Category: BLOG POSTS
16 April 2010 by Adam Wagner
The Lord Chief Justice used a recent lecture to argue that the European Court of Human Rights (ECtHR) is being given too much respect in the UK courts, with its judgments being cited by lawyers and judges with alarming regularity.
Joshua Rozenberg writing the Law Society Gazette suggests that Lord Judge’s lecture was in fact misunderstood by many in the media, who used the speech to “call for the judiciary to give the good old English common law supremacy over that nasty foreign stuff they make in ‘Alsace, France’”
The issue an important one, as it goes to the heart of the debate over whether the Human Rights Act 1998 should be repealed. The original intention of the 1998 Act was to “bring rights home”; in other words, to prevent decisions on matters of great public importance and local sensitivity being decided in Strasbourg rather than the UK. Before the 1998 Act, the only human rights cases which could be cited were from Strasbourg. But the UK courts now have almost ten years of home-grown human rights case law to consider. The effect of the 1998 Act was therefore to diminish the relevance of ECtHR cases, and the Lord Chief Justice was reminding lawyers of this point.
Analysing the speech, it is clear that Lord Judge’s main complaint was that too many lawyers cite ECtHR authorities at inappropriate times, and that modern technology (including, it would seem, overzealous use of copy and paste) has meant that too many European authorities are creeping back into arguments.
Section 2(1) of the Human Rights Act 1998 states that a court determining a human rights question must “take into account” any “relevant” judgment of the ECtHR. However, as the Lord Chief Justice pointed out, unlike decisions of the European Court of Justice, “the decisions of the European Court of Human Rights in Strasbourg do not bind our courts… What I respectfully suggest is that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court.”
Lord Judge also appears to despair of lawyers and even judges’ use of copy and paste. He said:
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15 April 2010 by Adam Wagner
The British Chiropractic Association (BCA) has dropped its libel action against Simon Singh, in light of the stinging rebuke it received from the Court of Appeal earlier this month.
Dr Singh was being sued by the BCA in respect of an article he wrote in The Guardian (now reprinted) in April 2008, in which he said there was not enough evidence to prove that chiropractic treatment is effective against certain childhood conditions including colic and asthma.
We posted on April 1 on the preliminary decision. The Court of Appeal judges used their judgment on two preliminary issues (in particular, whether Dr Singh could use the defence of “fair comment”) to mount a robust and somewhat lyrical defence (quoting Milton, amongst other things) of the right to scientific freedom of expression.
Given the unusually strong tone of the Court of Appeal judgment, the BCA will have questioned their chances of success in the final hearing. The BCA say in their statement:
The Court of Appeal, in its recent judgment, has taken a very different view of the article [than Mr Justice Eady in the High Court]. On its interpretation, the article did not make any factual allegation against the BCA at all; it was no more than an expression of ‘honest opinion’ by Simon Singh. While it still considers that the article was defamatory of the BCA, the decision provides Dr Singh with a defence such that the BCA has taken the view that it should withdraw to avoid further legal costs being incurred by either side.
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15 April 2010 by Adam Wagner
The three main political parties have now have set out their stalls on human rights in their election manifestos, and the future of the Human Rights Act is very much in the balance.
We have been following the arguments for and against a Bill of Rights, which has been proposed either as a replacement for or supplement to the Human Rights Act 1998.
After a period of uncertainty, now only the Conservative Party say they will actually replace the Human Rights Act, with both Labour and the Liberal Democrats committing to keeping it on the statute books. The Conservatives have not spelled out how or within what time frame their plans will take shape. Dominic Grieve, the shadow justice secretary, spoke to lawyers recently on the issue but provided little further detail.
The Human Rights Act 1998 came into force in October 2000, and despite approaching its 10th birthday, it still inspires strong views either in support or opposition. As Francis Gibb writes in The Times, “it… became derided by the Government’s own ministers as well as by the Conservatives as a “charter for the undeserving” and for criminals.”
The two parties which support keeping the Act may be reluctant to raise the issue over other more obvious vote winners, and as such it remains to be seen how much it will feature in debate leading up to the election. However, whether or not it becomes a key issue on the soap boxes, the fate of the Human Rights Act will be one of the important lasting effects of this election.
