Category: Article 6 | Right to Fair Trial
13 January 2011 by Adam Wagner
Desmond v The Chief Constable of Nottinghamshire Police 2011] EWCA Civ 3 (12 January 2011)- Read judgment
The Court of Appeal has ruled that it is not possible to sue the police in negligence for not filling in an Enhanced Criminal Record Certificate (ECRC). The ruling shows that the courts are still reluctant to allow negligence claims against the police, and provides useful guidance as to the duty of care of public authorities towards the general public.
Vincent Desmond was arrested in 2001 for a late-night sexual assault in Nottingham. He denied the crime, and a week later the police decided to take no action against him. When closing the file, a detective constable wrote in his notebook “It is apparent Desmond is not responsible for the crime. The complainant visited and cannot state for certain if Desmond is responsible.”
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11 January 2011 by Isabel McArdle
Twaite, Re Appeal against conviction [2010] EWCA Crim 2973 – Read judgment
In an interesting decision on fair trial rights under article 6 of the European Convention, the Court of Appeal been ruled that a court martial conviction by majority neither not inherently unsafe or in breach of human rights.
Mr Twaite had been accused fraud while serving in the armed forces. He and his fiancée had been given particular military accommodation on the basis that they were getting married on 28 August 2008. In a form which Mr Twaite submitted he had allegedly been dishonest by stating that he was getting married on that date. In fact he did not marry until a year later.
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6 January 2011 by Adam Wagner
Updated | The government is soon to reveal the future of control orders, controversial anti-terrorism measure which have been repeatedly found by the courts to infringe human rights. But what are they? And why have they caused such trouble since they were introduced?
What are control orders?
Control orders are an anti-terrorism power which allows the secretary of state to impose strict conditions on a terrorist suspect (the ‘controlee’).
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20 December 2010 by Adam Wagner
The Lord Chief Justice has issued interim guidance on the use of live text-based forms of communication, including Twitter, from court for the purpose of fair and accurate reporting.
For the time being, it will be possible to apply to a judge for permission to turn on one’s mobile phone or computer in order to tweet. Judges must consider whether the application “may interfere with the proper administration of justice“. The most obvious purpose for permitting the use of live, text-based communications “would be to enable the media to produce fair and accurate reports of the proceedings.”
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16 December 2010 by Rosalind English
Ofulue v United Kingdom, Application no. 52512/09 – read judgment
The Strasbourg Court has confirmed that the inadmissibility of a “without prejudice” letter neither interferes with an applicant’s fair trial rights under Article 6 nor does it prejudice their rights to enjoyment of property under Article 1 Protocol 1 where the production of such a letter might have proved their title in proceedings challenging adverse possession.
The applicant was the registered owner of a property in London which became subject to adverse possession. In the dispute over whether or not her title had been extinguished she sought permission to produce a “without prejudice” letter from the tenants which had been written some years before making an offer on the house.
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13 December 2010 by Adam Wagner
The Home Secretary has said that the government will not appeal the High Court’s decision to uphold that there were to be no ‘closed’ hearings at the 7/7 inquests.
As we posted earlier this month, The High Court, composed of two colleagues of the Coroner (Dame Heather Hallett) in the Court of Appeal, robustly rejected the Home Secretary’s application for a review of the decision. In short, both judges concurred with Hallett LJ’s decision that the Coroners Rules did not provide a power to hear evidence in sessions from which ‘interested persons’ (including families of the 7/7 victims) could be excluded.
Richard Mumford’s analysis of the High Court decision is here, and his previous post on Lady Justice Hallett’s decision is here.
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10 December 2010 by Adam Wagner
Seal v United Kingdom (Application no. 50330/07) – Read judgment
The European Court of Human Rights has rejected the claim of a man detained by the police for 9 days under mental health law. Despite legislation deliberately making it difficult to sue authorities carrying out mental health functions, the court ruled that the law did not unduly restrict access to the courts.
Although Mr Seal ultimately lost, his claim – and in particular a strong dissenting judgment by Baroness Hale in the House of Lords – highlights the tricky line the state must tread in relation to people with mental health problems in relation to their access to justice.
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8 December 2010 by Adam Wagner
Updated | Wikileaks founder Julian Assange was arrested yesterday and refused bail after a hearing at Westminster Magistrates Court.
