Category: In the news
12 August 2011 by Adam Wagner
I had the honour of appearing on this week’s #WithoutPrejudice. The podcast also featured regulars CharonQC, David Allen Green and Carl Gardner, alongside guests former Lib-Dem MP Dr Evan Harris, David Wales, a criminal lawyer and blogger.
We discussed:
- what criminal offences rioters and looters are being charged with, and why;
- the Riot (Damages) Act 1886, and
- whether rioters and looters should be denied social housing;
- the European Court of Human Rights’ judgments in Al Skeini and Al Jedda;
- the withdrawal of human rights organisations from participation in the Gibson inquiry into complicity in torture;
- the government’s Bill of Rights Commission; and finally
- Hackgate, the terms of reference of the Leveson inquiry, and what to hope and fear from it.
Listen to the podcast here, or subscribe through iTunes.
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12 August 2011 by Rosalind English
Belmarsh Magistrate’s Court has ruled that Shrien Dewani can be extradited to South Africa to stand trial for the murder of his wife, the judge concluding that the hardships he would face there would fall short of oppression. On Monday 26 September the home secretary signed an order for his extradition.|updated
The South African government sought extradition for Dewani in order to put him on trial for the murder of his wife Anni in Cape Town last November. The newlyweds were being driven through the dangerous township of Gugulethu when their taxi was hijacked on November 13. Dewani was thrown out of the vehicle while his wife was driven off and shot dead. The authorities subsequently claimed to have evidence that Dewani had arranged the carjacking and shooting of his wife.
Dewani’s lawyers argued that the extradition proceedings were not only an abuse of the process of the court, but if extradition was granted, it would be a breach of the defendant’s human rights, particularly Articles 2 and 3 of the European Convention. The abuse argument was predicated on allegations that the South African authorities had already prejudged Dewani’s guilt. As to the Convention arguments, evidence was advanced of widespread sexual assault and gang crime in the overcrowded South African prisons, including potentially lethal attacks by HIV infected inmates. His defence team also argued that he was too unwell to stand trial abroad, adducing medical evidence of severe depression and suicidal tendencies which would be exacerbated if he were sent to South Africa.
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11 August 2011 by Matthew Flinn
In the wake of the recent violence in cities across England, the police have been releasing photographs of individuals in an appeal to the public for assistance in identifying them and bringing them to justice.
As the crisis has developed, politicians and police spokespeople have professed a strong intention to ensure that all the rioters and looters face the consequences of their actions. As of this morning, in London alone 888 people have been arrested and 371 people have been charged with offences relating to their involvement in the riots, and courts in London, Manchester and Solihull have remained open through the night in order to process these cases as swiftly as possible. Yet with the number of people involved likely to be in the thousands, there are many more who remain unidentified.
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11 August 2011 by David Hart KC
Updated| R (Infinis) v. Ofgem & Non-Fossil Purchasing Agency Limited, Interested Party [2011] EWHC 1873 (Admin) Lindblom J, 10 August 2011 Read judgment
In a recent post, I suggested that successful claims under Article 1 Protocol 1 (the human right to peaceful enjoyment of property) faced all sorts of difficulties, hence the particular interest of that decision in Thomas which bucked the trend. Rash words at the end of a busy legal term: hard on the heels of that judgment of the Court of Appeal, there comes this further example of an A1P1 claim succeeding in the environmental context.
This time, the claim arose as a result of a judicial review, where the judge decided that the regulator had come to an unlawful decision, and hence that unlawfulness gave rise to a damages claim against the regulator.
So how and why?
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10 August 2011 by Adam Wagner
England has experienced a fourth consecutive night of rioting and looting in its cities, prompted by the shooting by police of Mark Duggan in Tottenham.
New and social media have seen almost blanket coverage of the events, so I have little to add, save to link to some interesting legal coverage of the issues involving policing policy, blaming social media, vigilante justice, journalists’ rights and paying for damage under riot law.
One issue which sadly has not arisen from these riots is freedom of speech; it would appear that there has been little sense or motive behind the violence following the initial catalyst.
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9 August 2011 by Melina Padron
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
Torture, top-secret documents and the boycott to the detainee inquiry
Last week some of the key UK human rights campaign groups decided to boycott the Detainee Inquiry on the basis that it lacks credibility and transparency, with much of the relevant evidence and information to remain secret – see Matthew Flinn’s post asking whether the inquiry will be human rights compliant.
Responding to the boycott, the Inquiry issued a statement that it will still go ahead as planned. Watching the Law blog opines that without the involvement of these bodies (which include the likes of Liberty, Reprieve, Amnesty International and Justice) the Inquiry is highly unlikely to command any public confidence.
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8 August 2011 by Matthew Flinn
Ten human rights campaign groups and the lawyers for a number of detainees alleging UK involvement in their mistreatment have confirmed that they will be boycotting the impending Detainee Inquiry.
We recently posted on the publication of the Terms of Reference and the Protocol for the Detainee Inquiry and set out some of the reaction to it. At the time, a number of lawyers representing those who claimed to have suffered mistreatment threatened to boycott the inquiry, claiming it would be a whitewash. As the BBC has reported, they have now been joined by a number of Human Rights organizations, and it seems that the clear intention is for the boycott to go ahead.
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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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