Category: In the news
20 June 2011 by David Hart KC
Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health [2011] EWCA Civ 437 read judgment here
Sinclair Collis own cigarette machines, some 20,000 of them. So when cigarette machines were banned by law, there was nowhere for their owners to go, apart from the Courts. On Friday, the Court of Appeal dismissed their challenge to the ban, but there was a powerful dissent from Laws LJ on both the law and its application. This makes the prospect of an appeal to the Supreme Court all the more likely. Even that might not be the end of the line, if the SCt refer the case to Europe.
The case – all 70+ pages of the decision – is an object lesson in how to challenge a ban. But, hang on, some of you will say, how can you challenge a ban once it has become the law? Well, until 1973 you couldn’t. That is when we gained the first way of challenging a law, through joining the EEC and thus taking on the obligation to make our laws EEC-compliant. This was Sinclair Collis’s first string to its bow. In 2000, the second string arrived – the coming into force of the Human Rights Act. But there is still no third string – no purely domestic challenge to legislation once enacted – Parliament is still sovereign.
Continue reading →
Like this:
Like Loading...
20 June 2011 by Adam Wagner
Updated | SG v St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin) (17 June 2010) – Read judgment
Most people have their first taste of injustice at school. This is hardly surprising: an institution containing hundreds of teenagers for whom rebellion is a biological imperative is always going to be difficult to control. In trying to do so, teachers sometimes impose petty rules.
Many children fantasize of an external authority intervening to expose the injustice of those rules, particularly in relation to modes of dress. But few take their school to court to challenge a policy on hairstyle. And even fewer win, as a young boy – known in this case as SG – has just done in the High Court. SG took his school, St Gregory’s Catholic Science College of Harrow in Greater London, to court to challenge its ban on boys wearing their hair in “cornrows“, or braids.
Continue reading →
Like this:
Like Loading...
20 June 2011 by Rosalind English
In her lecture at Gresham College last week Baroness Hale speculated how high the human rights tree might grow before it presents a threat to the surrounding constitutional ecosystem. Our words, not hers, but she preferred the arboreal image to the more established but inherently nonsensical notion of a “living instrument” as an expression of the Convention’s adaptability over time. This tree, she suggested, should not be allowed to transmogrify in to a gigantic beanstalk, crashing through the sky, inspiring false dreams and unrealisable ambitions.
The seeds of this tree – or treacherous beanstalk, whichever way one prefers to look at it – were sown in the seventies when the Strasbourg Court chose a “purposive” rather than a literal construction of the language used in the Convention. This means that judges enforcing the norms of the Convention need not confine themselves to the terms as stated or clearly implicit in the written text, nor to the purpose that might be derived from the preparatory materials and the historical context. Thus in the landmark case of Golder v United Kingdom, the Court ruled that Article 6 not only conferred an explicit right to a fair trial but implied that citizens should be granted the right of access to justice, something that could not be discovered within the four corners of the Convention as a document.
Continue reading →
Like this:
Like Loading...
19 June 2011 by David Hart KC
Gaunt, R (ota) v. Ofcom [2011] EWCA Civ 692 read judgment
No prizes for guessing which redtop hosted an article so titled. Its author, given his past, felt very strongly about Redbridge Council seeking to ban foster parents from smoking; hence his article dubbed them as “health and safety Nazis”. So he went on and interviewed a councillor on Talksport, had a go at him – and then completely “lost it”. He promptly lost his job, and got rapped over the knuckles by Ofcom for being in breach of the Broadcasting Code. This case is about his unsuccessful attempt to overturn the latter on Article 10 grounds – interference with freedom of speech.
Somewhat ambitious appeal, this. Para. 2.1 of the Broadcasting Code seeks to protect members of the public from harmful and/or offensive materials. Para 2.3 says that broadcasters must ensure that material which may cause offence is justified by the context. Such material may include, among other material, offensive language.
Continue reading →
Like this:
Like Loading...
15 June 2011 by Adam Wagner
Yesterday Neil Howard and Rebecca Steinfeld asked via guardian.co.uk whether it is Time to ban male circumcision? The article was prompted by attempts to ban the practice in San Francisco.
Male circumcision is common amongst Muslims and Jews, but judging from the 286 comments (so far!) to the article, there are a lot of people who feel that the practice is outdated and should be banned. I have responded with my own article, arguing that whilst the debate is by no means settled, a ban at present would amount to a disproportionate interference with freedom of religion rights.
Continue reading →
Like this:
Like Loading...
15 June 2011 by Matthew Flinn
R (on the application of E and Ors) v The Director of Public Prosecutions [2011] EWHC 1465 (Admin) – Read Judgment
In a case involving rather distressing facts, the High Court has quashed a decision of the Crown Prosecution Service to prosecute a 14-year-old girl (identified only as “E”) for the sexual abuse of her younger siblings.
On 26 January 2010 the Child Exploitation and Online Protection Centre discovered a video on the internet, in which E appeared to be sexually abusing her two younger sisters. The acts portrayed allegedly occurred between January and November 2001, when E was aged 12, and her sisters were aged 2 and 3.
Continue reading →
Like this:
Like Loading...
14 June 2011 by Rosalind English
E (Children) FC [2011] UKSC 27 – read judgment ; see previous post for summary
This case shows some of the difficulties thrown up by the interesting tension between the primacy of children’s interests implied by Article 8 of the European Convention on Human Rights and the controls on child abduction exerted by the 1980 Hague Convention.
