Category: Article 8 | Right to Privacy / Family
3 November 2010 by Richard Mumford
On 1 November 2010 the Terrorist Asset-Freezing etc. Bill received its third reading in the House of Lords. The bill, which started in the Lords, must now be passed by the Commons before receiving Royal Assent.
The Bill represents the coalition government’s response to the Supreme Court’s decision in HM Treasury v Ahmed (incidentally, the first appeal to have been heard in the Supreme Court) concerning the lawfulness of measures enabling the Treasury to freeze the assets of, amongst others, a person whom it has reasonable grounds for suspecting is or may be a person who facilitates the commission of acts of terrorism.
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3 November 2010 by Matthew Flinn
Broom v Secretary of State for Justice [2010] EWHC 2695 (Admin) – Read Judgment
When he was transferred from Whitemoor prison to Wakefield Prison in May 2008, Mr. John Broom had 24 historical photos of his children and nieces confiscated. He had been in possession of those photographs for 18 years. He challenged the decision not to return the photos to him by way of judicial review, claiming that it breached his right to respect for his private or family life. Mr Justice Behrens concluded that there was no infringement of Article 8 of the ECHR in this case.
Mr. Broom is currently serving a discretionary life sentence following his conviction in 1992 for buggery and rape of a female. There were two females involved, one of whom was 16. The nature of this conviction was central to the decision to withhold Mr. Broom’s photographs. The Safeguarding Children Panel said that:
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2 November 2010 by Matthew Hill
Updated | R (McDonald) v Royal Borough of Kensington and Chelsea, [2010] EWCA Civ 1109 – read judgment
The Court of Appeal has held that a local authority was entitled to reduce the care package provided to one of its resident following a re-assessment of her needs, even though this had the effect of forcing her, against her wishes, to use incontinence pads and/or absorbent sheets at night.
In doing so, the authority did not breach Article 8 ECHR (right to privacy and family life), or the relevant disability discrimination legislation. The judgment suggests that the courts will only intervene in disputes about the level of care being provided by local authorities in limited circumstances, something that may be significant in an environment of public spending cuts.
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1 November 2010 by Adam Wagner
Campaigners are seeking to challenge the rules against gay marriages and straight civil partnerships in the UK.
If they succeed then this would resolve the somewhat jumbled present position, where gay couples can form civil partnerships – which look almost exactly like marriages but aren’t – whereas straight couples are barred from doing the same.
As I posted here, the legalisation of gay marriage may be close at hand, and campaigners have chosen Reverend Sharon Ferguson and Franka Strietzel’s impending marriage application as one of eight test-cases to push through the final barrier for same-sex couples.
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20 October 2010 by Adam Wagner
Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42 On appeal from the Court of Appeal [2009] EWCA Civ 649 – Read judgment / press summary
The Supreme Court has ruled by an 8-1 majority (Lady Hale dissenting) that a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.
The court robustly dismissed Mr Granatino’s appeal against a Court of Appeal decision to enforce his pre-nuptial agreement with Ms Radmacher. The agreement provided that if they were to separate, he would receive none of her considerable independent wealth.
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20 October 2010 by Catriona Murdoch
Ben King and Secretary of State for Justice [2010] EWHC 2522 (Admin) – Read Judgment
True or False: 1. A non-independent tribunal can determine your civil rights? 2. A non-independent tribunal can curtail your civil rights?
The high court has answered “true” to both of these questions . The non-independent tribunal in this case was the adjudication system in young offender institutions (YOI). The high court ruled that whilst the governor adjudicator was not an independent tribunal for the purposes of Article 6(1) ECHR, it could still determine and ultimately curtail an inmates civil rights.
The case of “King” raises important issues concerning the regime for adjudication of disciplinary charges brought against inmates at prisons and young offender institutions across England and Wales. In 2008 alone 190,192 punishments were imposed for disciplinary offences in young offender institutions.
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18 October 2010 by Rosalind English
An injunction sought against the publication of certain information has been granted by the High Court in Northern Ireland under Article 2 (the right to life). The claimant also invoked the Prevention of Harassment (NI) Order and sought damages for misuse of private information. The Article 8 claim was only partially successful and the harassment claim was dismissed.
The claimant, who had been accused and subsequently cleared of murdering a journalist working for the defendant newspaper sought to prevent the publication of details relating to his address, his partner, his wedding plans and other personal information and photographs. The judge held that the publication of this information, in the light of threats from loyalist paramilitaries and dissident republican paramilitaries, would result in a “real and immediate risk” to the claimant’s life.
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18 October 2010 by Alasdair Henderson
A (a minor) and B (a minor) v. A Health and Social Services Trust, [2010] NIQB 108 – Read judgment
In a fascinating case involving IVF treatment, the High Court in Northern Ireland has held that no duty of care is owed to human cells and that having a skin colour different to that intended cannot be considered legally recognisable loss and damage.
