Category: Case law
14 March 2011 by Alasdair Henderson
R (BB) v. Special Immigration Appeals Commission and Home Secretary – Read judgment.
The Divisional Court has ruled that bail proceedings before the Special Immigration Appeals Commission (“SIAC”) are subject to the same procedural standard under Article 5(4) of the European Convention (the right to liberty) whether they take place before or after the substantive judgment. That standard is that the applicant must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations, as set out in A v United Kingdom and R (Cart) v. SIAC.
This decision forms the latest in a string of cases considering the extent to which the Government can rely on secret or ‘closed’ evidence in defending appeals by individuals challenging decisions made against them. A judgment by the Supreme Court is imminently expected in the conjoined cases of Al-Rawi v. Security Service and Tariq v. Home Office (see helpful summary here and our analysis of the broader issue of open justice here), which consider this issue in relation to civil damages claims and employment law claims. However, BB is the High Court’s most recent pronouncement on the position in the fraught area of immigration and national security.
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9 March 2011 by Adam Wagner
Updated | CPS -v- Mohammad Razaul Haque and Emdadur Choudhury – Read judgment
A man has been found guilty of public order offences for burning poppies and chanting “British soldiers burn in hell” on Remembrance Day. He was fined £50.
The ruling, and in particular the fine, has led to public anger. The Sun called the fine “pathetic” and asked whether Britain is now “deep in a quicksand of political correctness and hand-wringing over human rights“. The Prime Minister has said that we should be “making a stronger statement that that sort of behaviour is completely out of order and has no place in a tolerant society”
The Sun is wrong that Emdadur Choudhury’s low fine had anything to do with human rights; Chief Magistrate Riddle made clear that “invoking the criminal law to interfere with freedom of expression is proportionate“. But two important questions do arise. First, whether the conviction represents a disproportionate breach of Emdadur Choudhury’s right to freedom of speech. Secondly, if the £50 fine was adequate.
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7 March 2011 by Adam Wagner
Update 9/5/11 – for more on super injunctions, see Gagging on privacy, the Human Rights Roundup and Unelected, underqualified and frankly bonkers.
Last week the High Court convicted two newspapers, the Daily Mail and the Sun, of contempt of court for the publication on their websites of a photograph of a man toting a gun during the ongoing criminal trial of that man. They are now likely to face large fines.
It was the first such case of contempt relating to an online publication. By way of background, Alex Bailin QC has posted an excellent comment piece on the Inforrm blog. I have also already discussed the judgment, and the ominous warning by the court that “instant news requires instant and effective protection for the integrity of a criminal trial“.
My post generated comments from concerned bloggers and tweeters asking what this meant for contempt and online publishing going forward. This is a hard question to answer as it mostly depends on which cases the Attorney General choses to prosecute. But, although the following is not legal advice, reviewing the case-law on contempt provides some indication of may be to come, and common-sense ways in which publishers, including tweeters and bloggers, can avoid being prosecuted.
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3 March 2011 by Adam Wagner
Attorney General v Associated Newspapers Ltd & Anor [2011] EWHC 418 (Admin) – Read judgment
For the first time a court in England has convicted two newspapers, the Daily Mail and the Sun, of contempt of court in breach of the Contempt of Court Act 1981, for the publication of a photograph relating to an ongoing criminal trial on their websites.
The judgment contains an important warning for bloggers, tweeters and journalists who use instant news to report on criminal trials: “instant news requires instant and effective protection for the integrity of a criminal trial“.
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3 March 2011 by Adam Wagner
Snyder v. Phelps (09-751), United States Supreme Court – Read judgment
A recent decision of the United States Supreme Court, in which it upheld the rights of a radical anti-gay Christian group to protest at military funerals, provides a useful opportunity to compare free speech protections here to those provided over the pond.
By way of comparison, five men recently failed in a challenge to their public order criminal convictions for protesting with similar signs at a homecoming parade for British soldiers. What does this say about our respective free speech protections?
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3 March 2011 by Isabel McArdle
P and Q by the Official Solicitor, their Litigation Friend v Surrey County Council and Others (Equality and Human Rights Commission, Intervener) [2011] EWCA Civ 190- read judgment
What does it mean to be “deprived of liberty”? This is not an easy question, and there are a wide variety of relevant factors. For instance, the amount of space a person is free to roam in, the degree of supervision and the amount of time away from their main residence are matters which are likely to vary greatly from case to case. There are many borderline cases.
In an important recent case, the Court of Appeal has found that there was no deprivation of liberty, within the meaning of Article 5 of the European Convention on Human Rights, when two people with moderate to severe learning difficulties are cared for in a foster home and a specialist home for adolescents respectively.
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2 March 2011 by Rosalind English
Johns v Derby City Council and Equality and Human Rights Commission (intervening) [2011] EWHC 375 (Admin)- Read judgment
Religious views opposing homosexuality are a legitimate fostering concern and the local authority’s approach to this question did not constitute religious discrimination.
The claimant husband and wife applied to the defendant local authority to be approved as short-term, respite, foster carers. They were members of the Pentecostalist Church and believed that sexual relations other than those within marriage between one man and one woman were morally wrong. The local authority considered that the claimants’ views on same sex relationships did not equate with the National Minimum Standards for Fostering Services which required carers to value individuals equally and to promote diversity. The local authority’s Fostering Panel therefore deferred a decision.
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1 March 2011 by Adam Wagner
Updated | Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v Conseil des ministres, Case C‑236/09 – Read judgment / press release
The Court of Justice of the European Union (CJEU) has ruled that from December 2012, insurers will be prevented from charging different premiums on the basis of an insured person’s gender. A partner at a leading commercial law firm called September’s preemptive preliminary opinion “completely bonkers”. Can the same be said about the latest decision?
