Category: Article 6 | Right to Fair Trial


European Court of Justice grapples with secret evidence in UK immigration case – Dr Cian Murphy

14 June 2013 by

topsecretfile ECJZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – Read judgment

The European Court of Justice has, in recent days, handed down a judgment that hits several hot buttons: UK immigration law, EU human rights, secret evidence, and suspicions of terrorism. In ZZ the Court has had to rule on the use of secret evidence before the Special Immigration Appeals Commission (SIAC).

Mr ZZ is an Algerian citizen. However, of crucial importance to his case is that he is also a French citizen, and therefore as an EU citizen, he is entitled to travel to and live the UK. Mr ZZ’s wife is a UK citizen and he was resident in the UK for a over a decade until 2005. In that year he travelled to Algeria but, upon return, was refused admission to the UK on national security grounds.

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The serious lesson hiding behind the Express’s latest rights “outrage”

12 June 2013 by

BMgRvWRCYAEZ-DO.jpg-large12 June 2013 may go down in legal history. For it was the first time a national newspaper’s main headline was about the launch of a legal textbook. In a paradoxical explosion of free publicity for said book, the Daily Express reported that a new online guide to European asylum and immigration has caused “outrage” for helping “migrants claim British benefits”.

As you might expect, the article is as full of arrant nonsense as the new guide – which can be downloaded for free here – is full of useful information. Nonsense like this:

In a list of examples of past cases, it even cites Islamist cleric Abu Qatada’s successful ­challenge under human rights laws against Home Office attempts to send him back to ­Jordan to face terror charges

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Can an employer increase the sanction for misconduct on appeal?

11 June 2013 by

pdp0564782_97This was the question confronting Judge Hegarty QC in, McMillan v Airedale NHS Foundation Trust [2013] EWHC 1504 QB – read judgment

The answer of the Court was that clear and express words in the contract would be required in order to confer a power to increase a sanction on an Appeal Panel.

The Claimant was a Consultant Obstetrician and Gynaecologist who was involved in a serious untoward incident when a patient suffered significant and uncontrolled bleeding in the aftermath of a successful caesarean delivery which necessitated emergency surgery to remove her spleen. In the aftermath, the Trust’s Medical Director formed the view that the Claimant had not been honest about the care of the patient and had, in fact, given conflicting accounts. This was also the conclusion of a disciplinary hearing which then issued a final written warning and referred the case to the GMC. The Claimant appealed.

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Can you decide who is to be your unpaid advocate? Eleanor Battie

24 May 2013 by

mckenzie-friend11RE F (CHILDREN) 14 May 2013, Court of Appeal – extempore so currently only available as a Lawtel summary (£)

A topical case, this, given legal aid cutbacks. It concerns the ability of unrepresented litigants to choose those to help them out as advocates in court. Not an unconstrained right, as this case demonstrates. The High Court ruled that a judge had been entitled to refuse an application for a particular person to act as a McKenzie friend despite that individual not being present in court at the time of the application. The Court of Appeal upheld that decision. 

This application for permission to appeal resulted from the refusal by a family judge to permit a person to act as a McKenzie friend within care proceedings.

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Will the new criminal legal aid reforms breach the right to a fair trial?

16 May 2013 by

Chris Grayling, justiceOne of the most contentious proposals in the Consultation Paper on the transforming legal aid is the removal of client choice in criminal cases. Under the proposals contracts for the provision of legal aid will be awarded to a limited number of firms in an area. The areas are similar to the existing CPS areas. The Green Paper anticipates that there will be four or five such providers in each area. Thus the county of Kent, for example, will have four or five providers in an area currently served by fifty or so legal aid firms. Each area will have a limited number providers that will offer it is argued economies of scale.

In order to ensure that this arrangement is viable the providers will be effectively guaranteed work by stripping the citizen of the right to choose a legal aid lawyer in criminal cases. Under the new scheme every time a person needs advice they will be allocated mechanically by the Legal Aid Agency to one of the new providers. It may not be the same firm the person has used before. The citizen will therefore not be able to build up a relationship with a solicitor. From a human rights perspective this, of course, begs the question would the removal of choice be compatible with the ECHR?

