Category: Case law
29 March 2010 by Rosalind English
R (on the application of LG) (Appellant) v Independent Appeal Panel for Tom Hood School (Respondent) & Secretary of State for the Department for Children, Schools and Families (Interested Party) [2010] EWCA Civ 142
(Read judgment here)
CA (Civ Div) (Rix LJ, Wilson LJ, Sir Scott Baker) February 26 2010
An exclusion hearing by a school does not engage the pupil’s Article 6 of the Convention since there is no “civil right” to education recognized as such either by the Convention or by domestic law.
Summary
The appellant pupil (VG) had been involved in a fight at the school. He was accused of having a knife, which he denied. The school permanently excluded VG and he appealed. The panel, in accordance with the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 reg.7A, found on the balance of probabilities that he had carried a knife, and upheld his exclusion. VG appealed against a decision ((2009) EWHC 369 (Admin), (2009) BLGR 691) to refuse his application for judicial review of the decision of the respondent panel to uphold a decision to permanently exclude him from a school. He argued that his right to a fair hearing under Article 6 was engaged, either on the basis that the panel had determined his civil right not to be excluded from the school without good reason, or on the basis that the panel had determined a criminal charge against him, and that right had been infringed by the decision to exclude him having been based on allegations established against him on the balance of probabilities rather than on the criminal standard of proof. He also contended that regulation 7A(c), although purportedly made pursuant to the Education Act 2002 s.52, was ultra vires in that a rule about standard of proof was one of evidence and not procedure as permitted by s.52(3)(d).
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28 March 2010 by Adam Wagner
Carson and Others v The United Kingdom (Application no. 42184/05)
The European Court of Human Rights has rejected a claim by British pensioners living abroad that their pension payments should be uplifted to take into account inflation. The case was supported by Pension Parity UK, a pressure group. The majority in the Court held that the pensions system was not a breach of ECHR Article 14 (non discrimination), saying at [86]:
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20 March 2010 by Guest Contributor
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19 March 2010 by Adam Wagner
Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales (Equality and Human Rights Commission intervening) [2010] EWHC 520 (Ch)
The High Court have found that a Roman Catholic adoption agency (Catholic Care) could rely on regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007 in refusing same-sex couples adoption services.
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5 March 2010 by Rosalind English
Norris v United States [2010] UKSC 9
SC (Lord Phillips, Lord Hope, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Judge, Lord Collins, Lord Kerr) 24 February 2010
In determining whether interference with an individual’s right to a family life was justified to achieve the aim of extradition, the court should not consider whether the circumstances were exceptional but should consider whether the consequences were exceptionally serious
SUMMARY
The appellant had recently retired from his job as CEO of a company that had been involved in price fixing. He had successfully resisted an extradition order sought by the United States on the grounds that price-fixing in the UK was not illegal (Norris v United States (2008) UKHL 16, (2008) 1 AC 920). However, the court held that the other charge against him – obstructing justice – justified extradition and his case was remitted to a district judge. The district judge decided that he should be extradited. His decision was upheld by the divisional court, which concluded that the obstruction of justice charges were very grave and that a high threshold would have to be reached before the appellant’s rights under Article 8 could outweigh the public interest in extradition ((2009) EWHC Admin 995, (2009) Lloyd’s Rep FC 475).
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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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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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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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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.
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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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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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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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R (on the application of LG) (Appellant) v Independent Appeal Panel for Tom Hood School (Respondent) & Secretary of State for the Department for Children, Schools and Families (Interested Party) [2010] EWCA Civ 142
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