Category: BLOG POSTS
15 April 2014 by Guest Contributor
Though strategic litigation and test cases make essential contributions to the rule of law, there’s concern that they’re being abused. And, as funding comes under attack, there’s a greater need than ever for pro bono lawyers to take on test cases to ensure access to justice and accountability.
Following the fall of communism, the European Roma Rights Centre (ERRC) identified a significant problem with the educational segregation of Roma children in parts of Central and Eastern Europe. Roma children were ending up in what were termed ‘special schools’, supposedly set up for children with intellectual disabilities, and thus segregated from mainstream schooling. In 1998, the ERRC decided to investigate.
To try and bring about reform, it became apparent that the ERRC needed to identify a test case to put before the courts. In order to find the right applicant it interviewed hundreds of Roma families in the region and found 18 Roma children in the Czech Republic to be the test case. The legal angle the ERRC adopted was indirect discrimination: entry tests to mainstream schools were set for all children but they were biased against Roma children because they focused on Czech customs and language. The Roma children often failed and so were subsequently put in the special schools. The centre found that Roma children were twenty-seven times more likely than non-Roma children to be sent to a special school.
Continue reading →
Like this:
Like Loading...
14 April 2014 by Rosalind English
Smith, R (on the application of v Secretary of State for Justice and G4S UK Ltd [2014] EWCA Civ 380 – read judgment
This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.
The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.
Continue reading →
Like this:
Like Loading...
14 April 2014 by Guest Contributor
Around 150 delegates, including representatives of all 47 Council of Europe states and two judges of the European Court of Human Rights, met in Oslo last week. Their mission? To reflect on the protracted process of reforming the European Convention system and imagine what it might look like in 2030.
Non-government organisations and academics (myself included) joined the insiders to engage in ‘blue-skies’ thinking, despite the dense fog that enveloped the hilltop venue.
The end of the beginning
The Strasbourg Court as we know it came into being in 1998 with the entry into force of Protocol 11 to the Convention. Subsequent reform was driven by two closely-linked imperatives: first, to reduce the backlog both of applications and non-executed judgments and secondly, to reinforce the subsidiary role of the Court vis-à-vis national authorities.
As regards the former, notable developments include the steps taken since 2010 under Protocol 14 to increase the efficiency of judicial decision-making; and (more controversially) the introduction of a shorter deadline, narrower admissibility criteria, and stricter conditions for applicants. The post-judgment process of implementation was also reformed to permit more intensive supervision by the Committee of Ministers (the Council of Europe’s executive arm) of urgent, complex or inter-state cases and lighter touch supervision of the rest.
Continue reading →
Like this:
Like Loading...
11 April 2014 by David Hart KC
A lot is happening in various challenges related to the long-running and shameful exclusion of the Chagossian people from their islands in the Indian Ocean.
Here are the headlines, with a reminder of what these cases are about:
First, the Court of Appeal has just (2 April 2014) heard an appeal by the Chagossians against the dismissal of their challenge to the designation of the waters around the islands as a Marine Protected Area.
Second, the closed hearing of the UNCLOS Arbitral Tribunal on the merits of the Chagos dispute (Mauritius v UK) is to be held at Istanbul on 22 April 2014. This also concerns the designation of the MPA.
Thirdly, the public hearing in the UK Information Tribunal on access to Diego Garcia pollution data appeal under the Environmental Information Regulations 2004, which the FCO — contrary to the view of the Information Commissioner — says is inapplicable to overseas territories) is to be held on May 1st, 2014.
Now to a little more detail.
Continue reading →
Like this:
Like Loading...
10 April 2014 by Rosalind English
Wandsworth Clinical Commissioning Group v IA (By the Official Solicitor as his Litigation Friend) [2014] EWHC 990 (COP) 3 April 2014 – read judgment
This was a case about determination of mental capacity, which both judge and counsel described as “particularly difficult and finely balanced”. The judge was confronted with a great deal of conflicting evidence about the capabilities of the individual in question, but concluded in the end that
His capacity may be seen to have fluctuated in the past; this is in my judgment more likely to be attributable to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness … than the progression of symptoms of his acute brain injury.
