Category: Article 8 | Right to Privacy / Family


Reporting restrictions at courts martial: the need for a structured approach – Simon McKay

8 January 2014 by

Royal-Marine-video-012Marines A & Ors v Guardian News and Media & Other Media [2013] EWCA Crim 2367 – read judgment

On 15 September 2011 a patrol of Royal Marine Commandos were involved in an incident, which resulted in one of them, referred to as “Soldier A”, shooting dead an armed but seriously wounded Taliban fighter. Evidence of the shooting emerged later and five members of the patrol were eventually charged with murder. The charges against two of them were later dropped but the three remaining marines were tried for murder before the Court Martial. On 8 November 2013, Soldier A was found guilty of murder.

Quite apart from this extraordinary facts, the trial was unusual for another reason: publication of the identity of each of the defendants was prohibited at the commencement of the proceedings by an assistant Judge Advocate and later the Judge Advocate General (each of the judge’s in the court martial who considered the issue are referred to throughout as “judge”). The Court Martial Appeal Court (essentially the Court of Appeal Criminal Division sitting under a different name) was later invited to review the orders in respect of reporting restrictions. This was linked to the release of video footage and photographs relied on by the prosecution during the case.


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Justice Secretary wins and loses in discrimination challenge to post-prison facilities for women

30 December 2013 by

Prisoners releaseGriffiths v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2013] EHWC 4077 (Admin)  – read judgment.

Oliver Sanders of 1 Crown Office Row represented the Defendant in this case and Adam Wagner also acted for the Defendant prior to the substantive hearing. They are not the writers of this post.

Two female prisoners nearing the date on which they would be considered for release on licence, brought conjoined challenges against the Secretary of State for Justice in respect of the provision of ‘approved premises.’ The Claimants challenged the alleged continuing failure to make adequate provision for approved premises to accommodate women prisoners like them released on licence.

Mr Justice Cranston rejected the argument that the limited number of approved premises for women treated female prisoners released on licence into such premises less favourably than comparable men. He held that despite the likelihood of a greater geographic separation from their homes and families, the Secretary of State had not discriminated directly or indirectly against female prisoners. However, the Secretary of State had failed to fulfil his duty under the Equality Act 2010 to consider the impact of the limited provision of approved premises of women.


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Gay discrimination and Christian belief: Analysis of Bull v. Hall in the Supreme Court

11 December 2013 by

Peter-and-Hazel-Bull-007Bull v. Hall and Preddy [2013] UKSC 73 – read judgment here.

The recent confirmation by the Supreme Court that it was unlawful discrimination for Christian hotel owners to refuse a double-bedded room to a same-sex couple was of considerable interest as the latest in a string of high-profile cases involving religious belief and discrimination on the basis of sexual orientation (and the first such judgment involving the highest court in the land). We have already provided a summary of the facts and judgment here, and our post on the Court of Appeal ruling can be found here.

The case has been  portrayed in some media as a clash between gay rights and religious freedom, with gay rights winning – see e.g. the Daily Mail’s headline: B&B owners’ right to bar gay couple crushed by ‘need to fight discrimination’. This is despite the best efforts of Lady Hale, who gave the main speech, to emphasise at paragraph 34 that this decision did not amount to replacing legal oppression of one community (homosexual couples) with legal oppression of another (Christians and others who shared the appellants’ beliefs about marriage), because the law equally prohibits a hotel keeper from refusing a particular room to a couple because they are heterosexual or because they have certain religious beliefs. However, moving beyond this simplistic portrayal of the issue at stake, there are several interesting legal points in the decision, which may raise more questions than it answered.

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Strasbourg: defaming the dead, football and historical revisionism

26 November 2013 by

article-2127854-0039756A00000258-300_634x381Putistin v. Ukraine, ECtHR, 21 November 2013  read judgment

An extraordinary story, with a twist, and an interesting decision by the Strasbourg Court that lack of respect for the honour and dignity of a dead relative may give rise to a breach of Article 8 and its right to family life.

