Category: Article 8 | Right to Privacy / Family


Grime Rap ‘Gangbo’ appeal fails in High Court – Diarmuid Laffan

19 January 2015 by

Photo credit: guardian.co.uk

Photo credit: guardian.co.uk

Chief Constable of Greater Manchester v Calder [2015] EWHC B11 – Read judgment

Adam Wagner represented Scott Calder in this case. He is not the writer of this post.

The Greater Manchester Police (‘GMP’) have been unsuccessful in an attempt to obtain an Injunction to Prevent Gang-Related Violence (‘IPGV’ or ‘Gangbo‘) against Scott Calder. The application was based on police intelligence and the lyrics of Mr Calder’s YouTube Grime Rap videos. On 14 January 2015, Mr Justice Blake dismissed the GMP’s appeal to the High Court, and in doing so laid out guidance on the purpose and ambit of the IPGV legislation, which is currently being substantially amended by Parliament. 

The below is based on the Judge’s ex tempore judgment (i.e. given at the hearing). We will post the full judgment when it is available.

Continue reading →

Birmingham’s Grooming Injunctions: what does the judgment say?

24 December 2014 by

Photo credit: guardian.co.uk

Photo credit: guardian.co.uk

Using the inherent jurisdiction against Child Sexual Exploitation: Birmingham City Council v Riaz & Ors15 December 2014, read judgment

As prefigured on this Blog here, Keehan J has handed down a public Judgment  explaining how he used the inherent jurisdiction of the High Court to make novel and far-reaching Orders against ten men.

The inherent jurisdiction is the power vested in the Higher Courts to maintain their authority and prevent their processes being obstructed and abused. Traditionally this has also included the exercise on behalf of the sovereign as parens patriae of particular powers concerning children – most commonly wardship.

Birmingham City Council were addressing a real and significant issue. This had been highlighted in Rotherham. The gold standard response is to secure criminal convictions as occurred in Bristol. However, in some instances, the evidence will not secure jury convictions and hence the search is on for alternatives.

Continue reading →

Couple launch challenge to heterosexual bar on Civil Partnerships

9 December 2014 by

Charles-Keidan-and-Rebecc-012

Photo credit: guardian.co.uk

For some reason, this post originally appeared in the name of Colin Yeo. It is not by Colin Yeo, but by Martin Downs. Apologies for that.

The future of civil partnerships is again in the news. In October, Rebecca Steinfeld and Charles Keidan tried to register a Civil Partnership at Chelsea Town Hall but were rebuffed on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. Their lawyer, Louise Whitfield of Deighton Pierce Glynn Solicitors has announced their intention to seek a judicial review and the couple have also started a petition.

Steinfeld and Keidan have rightly identified that CPs provide virtually the same rights and responsibilities as marriage that it is within the gift of government to provide. One of the few differences concerns pension rights and even this will be considered by the Court of Appeal in February 2015.

However, the couple are attracted by civil partnership as a social construct that comes without the historical baggage of patriarchal dominance/subjection of women. They also take aim at the sexist customs that surround it such as “giving the bride away,” virginal white dresses and hen and stag do’s.

Continue reading →

Inherently Uncertain: Is there authority for that? Questions over Birmingham’s Grooming Injunctions

1 December 2014 by

Photo credit: guardian.co.uk

Photo credit: guardian.co.uk

Over the last month Mr Justice Keehan has made a series of injunctions at the behest of Birmingham City Council designed to protect a vulnerable child in care from being groomed. It seems that the Orders are of such breadth that they are believed to have entered uncharted territory but there are questions whether there is any authority for this development.

Much attention has been given to a series of hearings in October and November during which the press have having been permitted to name six of the men (in the teeth of opposition from West Midlands Police) subject of these injunctions. However, no Judgment has yet been placed in the public domain. On that basis, there appears no choice but to try and piece together what has occurred from the media coverage.

Continue reading →

Naked rambler gets no help from European Court of Human Rights – Diarmuid Laffan

27 November 2014 by

Naked-Rambler-Stephen-Gou-008Gough v UK (Application no. 49327/11), 28 October 2014 – Read judgment

The applicant in this case has been repeatedly arrested, convicted and imprisoned for breaching the peace by walking around naked in public. In a judgment handed down recently, the European Court of Human Rights found the UK authorities’ restriction of his rights under Articles 10 and 8 of the Convention, proportionate to the legitimate aim of preventing disorder and crime.