Background
IA is a 60 year old man from a professional family and himself a physics graduate who once ran his own business. But his life has been eroded by extremely poor health, Type II Diabetes and related disabilities such as anaemia and partial blindness. Then in 2007 he was the subject of a violent criminal assault, being repeatedly kicked in the head, leaving him with a serious head injury, involving skull fractures, brain haemorrhage and contusions to the right frontal area of the brain.
Continue reading →
Like this:
Like Loading...
9 April 2014 by David Hart KC
LH, R (o.t.a) v. Shropshire Council [2014] EWCA 404 (Civ), Court of Appeal, 4 April 2014 – read judgment
Good advertisement for the flexibility of the common law, this case. This is because the duty to consult owed by a public body extends into all reaches of public law, from the regulation of a metal trading company (see my recent post here) to care centres and residential homes. Indeed it was in the context of residential home closures that the modern law got worked out. In the 1992 case of ex parte Baker, there had been a draft community care plan which had made no reference to the closure of individual homes, and which was followed up by a bolt from the blue – residents of one home only had 5 days’ notice that their home was to close.
In none of these cases is there a statutory duty to consult – it is an aspect of common law fairness.
The LH case concerns the closure of an adult care day centre. The question in LH was how to apply the principles in Baker to a rather more nuanced consultation approach, where closure of day centres in general was raised in consultation, but the closure of the specific day centre (Hartleys) was not.
Continue reading →
Like this:
Like Loading...
9 April 2014 by Rosalind English
JC and another v the Central Criminal Court [2014] EWHC 1041 (QB) (08 April 2014) – read judgment
This case raises the question whether an order made under s. 39 of the Children and Young Persons Act 1933 … prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age of 18 years. It has wide implications not only for young defendants but also for victims, witnesses, others concerned in proceedings and, of course, the media. [Sir Brian Leveson P, giving the judgment of the court , opening the case at para 1]
Background
On 15 November 2013, the claimants JC and RT, then 17 years of age, each pleaded guilty at the Central Criminal Court to an offence in early 2012 of joint possession of explosives. In both cases, the Crown accepted that they obtained this property without any intention of endangering life or causing serious injury to property.
Continue reading →
Like this:
Like Loading...
8 April 2014 by Rosalind English
Surrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] UKSC 19 (March 19, 2014) – read judgment
Elizabeth-Anne Gumbel QC, Henry Witcomb and Duncan Fairgrieve of 1 Crown Office Row represented the AIRE Centre, one of the intervening parties, in this case. None of them have anything to do with the writing of this post.
Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified.
Continue reading →
Like this:
Like Loading...
1 April 2014 by Rosalind English
Meiklejohn v St George’s Healthcare NHS Trust and Another [2014] EWCA Civ 120 – read judgment
Richard Booth QC of 1 Crown Office Row represented the appellant in this case. He has nothing to do with the writing of this post.
This was an appeal against the finding by HHJ Robinson, sitting as a High Court Judge, that there was no duty of care owed to the appellant in respect of his rare genetic disorder ([2013] EWHC 469 (QB), [2013] Med. L.R. 191). See my previous post for the factual and medical background of the claim. Briefly, the appellant suffered from a rare genetic version of the platelet insufficiency disorder, aplastic anemia (AA), the disorder in question being known as Dyskeratosis Congenita (“DC”).
Continue reading →
Like this:
Like Loading...
31 March 2014 by Rosalind English
The International Court of Justice has today upheld Australia’s bid to ban Japan’s Antarctic whaling program.
ICJ president Peter Tomka said the court concluded the scientific permits granted by Japan for its whaling program were not scientific research as defined under International Whaling Commission rules. The Court had found, by a majority of twelve votes, that Japan had conducted a program for logistical and political considerations, rather than scientific research. There is of course no appeal against an ICJ ruling and Japan has officially said that it will comply with the ruling.
The following is based on the ICJ’s press release.
Findings of the Court
First, the Court dismissed Japan’s argument that the Court had no jurisdiction over the dispute, submitted by Australia.
