Category: BLOG POSTS
16 February 2014 by David Hart KC
North Norfolk District Council v. Secretary of State for Communities and Local Government, [2014] EWHC 279 (Admin), Robin Purchas QC sitting as a Deputy High Court Judge, 14 February 2014 – read judgment
In my last post, I explained how Chris Grayling’s proposed reforms might affect planning and environmental challenges, and, hey presto, within the week, a perfect illustration of one of the points which I was making – with implications for all judicial reviews.
One of the proposals in the Criminal Justice and Courts Bill (see here) is that a challenge to an unlawful decision should fail if it is highly likely that the outcome for the applicant would not have been substantially different, had the public authority not acted unlawfully. This compares with the current test which is that the decision should be quashed unless it is inevitable that the decision would be the same.
Cue a proposed wind turbine (86.5m to blade tip) to be placed on one of the highest points of Norfolk and affecting the setting of two Grade I listed buildings (Baconsthorpe Hall and Barningham Hall) and a number of Grade II* churches. The Inspector allowed the turbine on appeal from the local planning authority, which decision the judge has now set aside.
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12 February 2014 by Rosalind English
Litvinenko, R (On the application of) v Secretary of State for the Home Department [2014] EWHC 194 (Admin)- read judgement
Neil Garnham QC and Neil Sheldon of 1 Crown Office Row represented the Secretary of State in these proceedings. They had nothing to do with the writing of this post.
This was an application by the widow of Alexander Litvinenko for judicial review of the refusal by the Secretary of State for the Home Department to order the setting up of a statutory inquiry into his death in London in November 2006. The Secretary of State had been asked to set up such an inquiry by Sir Robert Owen, the judge appointed to conduct the inquest into Mr Litvinenko’s death as Assistant Coroner.
Factual and Legal Background
Mr Litvinenko was taken ill on 1 November 2006 and died in University College Hospital on 23 November. There appears to be no doubt that the cause of death was radiation poisoning as a result of the ingestion of a radioactive substance, polonium 210. An “extremely thorough” investigation into the death was carried out by the Metropolitan Police Service with the assistance of the Atomic Weapons Establishment, Public Health England, the Health and Safety Executive, the Forensic Science Service and other external experts.
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10 February 2014 by Celia Rooney
Welcome back to the UK Human Rights Roundup, your regular sporting extravaganza of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
Last week, the Justice Secretary published the Criminal Justice and Courts Bill. The implications of his revised proposals for judicial review reform are considered in this week’s roundup, along with controversy over gay rights at the Winter Olympics and recent trends in defamation cases before the Court of Human Rights.
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9 February 2014 by David Hart KC
Sections 50 to 57 of the Criminal Justice and Courts Bill and Explanatory Notes; the full Government response is here, 4 February 2014
At first sight, proposals full of sound and fury, and signifying not a great deal for planning and environmental challenges. There are some slippery costs changes which we need to look at, but some of the potentially more concerning proposals (see Adam’s post and the linked posts) do not fully apply to this area, as I shall explain. There are also some perfectly sensible proposals about harmonising planning challenges which lawyers have been advocating for years.
This consultation got going in September 2013 when Grayling put forward his round 2 of reform to judicial review in a wide-ranging, and frankly worrying, consultation paper. This week’s announcement and draft bill seeks to take some of these measures forward, but leaves others at home.
Mercifully, the bill does not include the ill-thought out consultation proposal to reform rules about standing in judicial review – who can complain of unlawful action by government? The proposal had been very worrying to those concerned with environmental challenges. It would have led to the rather unsatisfactory position that a NIMBY complaining about a nearby development would have been able to challenge an unlawful decision, but an entirely altruistic concern about unlawfulness affecting, say, birds, bats or habitats would have been dismissed not on the merits, but because the NGO or individual conservationist had insufficient “interest” in the outcome. See my previous post on this.
