Category: BLOG POSTS
5 March 2010 by Adam Wagner
Re W (Children) [2010] UKSC 12 [On appeal from [2010] EWCA Civ 57]
The Supreme Court has ruled that refusing an application for a child to give evidence in a trial may contravene Article 6 of the European Convention on Human Rights (ECHR).
At issue in this case is the care of five children. All the children were taken into foster care and the four younger children are having supervised contact with both parents. The father has since been charged with 13 criminal offences and is currently on bail awaiting trial.
In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. In November 2009 the judge decided to refuse the father’s application for her to be called. Instead, she would rely on the other evidence, including a video-recorded interview with the child.
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2 March 2010 by Adam Wagner
The proposals for a UK Bill of Rights will be an important issue in the coming election, and we aim to keep you updated on developments. The Equality and Human Rights Commission has published a research report on a potential UK Bill of Rights. All three of the major UK political parties have pledged to institute a bill of rights in some form. The Report summarises the position:
The Labour Government is consulting the public on a UK Bill of Rights and Responsibilities, while maintaining its commitment to the HRA, including both the rights enshrined in it and the mechanisms used to implement those rights. The Conservative Party has pledged to repeal the HRA and replace it with a ‘modern British Bill of Rights’. Repealing the HRA would mean that the European Convention on Human Rights (ECHR) would no longer be incorporated into domestic law; the party has not indicated whether, or how, a future Bill of Rights might incorporate the ECHR using a different mechanism. The Liberal Democrats are committed to a written constitution with, at its heart, a Bill of Rights which would strengthen and entrench the rights guaranteed in the HRA.
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28 February 2010 by Rosalind English
The Queen on the Application of MK(Iran) v Secretary of State for the Home Department
CA (Civ Div) (Sedley LJ, Carnwath LJ, Smith LJ) 25/2/2010 [2010] EWCA Civ 115
Directive 2004/83, which recognised the right to asylum as part of EU, did not alter the jurisprudence of the European Court of Human Rights that asylum decisions did not constitute determinations of civil rights under Article 6 of the Convention, and consequently a foreign national had no right under Convention law to claim for damages for the delay in processing his asylum application.
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25 February 2010 by Elspeth Wrigley
R(on the application of Binyam Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65
This appeal was brought by the Secretary of State for Foreign and Commonwealth Affairs (“the Foreign Secretary”) against a decision of the Divisional Court to include seven short paragraphs in the open version of a judgment, notwithstanding the fact that the Foreign Secretary had started in a number of Public Interest Immunity Certificates that such publication would lead to a real risk of serious harm to the national security of the UK.
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25 February 2010 by Adam Wagner
Debbie Purdy
The Director of Public Prosecutions has published the long awaited Crown Prosecution Service guidance on assisted suicide, following the judgment of the House of Lords in the Debbie Purdy case. The DPP website says:
The public can have full confidence in the policy the CPS will follow in deciding whether or not to prosecute cases of assisted suicide, Keir Starmer QC, Director of Public Prosecutions, said today.
Mr Starmer published the policy after taking account of thousands of responses received as part of what is believed to be the most extensive snapshot of public opinion on assisted suicide since the Suicide Act 1961 was introduced. Nearly 5,000 responses were received by the Crown Prosecution Service (CPS) following the consultation exercise launched in September.
Mr Starmer said: “The policy is now more focused on the motivation of the suspect rather than the characteristics of the victim. The policy does not change the law on assisted suicide. It does not open the door for euthanasia. It does not override the will of Parliament. What it does is to provide a clear framework for prosecutors to decide which cases should proceed to court and which should not.
Click here to read the CPS guidance and here to read a summary of the Purdy case. See also the Dianne Pretty case.
Update – 26 Feb 2010: Commentary on the guidance from the Guardian and The Times
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24 February 2010 by Adam Wagner
The Queen on the Application of Ghai v Newcastle City Council & Others [2009]EWHC 978 (Admin)
Read the 1COR case comment
A devout Hindu man has won the right to have his body to cremated in accordance with his religious beliefs as a Hindu.
In the previous hearing, the Judge, Cranston J, proceeded on the assumption that the cremation desired by Mr Ghai would be in the open air, i.e. not within any structure. It was accepted by Mr Ghai that such an open air cremation would have been precluded by the legislation relating to cremation, at least if interpreted without reference to section 3 of the Human Rights Act 1998. Mr Ghai’s primary case before the Judge was that, if this was the right interpretation of the legislation, there would be an impermissible interference with his right to manifest his religion or belief under Article 9 of the European Convention. Although the Judge accepted that Article 9 was engaged, he went on to hold that the interference was justified . Mr Ghai also relied on Article 8 and Article 14 of the Convention, but the Judge held that they were not engaged.
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17 February 2010 by Adam Wagner
The Equality and Human Rights Commission have written to the Government urging caution before the introduction of full body scanners at UK airports; not that it has slowed the Government down – apparently, the scanners will be in UK airports as early as next week. Passengers at Manchester Airport have been experiencing full body scans since October, but clearly the recent botched ‘Detroit Bomber’ terrorist attack has speeded up their uptake.
John Wadham, group director legal at the EHRC says:
The right to life is the ultimate human right and we support the government reviewing security in the light of recent alleged terrorist activity. However, the government needs to ensure that measures to protect this right also take into account the need to be proportionate in its counter-terrorism proposals and ensure that they are justified by evidence and effectiveness.
