Category: Article 6 | Right to Fair Trial
18 April 2012 by David Hart KC
Dudgeon Offshore Wind v. Secretary of State for Communities and Local Government et al, HHJ Waksman QC, hearing 23 March 2012, read judgment
Running a hearing can be difficult enough when you are sitting as a judge and are faced with parties in a civil case. At least then you have an agenda set by the legal documents (or pleadings) and your primary role as judge is to decide whether the points made by one or other side are good or bad. Sometimes you may be sorely tempted to suggest better ones, but usually you do not run parties’ cases for them. And if you do, it is obviously fair for you to tell both parties what is going through your mind. After all, there may be very good reasons why a party has not taken a point apparently advantageous to them. Anyway, you must give the other side the opportunity to deal with the point.
All the more difficult in an inquiry, of which a planning inquiry is a good example. Here you are not just the judge. Your job is to inquire into whatever you think is necessary to decide whether to let a scheme proceed. Much of the time, it is a bit like a civil case, with the local planning authority trying to uphold its grounds for refusal, and the developer trying to show why the grounds do not stack up. But then in many planning appeals you have the third or fourth dimension, a group or groups of (usually) objectors who are saying that there are additional grounds for refusing the scheme. Sometimes, these issues come out all tidily before the inquiry starts, because the objectors have asked to participate in the formal procedures (Rule 6 parties in the jargon). On other occasions, it all just comes out as the inquiry proceeds.
This case is a good example of the latter.
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6 April 2012 by Adam Wagner
I highly recommend Dominic Casciani’s excellent BBC Newsnight piece on Barbar Ahmad, which is currently available on iPlayer (UK only).
Ahmad’s case cuts across a number of different rights controversies. The BBC challenged the Ministry of Justice’s initial refusal to allow an interview with the terrorist suspect, who is currently held at a maximum security jail, and won – see our post. Ahmad is also currently the longest serving prisoner who has not been charged with a criminal offence; he has been detained for nearly 8 years.
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30 March 2012 by Isabel McArdle
Bourgass and others v Secretary of State for Justice [2012] EWCA Civ 376 Read decision
The ability to interact with other prisoners is a major part of prison life, and not one many prisoners would give up willingly. But there are circumstances where prisoners have to be segregated from the rest of the prison population, such as where they are posing a violent threat to another prisoner or planning an escape. The Court of Appeal has recently looked into the question of how decisions to segregate are made, including the initial decision, the review of the decision and ultimately judicial review, in a human rights context.
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22 March 2012 by David Hart KC
Cases T-439/10 and T-440/10, Fulmen & Mahmoudian v. Council of the European Union, read judgment
Fulmen, as many of you will know, means thunderbolt in Latin. So it must have seemed when this Iranian company had its assets frozen. This case is a good example of how general principles of European law were applied to annul measures taken against these Iranian applicants. The measures were part of EU policy to apply pressure on Iran to end nuclear proliferation. Fulmen was said to have supplied electrical equipment on the Qom/Fordoo nuclear site and Mr Mahmoudian is a director of Fulmen. Hence they were both listed in Council Decision 2010/413/CFSP. The upshot was that all of their assets were frozen by the EU.
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5 March 2012 by Rosalind English
Merchant International v Naftogaz International [2012] EWCA Civ 196 – read judgment
The Court of Appeal has ruled that domestic courts may refuse to recognise a judgment of another Convention country on the basis that it failed to respect the fair trial principles in Article 6.
In this case the Ukraine Supreme Court was said to have “flagrantly” disregarded the principle of legal certainty. Whilst the English court should apply a strong presumption that the procedures of other Convention States complied with Article 6, it was not wrong for an English court to consider whether a judgment of a court of a Convention State contravened the Convention.
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1 March 2012 by Adam Wagner
Yesterday I spoke at Justice Wide Open, an excellent conference organised by Judith Townend. I mounted my usual open justice hobby horses (to coin a topical phrase) on how to make the justice system more accessible to the public, including a moan about human rights reporting. Someone told me during the break that according to her research, when newspapers put a positive slant on a human rights story, they tend to use the code word “civil liberties”. And, as if to prove the point, on the very same morning the Daily Mail put its considerable weight behind a crucial but until now sub-public-radar “civil liberties” and open justice issue, the Justice and Security Green Paper.
As readers of this blog will be aware, the Government proposes in the Green Paper to introduce “closed material procedures” into civil proceedings. For an explanation of why this amounts to “a departure from the foundational principle of natural justice“, look no further than the Special Advocates’ response to the consultation and my co-editor Angus McCullough QC’s post, A Special Advocate’s comment. But although the proposals have been getting lawyers and The Guardian hot and bothered, the sound of tumbleweed has been the loudest response. Until now, that is.
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1 March 2012 by Adam Wagner
The Ministry of Justice has proposed two important amendments to the Legal Aid, Punishment of Offenders and Sentencing Bill.
As has been predicted for a number of months, the proposals will bring a limited number of clinical negligence claims and claims arising as a result of domestic violence back within the scope of legal aid. The clinical negligence exception only relates to claims arising whilst a person was still in their mother’s womb, or 8 weeks after their birth. If the baby is born before 37 weeks gestation, the legal aid clock will begin to tick from the date they would have been 37 weeks gestation. The victim must also be “severely disabled” as a result.
As to domestic violence, the amendments are to provide legal aid for civil claims where:
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11 February 2012 by Matthew Flinn
AT v Secretary of State for the Home Department [2012] EWCA Civ 42 – Read Judgment
The Court of Appeal has upheld a challenge to a control order on the basis that the person subject to the order (‘the controllee’) had not been given sufficient information about the case against him.
