Category: Article 6 | Right to Fair Trial
1 July 2011 by Matthew Flinn
IR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 704 – Read Judgment
The Court of Appeal has rejected an argument that Article 8 of the European Convention of Rights (ECHR), the right to private and family life, requires that those challenging deportation and exclusion decisions on grounds of national security in proceedings before the Special Immigration Appeals Commission (SIAC) have to be given sufficient disclosure of the case against them to enable them to effectively instruct the special advocate representing their interests.
In his book “The Rule of Law”, the late Lord Tom Bingham enumerated a number of sub-rules to give content to that cardinal, oft-cited but rather vague constitutional principle. Unsurprisingly, one such sub-rule was that adjudicative procedures provided by the state should be fair, an idea which found expression in documents as old Magna Carta. In turn, this entails that, as Lord Mustill stated in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, “each party to a judicial process should have an opportunity to answer by evidence and argument any adverse material which the tribunal make take into account when forming its opinion”.
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29 June 2011 by Adam Wagner
R (on the application of G) (Respondent) v The Governors of X School (Appellant) [2011] UKSC 30 – Read judgment / press summary
The Supreme Court has ruled unanimously that Article 6 of the European Convention on Human Rights, the right to a fair trial, is engaged in internal disciplinary proceedings if the will have a “substantial influence” on future proceedings which are likely to determine a civil right.
However, in this case of a teaching assistant sacked for sexual misconduct with a child, the court ruled by a majority that article 6 rights were not available at a school’s internal disciplinary hearing and the man was therefore not entitled to legal representation. This was because the result of the hearing would not have a substantial influence on the secretary of state’s decision whether to place the man on the list of people barred from working with children. Simply, the Independent Safeguarding Authority (ISA) was obliged to make its own independent judgment.
As Martin Downs posted in April, this decision – which supports the previous decision of the court of appeal – will have an important effect on all internal disciplinary hearings held in the public sector, not just those held at schools. It will now be easier for teachers, doctors, dentists, nurses and others to secure the right to legal representation, alongside other rights such as the right to an impartial panel, at disciplinary hearings which will have a substantial influence on their career.
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28 June 2011 by Adam Wagner
As reported by Guardian.co.uk, Lady Hale, one of the 12 UK Supreme Court justices, has said in a speech to The Law Society that the government’s proposed reforms to legal aid will have a “disproportionate effect upon the poorest and most vulnerable in society“.
Although the current crop of senior judges has not been afraid to express opinions on controversial issues, it is unusual for a sitting senior judge to criticise current and controversial government plans. The Legal Aid, Sentencing and Punishment of Offenders Bill has only just been published, and is being debated tomorrow in Parliament. The Guardian.co.uk article presents the comments as a “direct challenge” to the policy. However, upon a closer reading, Lady Hale cleverly steered clear of criticising the plans in her own words, but rather quoted the government’s own analysis of the bill.
The speech was entitled Equal Access to Justice in the Big Society, and was in memory of solicitor Henry Hodge, and can be downloaded in full here (PDF). It is also republished below the page break.
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24 June 2011 by Rosalind English
R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011 – read judgment; press summary here
Unappealable decisions of the Upper Tribunal are still subject to judicial review by the High Court, but only where there is an important point of principle or practice or some other compelling reason for the case to be reviewed. Unrestricted judicial review in this context is unnecessary and a waste of resources.
This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three was the extent to which decisions of the Upper Tribunal, established under the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”), are properly subject to judicial review by the Administrative Court in England and Wales and the Court of Session in Scotland.
In all of them the claimant failed in an appeal to the First-tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First-tier Tribunal and by the Upper Tribunal. In all three the claimant sought a judicial review of the refusal of permission to appeal by the Upper Tribunal.
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22 June 2011 by Richard Mumford
R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin) – read judgment
This post was coauthored by Richard Mumford and Joanna Glynn QC. Kieran Coonan QC and Neil Sheldon of 1 Crown Office Row appeared for the claimant in this case.
On 21 June 2011 the Divisional Court held to be “irrational and … a breach of the Claimant’s Article 6(1) right to a fair hearing” a decision by the Fitness to Practise Panel of the General Medical Council to admit hearsay evidence under its own rules, having determined that such evidence would not be admissible under the criminal rules of evidence .
Professor Bonhoeffer, described in the judgment as “an eminent consultant paediatric cardiologist of international repute”, was charged by the GMC with impairment of his fitness to practise arising from alleged serious sexual misconduct towards boys and young men in Kenya. It was alleged that over a number of years the Claimant travelled to Kenya to undertake charitable medical work and that the victims were children and young men to whom he had provided sponsorship by paying for their education and accommodation.
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13 June 2011 by Adam Wagner
Tomorrow sees the beginning of a contempt of court prosecution against a juror who allegedly communicated on the social networking site Facebook with a defendant who had already been acquitted.
The co-editor of this blog, Angus McCullough QC, is representing the Attorney General in the case; he is not the writer of this post. Isabel McArdle has already posted on the case – for background, see Silence please: A Facebook contempt of court – allegedly.
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1 June 2011 by Adam Wagner
Updated | As a follow-up to Isabel McArdle’s post on an unsuccessful challenge to a control order, a quick note to say that the long-heralded Terrorism Prevention and Investigation Measures Bill was published last week.
The purpose of the bill, first previewed in January by the Counter-terroism review (see my post), is to abolish control orders and make provision for the imposition of terrorism prevention and investigation measures (so-called “TPIMs”). For more information on the human rights controversies surrounding control orders, see my post: Control orders: what are they are why do they matter?
