Category: CONVENTION RIGHTS
21 April 2013 by Rosalind English
ZAM v CFW & Anor [2013] EWHC 662 (QB) – read judgment
The permanent damage that internet publications can inflict is very much the focus of Tugendhat J’s assessment of damages in this case, encapsulated in the memorable description he quoted in an earlier judgment:
what is to be found on the internet may become like a tattoo.
Since the advent of internet search engines, information which in the past would have been forgotten (even if it had been received front page coverage) will today remain easily accessible indefinitely. So a libel claimant who has a judgment in his favour nevertheless risks having his name associated with the false allegations for an indefinite period.
This is just what had happened in the present case. The second defendant’s liability for libel had already been established. This hearing was to assess the appropriate level of damages for allegations he had published on the internet, in breach of restraining orders against him, suggesting the claimant was guilty of misappropriation of family funds and paedophilia.
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19 April 2013 by Guest Contributor
A & S v. Lancashire County Council [2013] EWHC 851 (Fam) read judgment
This was a costs application arising from an extremely important decision by Peter Jackson J in June 2012 (see Alasdair Henderson’s post here and read judgment)
In that original judgment, Lancashire County Council were found to be in breach of Articles 8 (private life), 6 (fair trial) and Article 3 (inhuman treatment) of ECHR. Two brothers had come into local authority care as infants and were freed for adoption.
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18 April 2013 by Rosalind English
Patel, R(on the application of) v The General Medical Council [2013] EWCA Civ 327 – read judgment
Kate Beattie of 1 Crown Office Row was led by Richard Drabble QC for the appellant in this case. She has nothing to do with the writing of this post.
The registration criteria for doctors trained abroad have been changed to respond to abuse by medical schools claiming false affiliations with the institutions listed in the WHO Directory. Although the 2006 rules effecting this change were lawful, the appellant had a legitimate expectation that he could rely on individual and specific assurances that he would be allowed to register on completion of his training.
The appellant, a qualified pharmacist, wished to qualify as a doctor. He sought assurances from the GMC that his part time course with a medical school in St Kitts. affiliated with the London College of Medicine, would lead to an acceptable qualification. The GMC’s replies indicated that it would be. He performed his pre-clinical studies by distance learning at IUHS in St. Kitts and then completed his supervised clinical rotations at United Kingdom hospitals. This course clearly represented a huge investment of time and money by the appellant. However, registration of his Primary Medical Qualification (PMQ) was subsequently refused because the registration criteria had been changed.
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16 April 2013 by David Hart KC
Whyte and Mackay Ltd v. Blyth & Blyth Consulting Engineers Ltd, Outer House, Court of Session, Lord Malcolm, 9 April 2013 read judgment
One to read if you have any interest in summary justice in civil litigation – not simply for those who can tell their rebar from their roof tile.
The first instance Scottish judge refused to order enforcement of a £3m adjudication – a form of interim justice -in complex professional negligence proceedings, because to do so would have involved a violation of A1P1 – the right to property. But he ruled against a similar submission based on Article 6 – the right to a fair trial.
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16 April 2013 by Guest Contributor
Mr R Fraser -v- University & College Union – Case Numbers: 2203390/201 – Read judgment
In this case, a member of the Union brought various claims of harassment related to his “race, religion or belief” under section 57 of the Equality Act 2010. The wide ranging allegations made by the Claimant arose, in essence, from the way in which Union had handled the Israel/Palestine debate. For example, claims arose from motions debated at the Union’s congress on proposals for a boycott of Israeli academic institutions and related questions. The Claimant alleged that the Union was guilty of “institutional anti-Semitism” which he alleged constituted harassment of him as a Jewish member of the Union.
The Tribunal described the litigation as being “gargantuan” in scale. It heard from 34 witnesses including academics and MPs. The hearing lasted 20 days and required 23 hearing bundles. Ultimately, in an extremely robust decision, the Tribunal rejected the Claimant’s allegations in their entirety. It found them to be “manifestly unmeritorious” and an “impermissible attempt to achieve political end by litigious means”. The Tribunal also expressed themselves as being worried by the implications of the claim. They sensed that underlying the litigation was a “worrying disregard for pluralism, tolerance and freedom of expression”. Of particular interest was the way in which the Tribunal dealt with issues of legal principle at heart of the claim.