Coverage of the decision has already been largely negative. As well as involving Europe’s increasingly unpopular and possibly unelected judges, the ruling affects an interest group – insurance companies – with deep pockets and who are capable of sophisticated lobbying. And nobody wants to see their insurance premiums go up, if that is indeed to be the outcome of this ruling, something which is by no means clear. So expect to see plenty of critical articles. The Telegraph website is already sporting an unchallenged article/press release from Esure, including a video interview which begins with an advert for ESure’s “Sheila’s Wheels”.
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1 March 2011 by Rosalind English
Like many points of European law, the question whether the UK and Polish protocol to the EU Charter of Fundamental Rights amounts to a full opt-out is mired in confusion and political prejudice.
Its characterisation as an opt out or a mere “clarification” depends on where one stands on the eurosceptic/europhile spectrum. So where do we find a practical rather than an ideological answer to this important question? Certainly not in the political or academic record.
First, a reminder of what the Charter is all about. From the very early days of the European Community the Court of Justice (ECJ) has relied on fundamental principles of human rights as an interpretative tool, and the key provisions of the Charter are derived from the ECHR, which is uncontroversial enough. However a large number are drawn from the Community Social Charter 1989 and the Council of Europe’s Social Charter 1961. These are the so-called “social and economic rights” which appear to transform aspirational norms into judicially enforceable ones, like the right to work or healthcare. These “rights” are largely to be found in the “Solidarity Title” of the Charter, and it is to this part of the Treaty that the UK secured an opt out at the European Council in 2007.
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28 February 2011 by Adam Wagner
Ahmed & Anor v R [2011] EWCA Crim 184 (25 February 2011) – Read judgment
“Torture is wrong”. The court of appeal made this simple and it would be hoped obvious statement in the appeal of two men convicted of terrorism and being active members of Al Qaeda. But, it turns out, the position on torture is not as clear as those three simple words.
Rangzieb Ahmed and Habib Ahmed were British citizens, born in Lancashire. They were jailed in 2008 for being members of Al Qeaeda and planning mass murder. During the trial, Rangzieb applied to the judge to stop the prosecution, on the basis that it would be an abuse of process to try him. He claimed that he was tortured whilst he was in custody in Pakistan. He said that amongst other things, he had been beaten and had his fingernails removed. He also claimed that British officers questioned him on one day of his captivity.
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28 February 2011 by Adam Wagner
Peter Sutcliffe
Three convicted murderers are challenging their sentences in the European Court of Human Rights. They claim that the rare “whole life” tariffs which have been imposed in their cases is contrary to their human rights.
Jeremy Bamber, Peter Moore and Douglas Vinter were all convicted for murder and therefore sentenced to life imprisonment, which is the mandatory sentence for the crime. It has been so since death penalty was abolished in 1969. However, as is well-known, life does not always mean life, and when a judge passes sentence he also sets a tariff, which is the number of years before which the prisoner will be eligible to be considered for early release on licence. The rules have already been altered to make them compatible with fair trial rights. Will they have to be altered again?
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23 February 2011 by Adam Wagner
Updated | London Borough of Hounslow v Powell [2011] UKSC 8 (23 February 2011) – Read judgment / press summary
The Supreme Court has given important guidance as to when eviction from local authority housing amounts to a breach of a tenant’s human rights. It has also confirmed that courts should have the power to consider the proportionality of previously automatic possession orders relating to council properties.
The judgment forms a double act with the recent decision in Manchester City Council (Respondent) v Pinnock (Appellant), a path-breaking ruling in which the Supreme Court held that Article 8 of the European Convention on Human Rights (the right to private and family life) requires that a court, when asked by a local authority to make an order for possession of a person’s home, must have the power to assess the proportionality of making the order (see Nearly Legal’s excellent discussion of that decision).
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23 February 2011 by Adam Wagner
Garry Norman MANN v Portugual and the United Kingdom – 360/10 [2011] ECHR 337 (1 February 2011) – Read judgment
Garry Mann, a football fan who was convicted to two years in a Portuguese jail for rioting after an England match in 2004, has lost his appeal to the European Court of Human Rights against his conviction and extradition.
Mann has always denied taking part in the riot. The full background to the case is set out here. The case has been subject to a number of court hearings in the UK, including two judicial review hearings against his proposed extradition to Portugal to serve his prison sentence. He has also already had a claim in the European court rejected.
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21 February 2011 by Isabel McArdle
Munim Abdul and Others v Director of Public Prosecutions [2011] EWHC 247 (Admin) – Read judgment
The High Court has ruled that prosecution of a group of people who had shouted slogans, including, “burn in hell”, “baby killers” and “rapists” at a parade of British soldiers, was not a breach of their right to freedom of expression, protected by Article 10 of the European Convention on Human Rights.
Five men were convicted of using threatening, abusive or insulting words within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby (contrary to section 5 of the Public Order Act 1986). The men launched an appeal, raising amongst other things the question of whether the decision to prosecute them for shouting slogans and waving banners close to where the soldiers and other members of the public were was compatible with Article 10.
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19 February 2011 by Rosalind English
Tovey & Ors v Ministry of Justice [2011] EWHC 271 (QB) (18 February 2011) – read judgment.
In a case heard the day before Parliament debated whether it should amend the law preventing prisoners from voting, the High Court struck out a claim for compensation by a prisoner in respect of his disenfranchisement.
Although it was “not part of the court’s function to express any view as to the nature of legislative change”, this ruling confirmed that as a matter of English law, including the Human Rights Act 1998, a prisoner will not succeed before a court in England and Wales in any claim for damages or a declaration based on his disenfranchisement while serving his sentence.
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