Category: BLOG POSTS
4 August 2012 by David Hart KC
A Mother v. A Father HHJ Platt, Romford County Court, 11 May 2012, read judgment
I recently dared to enter religious territory in a post about religious no-go zones declared by the courts – they should not pronounce on the intricacies of Sikh succession because it raised doctrinal issues which the courts should not decide. Compare and contrast this family law case.
Judges have to get involved in disputes on divorce, of which the current case is an exquisitely difficult example. Its facts are very simple. C was 10. Her parents and grandparents are Jewish. Her father is a Christian convert, and C wanted to be baptised. Her mother did not want this. She said father had brainwashed C, and it was premature. Mother went to court to stop any baptism proceeding until C was 16. The Court could not simply wash its hands of the case; that would encourage self-help taken by one or other parent, to the lasting resentment of the other.
Continue reading →
3 August 2012 by David Hart KC
A, R (o.t.a A) v. Chief Constable of B Constabulary [2012] EWCA 2141 (Admin), Kenneth Parker J, 26 July 2012, read judgment
The public/private divide still gets lawyers excited, even in an Olympic summer, and for good reason – my image is simply to cool the fevered brow of those fresh from the stadium or the beach. Now for the problem met head on in this case. Generally speaking, parties to a contract may treat the others how they please, as long as that treatment does not offend the terms of the contract or specific consumer protection rules. But, equally generally, a public body is obliged to treat others in accordance with public law rules of fairness, and can challenge unfairness by judicial review. And this case is a good example of the intersection between these principles.
A had run a breakdown recovery service for the police for some years. The police then interposed a main contractor, FMG, who awarded the contract to A for the continuation of the job, now as a subcontractor. But the sub-contract, understandably enough, provided that its award was subject to vetting by the police. And the police then refused to give A clearance. Why? The police would not say, even when A threatened proceedings. And they said that they did not have to. Their line in court was that it was all governed by the contract, and the courts had no business in poking its nose into their reasoning – in the jargon, it was non-justiciable. They relented to some extent in the course of the proceedings, by giving some information, but still said that they were not obliged to do so.
Continue reading →
30 July 2012 by Sam Murrant
Gratuitous Olympics image
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
Whilst the eyes of the world are on London’s Olympic Games, the eyes of this blog are on a series of important rulings which our judges produced last week just before they took the short stroll from the Royal Courts of Justice to Horse Guards Parade watch the beach volleyball. There were three particularly important decisions: firstly, Paul Chambers won his appeal against criminal conviction following a Twitter Joke. Secondly, the recent Alvi case clarified the meaning of the word “rule” in immigration law as a response; and finally the RT (Zimbabwe) case established that a person subject to deportation is not to be expected to lie about one’s beliefs (or lack thereof) to avoid persecution.
Continue reading →
27 July 2012 by Isabel McArdle
Paul Chambers v DPP [2012] EWHC 2157 – Read judgment
The famous ‘Twitter joke’ conviction of Paul Chambers has been overturned on appeal, bringing welcome clarity to what is and what is not an offence of this type. On discovering a week before he was due to take a flight that the airport was closed due to adverse weather conditions, he tweeted that “I am blowing the airport sky high!!” unless the situation was resolved by the time of his flight. He was convicted of sending a message of a “menacing character”, but has had the conviction quashed on appeal, on the basis that, as it was a joke, it was not of a menacing character.
“I had decided to resort to terrorism”
Mr Chambers was intending to fly out of Robin Hood Airport on 15 January 2010 to meet a romantic partner he met on Twitter. On 6 January, via Twitter, he became aware that severe weather was causing problems at the airport, and engaged in a conversation on Twitter where he made the following comments:
“…I was thinking that if it does [close due to adverse weather] then I had
decided to resort to terrorism”
Continue reading →
25 July 2012 by Rosalind English
RT (Zimbabwe) and others (Respondents) v Secretary of State for the Home Department [2012] UKSC 38 – read judgment
It is no answer to a refugee claim to say that the individual concerned should avoid persecution by lying and feigning loyalty to a regime which he does not support.
So the Supreme Court has ruled today, considering the relevance to political beliefs of the so-called “HJ(Iran) principle” which was formulated in a case where it was held that it was no answer to an asylum claim by a gay man that he should conceal his sexual identity in order to avoid the persecution that would follow if he did not do so.