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7 February 2014 by
Richardson v Director of Public Prosecutions [2014] UKSC 8 – read judgment / press summary
The tactics of protesters engaging in demonstrations, or acts of civil disobedience, frequently raise interesting questions of law. A demonstration by two activists opposed to the Israeli occupation of the Palestinian Territories, who entered a shop in Covent Garden which sold produce from the Dead Sea, produced on an Israeli settlement, recently resulted in the Supreme Court addressing two such questions.
First, in what circumstances can someone who trespasses on premises and disrupts the activities of the occupiers avoid prosecution by arguing that those activities were in some way unlawful?; and second (obliquely) is the construction of Israeli settlements on the West Bank an offence under English law? The short answers were (1) only when the unlawfulness is integral to the occupier’s activity; and (2) probably not.
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6 February 2014 by Adam Wagner
The Ministry of Justice has published its response to the consultation on the latest round of Judicial Review reforms. The full response is here and the Criminal Justice and Courts Bill is here.
In my post on the first draft of the MoJ proposals, I warned to beware of kite flyers, and said:
Sometimes, especially with Government consultations, a kite is raised in order to distract from what is really happening on the ground. As with the last phase of JR reform, the rhetoric is more extreme than the reality.
Without wanting to say “I told you so” (oops), don’t be fooled by the seeming concessions. There is still a lot to be concerned about in what remains, as there was in the last round of changes – as Dr Mark Elliott points out, JR, like the NHS (and Communist Russia), now seems to be in a state of perpetual reform. I do not intend here to analyse the proposals in detail, but I will point you towards some excellent early articles.
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5 February 2014 by Rosalind English
Criminal Injuries Compensation Authority v First-Tier Tribunal (Social Entitlement Chamber) [2014] EWCA Civ 65, 3 February 2014 – read judgment
When considering whether to award compensation under the Criminal Injuries Compensation Scheme, the board must rest its determination of “crime of violence” on the act causing the injury, not its consequences. A breach of the provisions of the Dangerous Dogs Act is not necessarily a “crime of violence”.
Background facts
In August 2002 a fourteen year old boy, TS, was riding his bicycle along the pavement of a quiet residential street near his home when a small dog, which had escaped from its owner’s garden, rushed up to him barking in an aggressive manner. TS instinctively swerved away from the dog on to the road and into the path of a car. He was seriously injured. He spent four months in hospital and is now quite severely disabled.
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4 February 2014 by Guest Contributor
The business of the law can tend to harden the heart – but every now and then a case comes along that drives off the spectre of compassion fatigue. This was the effect of a recent libel claim in which I obtained substantial damages and published apologies for a 20-year-old Afghan refugee, Abdul Shizad, who – despite being entirely alone in the UK and having limited English – had the courage to sue the Daily Express, which had falsely accused him of being a “Taliban Suspect”.
The Express’s timing was particularly superlative, its 4 March 2013 article “Now Judges Let Taliban Suspect Stay” coming just a month after Abdul had succeeded in a stressful and exhausting 4 year quest for asylum in the UK.
Accompanied by a most unflattering photograph of two unsuspecting “Judges”, the article lambasted “a new human rights scandal” in which “judges have said a suspected Taliban member can stay in Britain”.
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3 February 2014 by Rosalind English
Shahid v The Scottish Ministers [2014] ScotCS CSIH – 18 – read judgment
Solitary confinement of a dangerous prisoner in accordance with the prison rules was neither unlawful nor in breach of his Convention rights, the Scottish Court of Session has ruled.
The petitioner (as we shall call him to avoid confusion, rather than the more accurate “reclaimer”) was serving a life sentence for what the court described as a “brutal and sadistic” racially motivated murder of a 15 year old white boy in 2006. Apart from a short period during his trial he remained continuously segregated until 13 August 2010, when he was allowed once again to associate with other prisoners (“mainstream”). He claimed that his segregation was contrary to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 and, separately, contrary to Article 3 of the European Convention on Human Rights, which provides protection against torture and cruel and unusual punishments, and Article 8, which protects the right to private life. He sought declarations to that effect and £6,000 by way of damages.
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2 February 2014 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular all-singing, all-dancing extravaganza of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
This week, a group of MPs investigating drones were advised that large amounts of GCHQ surveillance is likely to be illegal, and the Conservatives continued their push for a Bill of Rights. Meanwhile, the Council of Europe Commissioner for Human Rights argued that anti-Semitism is alive and well in Europe.