Stephen Gough has a strong conviction that there is nothing inherently offensive about the human body, and that he harms no-one by walking around naked. A really, really strong conviction. Since he set off on a naked walk from Land’s End to John O’Groats in 2003, he has been nicknamed the ‘naked rambler’ and has spent most of the last eight years in prison, and most of that time solitary confinement.

Continue reading →

Housing, Article 8 and A1P1 in the Supreme Court

14 November 2014 by

mapmainSims v Dacorum Borough Council [2014] UKSC 63 – read judgment 12 November 2014 and

R (ota ZH and CN) v. LB Newham et al [2014] UKSC 62 – read judgment 12 November 2014

A brace of cases showing the limited role which Article 8 and Article 1 of the 1st Protocol has to play in housing law, so heavily regulated by a combination of statute and contract law. The human right protections conferred, as we shall see, are mainly procedural.

The contract and property issues are well illustrated by the case of Sims. Mr and Mrs Sims had lived in a council property, until Mrs Sims left, she said as a result of her husband’s violence. For her own housing reasons she sought termination of their periodic secure joint tenancy by unilateral notice. Her husband, as the other joint tenant still living in the property, maintained in response to possession proceedings that he was entitled to remain there as a sole tenant; anything else was inconsistent with his Article 8 and A1P1 rights.

Continue reading →

Private nuisance – Article 6 and the costs conundrum

23 July 2014 by

400px-Ffos_Y_Fran_open_cast_mine,_Merthyr_TydfilCoventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment

Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases.  Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.

Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small”  local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.

Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.

In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).

So each case is about a costs burden, which is capable of causing injustice to one or other party.

Continue reading →

Family comes first (even if they’re in Poland)

10 July 2014 by

Adoption blueP (A Child) [2014] EWCA Civ 888 – read judgment here.

1 Crown Office Row’s Martin Downs represented the parents in this appeal (not at first instance), but is not the author of this blog post.

In this successful appeal against care and placement orders in respect of a young infant with Polish parents, the Court of Appeal were sharply critical of comments made by the first instance judge which made it clear he had closed his mind at an early stage to the possibility of the baby being looked after by her grandparents in Poland. The Court held that both the judge and the local authority had failed to give sufficient weight to their positive obligation under Article 8 to consider ways of retaining a child within the family.

The parents in this case were Polish nationals who moved to England in 2011. Their daughter was born in September 2012. For the first five-and-a-half months of the little girl’s life, there were no concerns about the care she was receiving from her parents. However, in February 2013 she was taken to her local hospital in Warrington with a head injury which was found to be non-accidental and probably inflicted by the father. On discharge from hospital the baby was taken into foster care. Proceedings were instituted and after several hearings before HHJ Dodds concluded in December 2013 with an adoption placement.

Continue reading →

Another “Bedroom Tax” Challenge Fails

4 July 2014 by

Bedroom taxRutherford and Ors v Secretary of State for Work and Pensions [2014] EWHC 1613 (Admin) – Read judgement here.

At the end of May, the High Court ruled that the reduction in Housing Benefit under Regulation B13 of Housing Benefit (Amendment) Regulations – commonly dubbed “the bedroom tax” – did not unlawfully discriminate against a family with a disabled child requiring an additional bedroom for overnight careers because the shortfall was covered by discretionary housing payments.

The case involved three Claimants: Mr and Mrs Rutherford and their 14-year-old grandson Warren. Warren suffers from a profound disability requiring 24-hour care from at least two people. Mr and Mrs Rutherford need the assistance of two paid careers for two nights a week. The family live in a three-bedroom bungalow rented from a housing association and specifically adapted to meet Warren’s needs. Mr and Mrs Rutherford sleep in one room, Warren in another, and a third room is used as a bedroom for overnight carers and to store medical equipment.

