes which became eligible after 12 December 2011. The key point is that he proposed that this modification should come into force on 1 April 2012, and that those who had signed up to such a scheme between December 2011  and April 2012 lost much of their subsidy from 1 April 2012. The original scheme paid participants 43.3p per kilowatt hour for 25 years. The proposed revised scheme for these new joiners would pay them that rate until April 2012, but thereafter 21p per kilowatt hour for the rest of the 25 years.

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Is Strasbourg obsessively interventionist? A view from the Court – Paul Harvey

24 January 2012 by Guest Contributor

Andrew Tickell in his recent post (Is the European Court of Human Rights obsessively interventionist?) makes a number of important points about the European Court of Human Rights’ approach to admissibility, in particular the application of the manifestly ill-founded criterion. Perhaps understandably, the majority of legal scholars have preferred to focus on the more substantive aspects of the Court’s work and its leading judgments.

However, Tickell’s analysis, and his other efforts to ensure that the less glamorous work of the Court on admissibility are not overlooked, must be welcomed, both as redressing that balance and informing the wider debate on the proper role of the Court. This post seeks to build on his contribution by providing an overview of the Court’s approach to admissibility in applications brought against the United Kingdom.

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Mr Cameron goes to Strasbourg

24 January 2012 by Adam Wagner

Updated | In the 1939 film Mr. Smith Goes to Washington, James Stewart plays a local Boy Rangers leader who becomes a US Senator and, against all odds, triumphs agains the corrupt bureaucrats in Washington. Tomorrow, according to The Sun, “battling” Prime Minister David Cameron will be travelling to Strasbourg in, it would seem, similar style to “tell Euro judges to stop meddling in British justice”.

Meanwhile, back in London, the British president of the European Court of Human Rights launched a preemptive strike on Mr Cameron’s speech in today’s Independent, arguing that the criticism from “senior British politicians” relating to the court’s interference is “simply not borne out by the facts“.

Bratza is right that the us-vs-them narrative is partly the result of mischievous human rights reporting by the press. Recent examples are the Daily Mail’s extravagant claim that the UK loses 3 out of 4 cases in Strasbourg, resting on a partial reading of the court’s statistics, and the Telegraph’s seemingly endless run of articles based on low-level immigration decisions, the latest being: Bigamist wins ‘family life’ human rights case. In that case, the original tribunal knew nothing about his alleged other marriages, so it is hard to see what it shows about human rights defences to deportation decisions, except that a claimant possibly lied in court, was found out and will probably now be deported.

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Occupy, kettling and Strasbourg stress – The Human Rights Roundup

23 January 2012 by Wessen Jazrawi

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Wessen Jazrawi

In the news

BAILII

First, a plea from the Pink Tape family law blog to donate to BAILII, particularly if you run a blog that links to BAILII or if you are a lawyer who relies on BAILII for transcripts, or to simply do their online survey: BAILII – Pink Tape. This blog would not exist without the excellent service provided by BAILII – please help them by donating and doing the survey.

The report from the Wilton Park conference, where the good and great of Europe met to discuss the future of the European Court of Human Rights, has been published. Suggestions included requiring individuals to show that non-examination of the case would cause a “significant disadvantage” and introducing a “universal periodic review” procedure, such as that used by the UN. It was recognised that national implementation was by far the biggest challenge that the system faced.  The full report can be found here.

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Is the European Court of Human Rights obsessively interventionist?

22 January 2012 by Andrew Tickell

Brought to you by Andrew Tickell

Marie-Bénédicte Dembour calls them ‘forgotten cases’.  As Adam Wagner demonstrated in a blog post of last week, Eurosceptic newspapers have a particular interest in overlooking the European Court of Human Right’s decisions of inadmissibility, seeking to buttress claims that the Court is wildly interventionist, imposing alien “European” logics on Britain with gleeful abandon. 

Both the Telegraph and Daily Mail covered the findings of a report commissioned by backbench Tory MPs critical of the Court’s jurisdiction, both simply replicating its astonishingly misleading content.  The papers contended that the UK was defeated in three in four cases brought against it, with violations of the Convention being found in 75% of human right petitions to Strasbourg.

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