He was not arrested in relation to the whistle-blowing website Wikileaks, but rather on suspicion of having sexually assaulted two women in Sweden. His lawyers have said that “many believe” the arrest was politically motivated.
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7 December 2010 by Adam Wagner
MacKay & BBC Scotland v. the United Kingdom (Application no. 10734/05) – Read judgment / press release
The European Court of Human Rights has ruled that the failure of the Scottish court system allow the BBC to challenge a court reporting ban was a violation of rights to freedom of expression and information as well as to an effective remedy.
Mr Mackay, a retired journalist, and the British Broadcasting Corporation (BBC) in Scotland, challenged a 15 February 2005 order prohibiting the publication of any report of the trial of two men accused of importing and supplying controlled drugs. The order arose in the midst of an appeal hearing brought by the Crown against a previous judge’s decision to stay the hearing. The BBC faxed the court asking to be heard on the order, but were told they could not be heard until the next day. The order became final.
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6 December 2010 by Adam Wagner
The head of Sky News has argued in a new Guardian article that justice must be televised as allowing TV cameras in court would help restore public faith in criminal proceedings.
Sky news has been campaigning for TV cameras to be allowed in court for the past year. John Ryley argues that the upcoming prosecutions of 5 men accused of abusing the parliamentary expenses system should be televised as the judge in the case has said the matter is “of intense public interest”. Televising proceedings would help restore the loss of confidence in parliament and politics and ensure that judges who are seen are “out of touch” and “liberal” need not escape the spotlight.
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2 December 2010 by Adam Wagner
Cromwell looks on
Chaytor & Ors, R v (Rev 2) [2010] UKSC 52 (01 December 2010) – Read judgment
Updated | The Supreme Court has dismissed the appeal of four men accused of fiddling their Parliamentary expenses. In doing so, it has provided a powerful statement of the limits of Parliamentary privilege against court interference, and of its own powers in our separation of powers system.
The background to the case is set out in my post on the Court of Appeal case. The basic summary is that three ex-MPs, Morley, Chaytor and Devine, and one member of the House of Lords, Lord Hanningfield, are charged with false accounting relating to their parliamentary expenses claims.
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1 December 2010 by Richard Mumford
On 30 November 2010 the High Court handed down its written ruling upholding the 7/7 inquests Coroner’s decision that there were to be no ‘closed’ hearings at the inquests. An analysis of the Coroner’s decision can be found here. The High Court had previously given its decision, with an indication that reasons were to follow.
The Divisional Court of the High Court, composed of two colleagues of the Coroner (Dame Heather Hallett) in the Court of Appeal, robustly rejected the Home Secretary’s application for a review of the decision. In short, both judges concurred with Hallett LJ’s decision that the Coroners Rules did not provide a power to hear evidence in sessions from which ‘interested persons’ (including families of the 7/7 victims) could be excluded.
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1 December 2010 by Adam Wagner
When the UK supreme court opened for business just over a year ago one of its most exciting innovations was that, for the first time in the UK, hearings would be filmed and recordings made available to broadcasters.
The change followed 20 years of campaigning and preparation, and was heralded as a turning point in the history of our legal system.
So, one year on, are our TV schedules flooded with live feeds of cases of great social importance? Hardly. In fact, Baroness Hale, one of the court’s 11 justices, recently said that although the recordings are available to the media upon request, “they don’t often ask.”
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30 November 2010 by Rosalind English
Big business between government and property developers may be at risk from public interest challenges in the courts if current obstacles are removed.
Following critical findings by a UN environmental body, the Government has set out its latest proposals for allocating the costs burden in environmental cases. The current position is that an applicant who seeks to dispute the lawfulness of a decision, say, to grant permission for a development, will only get a court order preventing commencement of construction if they are prepared to pay for the developer’s loss should their claim fail at the full trial of the merits.
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24 November 2010 by Adam Wagner
Updated | Juries are often being hindered by judges’ interventions, Lord Justice Moses has argued in the Annual Law Reform Lecture at Inner Temple.
In an illuminating and entertaining speech, he argued that many of the directions to juries are unhelpful and given in a “foreign tongue”, and that we should “no longer pretend that judges can assist a jury’s recollection by a recitation of the facts”.
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Desmond v The Chief Constable of Nottinghamshire Police 2011] EWCA Civ 3 (12 January 2011)- Read judgment
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