Some useful links for more information on the bill:
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30 May 2011 by Adam Wagner
Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.
Starting with the
Sharon Shoesmith decision, which has been
helpfully summarised by Obiter J. The Spectator
reports that the Secretary of State for education Michael Gove intends to appeal the decision to the Supreme Court. The reported grounds of that appeal, gleaned from “Whitehall sources”, are interesting. Although Gove “
recognises that Balls blundered in the way he dismissed her“,
he also believes that there are important constitutional principles at sake in this case about how Ministers make important and urgent decisions and what the role of the courts is in challenging such decisions. Gove wants the Supreme Court to consider these issues because of the huge importance of judicial reviews, which are being used repeatedly by opponents of the government to try and stymie its agenda.
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25 May 2011 by Adam Wagner
The Supreme Court has delivered three judgments this morning, all of which are of interest from a human rights perspective. We will cover them in more detail soon, but for now, a brief summary.
First, murder. In 2003 Nat Fraser was convicted of murdering his wife and sentenced to 25 years in prison. In Fraser (Appellant) v Her Majesty’s Advocate (Respondent) [2011] UKSC 24, the court unanimously decided to quash his conviction send back to a Scottish appeal court the question of whether a new prosecution should be brought.
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23 May 2011 by David Hart KC
Buglife, R (on the application of) v Natural England [2011] EWHC 746 (Admin) – Read judgment
All public lawyers know that judicial review must be commenced “promptly and in any event not later than 3 months” after the public act complained of, failing which a claimant is at the mercy of the court as to whether to extend time.
And the word “promptly” in that context means that one can bowl out a claim even if it is commenced within those 3 months: see the Court of Appeal in Finn-Kelcey.
Or perhaps not. A recent environmental case, Buglife, grapples with this problem, and decides that, on the contrary, a claimant has an “unqualified entitlement to a period of up to three months before it must file its claim.” Hence the decision is of real practical importance, and there are big questions about its “reach”.
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18 May 2011 by Adam Wagner
This week the Sky News website began broadcasting UK Supreme Court hearings live. I have been talking up this idea for a while, and in my view the new service marks an important moment for access to justice.
In its first few days, Supreme Court Live has been showing an insurance case which has been, shall we say, a little difficult to follow (of course it would have been much more difficult to follow but for the excellent advocacy on display…) But the service works well and the footage is of high quality by current standards.
Whilst watching the case my mind wandered to the nuts and bolts of the arrangement between Sky and the court, and whether there are plans to expand the service in the future. I asked the Supreme Court, and this is what they said.
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18 May 2011 by Rosalind English
R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis – read judgment
A declaration has been granted by a majority in the Supreme Court that police policy of DNA retention is unlawful because it is incompatible with article 8 of the ECHR.
Guidelines under the current legislation allow destruction of DNA evidence only under “exceptional circumstances”; however police can be said to be acting unlawfully in retaining the evidence because the relevant provision of the Police and Criminal Evidence Act (PACE) should be ‘read down’ to accord with the right to privacy under the Convention.
The guidelines on DNA retention were introduced under Section 64(1A) of PACE, which provides that samples taken in connection with the investigation of an offence “may” be retained. The provision thus substituted a discretionary power for an earlier obligation in the statute to destroy data. The guidelines issued by the Association of Chief Police Officers (“ACPO”) guidelines provided that data should be destroyed only in exceptional cases.
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16 May 2011 by Adam Wagner
That was quick! The Supreme Court appear to have responded to the request I made on Thursday that hearings be broadcast live on the internet. From today, Sky News will be broadcasting all hearings live via this website.
All hearings at the court are filmed, but until now only broadcasters had been able to use footage. I first argued in October that this was a waste and the hearings should be live screened. I don’t actually believe that my posts had anything to do with this minor technological miracle, but I have tried it out and it works. This is very exciting. For the first time the general public, lawyers and law students can see the advocacy in the UK’s highest court of appeal live and unedited.
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16 May 2011 by Rosalind English
When does being not guilty make you innocent? This question arose coincidentally in two rulings, just over a month of each other, from the highest courts of the UK and South Africa respectively.
The Citizen and others v McBride concerned libel proceedings which had been brought against a former member of the armed wing of the ANC. McBride had been convicted of murder and sentenced to death in 1986 after killing three women in a bomb attack. Nine years later he was granted an amnesty by the SA Truth and Reconciliation Commission. The question before the Constitutional Court was whether a person convicted of murder, but granted amnesty under the Reconciliation Act, can later be called a “criminal” and a “murderer” in comment opposing his appointment to a public position.
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13 May 2011 by Guest Contributor
Birmingham City Council v Barker (Equal Pay Act : Other establishments) (Rev 1) [2010] UKEAT 0056_10_0905 (9 May 2011) – Read jugment
One of the allegations made about contingency fees is that they encourage lawyers to cut corners because they are not paid by the hour. It is an allegation which has been specifically made to me in the context of equal pay claims. So I was interested to see this latest Employment Appeal Tribunal decision which deals with a number of mistakes made during high volume equal pay cases.
The first point that is worth making is that it is a reminder of how hard fought these equal pay cases are. A concern about bringing cases under a contingency fee is that opponents can string cases out, or take highly adversarial approaches, to ensure that these cases cost the contingency fee lawyers lots of their time. The longer they take, the harder it is for contingency fee lawyers to make a profit, and the less likely it is to arise in these cases.
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