Category: Article 8 | Right to Privacy / Family
4 April 2011 by Matthew Flinn
The proposition that burglars have rights incites debate, and sometimes anger, which is often directed towards the Human Rights Act 1998 and the European Convention of Human Rights. However, on closer examination, the idea of “burglars’ rights” is not a new phenomenon in English law, and nor has it been imposed upon us by Strasbourg. The rights that burglars enjoy have long been part of the fabric of English common law.
There is nothing new about the idea that criminals in general, and burglars in particular, have forfeited their human rights by virtue of their criminality.
As Michael Cholbi of the University of New York has described in his article discussing felon disenfranchisement in the United States, “A Felon’s Right to Vote”, the strong conviction held by some that criminals should not enjoy the benefit of human rights is founded upon a basic intuition that “criminal acts alter the moral status of wrongdoers, permitting us to do to them what is otherwise unjust”. Essentially, having demonstrated an unwillingness to regulate their own conduct, criminals cease to be an object of moral concern.
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24 March 2011 by Maria Roche
A (A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454 (QB)– read judgment
A High Court judge has ruled that a seven-year-old child with severe disabilities caused by medical negligence during his birth should be the subject of an order that prohibits their identification in any newspaper report.
The order was granted in the course of a hearing to approve the settlement between the child and the defendant hospital under Part 21.10 of the Civil Procedure Rules. The judge held that there was a risk that the objective of such proceedings, namely to ensure that settlement money is properly looked after and wisely applied, would be defeated if the Claimant was identified. Further, identification of the child would curtail his and his family’s right to respect for their private and family under Article 8 of the European Convention on Human Rights [‘ECHR’] and there was insufficient general public interest in identifying the child to justify that curtailment.
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17 March 2011 by Matthew Flinn
R (on the Application of AC) v Bershire West Primary Care Trust [2011] EWCA Civ 247 – Read judgment.
The Court of Appeal has dismissed the appeal of a male-to-female transsexual who was refused NHS funding for breast augmentation surgery.
The appellant, known as AC, had been diagnosed with gender identity disorder (GID) in 1996. As part of its GID treatment program the PCT had been prepared to provide genital reassignment surgery, which AC had not availed herself of.
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16 March 2011 by Rosalind English
The government’s proposals for reform of the law on defamation have been published. The bill seeks to address concerns that libel law has a chilling effect on freedom of speech, failing to strike the right balance between free speech and protection of reputation.
The pressure of the widely-supported reform campaign, inspired by recent libel actions stifling comment on issues of scientific and academic debate, has no doubt contributed to the manifesto commitment on the part of all three parties which the coalition is now following through. The consultation paper and draft bill has been met with muted enthusiasm, with critics claiming that the proposed statute at best codifies the common law, with all its confusions and complexities, and that the whole is at worst “too little, too late” to meet their reform demands.
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7 March 2011 by Guest Contributor
There probably aren’t many people who want to know what ‘goes on’ in the Court of Protection more than me; it’s what I spend much of my time trying to fathom. An outsider would be forgiven for thinking that this branch of Her Majesty’s Court Service doesn’t feel that case law in this tangled and difficult area is anybody’s business but it’s own.
The reasons for this appearance are complex though, and not necessarily the fault of any individuals working within the courts. I think it’s important to draw a distinction between different ways that greater ‘transparency’ could be achieved; some might be more helpful than others.
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23 February 2011 by Adam Wagner
Updated | London Borough of Hounslow v Powell [2011] UKSC 8 (23 February 2011) – Read judgment / press summary
The Supreme Court has given important guidance as to when eviction from local authority housing amounts to a breach of a tenant’s human rights. It has also confirmed that courts should have the power to consider the proportionality of previously automatic possession orders relating to council properties.
The judgment forms a double act with the recent decision in Manchester City Council (Respondent) v Pinnock (Appellant), a path-breaking ruling in which the Supreme Court held that Article 8 of the European Convention on Human Rights (the right to private and family life) requires that a court, when asked by a local authority to make an order for possession of a person’s home, must have the power to assess the proportionality of making the order (see Nearly Legal’s excellent discussion of that decision).
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17 February 2011 by Guest Contributor
Updated | The Coalition Government’s Programme for Government, launched on 20th May 2010, made a number of commitments relating to information law, including issues about privacy and data protection. It also stated that the Government would introduce a Freedom Bill.
On Friday last week (11th February) the Protection of Freedoms Bill was duly published, with lengthy explanatory notes stating that it implemented 12 specific commitments in the Programme for Government.
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16 February 2011 by Adam Wagner
It is being reported this morning that sex offenders will be given the right to appeal their placement on a police register. The change follows a Supreme Court ruling that the lifelong restrictions were contrary to human rights law.
