Category: In the news
5 August 2011 by David Hart KC
Jivraj v. Hashwani [2011] UKSC 40 Read judgment
We all know that these days you cannot just say you want to employ a Muslim or a Catholic without a good reason. But what about the potentially different question as to whether you can choose your own private judge, namely an arbitrator, by reference to his or her religion?
This problem faced the Supreme Court recently. Its answer involved a detailed analysis of what was involved in the whole process of arbitration, and the similarities and difference between it and a more typical relationship between client and professionals. The Court also touches on the exception to the rule against discrimination, based upon the job having a genuine occupational requirement for a person of a given religion.
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5 August 2011 by Adam Wagner
The UK Bill of Rights Commission has launched a public consultation on whether we need a Bill of Rights.
The consultation document is here and reproduced below. You have until 11 November 2011 to respond and you can do so via email or post.
The document provides a useful and fairly noncontroversial summary of rights protections as they currently exist within the UK constitutional structure. It does not, however, provide any information at all about what a “bill of rights” might entail or how such instruments work in other countries: contrast the far more detailed (and very useful) document produced in 2010 by the Equality and Human Rights Commission.
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1 August 2011 by Graeme Hall
The higher courts may have shut for the summer and judges escaped to tropical retreats, but the UK Human Rights Blog rumbles on. 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, updated each day, can be found here. You can also find our table of human rights cases here.
by Graeme Hall
In the news:
Legal Aid
The Pink Tape blog picks up on another “teensy glitch” with the Legal Aid, Sentencing and Punishment of Offenders Bill, noting that applicants for non-molestation orders will be disinclined to accept an undertaking from a respondent (“a solemn promise to the court not to behave in a particular way, which is punishable by imprisonment and can stand in the stead of an non-molestation order”), as in doing so, s/he will be disqualified from legal aid entitlement.
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1 August 2011 by Lucy Series
Since BBC Panorama revealed shocking abuse of adults with learning disabilities in a private hospital run by Castlebeck Care Ltd, the care sector has engaged in widespread soul searching.
Paul Burstow instructed the Care Quality Commission (CQC) to carry out a national audit of all hospital services for adults with learning disabilities. Similar national audits were conducted following previous scandals relating to widespread abuse of adults with learning disabilities in Cornwall (here and here). In the CQC’s preliminary report on other Castlebeck services they expressed serious concerns about compliance with essential standards of quality and safety.
The human rights issue that stand out most powerfully in these reports is the widespread interference with patients’ autonomy and privacy. Take these finding from the report on Arden Vale, for instance:
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29 July 2011 by David Hart KC
Case C-71/10 Ofcom v. Information Commissioner, Court of Justice of the European Union: Read judgment
I posted previously on the Advocate-General’s opinion in March 2011, Office of Communications v. Information Commissioner, a reference from the UK Supreme Court. An epidemiologist working for the Scots NHS wanted the grid references of mobile phone masts. This was refused, and the case got to the Information Tribunal. It found that two exemptions in the Environmental Information Regulations were in play (public security and intellectual property rights), against which were stacked the public interest of the researcher, who wanted to explore any association between the location of the masts and possible health effects.
But the question was how to stack the exemptions: should one weigh each exemption against the public interest, or should one cumulate the exemptions and weigh their combined effect against the public interest?
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29 July 2011 by Adam Wagner
Updated | The family courts in conjunction with the Judicial College and the Society of Editors have has published a Guide to Media Access and Reporting. It has been written by two barristers, Adam Wolanski and Kate Wilson.
It seeks to address “the tension between concerns about “secret justice” and legitimate expectations of privacy and confidentiality for the family (update – read Lucy Series’ analysis with a focus on Court of Protection cases).
This is interesting and, on a quick glance through the detailed document, useful. Family judges have been critical of journalists’ reporting of sensitive cases recently, and this guide is clearly an attempt to guide judges on what can and can not be reported, and journalists on how to report responsibly. The guide would benefit from a contents page and executive summary, but aside from that it will no doubt prove useful to practitioners and journalists.
