Category: Article 8 | Right to Privacy / Family
1 September 2010 by Adam Wagner
R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment
Last month, Matt Hill posted on a case relating to the retention of DNA profiles and fingerprints by the police, for which the full judgment is finally available. Permission has been granted for an appeal directly to the Supreme Court, and the outcome of that appeal may have interesting implications for the status of European Court of Human Rights decisions in domestic law.
It is worth revisiting the decision in order to extract some of the principles, as although not novel, they do highlight the difficulties for claimants who have taken a case to the European Court of Human Rights and won, but who are still waiting for their decision to be implemented by the UK government.
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1 September 2010 by Isabel McArdle
Prashant Modi v United Kingdom Border Agency [2010] EWHC 1996 – Read judgment
Mr Justice Burnett in the High Court has found that there was no breach of a man’s right to respect for private and family life (Article 8 of the European Convention on Human Rights) when he was refused entry to the UK for business purposes after conviction for a sexual offence. This interesting decision highlights the very limited nature of protection that Article 8 may give in relation to business activities.
Mr Modi was an Indian businessman who was given multi-visit entry clearance for the UK in 2005. He regularly made business trips to the UK following this. In 2006 he committed a serious sexual offence in the UK and pleaded guilty to the charge. The Judge of the criminal court considered that the Appellant did not pose a serious risk to the public after the commission of the offence and made no recommendation for deportation.
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25 August 2010 by Caroline Cross
A Local Authority v Mrs A, by her Litigation Friend, the Official Solicitor, and Mr A [2010] EWHC 1549 (Fam) – Read judgment
In the first case of its kind, the court was asked to consider whether a young married woman lacks capacity to decide whether to use contraception, and whether it would be in her interests to be required to receive it.
Mrs A was a 29-year-old woman who suffered from serious learning difficulties, which put her intellectual functioning at approximately 0.1% of adults her age. In 2004 she gave birth to a daughter, and in 2005 she had a son. Both children were removed from her at birth because she did not have the capacity to take care of them.
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24 August 2010 by Matthew Hill
UE (Nigeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 975
The Court of Appeal has held that in deciding whether the removal of a person from the UK is compatible with their human rights, their value to the community can and in many cases should be taken into account.
The court ruled that when a decision-maker is undertaking the balancing exercise required to determine whether the removal of an individual from the UK is proportionate under Article 8 ECHR (right to family life), the individual’s value to the community in this country is a relevant consideration to be taken into account. However, this judgment was qualified by indications from the judges that, in practice, this factor is unlikely to carry much weight in the decision-maker’s evaluation.
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19 August 2010 by Adam Wagner
Tenets of belief not enough
The Charity Commission has rejected a bid by a Catholic organisation to amend its charitable objects in order to restrict its adoption services to heterosexuals. The case highlights the significant protections which have been put in place by recent equality law, and the policing role which the Charity Commission is required to play from a human rights perspective.
The Commission was ordered by the High Court in March to look at its initial decision again in light of Article 14 of the European Convention on Human Rights. The law behind the case is quite convoluted, but is worth looking at again as it is likely to have significant implications for gay couples looking to adopt as well as for religious charities in general.
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13 August 2010 by Adam Wagner
DNA home-testing is likely to be an increasingly high-profile and controversial issue in the coming years, both from a moral and legal perspective.
I posted last week on the moral maze which surrounds DNA home testing, in light of new guidance for direct-to-consumer genetic tests published by the Human Genetics Commission.
The guidance has been greeted with mixed reactions. GeneWatch UK, a not-for-profit organisation which investigates how genetic science and technologies impact on society, have condemned the guidelines, lamenting that there will be “no independent scrutiny of companies’ performance or the claims they make about people’s risk of developing diseases in the future” . The focus of their criticisms are that the HGC represents the interests of the genetic testing companies over those of the general public.
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6 August 2010 by Adam Wagner
In happier days
A database which was to hold the details of every child in England will be switched off at noon today, but the uneasy relationship between social services, the government and the courts in child protection matters still remains.
The closure of the £224 million scheme marks a victory for human rights and privacy campaigners as well as the fulfilment of a longstanding promise by the coalition partners.
The ContactPoint Database was set up in the wake of Lord Laming’s 2003 Victoria Climbié Public Inquiry, which recommended, amongst other major changes in child protection policy, that the government should investigate the setting up of “a national children’s database on all children under the age of 16.” Victoria Climbié died in 2000 at age 8 after being abused by her guardians. In the trial of her guardians which followed her death, the judge described the response of local authorities as “blinding incompetence”.
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5 August 2010 by Adam Wagner
A Federal court in California has struck down a ban on gay marriage in the state, marking the first step on a path to a United States Supreme Court decision on the issue. A similar decision is unlikely here, however, given a recent European Court of Human Rights ruling on gay marriage. Ultimately, only Parliament is likely to bring about a change to the law in the UK.
