Category: In the news
1 June 2011 by Adam Wagner
Updated | As a follow-up to Isabel McArdle’s post on an unsuccessful challenge to a control order, a quick note to say that the long-heralded Terrorism Prevention and Investigation Measures Bill was published last week.
The purpose of the bill, first previewed in January by the Counter-terroism review (see my post), is to abolish control orders and make provision for the imposition of terrorism prevention and investigation measures (so-called “TPIMs”). For more information on the human rights controversies surrounding control orders, see my post: Control orders: what are they are why do they matter?
Some useful links for more information on the bill:
31 May 2011 by David Hart KC
More fossil fuel power stations in the news (see my previous post), and more struggling with which bits of Euro environmental law ordinary people are allowed to enforce, and which bits are for the Commission.
Various NGOs challenged the grant of permits to 3 new power stations in the Netherlands, because the state was exceeding its emission limits for sulphur dioxide (SO2) and nitrogen oxides (NOx) and the grant of permits would simply add to these exceedences. The case was referred to the CJEU. The Advocate-General thought that the exceedences were relevant to whether the permits should be granted – her opinion has been translated into virtually all Euro languages (including Maltese) but not English. Last week, the CJEU disagreed – in English.
The problem arose because the EU made two directives which didn’t talk to each other.
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31 May 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. Happy post Bank Holiday reading!
by Graeme Hall
In the news:
Whilst the Neuberger Committee’s report is arguably the best place to kick-off any discussion on privacy, freedom of expression and Super-Injunctions, it is not, as Inforrm’s blog concludes, the “last word” on the matter. Indeed, this “overinflated topic” has been tackled with such gusto by the press and blogosphere that the High Court clearly gave a yellow card for “widespread disobedience“.
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30 May 2011 by Adam Wagner
Updated x 2 | Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts. Part 1 is here.
Meanwhile, north of the border in Scotland, a more significant constitutional storm may be brewing following Wednesday’s decision of the UK Supreme Court in Fraser v Her Majesty’s Advocate. Rosalind English has already posted on the ruling, which related to a Scottish murder appeal. As Rosalind said,
this was a Scottish criminal case and the Supreme Court would normally have had no business dealing with it … The Supreme Court’s appellate jurisdiction extends only to a consideration of a “devolution issue” , including whether an exercise of a function by a member of the Scottish Executive is incompatible with any of the Convention rights.
Parliament, through Schedule 6 to the Scotland Act 1998, has given the Supreme Court jurisdiction in relation to devolution issues arising in criminal proceedings. It has been suggested that this was to ensure that a consistent and coherent view upon them could be given across the UK.
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30 May 2011 by Adam Wagner
Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.
Starting with the
Sharon Shoesmith decision, which has been
helpfully summarised by Obiter J. The Spectator
reports that the Secretary of State for education Michael Gove intends to appeal the decision to the Supreme Court. The reported grounds of that appeal, gleaned from “Whitehall sources”, are interesting. Although Gove “
recognises that Balls blundered in the way he dismissed her“,
he also believes that there are important constitutional principles at sake in this case about how Ministers make important and urgent decisions and what the role of the courts is in challenging such decisions. Gove wants the Supreme Court to consider these issues because of the huge importance of judicial reviews, which are being used repeatedly by opponents of the government to try and stymie its agenda.
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28 May 2011 by David Hart KC
What happens when the government changes its mind about an existing law but new law has not yet been enacted?
Easy, really. You have to follow the old law, whatever the government may currently think about it. But it gets more complicated when the area of law, like planning, has a wide area of policy-making and policy-following built into it. So now we have old law, and new policy announced but no new law yet to underpin that policy other than in the broadest sense.
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27 May 2011 by Rosalind English
Fraser v Her Majesty’s Advocate [2011] UKSC 24 (25 May 2011) – Read judgment
The Supreme Court has had to consider (for the second time in a month) the ticklish question of what constitutes a “miscarriage of justice”.
The business is rendered more ticklish because this was a case being handled by the High Court of Justiciary, the court of last resort in all criminal matters in Scotland.
Our previous post questioned whether the finding of a miscarriage of justice entitled the individual, whose conviction is quashed, to compensation for the slur on their innocence. Here the Court scrutinises the actual diagnosis of a miscarriage of justice. They had to do so in this case because their jurisdiction depended on it. This needs some explaining.
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26 May 2011 by Adam Wagner
In 1991 US band Salt-n-Pepa reached number 2 in the UK charts with Let’s Talk About Sex. It is difficult to imagine now, 20 years on, why such an inoffensive and gently educational song generated huge controversy.