Continue reading →
Like this:
Like Loading...
30 March 2014 by Rosalind English
G (Children), Re [2014] EWCA Civ 336 (25 March 2014) – read judgment
This interesting family dispute demonstrates the tension between legal parenthood and biological parenthood in times when both legislation and common law are struggling to keep up with the possibilities offered by reproductive medicine; where a child can be born with no biological relationship with its gestational parent, or, conversely, where children can be borne of two separate mothers and yet be full genetic siblings.
Background
The appellant and respondent had been in a lesbian relationship for some years. Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins.
Continue reading →
Like this:
Like Loading...
28 March 2014 by David Hart KC
United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust [2014] EWHC 890 (Admin), Phillips J, 27 March 2014 – read judgment
Public law principles allow you to challenge a decision of a public authority if the consultation process preceding it was unfair. Unfairness comes in many shapes and sizes, but the commonest one alleged is that it was not carried out at the formative stage. The authority had already made up enough of its mind so the consultation process ceased to mean anything – it was just going through the motions.
The law is equally clear that an authority does not have to consult on every conceivable option. Indeed it can just consult on its preferred option.
But this decision shows that if it does so it has to be wary, because on the particular facts that may be unfair.
Enter our cast, challenger in the form of Rusal (proprietor one Oleg Deripaska), and the defendant, the London Metal Exchange.
Continue reading →
Like this:
Like Loading...
28 March 2014 by Rosalind English
Is environmental regulation unnecessary and is it crippling our economy? This was the debate which raged last Thursday between a senior Conservative backbencher and one of our regular 1 Crown Office Row contributors to the blog – thanks to the UK Environmental Law Association who organised it and city law firm Simmons & Simmons who hosted lunch. Stephen Tromans QC of 39 Essex Street ably chaired the debate.
The motion of the debate was a broad one which John Redwood narrowed down into an onslaught on climate change subsidies, which he said were pointless and damaging. To find out more about his case, and David’s response, listen to the audio file here.
Like this:
Like Loading...
26 March 2014 by Guest Contributor
As MPs and Peers consider the Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations and the Criminal Justice and Courts Bill, Angela Patrick, Director of Human Rights Policy at JUSTICE considers the Lord Chancellor’s view that proposed judicial review changes do not restrict access to judicial review remedies or restrict the rule of law.
Tomorrow (Thursday), MPs will consider a series of detailed amendments to the Government’s proposed changes to judicial review in the Criminal Justice and Courts Bill. The proposed changes to legal aid for judicial review are not up for debate. The Regulations, which will restrict legal aid to only those cases granted permission, are already made and due to come into force on 22 April. There will be no debate on those changes, unless MPs and Peers demand one.
Continue reading →
Like this:
Like Loading...
26 March 2014 by David Hart KC
Kennedy v. Charity Commission et al, Supreme Court, 26 March 2014 read judgment
In judgments running to 90 pages, the Supreme Court dismissed this appeal by Mr Kennedy, a Times journalist, for access to documents generated by the Charity Commission under the Freedom of Information Act 2000 concerning three inquiries between 2003 and 2005 into the Mariam Appeal. This appeal was George Galloway’s response to the sanctions imposed on Iraq following the first Gulf War, and little Mariam was a leukaemia sufferer. Mr Kennedy’s suspicion, amongst others, was that charitable funds had been used by Galloway for political campaigning.
The Charity Commission had refused the request on the ground that the information was subject to an absolute exemption from disclosure contained in s.32(2) of the FOIA. The Supreme Court (in common with the Court of Appeal) held that the absolute exemption applied and dismissed Mr Kennedy’s request. But the result was a little closer in the SC, with two judges dissenting, essentially on Article 10 grounds.
Continue reading →
Like this:
Like Loading...
Though strategic litigation and test cases make essential contributions to the rule of law, there’s concern that they’re being abused. And, as funding comes under attack, there’s a greater need than ever for pro bono lawyers to take on test cases to ensure access to justice and accountability.
Recent comments