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14 April 2013 by David Hart KC
Korobov and others v. Estonia, 28 March 2013, ECtHR read judgment
At one level, this is a story of Estonian police over-reaction to major disturbances on the streets of Tallinn, which will be found reproduced in various incidents throughout ECHR countries at various times of civil strife. But a good deal of history and politics lies behind it, and Russia’s intervention in Strasbourg, in support of the applicants’ claims under Article 3 (excessive force) and 5(1) (unlawful detention) against Estonia is of some interest.
The Bronze Soldier, originally named “Monument to the Liberators of Tallinn” was unveiled there on 22 September 1947, on the third anniversary of that “liberation” in 1944. Not all – including ethnic Estonians – saw it as a liberation. The Germans had retreated before the Red Army arrived, and on 18 September 1944 the Provisional Estonian government had declared independence – short-lived as Estonia was rapidly incorporated into the Eastern bloc courtesy of the Red Army. So “takeover” might be a term closer to Estonians’ hearts.
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11 April 2013 by David Hart KC
R (Edwards & Pallikaropoulos) v. Environment Agency et al, 11 April 2013, read CJEU judgment, and read Opinion of A-G Kokott,
and the Civil Procedure Rules 45.41 to 45.44, in force from 1 April 2013, with Practice Direction 45
Twin developments, both of which are important for those involved in environmental cases. They emerge from the UK’s treaty obligations flowing from the Aarhus Convention under which it is obliged to ensure that environmental cases are not “prohibitively expensive” per Article 9(4) of the Convention.
The first development is a decision by the CJEU on the meaning of those words.
The second is a new set of rules providing for protective costs orders in environmental judicial review claims.
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11 April 2013 by David Hart KC
Stevens v. Secretary of State for Communities & Local Government, Hickinbottom J, 10 April 2013 read judgment
As the judge explicitly recognised, this case raised the clash of two principles – how to resolve the policy-driven field of planning with the rights of family under Article 8 ECHR and of the child under Article 3 of the UN Convention on the Rights of the Child (UNCRC).
The battlefield was the well-trodden one of a Gypsy family living in caravans within the Green Belt, but without existing planning permission for those caravans. Ms Stevens sought to regularise this by applying for retrospective permission. The Council turned her down, and her appeal to a planning inspector was dismissed. She then made a statutory challenge to that decision under section 288 of the Town & Country Planning Act 1990, seeking to quash it and have it re-determined.
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10 April 2013 by Rosalind English
Abdi v United Kingdom (application no. 27770/08) 9 April 2013 – read judgment
The Strasbourg Court has ruled that a Somali national’s detention pending deportation was not lawful under domestic law.
The following summary is based on the Court’s press release:
The applicant, Mustafa Abdi, is a Somali national who is currently detained in HMP Brixton. Mr Abdi arrived in the United Kingdom on 7 May 1995 and, although refused asylum, was granted exceptional leave to remain in the United Kingdom until February 2000. On 23 July 1998 he was convicted of a number of offences, including rape, and sentenced to eight years’ imprisonment. On 20 May 2002 the Secretary of State for the Home Department ordered Mr Abdi’s deportation and on 27 May 2002 he issued an authority for detention until the making of a deportation order. On 3 September 2003 Mr Abdi’s release became automatic; however he remained in detention on the basis of the authority issued on 27 May 2002. On 5 April 2004 the Secretary of State for the Home Department authorised Mr Abdi’s detention until his deportation.
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9 April 2013 by Guest Contributor
‘Working Together to Safeguard Children’ is the lead piece of statutory guidance on… well, working together to safeguard children. Originally published in 1999, a new edition was published in 2006 following the changes brought about following the death of Victoria Climbié. And the next edition in 2010 incorporated recommendations of the second Laming Report which followed the death of Baby P. It had grown longer over time, as we all learned lessons from Haringey; but its growing length was causing concern.