How do you solve a problem like a suspected terrorist? For successive governments, the answer has proved to be far from straightforward, as the recent controversy surrounding radical cleric Abu Qatada has demonstrated.
The focus of this blog post is on yet another challenge to the imposition of a control order. Introduced by the Labour government in the Prevention of Terrorism Act 2005, a control order is a controversial tool used to restrict and monitor suspected terrorists. They have now been superseded by Terrorism Prevention and Investigation Measures (or “TPIMs”, described by some critics as “control orders lite”), which will in due course have their time in the legal spotlight. For now, there remain a small number of cases brought under the old control orders regime which are being determined. As this decision demonstrates, even their consignment to history has not shielded them from careful judicial scrutiny.
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8 February 2012 by Adam Wagner
Michael Alexander SECKERSON and TIMES NEWSPAPERS LIMITED against the UK Applications nos. 32844/10 and 33510/10 – Read decision / press release
The European Court of Human Rights has rejected as “inadmissible” Times Newspaper’s challenge to its 2009 conviction for contempt of court. The decision, which was made by seven judges, is a good example of an early stage “strike-out” by the Court which is nonetheless a substantial, reasoned decision (see our posts on the “UK loses 3 out of 4 cases at the court” controversy).
It has been a bad 24 hours for The Times, with its editor being recalled to the Leveson Inquiry into press ethics yesterday to answer questions about the hacking of a police blogger’s email account to reveal his secret identity, and subsequent disclosure (and lack thereof) to the High Court. Ultimately, James Harding appeared to blame the Times’ now-departed in-house lawyer as well as “legal privilege” – see Professor Richard Moorhead’s excellent post on the ethical issues surrounding this.
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8 February 2012 by Colin Yeo
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
‘Human Rights Act to blame!’ is a frequent refrain in the media, as well reported on this blog. Often, though, the outcome that has attracted media ire is not one that has much to do with the Human Rights Act at all. The decision to release Abu Qatada on bail is one such example.
The decision of the European Court of Human Rights that Abu Qatada cannot, for now, be deported to Jordan because of the risk of a trial using evidence obtained by torture has nothing to do with the Human Rights Act. Unless the UK were to withdraw entirely from the European Convention on Human Rights, that decision would always have been reached with or without our own Human Rights Act.
by Colin Yeo
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7 February 2012 by Adam Wagner
The UK Supreme Court began tweeting yesterday as @UKSupremeCourt to deserved international fanfare. Some even speculated that Wikileaks founder Julian Assange’s extradition fate could now be revealed on Twitter.
The court is already being followed by almost 4,000 Twitter users (for the uninitiated, that is a lot) and has already beaten its own Twitter policy’s prediction of “2-3 tweets a week” with eight on its first day. The eventful debut tweets included seven live updates on the swearing-in ceremony of the court’s newest Justice, Lord Reed, and one relenting to Twitter user @FOImanUK‘s valid point that contrary to the court’s stated policy, it should be possible to put freedom of information requests to the court via Twitter.
This is all excellent news. The UK’s newest and highest appeal court is now setting the international standard for open justice, with its splendid press summaries of judgments, live transmission of hearings online (today’s is a very interesting case about the state’s financial responsibility towards disable people), accessible court facilities and generally public-facing approach. This is also as it should be: the Court has a statutory duty to be “accessible”. But the Supreme Court, which is largely independent from the rest of the court system, is now streaking ahead of it in terms of access to justice. And this open justice gap is becoming a problem.
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1 February 2012 by Adam Wagner
The Julian Assange circus rolls back into London today for the UK Supreme Court’s 2-day hearing of his appeal against extradition. It will be broadcast on Supreme Court live from 10:30am.
The Wikileaks founder was granted permission in November 2011 to appeal to the Supreme Court under Section 32 of the Extradition Act 2003. If he loses, unless he brings a claim at the European Court of Human Rights, he will have to face charges of sexual assault and rape in Sweden.
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31 January 2012 by Daniel Sokol
Debbie Purdy
Philip Havers QC of 1 Crown Office Row is representing Martin in the judicial review proceedings. He is not the author of this post.
Albert Camus famously wrote: ‘there is but one truly serious philosophical problem and that is suicide.’ However profound a philosophical problem, the question of suicide or, more precisely, assisted suicide is proving quite a legal conundrum.
It is a well-known fact that, at present, it is lawful in England and Wales to commit (or to attempt to commit) suicide but unlawful to help someone else to do so. Encouraging or assisting suicide is an offence under section 2 of the Suicide Act 1961, carrying a maximum penalty of 14 years’ imprisonment. On a literal reading of the Act, even obtaining information about euthanasia for someone who plans to commit suicide could constitute a breach of section 2.
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31 January 2012 by Adam Wagner
A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the consultation into whether “closed material” (secret evidence) procedures should be extended to civil trials.
Of the responses that I have read, there is very little support for the proposals as they stand and, as journalist Joshua Rozenberg has pointed out, the most damning criticism has come from the very lawyers who are currently involved in “closed” proceedings.
If you are interested in the issue, the Joint Committee on Human Rights is hearing evidence on it today from two special advocates, including my co-editor Angus McCullough QC (see his post on the topic), as well as the current and former independent reviewers of terrorism legislation. The session begins at 2:20pm and can be watched live here.
As I did with the Bill of Rights Commission consultation, I asked people to send me their consultation responses. What follows is a wholly unscientific summary of the ones I received:
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19 January 2012 by Guest Contributor
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM – 8139/09 [2012] ECHR 56 – Read judgment – updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110).
The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.
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Dudgeon Offshore Wind v. Secretary of State for Communities and Local Government et al, HHJ Waksman QC, hearing 23 March 2012, read judgment
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