In 1942 various professional footballers who had previously played for FC Dynamo Kyiv but who were now working in a bakery, ran out in the strip of FC Start. Their opponents (Flakelf) were pilots from the German Luftwaffe, air defence soldiers and airport technicians.

 

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UK may need law against secret filming and photography after European Court ruling – James Michael

21 November 2013 by

A-photographer-with-a-cam-006Söderman v. Sweden – (application no. 5786/08) – Read judgment

The European Court of Human Rights has decided that it is a violation of the right to privacy if a country does not have a law prohibiting surreptitious photography of people. The ruling has serious implications for paparazzi, and would have been useful to Princess Diana.  A ready-made bill exists in the form of a draft published by the Law Commission for England and Wales in 1981.

On 12 November the Grand Chamber of the European Court of Human Rights ruled that Sweden’s lack of a legal ban on invading personal privacy by surreptitious photographs violated the right to privacy. The case involved a camera hidden in the bathroom by the stepfather of a fourteen-year old girl. (Söderman v. Sweden,application no. 5786/08).

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Supreme Court weighs in on patient’s best interests and the meaning of futility

3 November 2013 by

Surgeons-007Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 – Read judgment / press summary

The Supreme Court has given judgment in the first case to come before it under the Mental Capacity Act 2005.  The sole judgment was given by Lady Hale (Deputy President of the Court), with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes.

The case concerned best interests decisions in the case of a patient lacking capacity.  The patient, David James, had been admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure.  He was admitted to the critical care unit and placed on a ventilator.

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Human rights – coming to a private care home near you?

28 October 2013 by

Winterbourne View

Winterbourne View

Human rights protection for residents in private care homes could be a step closer after the House of Lords passed an amendment to the Care Bill.

The amendment, moved by Lord Low of Dalston and supported by Lord Lester of Herne Hill QC and Lord Pannick QC, makes clear that a person who provides regulated “social care” is to be taken for the purposes of subsection 6(3)(b) of the Human Rights Act 1998 to be exercising a function of a public nature.

It is the latest development in a long-running battle to secure human rights protection for service users who are not in local authority-run care homes.

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Another hall of mirrors human rights story from the Telegraph

27 October 2013 by

Screen Shot 2013-10-27 at 10.46.13Yesterday saw another poor piece of human rights reporting from the Telegraph, again from Home Affairs Correspondent David Barrett. Strasbourg human rights court threatens key counter-terrorism powers. It is a typical piece of hall-of-mirrors reporting; all of the basic elements are there but presented in a distorted and inaccurate way.

The piece is about the case of Sabure Malik, a British investment banker who was stopped by police in 2010 at Heathrow on his way back from an organised package tour to undertake the Hajj. Full details of his case, which is supported by Liberty, are in the Euoprean Court of Human Rights’ admissibility decision here. It was granted permission to proceed in May 2013, well before the David Miranda controversy which took place in August.

I’ll take this shortly.

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When a decision-maker gives retro-reasons

25 October 2013 by

_57148667_012889212-1Lanner Parish Council (R ota) v. the Cornwall Council [2013] EWCA Civ 1290 read judgment

This planning judicial review tackles the problem posed by an authority who says one thing in its formal reasons granting planning permission, and another thing in the court proceedings when the grant is challenged.

Coastline wanted to construct 25 affordable dwellings in Lanner. The Parish in Lanner objected, on the basis that 25 was too many. It referred to a local planning policy (H20) which said that there should be no more than “about 12” houses on any new development in a large village such as Lanner.

The planning officer supported the grant of planning permission, and the Council agreed. The Council’s reasons for grant said that the proposal “accords with” policy H20. But it didn’t, because the policy referred to 12 houses, and the proposal was for 25 houses, and this error in the reasons was one of the Parish’s main points on the judicial review.