That difficulty highlights how much less prudish we are about sex now than we were then. Salt-n-Pepa talked about sex on the “radio and video shows“. Now the song would include Twitter, YouTube and Facebook too. In the post-internet age, sex is everywhere. So why are judges and politicians still making decisions about whose sex the public can or cannot talk about?
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25 May 2011 by Adam Wagner
The Supreme Court has delivered three judgments this morning, all of which are of interest from a human rights perspective. We will cover them in more detail soon, but for now, a brief summary.
First, murder. In 2003 Nat Fraser was convicted of murdering his wife and sentenced to 25 years in prison. In Fraser (Appellant) v Her Majesty’s Advocate (Respondent) [2011] UKSC 24, the court unanimously decided to quash his conviction send back to a Scottish appeal court the question of whether a new prosecution should be brought.
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24 May 2011 by Adam Wagner
Lots of lawyers are blogging and tweeting. Should they be?
I spoke last Thursday at the second #lawblogs event, kindly hosted in the grand (not to mention establishment) surrounding of The Law Society. The event was attended by around 75 people, most of whom had a passion for legal blogging and tweeting. You can read the Twitter feed of the event here, or reviews by James Wilson, Mike Scutt, James Dean of The Times (paywall) and The Guardian’s Siobhain Butterworth .
One issue which I tried to explore was the professional ethics of lawyers blogging and tweeting. There are a number of questions which lawyers could, and probably should, ask themselves before making their social media debut . Is it right for lawyers to comment publicly on the law? What about on their own cases? And might there be a positive ethical duty to explain the law to the general public?
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24 May 2011 by Rosalind English
We reported last week the Supreme Court ruling in R (on the application of GC) (FC) (Appellants) v The Commissioner of Police of the Metropolis (Respondent) in which the majority found that they could interpret the DNA retention provision in the Police and Criminal Evidence Act (PACE) in such a way that it would be compatible with article 8 of the ECHR.
Not only that; the Court concluded that such a reading could still promote the statutory purposes: ” Those purposes can be achieved by a proportionate scheme.”
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23 May 2011 by Adam Wagner
John Hemming MP has somewhat predictably “revealed” the name of a footballer who has been trying to keep his alleged affair with a reality TV contestant private, and breached the traditional “sub judice” rule in the process. Does this mean that the privacy injunction in question is now effectively defunct?
Hemming made his move just hours after Mr Justice Eady in the High Court maintained the injunction against an application by News Group International, despite the fact that many users of Twitter have apparently revealed his name. Eady took a principled stance:
Should the court buckle every time one of its orders meets widespread disobedience or defiance? In a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.
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23 May 2011 by David Hart KC
Buglife, R (on the application of) v Natural England [2011] EWHC 746 (Admin) – Read judgment
All public lawyers know that judicial review must be commenced “promptly and in any event not later than 3 months” after the public act complained of, failing which a claimant is at the mercy of the court as to whether to extend time.
And the word “promptly” in that context means that one can bowl out a claim even if it is commenced within those 3 months: see the Court of Appeal in Finn-Kelcey.
Or perhaps not. A recent environmental case, Buglife, grapples with this problem, and decides that, on the contrary, a claimant has an “unqualified entitlement to a period of up to three months before it must file its claim.” Hence the decision is of real practical importance, and there are big questions about its “reach”.
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22 May 2011 by Adam Wagner
I asked in a recent post whether journalists need to attend court hearings to report accurately. The post arose from judgment in a family court case involving a mother’s abuse of her baby. The judge took the unusual step of criticising the Sunday Telegraph’s Christopher Booker’s reporting, which he called “unbalanced, inaccurate and just plain wrong“. That criticism was then supported by the most senior family judge in a different judgment.
Christopher Booker has now responded to my post, although somewhat obliquely. He writes:
I was again attacked last week by a prominent legal blogger, for reporting on cases where the system appears to be going tragically wrong, without having sat for days in court to hear “both sides of the story”.
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20 May 2011 by Adam Wagner
Lord Neuberger has published his long-awaited report on super-injunctions. His committee was set up in April 2010 in order to “examine the issues around the use of injunctions which bind the press and so-called ‘super-injunctions“.
In summary, the report emphasises the principles of open justice and the right to freedom of speech, and that courts should “ensure that any derogation from open justice is the minimum necessary to secure the proper administration of justice”. It recommends that Civil Procedure Rule 39.2 (concerning public hearings) should be amended to make reference to the strict necessity test.
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