One line I am predictably fond of: “Although it remains a matter for the judge, senior members of the judiciary have encouraged the making of public judgments”
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28 July 2011 by Rosalind English
R v Maxwell [2010] UKSC 48 – read judgment
This case concerned the question of what should happen to a conviction when it turns out that it is based on pre-trial malpractice by the police (this time involving evidence from a “supergrass”), where there is nevertheless other strong evidence of the defendant’s guilt. If the pre-trial irregularity is sufficiently serious materially to affect the trial but not to render the conviction unsafe, should the Court of Appeal retain the power to order a retrial? Or should the conviction should be quashed?
In this case the appellant and his brother were convicted of murder and two robberies at Leeds Crown Court on 27 February 1998. The appellant was sentenced to life imprisonment for murder to be served with concurrent twelve-year terms for the robberies. The main prosecution witness was Karl Chapman, a professional criminal and a supergrass. His evidence was crucial to the arrest and prosecution of the appellant.
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27 July 2011 by David Hart KC
Update | Thomas v. Bridgend County Borough Council [2011] EWCA Civ 862, Court of Appeal. Read judgment
Conventional wisdom has it that an Article 1 Protocol 1 (the human right to peaceful enjoyment of property) environmental claim faces all sorts of difficulties. The claimants may have a right to the peaceful possession of property, but that right is immediately counter-balanced by the public interest of the scheme under challenge. Furthermore, the court does not look too closely at the detail when applying the proportionality test, as long as the scheme is lawful. Or does it?
Our case is a refreshing example of where manifest injustice was avoided by a successful claim under Article 1 of the First Protocol of the ECHR. It also shows off the muscles of the duty to interpret legislation, under section 3 of the Human Rights Act 1998, in accordance with the ECHR.To find what it was about, we need to go to the Hendre Relief Road in Pencoed, Bridgend and those who live nearby.
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26 July 2011 by Matthew Flinn
Binyam Mohamed
The Terms of Reference and the Protocol for the Government’s impending Detainee Inquiry have recently been published. The Protocol makes clear that the Inquiry is to be granted unfettered access to a broad range of information, but the limitations on the publication of that information have prompted criticism from human rights groups.
On 6th July 2010, Prime Minister David Cameron announced to the House of Commons that an independent inquiry would be held into whether or not the UK Government was implicated in or aware of the improper treatment of detainees held by other countries in the aftermath of the September 11th terrorist attacks. On the same day, he wrote to Sir Peter Gibson inviting him to lead the inquiry, and appointed as his fellow panel members Dame Janet Paraskeva and Peter Riddell. Philippa Whipple QC of 1 Crown Office Row has been appointed as counsel to the inquiry – she is not the writer of this post.
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26 July 2011 by Adam Wagner
What is a “tort”? No, not a rich multilayered cake, but rather an “actionable wrong”. Tort law is also the means through which five Kenyans alleging they were mistreated in British detention camps in the 1950s may get damages. How do I know this? Because Mr Justice McCombe told me in a helpful summary of his judgment which was released on Thursday.
It is heartening but unfortunately rare to see a judge explaining an important ruling of to the public. Save for supreme court rulings, which are always accompanied by an excellent press summary, the public is left alone to puzzle out the meaning of judgments. Journalists do their best to explain, but often get it wrong either by accident or design.
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25 July 2011 by Rosalind English
A A O v Entry Clearance Officer [2011] EWCA Civ 840 – read judgment
1 Crown Office Row’s Sarabjit Singh appeared for the Respondent in this case. He is not the writer of this post.
“No”, seems to be the Court of Appeal’s answer to the question posed by the heading above; indeed Rix LJ goes as far to say that “the provision of such money can be as much an insulation against family life as evidence of it.”