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Richard III on the move again – pitched into the current judicial review debate

23 October 2013 by

p180vajuda12ijjc57ac1qhh37s1The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 18 October 2013 (PCO) read judgment, and on permission, 15 August 2013  read judgment

I posted here on the original judgment giving the Plantagenet Alliance permission to seek judicial review of the Secretary of State’s decision to re-bury Richard III in Leicester. At the time, the judge had made a full Protective Costs Order in favour of the Alliance, so that it would not have to pay costs if it lost. The judge had also ordered what he envisaged to be a short hearing to determine in what sum the Alliance’s costs should be capped. if it won. 

The judge was then somewhat surprised to be faced by a full-blown attempt by MoJ (Chris Grayling) to discharge the PCO, and seek an order for security of costs against the Alliance. The written argument in support was signed by the top barrister doing work for the Government, and the hearing about it took a day (think of the costs of that).

The application was conspicuously unsuccessful, as we shall see, but what was all this about?  Something to do with proposed judicial review changes, I suspect – for reasons which will become evident.

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Deportation of foreign criminals: the new immigration rules are a “complete code”

9 October 2013 by

ukborderMF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 – read judgment

In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A  were introduced into the Immigration Rules HC 395.  I have posted previously on the interpretation of these rules here and here.

The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and  the individual right to family life:

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Challenging adoption order using human rights

2 October 2013 by

Adoption blueThe recently released statistics from the Department for Education showing an increase of 15% in the adoption of looked after children in the last year further highlights the government’s preferred strategy for ensuring the welfare of children in care.

In my recent post, I considered the main thrust of the decision of the Court of Appeal in Re B-S which concerned the rigour which was expected of evidence, hearings and Judgments before a Placement Order was made.

However, the Court also dealt with the issue which had concerned Lord Justice McFarlane  when he gave permission to appeal  namely, where a Court has already made an order that a child may be placed for adoption and that has happened and the prospective adopter has applied for an Adoption Order, in what circumstances can a parent seek to stop it going ahead?

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When adoption without parental consent breaches human rights

1 October 2013 by

adoption-network-law-centerRe B-S (Children) [2013] EWCA Civ 1146 – Read judgment 

is the latest Judgment of the Court of Appeal on non-consensual adoption since the Supreme Court authorized a closer scrutiny of first instance decisions In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 (see comment by Rosalind English here)

It is also the most authoritative (the case was allocated to Lord Dyson MR, the President of the Family Division and Black LJ) and uses to strong language about the current inattention to Human Rights in care and adoption proceedings.

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No breach of privacy to request DNA sample from ex con

24 September 2013 by

DNA code analysisR (on the application of R) v Chief Constable  [2013] EWHC 2864 (Admin) 24 September 2013 – read judgment

The High Court has ruled that it is not a breach of the right to private life to request DNA samples from those who were convicted of serious offences before it became commonplace to take samples for the production of DNA profiles for the investigation of crime.

Background Facts

The claimant was asked, by reason of his previous convictions, to provide a DNA sample under the Police and Criminal Evidence Act to enable the police compare the his DNA profile with those held by the police in connection with unsolved crime.  He refused to give the sample when it was sought initially, so he was sent a letter requiring him to attend at a police station to provide the sample on pain of arrest. He applied for judicial review of this requirement, arguing that it was an unlawful incursion on his right to privacy under Article 8.
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“Follow the money” powers do not breach sex offenders’ privacy rights

18 September 2013 by

woman_with_hand_over_mouthR (on the application of) Christopher Prothero v Secretary of State for the Home Department  [2013] EWHC 2830 (Admin) 18 September 2013 – read judgment

This was a challenge to regulations  introduced in 2012 under the Sexual Offences Act 2003 which require a person on the Sex Offenders Register to provide details of bank, debit or credit card accounts held by him. The claimant sought a declaration that this particular regulation was incompatible with his right to respect for private life under  Article 8 of the European Convention on Human Rights.

The last time the notification requirements under the 2003 Act came under attack, the Supreme court held that they were capable of causing significant interference with the Article 8 rights of an offender on the register (R (F)(a Child)) v The Secretary of State for the Home Department [2010] UKSC 17) – see our post on that case and its consequences.

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