The manifestos can be found (in alphabetical order) below:
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14 April 2010 by Adam Wagner
Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)
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It would seem that legal aid is the topic of the day. Mr Justice Hickinbottom in the High Court has quashed the decision of the Legal Services Commission (LSC) not to grant an applicant for Judicial Review, Mrs Humberson, legal aid for representation at the inquest enquiring into the death of her son, Dante Lee Kamara. The judge took the opportunity set out five criteria which the LSC should apply when considering future applications (listed after the page break below).
Dante died in hospital on 1 July 2008 after an asthma attack. He was aged 10. The judge criticised the LSC’s decision not to grant funding to his mother, saying:
95. I regard the failure of the Commission to take into account the true nature and seriousness of the allegations Miss Humberstone faces at the inquest as a particularly serious defect in the decision making process: one reason why this case is unusual and essentially exceptional is because of the serious allegations Miss Humberstone faces, at the instigation of the agents of state who, she suspects, may have caused or contributed to her son’s death. This case does not open up any floodgate. I do not demur from the view in the Lord Chancellor’s Guidance, which itself reflects comments in Khan, that “in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above). Given the nature of an inquest, and the specialist nature of coroners, that must be so.
Article 2(1) of the European Convention on Human Rights provides: “Everyone’s right to life shall be protected by law“. That primary obligation includes not only a duty on the state not to take life, but also a duty on the agents of the state to take appropriate legislative and administrative steps to protect individuals from threats to life when in their care. This also encompasses a duty, in some circumstances, to investigate a death, and if necessary, provide funding so that the investigation, including an inquest, functions properly.
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14 April 2010 by Adam Wagner
Three MPs who are being prosecuted for their role in the parliamentary expenses scandal have been granted legal aid.
However, contrary to what the the Prime Minister said yesterday afternoon, Jim Devine, David Chaytor and Elliot Morley will only have to pay back the money if they are found guilty.
The case and ensuing political furore highlight two important aspects of the legal aid scheme from a human rights perspective.
First, that financial legal assistance in criminal cases is a human right. As Joshua Rozenberg points out on his Standpoint Blog:
Article 6(3)(c) of the Human Rights Convention says that everyone charged with a criminal offence has the right to defend himself through legal assistance of his own chosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
The second important point is that from June, the right to legal aid in serious criminal prosecutions will be limited by the introduction of means testing.
The scheme is undergoing significant changes primarily in order save costs. In 2008/9 £2.186 billion was spent on legal aid, with 53% spent in the criminal courts, amounting to 1/630 of government expenditure. In order to reduce that figure, from June 28 this year criminal legal aid in the Crown Court, where more serious criminal offences are tried, will become means tested. Legal aid in the Magistrates’ Courts, where less serious offences are tried, is already subject to means testing. The Legal Services Commission now hopes to save a further £35m per year.
From June, anyone with a net (i.e. after tax) disposable income of more than £3,398 per year and with capital of over £10,000 will have to contribute to their own legal expenses when prosecuted in the Crown Court. As such, the three MPs would probably not receive full legal aid under the new scheme.
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13 April 2010 by Adam Wagner
Sir Nicholas Wall, the new head of the Family Division, is being sworn in today. The Times reports this morning on comments he made in a recent judgment in the case of EH v London Borough of Greenwich & Ors [2010] EWCA Civ 344.
He said of social workers:
What social workers do not appear to understand is that the public perception of their role in care proceedings is not a happy one. They are perceived by many as the arrogant and enthusiastic removers of children from their parents into an unsatisfactory care system, and as trampling on the rights of parents and children in the process. This case will do little to dispel that perception. (paragraph 109)
A profile of Sir Nicholas in The Times suggests that he arrives at his new post with a reputation as a forthright critic of social services, local council, social workers and politicians. Indeed, it has been suggested that the Justice Minister Jack Straw may have been trying to block the appointment of Sir Nicholas for that very reason.
We posted earlier this week on the issues regarding child protection and the duty of care of local authorities. The courts are often finding themselves having to balance the competing rights of children, who must be protected against abuse, and parents, who are sometimes themselves the victims of overzealous prosecutions by local authorities. It would appear that the pressure on public authorities will only increase once the new Family Division head is in post.
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13 April 2010 by Adam Wagner
The conviction of the “Heathrow heist four” at the Old Bailey has raised serious concerns that the historic right to trial by jury may be slipping away.
For the first time in 350 years, the four men were convicted in the Crown Court by way of a trial without a jury. On March 31st each received long prison sentences for their part in the robbery.