In this case the appellant, a 69 year old Somalian national who had been living in Kenya, appealed against the respondent entry clearance officer’s refusal to grant her leave to enter the UK to join her daughter. The daughter, who sponsored this claim, had been granted British citizenship. She had seven children and was living on benefits, out of which she sent a monthly contribution to her mother. The appellant, who was said to be in poor health and dependent on a neighbour for daily care, had applied for indefinite leave to join her daughter as a relative and financial dependant of a person settled in the UK under the Immigration Rules r.317. The entry clearance officer refused her request, having found that she did not satisfy r.317(iva) in respect of her ability to be maintained without recourse to public funds and that any interference with her rights under Article 8 of the European Convention on Human Rights was justified and proportionate for the purpose of maintaining effective immigration control.
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25 July 2011 by Melina Padron
The Lord Chief Justice
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, updated each day, can be found here. You can also find our table of human rights cases here.
by Melinda Padron
In the news last week…
In a short speech to the Lord Mayor’s dinner for HM Judges, Lord Judge LCJ referred to 2011 as a difficult year for the judiciary amid attacks on individual judges and the judiciary as a whole for doing what is appropriate for judges to do: applying the law as they find it to be. The LCJ, however, reminded all that in a moment of crisis, such as the phone hacking scandal, the judiciary has a key role to play because of its recognised independence and impartiality.
The Government has accepted all recommendations made by Lady Justice Hallett, the coroner in the 7/7 inquests (see our previous post for the full recommendations), all of which are aimed at improving the work of the security services and medical emergency services. Whilst within the subject of terrorism, Simon Hetherington wrote a post for Halsbury’s Law Exchange regarding emergency extension of custody limits of suspects in terrorism investigations from 14 to 28 days. In such procedure there is a balancing exercise to be made between the competing interests of an individual’s liberty and national security. Hetherington then considers what happens to this balancing exercise when Parliament is not involved in scrutinising a given case and concludes that the balance tilts in favour of security. See also Adam Wagner’s review of recent developments in terrorism law.
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21 July 2011 by Rosalind English
Jakobski v Poland (December 2010) – read judgment
Mahayana Buddhists have profound moral objections to eating meat. According to the rules, a Mahayana Buddhist should avoid eating meat to cultivate compassion for all living beings.
Even peaceable Buddhists commit crimes sometimes and go to prison. Meat free diets however are not available in all European penitentiaries. Should committed vegetarians be made to forfeit their beliefs once their offences against society have committed them to penal servitude?
In Poland, apparently, the answer is yes. The refusal to provide a Buddhist prisoner with a meat-free diet was not unlawful under local law which provided only that prisoners should receive meals taking into consideration their employment, age and where possible religious and cultural beliefs. That let-out clause allowed the Polish government to issue an ordinance requiring the provision of special meals for diabetics and a “light diet”. Both contain meat products.
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21 July 2011 by Guest Contributor
Review: Family Courts without a Lawyer: A Handbook for Litigants in Person – Lucy Reed – Buy book here
Family Courts without a Lawyer : A Handbook for Litigants in Person is written by Lucy Reed, barrister and author of the Pink Tape blog. A title that may, on its first reading, strike fear into the heart of family lawyers and, hopefully, give a sense of relief to many litigants in person. However, this is the book that all family practitioners wish they had written and which litigants in person may consider buying, its aim being to make any interaction with the Family Courts, for the uninitiated, as stress free as possible.
The book is described as providing “as practical tool to help you in court and a reference to help you understand what happens in family proceedings, whether or not you have a lawyer”. It does not suggest going to court as a litigant in person is to be preferred over attending at court with a lawyer, nor does it suggest the opposite; it allows the reader freedom of choice.
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20 July 2011 by David Hart KC
Barkshire & others v. R. Read Judgment
The remaining Ratcliffe on Soar climate change prosecution reached the Court of Appeal on Tuesday, and led to appeals being allowed today. We have covered this trial, here and here, most recently on the collapse of a second prosecution after the revelation of activities by an undercover police officer.
The Court of Appeal was very concerned by the lack of disclosure given by the prosecution concerning the undercover police officer, and it was this which ultimately led to the convictions being quashed. But the judgment is not all good news for climate change protesters, as we shall see.
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