The Human Rights Convention, in requiring that states ensure respect for family life, protects first and foremost the rights of the child. But of course the Hague Convention has different priorities. The first aim of that instrument is to deter either parent from taking the law into their own hands and removing themselves and their children to another jurisdiction. If abduction does take place, the next object of the Convention is to restore the children as soon as possible to their home country, so that any dispute can be determined there, since the parent left behind is the wronged party, and should not be put to the trouble and expense of coming to the requested state in order to participate in the resolution of factual issues here. Article 12 therefore requires a requested state to return a child forthwith to its country of habitual residence if it has been wrongfully removed in breach of rights of custody. Article 13(b) mitigates that obligation if there is a “grave risk” of “physical or psychological harm.”
Continue reading →
Like this:
Like Loading...
14 June 2011 by Guest Contributor
The latest issue of the Index on Censorship magazine is entitled “Privacy is Dead! Long live privacy” and includes an interview with Mr Justice Eady, conducted by the veteran legal commentator Joshua Rozenberg entitled “Balancing Acts“.
This is a rare example of an interview with a serving judge. It was conducted on 11 April 2011 – before heat was turned up in the “Superinjunction Spring”. Despite the worst efforts of the “Sunday Times” – of which more in a moment – the interview contains few surprises for those who have taken the trouble to read Mr Justice Eady’s judgments (and lectures) on the subject of privacy.
Continue reading →
Like this:
Like Loading...
14 June 2011 by David Hart KC
A recent guest post from Begonia Filgueira celebrated the move by the Bolivian Parliament to accord rights in law to Nature. It rightly commanded considerable attention but not all readers were ecstatic. So when last week DEFRA came out with a rather different approach to valuing nature in its Natural Environment White Paper – the first in 20 years – it was interesting to see the way that the Environment Department thought things should be done.
Not the Bolivian route, unsurprisingly, but the White Paper raises an entirely different way of valuing nature which we should compare with the idea of granting rights.
Continue reading →
Like this:
Like Loading...
13 June 2011 by Adam Wagner
Tomorrow sees the beginning of a contempt of court prosecution against a juror who allegedly communicated on the social networking site Facebook with a defendant who had already been acquitted.
The co-editor of this blog, Angus McCullough QC, is representing the Attorney General in the case; he is not the writer of this post. Isabel McArdle has already posted on the case – for background, see Silence please: A Facebook contempt of court – allegedly.
Continue reading →
Like this:
Like Loading...
13 June 2011 by Graeme Hall
It’s time for 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.
by Graeme Hall
In the news:
The big UK Human Rights Blog news is the launch of our new Case Table. Click here to see it.
Writing for the UK Constitutional Law Group blog, Professor Gordon Anthony summarizes the Supreme Court’s decision in Re. McCaughey. Following developments in the European Court of Human Rights’ case-law, the Supreme Court ruled that under article 2 of the European Convention on Human Rights (the right to life), the procedural obligation to investigate deaths possibly caused by State agents is “detachable” from the State’s substantive obligation to protect the right to life of its citizens.
Whilst concluding that the implications of the McCaughey judgment are probably straightforward, the post outlines the Supreme Court’s criticisms of the European Court’s reasoning, as well as some of the possible consequences of its poorly reasoned judgments. See also Matthew Hill’s post today on this blog.
Continue reading →
Like this:
Like Loading...
9 June 2011 by Guest Contributor
The Supreme Court has been streaming its hearings live on the internet for three weeks now, but this week sees the first case to be streamed which has significant implications for human rights.
And, as a bonus, you can watch one of our editors, Angus McCullough QC, who is representing the Secretary of State for the Home Department. Andrea Lindsay Strugo, also of 1 Crown Office Row, is junior counsel for the Secretary of State. Richard Drabble QC is for the appellants.
From 10am, you can click here to watch the second and final day of R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant). For the basic background, see Adam’s post on the court of appeal judgment, formerly known as Quila and Others – Policy to prevent forced marriages “arbitrary and disruptive”, says Court of Appeal.
We understand that at present the stream is viewable around the world, although as in the UK you will have to download Microsoft Silverlight (free).
Sign up to free human rights updates by email, Facebook, Twitter or RSS
Like this:
Like Loading...
9 June 2011 by Rosalind English
Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment
1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.
This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.
The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
Continue reading →
Like this:
Like Loading...
7 June 2011 by David Hart KC
Our guest post from Frances Aldson last week drew many and varied comments from our readers on this blog and elsewhere, including those at each end of a spectrum ranging from the enthusiastic to the choleric.
This follow-up post is designed for those who have no strong views but who want to muse on the implications of the proposal which is due to be raised, via one route or another, with the UN, either this year or next.
The proposal, by Polly Higgins, is to add a new crime of “ecocide” to the jurisdiction of the International Criminal Court, namely:
Ecocide is the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.
Continue reading →
Like this:
Like Loading...
7 June 2011 by Alasdair Henderson
R (Imran Bashir) v. The Independent Adjudicator, HMP Ryehill and the Secretary of State for Justice [2011] EWHC 1108 – read judgment here.
1 Crown Office Row’s John Joliffe appeared for the Secretary of State for Justice in this case. He is not the writer of this post.
The High Court held last week that disciplining a Muslim prisoner for failing to give a urine sample in a drugs test when he was in the midst of a voluntary fast was a breach of his right to manifest his religious beliefs.
Recent claims or defences on the basis of Article 9, the right to freedom of thought, conscience and religion, have mostly been unsuccessful – see our comments on the Catholic adoption agencies, fostering and Cornish hotel cases, as well as Aidan O’Neill’s feature article. However, in this case His Honour Judge (HHJ) Pelling QC held that the failure to even consider a prisoner’s Article 9 rights meant that the decision to discipline him was fatally flawed.
Continue reading →
Like this:
Like Loading...
Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health [2011] EWCA Civ 437 read judgment here
Recent comments