Category: Article 6 | Right to Fair Trial


ALBA Conference 2019: A Review (Part 3)

24 October 2019 by

This post, and those that follow it, summarises some of the main points of interest arising from the ALBA Conference 2019.

‘The Constitutionality of Ouster Clauses’ – Chair: Lord Justice Leggatt; Speakers: Professor Alison Young, Professor David Feldman, Professor Stephen Bailey

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Earlier this year, the Supreme Court gave its judgement in R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents). The case concerned the Investigatory Powers Tribunal (‘IPT’), a specialist tribunal which was established by the Regulation of Investigatory Powers Act 2000 (‘RIPA’). The IPT hears complaints about certain public bodies, particularly concerning the Security Services.

s.67(8) of RIPA contains a so-called ‘ouster clause’, which held that “determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court”.

The issue in Privacy International was whether decisions made by the IPT were judicially reviewable. A majority of the Supreme Court held that s.67(8) did not, in fact, oust the jurisdiction of the court. The panel analysed this crucial case in more detail.


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Secret Surveillance and a ‘Canadian Genocide’: the Round Up

3 June 2019 by

Conor Monighan brings us the latest updates in human rights law

LGBT

Credit: The Guardian

In the News:

The High Court has granted a without-notice injunction which bans protesters from gathering outside a primary school’s gates.

Protesters have been campaigning for weeks against Anderton Park Primary School’s decision to teach its pupils about LGBT issues. The activists argue that the children are ‘too young’ to understand the relationships. Some have also stated that it conflicts with Islamic teaching.

The Headteacher, Sarah Hewitt-Clarkson, told the media that she has received a number of threatening messages. The school had to close early for half-term due to the protests.

Birmingham City Council applied for the injunction last week on the basis that the protests were beginning to jeopardise the safety of staff, pupils and parents. The injunction will last until the 10th June.

In Other News….

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Supreme Court: unfairness/equal treatment only an aspect of irrationality

16 May 2018 by

R (o.t.a. Gallaher et al) v. Competition and Markets Authority  [2018] UKSC 25, 16 May 2018, read judgment

UK public law is very curious. You could probably write much of its substantive law on a couple of postcards, and yet it continues to raise problems of analysis and application which tax the system’s finest legal brains.

This much is clear from today’s Supreme Court’s decision that notions of public law unfairness and equal treatment are no more than aspects of irrationality.

The CMA (then the OFT) were investigating tobacco price-fixing. Gallaher et al reached an early settlement with the OFT, at a discount of their fines. Another price-fixer, TMR, did likewise, but extracted an assurance from the OFT that, if there were a successful appeal by others against the OFT decision, the OFT would apply the outcome of any appeal to TMR, and accordingly withdraw or vary its decision against TMR.

6 other parties then appealed successfully. TMR asked and got its money back from the OFT relying on the assurance.

Gallaher et al tried to appeal out of time, and were not allowed to. They then turned round to the OFT and said, by reference to TMR: why can’t we have our money back?

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Round Up- Do trained lawyers have a human right to represent themselves in court?

9 April 2018 by

Conor Monighan brings us the latest updates in human rights law

The High Court, Court of Appeal and Supreme Court are not sitting at present (Easter Term will begin on Tuesday 10th April). Accordingly, this week’s Round Up focuses largely on the ECHR.

European-court-of-human-r-009

Credit: The Guardian

Correia De Matos v. Portugal

This week, the ECHR held that requiring defendants to have legal representation does not violate Article 6. The vote was split by nine votes to eight.

The applicant, a lawyer by training, alleged a violation of Article 6 s.3(c) of the Convention. This was on the basis of a decision by Portuguese domestic courts which (i) refused him leave to conduct his own defence in criminal proceedings against him, and (ii) required that he be represented by a lawyer.
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The Round-Up: Worboys Ruling Strikes a Blow to Parole Board Privacy, Criminal Bar to Strike over Legal Aid Cuts, and Did Vote Leave Breach Election Law?

2 April 2018 by

John Worboys is escorted in handcuffs into the royal courts of justice.

Image Credit: Guardian

R (On the application of) DSD and NBV & Ors v The Parole Board of England and Wales & Ors & John Radford: in a landmark ruling, the High Court has quashed the Parole Board’s decision to release black cab driver and serial sex offender John Worboys, on grounds of irrationality. The Board acted irrationally in that it “should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability” [201].