Professor Robert Edwards, the British scientist who pioneered in vitro fertilisation, was recently awarded the Nobel Prize for Medicine. But while Professor Edwards’ achievements have changed the lives of millions of infertile couples around the world, they have also given rise to a whole host of thorny ethical and legal questions. A recent decision by Mr Justice Gillen in an extremely unusual case has attempted to wrestle with some of these issues, and in particular with the rights (if any) of human cells.
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15 October 2010 by Rosalind English
Communications from an accountant giving legal advice do not attract legal professional privilege. The rule is only available if the advice is sought from a lawyer.
Notices under the Taxes Management Act 1970 (“Section 20 notices”) were served on the appellant company by the Revenue with a view to investigating a commercially marketed tax avoidance scheme. The appellant asserted that the notices required production of documents by which they sought or received legal advice on tax matters, in some cases from counsel and foreign lawyers, and in others from accountants.
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14 October 2010 by Rosalind English
Full body scanners are to become the only security option for people flying out of Manchester Airport, the BBC reports today. The excessive amount of coverage given to the disapproval expressed by civil liberties groups has now been counterbalanced by passengers’ attitudes, since it appears that people actually prefer the scanners to the full body pat down, and have been voting with their feet.
According to Manchester Airport, 95% of travellers prefer the scanners and queuing times have been radically reduced. It takes 2 minutes to undergo a pat down, but a mere 27 seconds to pass through a scanner.
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11 October 2010 by Adam Wagner
Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.
Interestingly, two crucial aspects of open justice have been reinforced as a result of a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.
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8 October 2010 by Isabel McArdle
(1)A Chief Constable, (2) AA v (1)YK, (2)RB, (3)ZS, (4)SI, (5)AK, (6)MH, [2010] EWHC 2438 (Fam) – Read judgment
The High Court has given guidance on the role which special advocates may play in forced marriage and honour violence cases. The controversial special advocates system has been used in anti-terrorism trials to prevent national secrets being revealed to terrorist subjects. However, recently the courts have roundly rejected attempts for the advocates to be used in non-criminal scenarios, on the basis that open justice is a fundamental legal right.
Forced marriage cases often involve information which it is in the public interest not to disclose because to do so would, for example, endanger police informants. Special advocates are not normally needed, because the legislation in question allows the courts to make orders to prevent forced marriages without those suspected of attempting to force a marriage from being notified at all.
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8 October 2010 by Adam Wagner
Ain't no sovereignty clause
Some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here.
Speeches: “The English Law of Privacy: An Evolving Human Right” – Lord Walker – UKSC blog: Supreme Court Justice Lord Walker of Gestingthorpe gave a speech to Anglo-Australasian Lawyers Society on the subject of privacy. The lecture contains an interesting overview of the current law of privacy, particularly in relation to the media.
Kenneth Clarke reveals what cuts will mean for the courts – Joshua Rozenberg: The Ministry of Justice has to make £2bn cuts from its £9bn budget (see our post on where the cuts are likely to come from). According the justice ministers’ Tory conference speech, legal aid is in line for a “total review” – no surprises there – and that popular panacea, alternative dispute resolution, will be encouraged and court discouraged. Rozenberg concludes: “Things are not going to get better and nobody should pretend otherwise. All we can hope for is the best publicly funded legal system that we can afford.” Difficult times ahead for access to justice.
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6 October 2010 by Matthew Flinn
CA v Secretary of State for the Home Department [2010] EWHC 2278 (10 September 2010) – Read judgment
The High Court has ruled that a a control order which required the “controlee” to relocate and live at an address in Ipswich, away from his family in Crawley, was unlawful.
In Secretary of State for the Home Department v AP [2010] UKSC 24, the Supreme Court allowed the appeal of a man subject to a control order based on the argument that confinement to a flat 150 miles away from his family amounted to a breach of his human rights under Article 5 of the ECHR (right to liberty). The case of CA provides another example of the court striking down a relocation provision in a control order, and is the latest in a long series of court judgments which have chipped away at the controversial scheme.
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5 October 2010 by Rosalind English
DFT v TFD [2010] EWHC 2335 (QB) (27 September 2010) – Read the judgment
Updated | In a recent restraint of publication case, the High Court has assessed the conflicting requirements of open justice and freedom of speech versus the privacy interests of the applicant.
The High Court was asked to consider continuing restraint of publication of what was said to be private and confidential information. The applicant alleged that the respondent had been blackmailing or attempting to blackmail him, and had threatened to make public private and confidential information concerning a sexual relationship between them unless she was paid very substantial sums. The applicant not only sought continuation of the injunction restraining publication but a prohibition on publishing the fact of the order as well, to avoid “jigsaw” identification of the applicant by the media.
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On 1 November 2010 the Terrorist Asset-Freezing etc. Bill received its third reading in the House of Lords. The bill, which started in the Lords, must now be passed by the Commons before receiving Royal Assent. 
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