Continue reading →
25 July 2012 by Rachel Marcus
Dinah Rose QC
Monday night’s fascinating seminar on Article 9, “Outlawing God”, saw Dinah Rose QC, John Bowers QC, Dr Evan Harris (Liberal Democrat former MP) and Rabbi Michael Laitner (solicitor and Orthodox rabbi) square off over the relationship of the courts to religious belief and believers, refereed (and sometimes stoked) by Joshua Rozenberg in the chair. The seminar, which raised almost £2,000 for legal advice clinics at the Hebrew University, can be listened to here.
There was a clear division in the room: between the lawyers, who felt that the courts in both the UK and Strasbourg afforded less robust protection to Article 9 rights than to the other rights in the Convention; and Dr Harris, who could not accept that a religious belief was any more worthy of protection than any political belief.
Continue reading →
24 July 2012 by David Hart KC
Swift v. Secretary of State for Justice [2012] EWHC 2000 (QB) Eady J, read judgment
This decision involves the intersection of Articles 8 (family) and 14 (discrimination) of the ECHR with the law governing who can recover damages for the death of a relative. This law is the Fatal Accidents Act 1976 (for the text see [10] of the judgment – embarrassingly, the one freely available on the internet is out of date). One does not to think for very long before realising that the FAA is underpinned by an idea that one ought to respect the rights of the family, and to pay the family when one has negligently caused the death of a family member. But like all such laws, there is the problem of where to stop – where does the family stop for these purposes?
Ms Swift had been living with Mr Winters for 6 months when he was killed at work. She was pregnant with their child. Under FAA rules, her child had a claim for financial dependency against his father’s employer – what he expected to derive from his father had his father lived – even though he was not born at the date of his father’s death. Indeed, her son recovered £105,000. But, says the FAA, Ms Swift does not have a claim. s.1(3) requires an unmarried partner to have been living with the deceased for 2 years before his death before they can become a “dependant”, and no amount of re-writing via s.3 of the Human Rights Act (to make the FAA rights-compliant “so far as possible”) can make “2 years” read as “6 months” . Had she qualified as a dependant, she would have had a claim for about £400,000.
So Ms Swift’s claim was against the Secretary of State for a declaration that the FAA was incompatible with her Article 8 and 14 rights.
Continue reading →
23 July 2012 by Wessen Jazrawi
Welcome back to the UK Human Rights Roundup, your weekly summary of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
It has been an interesting week for immigration law, with so-called ‘back door’ immigration rule changes struck down by the Supreme Court. The UK has been hauled over the coals yet again about prisoner voting, and those of us interested in corporate accountability saw the High Court rule that it was arguable that the London parent company headquarters of a South African company was its place of central administration for domicile purposes.
by Wessen Jazrawi
Continue reading →
22 July 2012 by Rosalind English
Updated | Mouvement Raëlien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012) – read judgment
This case concerned the Swiss authorities’ refusal to allow an association to put up posters featuring extraterrestrials and a flying saucer on the ground that it engaged in activities that were considered immoral.
The association complained it had suffered a violation of its right to freedom of expression. The Grand Chamber did not agree, ruling that the refusal had met a “pressing social need” and that the authorities had not overstepped the broad margin of appreciation given to them in view of the non-political dimension of the poster campaign.
At first blush there is nothing remarkable about this ruling. But it was a narrow majority (nine votes to eight) and a brief reading of the dissenting opinions gives pause for thought: does the slightly loony nature of a message justify its suppression? Lurking behind the authorities’ refusal to allow the association’s advertising campaign is a sense of disapproval vis a vis their anti-Christian message; one of the campaigns the association wished to conduct featured a poster stating “God does not exist”, and on another, below the association’s website, ran the message “Science at last replaces religion”.
Continue reading →
22 July 2012 by David Hart KC
Khaira v. Shergill [2012] EWCA Civ 893 read judgment
We have become used to the courts getting involved, more or less willingly, in religious issues, not least where religious freedoms conflict with legal rules which are said to be inconsistent with the exercise of those freedoms. But as Adam Wagner pointed out, in an earlier round of this litigation concerning two Sikh places of worship (Gurdwaras), the courts have developed rules stopping themselves from deciding certain cases, not least because the courts recognise they don’t know what they are doing once they get themselves immersed in issues of religious doctrine.
Continue reading →
21 July 2012 by Rosalind English
.. has been discovered and we’ve removed the post. As I observed, there was no link to the Mississippi law online, so this was a prank to stir up momentary fervour in the blogosphere.
In fact, religious sensitivities have a much more insidious role to play in lawmaking, as I discuss in my post on a recent Strasbourg Grand Chamber case on free speech.
20 July 2012 by Adam Wagner
Interested in the interaction between religion and law? If so, you will be interested in an event I am helping to organise this coming Monday 23 July at 6:30 for a 7pm start. There are a few tickets remaining – click here for details and booking , which is essential. The event is raising money for free legal advice clinics run by the Hebrew University in Jerusalem. Nb. the event is separate from the blog and 1 Crown Office Row, but hopefully will be of interest to some of our readers…
OUTLAWING GOD? The clash of the courts with religious believers
A “Question Time” style panel discussion of one of today’s most important and controversial issues:
Featuring a superb expert panel:
- Joshua Rozenberg (chair) – Britain’s best known legal commentator;
- Dr Evan Harris – Former MP and author of The Secular Manifesto ;
- Rabbi Michael Laitner – Assistant Rabbi, Finchley United Synagogue (Kinloss), qualified solicitor;
- John Bowers QC – Deputy High Court Judge and leading barrister with expertise in discrimination law;
- Dinah Rose QC – Leading public law and human rights barrister. Acted for the pupil in ‘the JFS case’.
Monday, 23 July 2012, 6:30pm for 7:00pm, followed by a reception with canapés and wine
Tickets: £20 – all details here
@ Norton Rose LLP, 3 More London Riverside, London SE1 2AQ
20 July 2012 by Rachit Buch
Millie Dowler
HM Attorney General v Associated Newspapers Ltd & Anor [2012] EWHC 2029 (Admin) (18 July 2012) Read judgment.
The Divisional Court ruled that reports of Levi Bellfield in the Daily Mail and Daily Mirror, published while a jury was considering his charge of attempted kidnapping, were in contempt of court.
On 6 May 2011, Levi Bellfield’s trial for the murder of Milly Dowler and attempted kidnap of Rachel Cowles began. He had already been convicted in 2008 of the murders of Marsha McDonnell and Amelie Delagrange, and the attempted murder of Kate Sheedy. On 23 June 2011, the jury convicted Mr Bellfield of the murder of Milly Dowler, but had yet to return a verdict on the charge of attempted kidnapping. The Daily Mail and Daily Mirror printed stories on 24 June 2011 including information that wasn’t before the jury in the trial. The question in the resultant contempt proceedings was whether these articles violated the Contempt of Court Act 1981 (CCA).
Continue reading →
19 July 2012 by Adam Wagner
Somebody call Lord Justice Leveson! The Daily Mail have earned themselves a position on the legal naughty step by ‘naming and shaming’ a “controversial” immigration judge for allowing an appeal on human rights grounds, whilst failing to mention that the Home Office themselves had conceded the point.
The article by Andy Whelan and Ross Slater, entitled Judge who let Taliban soldier remain in Britain now allows refugee who raped girl, 12, stay in UK, even included a paparazzi snap of Immigration Judge Perkins looking vaguely sinister. The Mail reported, correctly, that the judge ruled “removing [the Appellant] would be contrary to the United Kingdom’s obligations under the European Convention on Human Rights“. This is technically right. But there is more. The excellent Free Movement Blog has tracked down the judgment, in which the Judge also made clear that
Before us, on 12 November 2009, Ms R Ashraf, who then represented the [Home Office], accepted that the appeal had to be allowed on human rights grounds.
Continue reading →
18 July 2012 by Richard Mumford
An editorial article published in the British Medical Journal on 12 July 2012 (subscription required) has provoked controversy in right-to-life circles. The article, entitled “Sanctity of life law has gone too far” criticises the ruling of Baker J in the “M” case where an application to authorise the removal of artificial nutrition and hydration (ANH) from a patient in a minimally concscious state was refused. This blog reported on the M judgment in September 2011 here, here and here.
The author of the BMJ article, Dr Raanan Gillon, Emeritus Professor of Medical Ethics at Imperial College London (who describes himself as “a hybrid GP and philosopher”) takes Baker J to task for not according significant weight to the informally expressed views of M on life-sustaining treatment, expressed before she came ill. More widely, Dr Gillon questions the implications of the judgment for decisions about the best interests of patients whose state of consciousness is higher than minimal. Most controversial of Dr Gillon’s comments is likely to be his conclusion on the resource implications of the approach to best interests of incapacitated patients, which is put in the following terms:
Continue reading →
A Mother v. A Father HHJ Platt, Romford County Court, 11 May 2012, read judgment 
Recent comments