Henry Porter, writing in The Guardian, has severely criticised the reforms which allowed the trial to proceed with no jury. He says:
A profound change has occurred in Britain where it is now possible for counsels and a judge to decide the fate of defendants without the involvement of 12 ordinary citizens – the fundamental guarantee against arbitrary state punishment represented so well by the use of the star chamber under King Charles I.
The right to trial by jury has been steadily eroded in recent years. Civil courts now operate almost entirely without juries, as do some lower-level criminal courts such as Magistrates’ courts, which are only able to impose custodial sentences up to a maximum length of one year.
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12 April 2010 by Kate Beattie
The Bribery Bill received Royal Assent on 8 April 2010, heralding a new approach to tackling corruption and seeking to make the UK compliant with the OECD Anti-Bribery Convention.
Anti-corruption body Transparency International welcomed the new law, describing it as historic, long overdue and sending out a strong message that the UK will not tolerate bribery. It is hoped that the new legislation will encourage ethical practices in the business world.
The connection between corrupt business practices and breaches of human rights has long been recognised. In their comment on the draft Bribery Bill, The Corner House said:
“most large-scale bribery is committed for the benefit and on behalf of businesses and that bribery often infringes upon a wide range of human rights, both directly and indirectly. As such, a commercial organisation’s negligent failure to prevent bribery should remain a criminal offence.”
Meanwhile, the Campaign Against Arms Trade and The Corner House are not pursuing an appeal for permission for judicial review of the Serious Fraud Office’s decision to enter a plea bargain settlement with BAE Systems and to drop “conspiracy to corrupt” charges against a BAE former agent. The organisations say that the action has been withdrawn with regret as a recent admission by the SFO makes it difficult to sustain any legal challenge.
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12 April 2010 by Kate Beattie
Prisoners will be unable to vote in the general election despite the European Court of Human Rights ruling almost five years ago that the blanket ban was unlawful.
The House of Lords discussed the issue in the small hours of 7 April 2010 when Lord Ramsbotham, former Chief Inspector of Prisons, tabled an amendment to the Constitutional Reform and Governance Bill which would have removed the ban.
Lord Ramsbotham lamented that the Government was “frightened of offending reactionary public opinion by appearing not to be tough on criminals” and “determined to prevaricate for as long as possible, going to absurd lengths, such as suggesting that prisoners had lost the moral authority to vote.”
The Government insists that it is still considering the responses to its second stage consultation, despite it closing over six months ago.
The Parliamentary Joint Committee on Human Rights has also expressed serious concern, noting that the Government risks not only political embarrassment at the Council of Europe, but will be in breach of its international obligation to secure the full enjoyment of Convention rights for everyone within its jurisdiction.
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12 April 2010 by Isabel McArdle
SAMUEL KINGSFORD BUDU v THE BRITISH BROADCASTING CORPORATION [2010] EWHC 616 (QB), 23 March 2010
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A claim for libel in respect of three articles in a news website’s archive has been struck out in the Hight Court by Mrs Justice Sharp. When read in context, the articles were incapable of bearing the alleged defamatory meaning, the publisher had attached Loutchansky notices to them, and it would be a disproportionate interference with the publisher’s rights under ECHR Article 10 to allow the claim to proceed where it had been brought after four years had passed since the publication of the articles.
Summary
The Claimant brought proceedings in respect of three archived articles published by the BBC in mid 2004. They related to the decision of Cambridgeshire Constabulary to withdraw an oral job offer made to the Claimant after subsequently investigating the legality of his immigration status. Within weeks of first being published, the articles became accessible only in the archive, via search engines. The action related to the articles in the archive and the related Google snippets.
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9 April 2010 by Adam Wagner
The Law Society of Scotland have sounded the alarm in relation to new Government powers to block an individual’s internet access, and argue that this is likely to amount to a breach of their Human Rights.
The Digital Economy Bill, which has now passed through Parliament and has royal assent, has attracted wide attention in the past few days for a number of reasons. Many have been concerned at the apparent lack of debate in relation to the wide-ranging Bill.
However, a pressing concern amongst internet users has been the proposed new powers for the Government to block an individual’s internet access as a punishment for internet piracy.
The Law Society of Scotland consider that blocking an individual’s internet access would be breach their human rights. They are concerned in particular with the lack of a requirement for a court order before access is cut off, which would amount to a breach of Article 6 of the European Convention. Jim McLean, convener of the Society’s Intellectual Property Committee says:
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9 April 2010 by Adam Wagner
The Bill of Rights will be one of the major issues in the May 6th Election, even if it may not capture as much public attention as crime or the NHS. Whichever party (or parties) takes control after May 6th, their attitude towards the Human Rights Act 1998 (HRA) will have significant and long lasting consequences for the UK.