Continue reading →

Strasbourg acting as the EU Court’s enforcer

26 April 2014 by

67Dhahbi v.Italy, ECtHR, 8 April 2014 – read judgment – in French only

A case to get the Sun leader writers confused, in that the Strasbourg Court was making sure that Italy did not get away with refusing to refer a case to the EU Courts. 

Mr Dhahbi lives in Italy.  He was of Tunisian origin, and was not at the time of this case an Italian citizen.  He applied for and was refused a household allowance on the sole ground of nationalityHe relied upon an entitlement to this allowance in an association agreement between the EU and Tunisia (known as the Euro-Mediterranean Agreement).  The Italian court refused his application to have the case determined by the CJEU in Luxembourg.

Strasbourg decided that there had been a violation of his fair trial rights under Article 6, and discrimination on grounds of status under Article 14, when read with Article 8.

Continue reading →

High Court rules dead partner’s sperm can be kept despite lack of written consent

12 March 2014 by

Sperm, microscopicElizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) – Read judgment / court summary 

The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.

Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.

Continue reading →

Supreme Court brings private nuisance into the 21st century

3 March 2014 by

270866141Coventry v. Lawrence [2014] UKSC 13, 26 February 2014, read judgment

The law of private nuisance is the way of balancing the rights of neighours, the right to be noisy or smelly, and to be free of noise or smells. Hitherto it is has been explicitly a private law remedy, and has slightly odd rules. But it has been struggling with public interests for some years; are they irrelevant, or can they carry the day for claimant or defendant in a private nuisance claim?

Fortunately, enough of the big issues bedevilling this area of the law came before the Supreme Court in one fell swoop. And they have led to an important re-balancing of the rules. In particular, public interest is relevant, but not at the first stage of deciding whether someone has a claim, but later – can they get an injunction to stop the noise or should they be confined to damages?

 And all this arose in the context of some speedway, stock car, banger and motocross racing in an otherwise fairly rural bit of Suffolk.

Continue reading →

Human rights and public law challenge to prisoner’s release conditions fails

2 March 2014 by

Prisoners releaseR(Gul) v Secretary of State for Justice [2014] EWHC 373 (Admin) – read judgment

Mr Gul had been imprisoned for a period, on 24 February 2011, for disseminating terrorist publications. When he was released on 6 July 2012, this was under licence, as is common following the release of dangerous prisoners. Mr Gul challenged some of the conditions of his licence by judicial review. The court rejected his challenge.

The purposes of releasing offenders from prison on licence, allowing them liberty under conditions to be supervised by a probation officer, are clear enough – protecting the public, preventing reoffending, and securing the successful reintegration of the prisoner into the community, as set out in Section 250 (8) Criminal Justice Act 2003.

Continue reading →

Barristers tell Parliament that some GCHQ mass surveillance is illegal

29 January 2014 by

Edward Snowden.Two barristers have advised a Parliamentary committee that some mass surveillance allegedly undertaken by the UK’s security services is probably illegal. Jemima Stratford QC and Tim Johnston’s advice (PDF) was commissioned by the chair of the All Party Parliamentary Group on Drones

You may ask why an Parliamentary group on drones is getting involved in the GCHQ surveillance debate, itself kickstarted by the revelations by Edward Snowden (pictured). The slightly tangential answer is that the committee is concerned about the legality of data being passed to the United States for use in drone strikes.

Continue reading →

New Year, new tort of misuse of private information

23 January 2014 by

google-sign-9Vidal Hall and Ors v Google Inc [2014] EWHC 13 (QB) – read judgment

A group of UK Google users called ‘Safari Users Against Google’s Secret Tracking’ have claimed that the tracking and collation of information about of their internet usage by Google amounts to misuse of personal information, and a breach of the Data Protection Act 1998The Judge confirmed that misuse of personal information was a distinct tort. He also held that the English courts had jurisdiction to try the claims. 

Mr Justice Tugendhat’s decision was on the basis that (1) there was a distinct tort of the misuse of private information (2) there was a serious issue to be tried on the merits in respect of the claims for misuse and for breach of the DPA; (3) the claims were made in tort and damage had been sustained in the jurisdiction and (4) England was clearly therefore the most appropriate forum for the trial.


Continue reading →

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: