Category: Article 6 | Right to Fair Trial
30 January 2013 by David Hart KC
Bank Mellat v Council of the European Union (supported by EU Commission), EU General Court, 29 January 2013 read judgment
In October 2009, Bank Mellat, an Iranian bank, was effectively excluded from the UK financial market by an Order made by the Treasury, on the basis that it had or might provide banking services to those involved in Iran’s nuclear effort. The Bank challenged the Order, and the challenge failed in the Court of Appeal, albeit with a dissent from Elias LJ: see Rosalind English’s post and read judgment. The Bank’s appeal to the Supreme Court is due to be heard in March 2013; it raises some fascinating issues about common law unfairness, Article 6, and the right to property under A1P1 , given that the Bank was not told of the intention to make the Order prior to its making.
The current case concerns an EU set of measures initiated in 2010, which led to the freezing the Bank’s assets on essentially the same grounds, namely involvement with the Iranian nuclear effort. And the EU General Court (i.e. the first instance court) has just annulled the measures – for lack of reasons, lack of respect for the rights of the defence, and for manifest error. So keep an eye on these two parallel cases, in the Supreme Court and in the EU Court of Justice on appeal from this decision.
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30 January 2013 by Guest Contributor
The government’s Justice and Security Bill has this week entered a new phase of debate in the House of Commons as it is considered in detail by a 19-member Public Bill Committee over the next month. The critics of this Bill – and there are many – argue that it will make “secret justice” a standard part of our legal process. The latest set of amendments proposed by the government were revealed yesterday and within them lies a crucial and unjustifiable secrecy provision. The significance of the amendments becomes apparent when one looks at how the Bill has progressed so far.
In its original form the Bill said that a court “must” use closed material proceedings if there would be a disclosure of information that would harm national security interests. It would not matter how small the damage, it would not matter whether there were other public interests in disclosure of the material, and the court had no discretion.
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21 January 2013 by Adam Wagner
The UK Supreme Court has today launched a YouTube channel showing short summaries of judgments. The summaries are read out by justices when a judgment is released. There are already ten online and more will be uploaded each time a judgment is released.
Since its launch in 2009, the UK’s new Supreme Court has been doing rather well at online access to justice. Its website is clear and elegant, it publishes excellent press summaries at the same time as judgments, it was the first supreme court to join Twitter (@uksupremecourt now has over 27,000 followers) and its hearings can be watched live online thanks to a partnership with Sky News.
Judgment summaries are a good start. Without wanting to sound ungrateful, what would really be useful is to be able to access recordings of full hearings on YouTube, as is provided on the superb Brazilian Supremo Tribunal Federal YouTube channel.
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18 January 2013 by Guest Contributor
Mark Kennedy
AKJ & Ors v Commissioner of Police for the Metroplis & Ors [2013] EWHC 32 (QB) – Read judgment
The High Court has ruled that the Investigatory Powers Tribunal was the exclusive jurisdiction for Human Rights Act claims against the police as a result of the activities of undercover police officers, authorised as Covert Human Intelligence Sources, where such conduct was not a breach of a fundamental right. The Tribunal did not have jurisdiction to determine proceedings brought by Claimants at common law.
The decision of AKJ and related litigation is the latest instalment of the fallout from the activities of undercover police officer or Covert Human Intelligence Source (CHIS) Mark Kennedy and another police officer. Kennedy infiltrated environmental protest groups including those that resulted in convictions following events at Ratcliffe on Soar power station. The convictions were later quashed following revelations about Kennedy’s activities which included allegations he had engaged in sexual relationships with a number of female protestors and other prosecutorial impropriety: R v Barkshire [2011] EWCA Crim 1885 (UKHRB post). A number of those affected by Kennedy’s actions subsequently brought claims in tort (for example alleging deception) and under the Human Rights Act 1998.
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17 January 2013 by Adam Wagner
The Government’s consultation on Judicial Review ends on Thursday 24 January – please forward your response to the consultation by email and I will include it in a roundup.
It is fashionable at the moment to speak about ‘evidence-based’ policy. The concept has been imported from the sciences by advocates such as Dr Ben Goldacre. In short, policies should be based on empirical evidence, statistics and perhaps even randomised trials. Very sensible. So sensible, you would hope that Government has been doing it anyway.
Which brings me to the planned reform of Judicial Review, the process by which legislative and executive decisions are reviewed by judges to make sure they are lawful. The Government’s ideas are fairly significant, although not quite as major as defeating Hitler, as the Prime Minister intimated they were when he announced them. I have already looked at the proposals in some detail – see also this excellent post. I wanted to concentrate here on the broader picture; the ‘mood music’, as it has been described by Mark Elliott.
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13 January 2013 by Rosalind English
Bristol City Council v C and others [2012] EWHC 3748 (Fam) – read judgment
This was an application for a reporting restriction order arising out of care proceedings conducted before the Bristol Family Proceedings Court. The proceedings themselves were relatively straightforward but, in the course of the hearing, information came to light which gave rise to concerns of an “unusual nature”, which alerted the interest of the press.
Background
After family court proceedings decided that child A was at risk of violence from her father, an interim care order was implemented and A was moved to foster carers. However some time afterwards the local authority received information from the police suggesting that someone living at the address of A’s foster carers had had access to child pornography. A also told social workers that another member of the foster household (also respondent to this action) had grabbed her around the throat. As a consequence police and social services visited the foster carers, informed them of the concerns about pornography, removed all computers from the house and moved A to another foster home. On the following day the male foster carer was found dead, having apparently committed suicide.