Joshua Rozenberg blogs today on his verdict of Labour’s record from 1997-2010. He says that the HRA is “what legal historians will remember as the defining reform of Labour 1997-2010 (if this year does, indeed, mark the end of an era). Even if the Human Rights Act 1998 is modified by an incoming government, it will not be repealed. There would be little point in doing so; no government would withdraw from the European Convention on Human Rights, jeopardising the UK’s membership of the Council of Europe and even of the EU.”
He continues:
I am closer to Dominic Grieve than David Cameron on this one. I don’t regard Labour’s “incorporation” of the convention into domestic law as a disaster. I saw it as a political imperative – although it was one that would never have happened if Lord Irvine of Lairg, who became Lord Chancellor in 1997 – had not hit the ground running. It is he, I believe, who devised the subtle “declaration of incompatibility” on which the entire Act rests, preserving parliamentary sovereignty while giving judges strong powers to “read down” legislation in a way that complies with human rights standards.
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8 April 2010 by Rosalind English
Sharon Shoesmith’s court action over her sacking by Haringey Council has once more brought to the fore the sorry account of neglect and mismanagement by police and local authorities of that led to the death of baby Peter Connelly (‘Baby P’). It has also, however, highlighted the increasingly significant role of courts in the UK and Europe in holding public and private authorities to account in claims involving allegations of child abuse.
It is not just local authorities that are under pressure. Allegations of sexual abuse by members of the Catholic church rumble on, occasionally erupting into well publicised court dramas. For example, the recent groundbreaking claim brought against a Catholic priest, Father Clonan, relating to events in Coventry in around 1976 (MAGA v The Trustees Of The Birmingham Archdiocese Of The Roman Catholic Church [2010] EWCA Civ 256).
The claimant (MAGA) was at the time a child of 12 with learning disabilities. The High Court had ruled that the Church was not liable for the abuse as MAGA was not a Roman Catholic, and as such Father Clonan had no business having any dealings with him and was not doing so in his capacity as a priest. MAGA succeeded on appeal because the Court of Appeal accepted that a priest’s duties are very wide, and involve him befriending non-Catholics, such as in the course of his evangelising role.
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8 April 2010 by Adam Wagner
A high profile panel has been formed to review ‘super injunctions’, which have recently been used with varying success to halt media coverage of controversial legal disputes.
Super injunction applications have seen two competing European Convention rights fighting it out; Article 8 (right to privacy) versus Article 10 (freedom of expression).
We have previously posted on the super injunction which was imposed and then swiftly lifted in relation to press coverage of Chelsea footballer and England Captain John Terry’s extra-marital affair.
The committee is to be led by Lord Neuberger, the Master of the Rolls, and will be composed of legal and media experts. One notable absence, as Joshua Rozenberg blogs, is Mr Justice Eady, who has been responsible for many of the more controversial super injunctions.
According to the Judicial Communications Office, The Master of the Rolls has set up the committee following the recent report by the Culture, Media and Sport Committee’s report on press standards, privacy and libel and concerns expressed to the judiciary.
Read more:
- Mr Justice Tugendhat decision in the John Terry case
- The Judicial Communication Office announcement (including the names of the committee members)
- Commentary from Liberty Central in The Guardian
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8 April 2010 by Philip Havers QC
It is now nearly 10 years since the Human Rights Act 1998 came into force in October 2000. Its effect on our domestic law has been profound and far reaching and a knowledge and understanding of human rights law is now an essential part of the legal knowledge of all practising lawyers.
1 Crown Office Row’s team of public law specialists have played a prominent part in many of the important human rights cases which have been decided under the Act. They have also been producing the unique 1 Crown Office Row Human Rights Update Service for almost a decade.
As a natural extension of this service, we are now introducing the 1 Crown Office Row UK Human Rights Blog which we believe will provide a valuable and engaging supplement to our update service. So far as we know, it is the first UK Human Rights blog. We hope that you will enjoy using it.
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The Lord Chief Justice used a recent lecture to argue that the European Court of Human Rights (ECtHR) is being given too much respect in the UK courts, with its judgments being cited by lawyers and judges with alarming regularity.
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