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11 February 2010 by Rosalind English
Re W (Children) [2010] UKSC 12
SC (Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr) March 3 2010
The facts of this case are set out in the report of the Court of Appeal judgment below. In the Supreme Court the stepfather continued his submission that there should be no presumption against a child giving evidence, as that gave insufficient weight to the rights of all concerned under the European Convention on Human Rights 1950.
Read the judgment
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9 February 2010 by Adam Wagner
Binyam Mohamed
Read our case comment here
The Government has lost its appeal (see the BBC report) against the Divisional Court’s decision to order it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by the Americans. The Foreign and Commonwealth Office (FCO) had previously argued that to release the full email would damage national security. The full email can now be read on the FCO website.
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9 February 2010 by Adam Wagner
R (Degainis) v Secretary of State for Justice [2010] EWHC 137 (Admin)
Mr Justice Saunders
When deciding whether to award damages under Article 5(5) of the European Convention on Human Rights (ECHR) for breach of Article 5(4), regard has to be paid to Article 8 and the limits on damages in that provision. Articles 5 and 8 are not, however, incompatible. There was no basis for the claim that Article 5(4) compensation can only be monetary, and in some cases a finding of a breach can be sufficient compensation.
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4 February 2010 by Adam Wagner
Huitson, R (on the application of) v Revenue and Customs [2010] EWHC 97 (Admin)
Robert Huitson brought a Judicial Review against HM Revenue and Customs in order to challenge under the Human Rights Act 1998 sections 58(4) and (5) of the Finance Act 2008. He contended that these sections of the 2008 Act were incompatible with Article 1 of the First Protocol to the European Convention of Human Rights (“the ECHR”).
The claim related to a tax avoidance scheme based on the Isle of Man, which sought to take advantage of the UK and Isle if Man double taxation arrangement. The Claimant challenged HM Revenue’s attempt to retrospectively claw back taxation under the 2008 Act.
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1 February 2010 by Adam Wagner
There was significant media attention over the weekend on the imposing and then lifting of a so-called ‘super injunction’ against press coverage of Chelsea footballer and England Captain John Terry’s alleged extra-marital affair. Mr Justice Tugendhat reversed a previous decision to impose the injunction (read judgment). Super injunctions not only block publication of the details of the case, but also any mention of the case existing at all. This morning’s Guardian asks whether this decision could be the beginning of the end for the super injunction:
Article 8 of the European Convention on Human Rights enshrines the right to privacy. But Index on Censorship is concerned that this right is increasingly used as a pre-emptive alternative to a defamation suit. In some ways, a superinjunction works better than a libel suit: after all, in libel cases, the allegations must be published first, and there is a chance (though only slight) that the litigant may actually lose.
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29 January 2010 by Rosalind English
Office of Communications v Information Commissioner [2010] UKSC 3
SC (Lord Hope (Deputy President), Lord Saville, Lady Hale, Lord Mance, Lord Collins) January 27 2010
Article 4(2) of the European Directive 2003/4 imposes a duty to disclose environmental information. The Environmental Regulations were passed in 2004 to give effect to the Directive, the duty being contained in Regulation 12.. There are a number of different exceptions to this duty, one of which is the public safety exception in reg 12(5)(a), and another the intellectual property rights exception in reg. 12(5)(c).
The information commissioner had ordered that the respondent (OFCOM) disclose information as to the precise location of mobile telephone base stations in the United Kingdom. The Information Tribunal had dismissed OFCOM’s appeal against the order, finding that although disclosure fell within the scope of the two exceptions under 12(5)(a) and (c), both were outweighed by the public interest in disclosure.
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27 January 2010 by Adam Wagner
Her Majesty’s Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants); Her Majesty’s Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant); R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty’s Treasury (Appellant) [2010] UKSC 2
The Supreme Court has ruled that the Treasury cannot make orders to freeze the assets of terror suspects. The Terrorism (UN Measures) Order 2006 and the 2006 al-Qaeda and Taliban (UN Measures) Order were made under section 1 of the 1946 UN Act in order to implement resolutions of the UN Security Council, and were found by the Court to be unlawful.
As a preliminary point, the Court considered that a press report identifying M would engage article 8. In a separate judgment, the Court repealed all of the suspects’ anonymity orders, finding that these would not breach the suspects’ Article 8 rights to privacy.
Read press summary and full judgment relating to the asset freezing
Read press summary and full judgment relating to the anonymity orders
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23 January 2010 by Rosalind English
Governers of X School v R(on the Application of G) (Claimant) & Y City Council and Secretary of State for Children and Schools and Families (Interveners) & Equality and Human Rights Commission (Interested Party)
[2010] EWCA Civ 1;CA (Civ Div) (Laws LJ, Wilson LJ, Goldring J) January 20 2010
Where an individual had a civil right being determined in one set of proceedings for the purposes of Article 6, he would be able to claim protection under that provision in any other proceeding involving him if the outcome of that other would have a substantial effect on the determination of that civil right.
SUMMARY
The claimant had been employed as a teaching assistant at the appellant school. As a result of alleged incident of a sexual nature with a pupil, disciplinary procedures were instigated against him which culminated in the hearing before the committee. He was told that in these hearings employees could be represented by a colleague or a trade union representative but that any other form of legal representation would not be permitted.
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Re W (Children) [2010] UKSC 12 [On appeal from [2010] EWCA Civ 57]
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