As I posted in April last year, the Supreme Court unanimously ruled that lifelong requirements for sex offenders to notify the police when they move house or travel abroad are a breach of Article 8 of the European Convention on Human Rights, the right to privacy and family life.
Lord Phillips, giving the leading judgment, said:
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7 February 2011 by Adam Wagner
G v E & Ors [2010] EWHC 3385 (Fam) (21 December 2010) – Read judgment
Manchester City Council has been ordered to pay the full legal costs of a 20-year-old man with severe learning disabilities who was unlawfully removed from his long-term foster carer. The council demonstrated a “blatant disregard” for mental health law.
The case has wound an interesting route through the courts, with hearings in the Court of Protection, Court of Appeal, and also a successful application by the Press Association to reveal the identity of the offending local council in the interests of transparency. In August, Siobhain Butterworth wrote that the decision to name and shame the council was a “good” one which “marries the need for transparency in the treatment of vulnerable people with the right to a private life“.
Now, Mr Justice Baker has taken the unusual step of ordering that Manchester City Council pay all of E’s family’s legal costs. The general rule in the Court of Protection is that costs should not be awarded, but as the judge ruled it can be broken in certain circumstances:
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3 February 2011 by Adam Wagner
D Borough Council v AB [2011] EWHC 101 (COP) (28 January 2011) – Read judgment
In a case which is fascinating both legally and morally, a judge in the Court of Protection has ruled that a 41-year-old man with a mild learning disability did not have the mental capacity to consent to sex and should be prevented by a local council from doing so.
The case arose when a local council, following allegations that a mentally disabled man made sexual gestures towards children, sought a court order stating that “Alan” (a false name) did not have the mental capacity to consent to sexual relations. The council ultimately wanted Alan to be banned from having sexual relations with his former house-mate and sexual partner.
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2 February 2011 by Rosalind English
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment
This case (see yesterday’s summary) is illustrative of two misconceptions about rights that we are all in thrall to from time to time.
One is that there is a fundamental hierarchy of human rights which allows certain interests to prevail over others in all situations; the other is that this hierarchy is determined by considerations that are morally and politically neutral. A prime example of this kind of principle is the idea of the “overriding rights of the child”, a consideration with a perfectly orthodox role in family law, but one whose application to human rights as a whole is questionable.
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1 February 2011 by Adam Wagner
Updated | ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment / press summary / our analysis
The Supreme Court has unanimously ruled that in cases where a parent is threatened with deportation, the best interests of their child or children must be taken into account, particularly when the children are citizens by virtue of being born in this country.
Following her leading judgment in last week’s domestic violence case, for which she has been dubbed the “Brilliant Baroness”, Baroness Hale has delivered another wide-ranging, principled judgment which will bring immigration courts into line with current thinking on child welfare and article 8 of the European Convention on Human Rights (the right to family life). The basic point is that children’s views must be taken into account, and this should include asking them what they think.
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1 February 2011 by Guest Contributor
The Court of Appeal yesterday handed down judgment in the case of JIH v News Group Newspapers Ltd ([2011] EWCA Civ 42). In allowing the appeal against the order of Tugendhat J ([2010] EWHC 2818 (QB)) the Court ordered that the claimant’s anonymity should be restored.
Although the Court stressed that each decision is fact sensitive, this approach seems likely to be followed in most types of privacy injunction cases. This eagerly awaited decision adds to the growing body of case law concerning reporting restrictions where an injunction has been granted to restrain publication of information about a claimant’s private life.
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26 January 2011 by Adam Wagner
The Home Office has published its long-awaited review of counter-terrorism and security powers. The review findings and recommendations are here.
Other key documents can be found via the following links:
The Home Office’s summary of the key recommendations is reproduced below:
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26 January 2011 by Adam Wagner
Yemshaw (Appellant) v London Borough of Hounslow (Respondent) [2011] UKSC 3 – Read judgment / press summary
The Supreme Court has unanimously ruled that “domestic violence” in section 177(1) of the Housing Act 1996 includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.
The effect of the decision is that anyone threatened with domestic violence, within the Supreme Court’s wider meaning, will not be expected to remain in local authority housing with their abuser. Although the judgement, given by Baroness Hale, did not mention human rights, it clearly impacts on article 8 rights to family life, and alongside the recent decision in Pinnock, could greatly increase the number of people to which local authorities are obliged to provide housing.
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The proposition that burglars have rights incites debate, and sometimes anger, which is often directed towards the Human Rights Act 1998 and the European Convention of Human Rights. However, on closer examination, the idea of “burglars’ rights” is not a new phenomenon in English law, and nor has it been imposed upon us by Strasbourg. The rights that burglars enjoy have long been part of the fabric of English common law. 
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