The decision in Perry v Schwarzenegger has been widely reported and can be downloaded here. U.S. District Judge Vaughn R. Walker found that California’s ‘Proposition 8’, approved by voters in 2008, was unconstitutional. SCOTUSBlog explain the reasoning:
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4 August 2010 by Adam Wagner
The Human Genetics Commission have today published new guidance for direct-to-consumer genetic tests, including a recommendation that children should not be genetically tested by their parents unless the test is clinically indicated. The guidelines highlight that the ethical issues surrounding home-testing are still fuzzy and provide an interesting challenge from a perspective of human rights.
Home DNA testing kits are a fast-growing trend. They have already been on sale direct to consumers for three years by companies such as 23andMe and deCODEme, which advertise home-testing as a means of “taking charge of your health” and “filling in your family tree”. DNA paternity testing has been available for years, but it is the health aspects of home testing which have huge and potentially troubling implications in respect of basic rights.
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3 August 2010 by Adam Wagner
Worth lying for?
(1) MS JENNY PATON (2) C2 (3) C3 (4) C4 (5) C5 and POOLE BOROUGH COUNCIL, Investigatory Powers Tribunal – Read ruling
The Investigatory Powers Tribunal (IPT) has ruled that a local council acted unlawfully in spying repeatedly on parents suspected of lying about where they lived in order to get their child into a sought after school. The ruling may not, however, prevent local authorities from spying on families for similar reasons in the future.
The IPT exists to investigate complaints about conduct by various public bodies, including in relation to surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA). Section 28 of RIPA allows a public body to apply to conduct direct surveillance if the authorisation is necessary on various grounds, including the detection of crime.
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29 July 2010 by Adam Wagner
Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) – Read judgment
The Court of Appeal has ruled that secretly obtained documents can no longer copied and then used in divorce proceedings, overturning a rule dating back almost twenty years. The case will have a significant impact for divorcing couples, but has the court left itself open to a Supreme Court reversal on human rights grounds?
The appeal related to the divorce proceedings between Vivian and Elizabeth Imerman, in which Mrs Imerman’s brothers brothers had downloaded documents from Mr Imerman’s office computer in order to prove that he had more assets than he had disclosed to the court. Mr Justice Moylan ruled in the High Court that seven files of documents should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege. Mr Imerman appealed against the decision that he would then have to give the documents back, and Mrs Imerman argued that she should be given more control over the privilege process.
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29 July 2010 by Adam Wagner
R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2010] UKSC 36 – Read judgment
The Supreme Court has ruled that the UK must provide minimum standards to asylum seekers, including the right to work, whether or not their first asylum application has failed. Asylum seekers will now be able to work if they have been waiting for over a year for a decision.
The ruling is the latest in a line of court defeats for the Government on its asylum policy, including the recent High Court ruling that part of the fast-track deportation system is unlawful, as well as the Supreme Court’s rejection of the policy of sending gay asylum seekers back to countries where they may face persecution for their sexuality.
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23 July 2010 by Matthew Hill
Updated, 1/9/10 | R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment
When faced with conflicting authorities from the European Court of Human Rights and the House of Lords (now the Supreme Court) on the indefinite retention of DNA profiles and fingerprints by the police, the Divisional Court held that they were bound to follow the House of Lords.
This was so despite clear indications from the previous and current governments that the law would be changed to take account of the Strasbourg decision. However, as leave to appeal was granted, the Supreme Court will now have the opportunity to revisit the issue and determine the law in this controversial area.
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22 July 2010 by Adam Wagner
A (A Child) v The Chief Constable of Dorset Police [2010] EWHC 1748 (Admin) (16 July 2010) – Read judgment
The High Court has ruled that the gist of sensitive evidence in a case involving a child being picked up for being spotted with an “inappropriate adult” must be disclosed in order that the child can bring a claim against the police.
The case is probably the first to follow the significant restriction of the use of secret evidence resulting from the Al Rawi decision (see our previous post), in which the Court of Appeal rejected a request by the Government that evidence in a torture compensation claim be kept secret from the public, and emphasised that the interests of open justice would be seriously compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.
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21 July 2010 by Adam Wagner
The deputy leader of the Liberal Democrats has said that gay couples are likely to gain full rights to marriage under the current Parliament. This would represent a revolution for gay rights, but there is still a long way to go before same-sex couples achieve full rights to marriage as they are arguably entitled to under human rights law.
Simon Hughes MP has told Yoost.com, a question and answer website, that Liberal Democrat MPs would be consulted on the rights of gay couples. He said “I don’t know the answer because we haven’t had the discussion“, but that
I see absolutely no reason why we shouldn’t all be able to support what Nick Clegg said, which is that it would be appropriate in Britain in 2010-11 for there to be the ability to have civil marriage for straight people and gay people equally.
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R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment
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