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Does “damage” go wider than injury? Supreme Court on jurisdiction

23 December 2017 by

Four Seasons Holdings v. Brownlie [2017] UKSC 80, 19 December 2017, read judgment

Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.

The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.

The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.

On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.

But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.

Let me set the scene for this, before telling you the result.


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Reasons and planners again: Supreme Court

20 December 2017 by

13454123443_80fef9d87e_bDover District Council v. CPRE Kent [2017] UKSC 79, 6 December 2016, read judgment

The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover. 

The interest is in the breadth of the decision – how far does it extend?


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The Round-Up: Rights in war, Rights at work, Rights in marriage

20 August 2017 by

Soldiers patrol in a Snatch Land Rover in Helmand, Afghanistan, in 2006

The mother of a British soldier who was killed in a roadside bomb while on duty in Iraq has received an apology from Defence Secretary Sir Michael Fallon. Sue Smith’s son, Pte Phillip Hewett, died while travelling on patrol in a lightly armoured “snatch” Land Rover in July 2005.

Following a settlement of the case, Sir Michael has written to Ms Smith:

“I would like to express directly to you my deepest sympathies and apologise for the delay, resulting in decisions taken at the time in bringing into service alternative protected vehicles which could have saved lives.”

What did Ms Smith allege?

The circumstances around Pte Hewett’s death have been the subject of litigation for the last 6 years.

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Thinking about reasons again

21 February 2017 by

_70626907_792ccfc-arielsiteplan2R (o.t.a. Oakley) v. South Cambridgeshire District Council [2017] EWCA Civ 71, 15 February 2017, read judgment

There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.

And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.


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Witness Protection: Can non-parties appeal critical findings made in a judgment which infringe their human rights?

30 November 2016 by

Image result for faceless

Re: W (A child) [2016] EWCA Civ 1140 – read judgment

Summary

A Family Court judgment was severely critical of two witnesses and the applicant local authority. In an oral “bullet point” judgment at the end of the hearing, the Judge found that the witnesses, a social worker (‘SW’) and a police officer (‘PO’), had improperly conspired to prove certain allegations regardless of the truth, or professional guidelines.

Those matters were not in issue before the court or put to those concerned. Limited amendments were subsequently made to the judgment following submissions by those criticised. Unsatisfied, they went to the Court of Appeal.

The Court considered (1) whether they were entitled to appeal at all (2) whether their appeal based on Articles 8 and 6 of the Convention succeeded and (3) the appropriate remedy.

The Court held that the appellants’ Convention rights had been breached by the manifestly unfair process in the court below, so they had a right to appeal under the Human Rights Act 1998. The defective judgment was not cured by the amendments, and the findings were struck out.

The judgment addresses some interesting procedural questions regarding appeals. This post focuses mainly on the human rights issues, but the judgment of McFarlane LJ, described as “magisterial” by Sir James Munby, merits reading in full.

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Strasbourg again favouring safety of conviction over cross-examination of witnesses?

30 September 2016 by

Strasbourg_ECHR-300x297Simon Price v. the United Kingdom, Application no. 15602/07, 15 September 2016 – read judgment.

In a unanimous decision, the European Court of Human Rights has held that the proceedings that lead to the conviction of an individual for drug trafficking charges were entirely compliant with Article 6, ECHR. Despite the inability to cross-examine a key prosecution witness, the Court considered that in light of the existence of supporting incriminating evidence (amongst other factors) the proceedings as a whole were fair.

by Fraser Simpson

Background

In June 2004 a ship, entering the port of Rotterdam, was searched by customs officials and found to contain a quantity of cocaine worth £35 million. The applicant, Simon Price, was arrested after he made enquiries into the container shortly after. He was subsequently charged with an offence under s.20, Misuse of Drugs Act 1971, and with the attempted importation of drugs from Guyana to the United Kingdom via the Netherlands and Belgium.
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Hard cases need better reasons

16 September 2016 by

13454123443_80fef9d87e_bR (o.t.a. CPRE Kent) v. Dover District Council [2016] EWCA Civ 936, 14 September 2016, read judgment

The Court of Appeal has just given us a robust vindication of the importance of giving proper reasons when granting planning permission, by way of a healthy antidote to any suggestion that this is not really needed as part of fairness.