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1 February 2014 by Rosalind English
Government of the Republic of South Africa v Dewani [2014] EWHC 153 (Admin) 31 January 2014 – read judgment
Shrien Dewani, the British man facing charges of murdering his wife on honeymoon in South Africa, has lost his appeal to block extradition there (so far three men have been convicted in South Africa over Mrs Dewani’s death). The Court ruled that it would not be “unjust and oppressive” to extradite him, on condition that the South African government agreed to return him to the UK after one year if his depressive illness and mental health problems still prevented a trial from taking place.
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29 January 2014 by Adam Wagner
Two barristers have advised a Parliamentary committee that some mass surveillance allegedly undertaken by the UK’s security services is probably illegal. Jemima Stratford QC and Tim Johnston’s advice (PDF) was commissioned by the chair of the All Party Parliamentary Group on Drones.
You may ask why an Parliamentary group on drones is getting involved in the GCHQ surveillance debate, itself kickstarted by the revelations by Edward Snowden (pictured). The slightly tangential answer is that the committee is concerned about the legality of data being passed to the United States for use in drone strikes.
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29 January 2014 by Rosalind English
Trafford v Blackpool Borough Council [2014] EWHC 85 – read judgment
The High Court has held that a local authority had abused its powers by refusing to offer a solicitor a new lease of the claimant’s office premises.
The claimant solicitor was aggrieved by the fact that the stated reason for the defendant’s refusal was that her firm had brought claims against the Council on behalf of clients seeking compensation for injuries alleged to have been caused by the negligence of the Council, predominantly in highways “tripping” type claims.
HHJ Davies held that the Council had exercised its “wide discretion” under Section 123 of the Local Government Act 1912 for an improper purpose and was “fundamentally tainted by illegality” on that basis. The Council’s refusal was both Wednesbury unreasonable and procedurally unfair.
Public versus private
The interesting question central to this case was whether or not a public body, acting under statutory powers in deciding whether or not to renew or terminate a contract, was acting under public law duties, and therefore amenable to judicial review, or whether the relationship between the claimant and the defendant was one governed exclusively by private law, where judicial review has no part to play .
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27 January 2014 by Celia Rooney
Welcome back to the UK Human Rights Roundup, your regular bountiful burst of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, the pragmatic, political and constitutional ramifications of the Supreme Court’s decision in the HS2 case are up for debate. Meanwhile, the European Court considers whether the Charter of Rights applies in private disputes, while the domestic courts take on the tricky issue of the justiciability of US drones strikes in Pakistan. And the Court of Appeal rules on TfL’s bus advert ban.
An unashamed plug: A few tickets still left for this Thursday’s event featuring Adam Wagner amongst others – Human Rights Behind the Headlines.
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24 January 2014 by Rosalind English
Pike and Doyle v Indian Hotel Companies Ltd [2013] EWHC 4096 (QB) – read judgment
Philip Havers QC and Peter Skelton of 1 Crown Office Row represented the claimants in this case. They have nothing to do with the writing of this post.
This sad case arose out of the 2006 terrorist attack on the Taj Mahal Palace, Mumbai, India. The claimants, who had spent 15 days backpacking around Goa, decided to treat themselves to one night of luxury at the hotel before they were due to fly home from Mumbai. Shortly after the attack began the claimants hid in their room, locked the door and turned off the lights. Some hours later they tried to escape through the window. Their room was on the third floor of the tower part of the hotel. They tied together sheets, curtains and towels to make a rope. They hung it outside their room and the first claimant went first. The “rope” came apart and he fell to the ground suffering serious spinal injuries which have left him paraplegic. The second claimant was rescued subsequently. She did not suffer physical injuries but claims for continuing psychiatric consequences.
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North Norfolk District Council v. Secretary of State for Communities and Local Government, [2014] EWHC 279 (Admin), Robin Purchas QC sitting as a Deputy High Court Judge, 14 February 2014 – read judgment
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