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More major rule of law changes, more dodgy statistics used to justify them

5 May 2013 by

9780312421274“Access to justice should not be determined by your ability to pay”, begins the Justice Secretary Chris Grayling – perhaps accompanied by a subtle wink – at the beginning of  the Ministry of Justice’s new consultation document. As many readers will know, the Government is currently consulting on a second round of legal aid cuts. This time, savings of £220m per year are estimated. The consultation closes in just under a month, on 4 June 2013. 

The  reforms are major, and will impact on hundreds of thousands, if not millions, of people. They relate, in summary, to

  1. removing legal aid for prisoners challenging the way they are treated in prison,
  2. reforms to legally aided Judicial Review to “fund weak Judicial Reviews”,
  3. the introduction of a household disposable income threshold above which defendants would no longer receive criminal legal aid;
  4. amendments to the civil merits test to prevent the funding of any cases with less than a 50% chance of success;
  5. introducing price competition into the criminal legal aid market,
  6. reducing the cost of criminal legal aid fees for Crown Court advocacy and Very High Costs Cases,
  7. reducing lawyers’ fees in family public law cases and asylum and immigration appeals and
  8. reducing fees to experts in civil, family and criminal cases by 20%.


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Judicial Review reform: What does “totally without merit” mean? – Paul Bowen QC

25 April 2013 by

Chris Grayling, justiceWhat is the test the Court should apply in deciding whether an application is ‘totally without merit’?  The question is prompted by the Lord Chancellor’s announcement on 23 April 2013 that he will press ahead with plans to reform judicial review procedure to target ‘weak, frivolous and unmeritorious cases’.  A key change will be to give judges of the Administrative Court, when refusing permission to apply for judicial review on the papers, the power to certify a claim as ‘totally without merit’ (TWM), thus depriving the claimant of the right to renew the application before the court at an oral hearing.

This power is one that is already exercisable by judges when refusing applications for permission to appeal on the papers under Civil Procedure Rules (CPR) r. 52.3(4A), the effect of which is to prevent the appellant from renewing the application orally. However, it is better known – or, at least, more widely used – in the context of the courts’ jurisdiction to make ‘civil restraint orders’ under CPR 3.11. Indeed, the Administrative Court has had power to certify an application as TWM for the purposes of making a ‘civil restraint order’ since those rules were introduced in 2004 (see R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536). Although no statistics are currently available for this use of the power to certify a claim as TWM, according to Lynne Knapman, Head of the Administrative Court Office, these are now being collated for applications made since the beginning of 2013.

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Government pressing ahead with (most of) its proposals to restrict access to judicial review – Mark Elliott

23 April 2013 by

war on JRThe Ministry of Justice has released its response to the comments generated by the consultation paper on judicial review that was published in December. Unsurprisingly, the Government has signalled that it intends to press ahead with most of the proposals upon which it consulted. In particular, it plans to implement the following proposals:

  • Time limits  The time limit for judicial review (which at three months is already very short) will be reduced to six weeks in planning cases and thirty days in procurement cases. The Government recognizes that these timescales are so short that compliance with the Pre-Action Protocol will be impossible, so it will invite the judiciary to disapply the Protocol in such cases. Given that one of the objectives of the Pre-Action Protocol is to encourage pre-litigious resolution of disputes, it is not clear how this will promote the Government’s objective of reducing recourse to litigation.

Local authority ordered to pay substantial costs in family human rights case – Adam Smith

19 April 2013 by

A & S v. Lancashire County Council [2013] EWHC 851 (Famread judgment

This was a costs application arising from an extremely important decision by Peter Jackson J in June 2012 (see Alasdair Henderson’s post here and read judgment)

In that original judgment, Lancashire County Council were found to be in breach of Articles 8 (private life), 6 (fair trial) and Article 3 (inhuman treatment) of ECHR. Two brothers had come into local authority care as infants and were freed for adoption.