It is, as we shall see, very context-specific, and Laws LJ, giving the main judgment, was careful not to give the green light to floods of reasons challenges – common enough as they are in planning judicial reviews. Nonetheless it is a decision of significance.


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CA orders release of court judgment on Ellie Butler’s death

9 August 2016 by

benbutler2106aC (a child) [2016] EWCA Civ 798  read judgment

This is the most recent in the long series of legal steps touching on the violent career of Ben Butler, recently convicted of the murder of his daughter, Ellie. 

Butler was convicted for Grievous Bodily Harm, and then cleared on appeal. Care proceedings were commenced at the end of which Ellie was ordered to be returned to her parents by Hogg J in October 2012. A year later, on 28 October 2013, Ellie was found dead.

C, the subject of this appeal, is Ellie’s younger sister. In June 2014, Eleanor King J, in the family courts, found that Butler had caused Ellie’s death, Ellie’s mother (Jennie Gray) had failed to protect her from Butler, and C had been the victim of physical and emotional abuse. This judgment had been the subject of reporting restrictions.

Immediately after Butler’s conviction in June 2016, media organisations applied for the release of Eleanor King J’s judgment to Pauffley J in the family court. Pauffley J dismissed this application. Her decision was roundly reversed in this decision of the Court of Appeal.

The human rights clash is the familiar one of freedom of expression under Article 10 versus the right to a fair trial under Article 6 ECHR.

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What lies do to claims – the Supreme Court

6 August 2016 by

Marine-ClydeCo-0658_800_450_90_s_c1_c_cHayward v. Zurich [2016] UKSC 48   27 July 2016 read judgment

and Versloot Dredging BV  v HDI Gerling Industrie Versicherung AG [2016] UKSC, 20 July 2016 read judgment

Twin doses of dishonesty in the Supreme Court, last month. Both raised dilemmas for the SC trying to steer a principled way (in different circumstances) towards determining the cost of lying.

In the first, Mr Hayward claimed over £400,000 from his employers for a back injury at work. The Zurich smelt a rat and alleged exaggeration in its defence but felt ultimately they could not sufficiently prove it in court. So in 2003 they settled the claim by paying Mr Hayward just under £135,000. In 2005, his neighbours told insurers that they thought he had been dishonest. So the Zurich started proceedings to set the compromise aside and to get its money back. Mr Hayward sought to strike it out, saying “a deal was a deal”, without success. So he then faced a trial of Zurich’s claim, at the end of which Zurich was successful. But the saga was not over. He now faced a retrial of his original claim, in which he repeated the lies he had come out previously.  The judge was thoroughly unconvinced, and gave him £14,700. It was that result which was eventually appealed to the Supreme Court.

The second claim concerned marine insurers of a ship who sought to repudiate a claim on the policy because the insured owners had told a lie in presenting the claim, even though the lie proved to be irrelevant to the insurer’s liability. Owners claimed over €3,200,000 for the loss of a vessel. They said  that the crew had informed them that the bilge alarm had sounded at noon that day, but could not be investigated because of heavy weather. This was a lie told by the owners to strengthen the claim. But it turned out to be irrelevant to the result, because of the judge’s  finding that the vessel’s loss had been caused by a peril of the seas.

Both lower courts found that this lie was a “fraudulent device”, which meant the insurers did not have to pay out under the policy.

So what did the Supreme Court do with these two claims about lying?

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Whose fair trial prevails?

17 July 2016 by

shutterstock_152336216-505x337Da Costa and another v. Sargaco [2016] EWCA Civ 764   14 July 2016 read judgment

Two people say they owned motorbikes which they kept outside their house – until, it is said, the bikes were mown down by the defendant’s car, a collision which their witness claimed to have seen. The car’s insurers said that the claim was fraudulent and it was all a conspiracy. The judge agreed it was a fraud, whereas the Court of Appeal disagreed – but still disallowed the claim because, the CA said, the owners had not proved their case.

But the point of general interest arose because the judge decided that each claimant should give evidence in the absence of the other. And the CA said this was wrong. As I shall explain, I disagree. But let’s see where the Article 6 ECHR battle lines lie so you can come to your own view.

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