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6 January 2013 by Adam Wagner
In a wide-ranging interview with the Sunday Telegraph, the Prime Minister has previewed a new ‘deport first, appeal second’ approach to deportation cases:
… in specific response to the never-ending Abu Qatada case, and vexatious use of the European Convention on Human Rights, the PM is looking at a new and radical option. “I am fed up with seeing suspected terrorists play the system with numerous appeals. That’s why I’m keen to move to a policy where we deport first, and suspects can appeal later.” Under this new arrangement, deportees would only be able to appeal against the decision while still in this country – thus suspending their removal – if they faced “a real risk of serious, irreversible harm”.
It seems to me that this approach is anchored in last month’s European Court of Human Rights (Grand Chamber) decision in DE SOUZA RIBEIRO v. FRANCE – 22689/07 – HEJUD [2012] ECHR 2066 (summary here). See in particular paragraphs 82
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22 December 2012 by David Hart KC
Chagos Islanders v. United Kingdom, ECtHR 4th Section, 11 December 2012 read admissibility decision
The set of injustices which led to these claims is well known – and see my posts here and here. For the uninitiated, in the 1960s, the US wanted Diego Garcia (one of the Chagos Islands) as a major air base. It spoke nicely to the UK, its owners, who consequently evicted and banned all the inhabitants from it and the neighbouring islands. The constitutional arrangements were apparently decorous. A new UK colony was established (the British Indian Ocean Territory or BIOT) with a Commissioner to make laws for the peace, order and good government of the Territory.
The UN was told that the population consisted of migrant workers, their position had been fully protected, and they had been consulted in the process – none of this in fact happened. Those evicted mainly went to Mauritius and the Seychelles. So the peace, order and good government in fact forthcoming from the UK amounted to total depopulation for military objectives.
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13 December 2012 by Adam Wagner
Don’t mention the war
The Government has revealed its plans to reform Judicial Review, and has opened a public consultation which closes on 24 January 2013.
Last month the Prime Minister promised business leaders that he would “get a grip” on people forcing unnecessary delays to Government policy by cracking down on the “massive growth industry” of Judicial Review (JR), the means by which individuals and organisations can challenge poor decisions by public authorities in the courts. He even, in a new twist on Goodwin’s Law, compared cutting down on court challenges to beating Hitler.
The consultation document is detailed and is worth reading. It certainly does not reflect the bombast of the Prime Minister’s statement that “We need to forget about crossing every ‘t’ and dotting every ‘i’ – and we need to throw everything we’ve got at winning in this global race“. What is proposed is a fairly significant reform of the Judicial Review system, and nothing as dramatic as winning World War II. There are, however, some problems with the Government’s analysis which I will come to later.
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26 November 2012 by Guest Contributor
This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.
As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.
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21 November 2012 by Guest Contributor
For justice to be seen to be done, judgments given in open court must be accessible in two senses. They must be clearly written so that a reasonably well informed member of the public can understand what is being decided. But they must also be available to the public, and in this sense their accessibility depends on their being reported.
Lord Neuberger, President of the Supreme Court, so stated in the first BAILII annual lecture, hosted by Freshfields Bruckhaus Deringer LLP at their premises in Fleet Street last night. The full speech can be read here.
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16 November 2012 by Adam Wagner
You may have heard that the Special Immigration Appeals Commission (SIAC) decided on Tuesday that Abu Qatada, an alleged terrorist who has been detained for the best part of the last seven years awaiting deportation to his native Jordan, cannot be deported. There would be a real risk, ruled SIAC, that he would face a flagrant denial of justice in his ensuing trial.
Jim Duffy has already commented on the case here, but I thought it would be useful to look at some of the commentary which followed the decision. A bit like the latest Israel-Gaza escalation, controversial human rights decisions now elicit an almost instant (and slightly sad) our-camp-versus-theirs reaction. Following a decision each ‘side’ trundles into action, rolling out the clichés without thinking very hard about the principles. The Prime Minister himself somewhat petulantly said he was “fed up” and “We have moved heaven and earth to try to comply with every single dot and comma of every single convention to get him out of this country.”
It is easy to moan about inaccurate coverage (I often do). But in this case, I do think the strong, almost visceral, reaction to the decision is justified. Leaving aside the slightly mad tabloid anti-Europe or effectively anti-justice coverage, it is understandable that people are uneasy and upset about this decision to keep a suspected terrorist within our borders, and then release him. But that doesn’t mean the decision is wrong.
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13 November 2012 by Jim Duffy
Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 – read judgment
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.
Earlier today, Abu Qatada was released from Long Lartin prison following his successful appeal before the Special Immigration Appeal’s Commission (SIAC). Qatada was challenging the decision to deport him to Jordan, where he faces a retrial for alleged terrorism offences.
For most of the last decade, Abu Qatada has been detained pending deportation to his home country. At his two original trials, he was convicted in absentia and sentenced to full life imprisonment with 15 years’ hard labour.
In his latest challenge to his deportation, SIAC concluded, as the European Court of Human Rights had in May 2012, that due to the real risk of a flagrantly unfair trial in Jordan, Qatada could not be deported there.
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25 October 2012 by David Hart KC
R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion
In my post of yesterday, about this opinion of the Adocate-General, I set out the context in which the Supreme Court was asking for guidance from the CJEU on how to provide for costs in environmental cases, given that the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”
As I put it, the first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Roman Abramovich. Any costs liability may deter someone on state benefits.
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24 October 2012 by David Hart KC
R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated
In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention.
My further thoughts on this case are found here.
The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.
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