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Successful A1PI claim in construction adjudication – lessons for us all

16 April 2013 by

showImage.php_Whyte and Mackay Ltd v. Blyth & Blyth Consulting Engineers Ltd, Outer House, Court of Session, Lord Malcolm, 9 April 2013 read judgment

One to read if you have any interest in summary justice in civil litigation – not simply for those who can tell their rebar from their roof tile.

The first instance Scottish judge refused to order enforcement of a £3m adjudication – a form of interim justice -in complex professional negligence proceedings, because to do so would have involved a violation of A1P1 – the right to property. But he ruled against a similar submission based on Article 6 – the right to a fair trial.

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The CJEU on “prohibitively expensive” and the new protective costs order regime

11 April 2013 by

R (Edwards & Pallikaropoulos) v. Environment Agency et al, 11 April 2013, read CJEU judgment, and read Opinion of A-G Kokott,

and the Civil Procedure Rules 45.41 to 45.44, in force from 1 April 2013, with Practice Direction 45

Twin developments, both of which are important for those involved in environmental cases. They emerge from the UK’s treaty obligations flowing from the Aarhus Convention under which it is obliged to ensure that environmental cases are not “prohibitively expensive” per Article 9(4) of the Convention.

The first development is a decision by the CJEU on the meaning of those words.

The second is a new set of rules providing for protective costs orders in environmental judicial review claims.
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“More open, more transparent, and more powerful”: communications at the Supreme Court – Dr Richard Cornes

8 April 2013 by

Screen Shot 2013-01-21 at 09.43.46Max Hastings greeted the new Supreme Court with the prediction that it was a “constitutional disaster in the making.” For Hastings this was Blair’s Court, Blair’s legacy; its creation just one more example of Labour’s wrecking of ancient British institutions. Of course, there was also positive coverage in the early days in papers like the Guardian and Times, but ideally the Court needed to get its own message about itself. How has it gone about doing this? And what has it been saying? What challenges has it faced in its first three years?

This blog (a shortened version of an article out this month in Public Law) looks at the Court’s innovative approach to getting the message out not only about what it is doing in cases, but also about its role in general. It is a topic covered recently by Adam Wagner, here. At the heart of the Public Law article is the idea that the Court is quietly asserting its role as a new and powerful constitutional actor. Its communication’s operation has been at the heart of this.

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4 slaughterhouses hit high fives: Article 6(1) breaches found

6 April 2013 by

37788084345565012_8oFmp54f_222Julius Kloiber Schlachthof GMBH and others v. Austria, ECtHR, 4 April 2013, read judgment

These ECtHR decisions are the latest in a number of claims by slaughterhouses that their rights were infringed by the exaction of a surcharge by the Austrian national agricultural board. The Court decided that (a) the process of surcharging by administrative bodies engaged the criminal part of Article 6 and (b) the Austrian courts hearing appeals against the surcharges did not have the jurisdiction to carry out a “full review” of the decision to surcharge; only that way could one turn the combination of administrative decision and court decision into a decision by a “tribunal” complying with Article 6.

Now to unpack these complex but important ECtHR rules, and to look at how they play out domestically.

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Last week not a good one for Theresa May: not just Abu Qatada

31 March 2013 by


132957J1 v  Secretary of State for the Home Department, 27 March 2013 – read judgment

A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post

Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.

The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR  amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of  the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).

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Court of Appeal rejects latest attempt to deport Abu Qatada

28 March 2013 by

121113AbuQatadaMay_6898438Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] EWCA Civ 277 – read judgment

The Home Office last night assured its 70,000 Twitter followers that “it is not the end of the road”.  Yet by the time she had reached page 17 of the Court of Appeal’s dismissal of her latest attempt to deport Abu Qatada, it might well have seemed that way to Theresa May. 

In November, the Special Immigration Appeals Commission (SIAC) ruled that Qatada could not be deported to face a retrial for alleged terrorism offences due to the real risk of “a flagrant denial of justice”.  Read my post on that decision here.  Yesterday, Lord Dyson – the Masters of the Rolls and second most senior judge in England and Wales – together with Lord Justices Richards and Elias, rejected the Home Secretary’s appeal.


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