A new version was published last month. The new version was published the week after judgment was handed down in AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013) (my firm represented the Claimants).
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8 April 2013 by Guest Contributor
Max Hastings greeted the new Supreme Court with the prediction that it was a “constitutional disaster in the making.” For Hastings this was Blair’s Court, Blair’s legacy; its creation just one more example of Labour’s wrecking of ancient British institutions. Of course, there was also positive coverage in the early days in papers like the Guardian and Times, but ideally the Court needed to get its own message about itself. How has it gone about doing this? And what has it been saying? What challenges has it faced in its first three years?
This blog (a shortened version of an article out this month in Public Law) looks at the Court’s innovative approach to getting the message out not only about what it is doing in cases, but also about its role in general. It is a topic covered recently by Adam Wagner, here. At the heart of the Public Law article is the idea that the Court is quietly asserting its role as a new and powerful constitutional actor. Its communication’s operation has been at the heart of this.
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8 April 2013 by David Hart KC
Last Friday, 5 April, saw a break-through in negotiations as to how the EU is to accede to the ECHR – see the Draft Agreement on Accession of the European Union to the European Convention on Human Rights. There has been a lot of speculation (e.g. my post of June 2012) about how the roles of the EU Court (the CJEU) and the Strasbourg Court might be fitted together. Now at least we have some of the proposed answers, though there are a number of formal steps to be undergone before it comes into law.
The move is a culmination of a process trailed as long ago as the 1970s, though kick-started more recently by Article 6 of the Lisbon Treaty of European Union. This entered into force in 2009, and says that the EU “shall” accede to the ECHR. Negotiations started in earnest in 2009/10, initially with negotiators from 14 Convention countries (7 in the EU, 7 ECHR but non-EU members) who met with members of the European Commission, and latterly involving all 47 Council of Europe countries. Those negotiators have now reached agreement.
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6 April 2013 by Rosalind English
The Queen (on the application of Newhaven Port and Properties Limited (Respondent)) v East Sussex County Council (Appellant) and Newhaven Town Council (Interested Party) [2013] EWCA Civ 276 – read judgment
This is a tale of common law rights, open water swimming, and individual freedoms. It is about the flip side of codified human rights: the time-honoured principle, that that which is not specifically prohibited, is – or should be – permitted in English law.
Our current preoccupation with certain sorts of intolerance must not allow us to lose sight of another threat to our individual freedoms: the encroaching requirement that our use of wild spaces is subject to the permission of the public authority who happens to be vested with certain statutory power over the land in question. This ruling confirms, if it needed confirming, that “toleration” does not mean the same as “permission”. If we allow the one to collapse into the other, the inference will become widespread that use of such land is permissive by virtue of an implied licence, a licence which can be easily withdrawn at any time.
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6 April 2013 by David Hart KC
Julius Kloiber Schlachthof GMBH and others v. Austria, ECtHR, 4 April 2013, read judgment
These ECtHR decisions are the latest in a number of claims by slaughterhouses that their rights were infringed by the exaction of a surcharge by the Austrian national agricultural board. The Court decided that (a) the process of surcharging by administrative bodies engaged the criminal part of Article 6 and (b) the Austrian courts hearing appeals against the surcharges did not have the jurisdiction to carry out a “full review” of the decision to surcharge; only that way could one turn the combination of administrative decision and court decision into a decision by a “tribunal” complying with Article 6.
Now to unpack these complex but important ECtHR rules, and to look at how they play out domestically.
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4 April 2013 by Rosalind English
Raw and others v France – read judgment (only available in French)
This complicated inter-jurisdictional battle between estranged parents is a stark illustration of how difficult it can be in these sorts of cases to apply the law in the fog of family warfare.
Even though the mother’s case was upheld in the Strasbourg Court, one can tell from the modesty of the damages awarded and the strength of the minority opinions that the judges were extremely reluctant to apply hard letter law to the complicated case before them. Indeed in one partially concurring judgment, Judge Nussberger found it distinctly odd that the mother was able to join the children as parties, in the light of their opposition to her wish that they leave their father to join her.
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ZAM v CFW & Anor [2013] EWHC 662 (QB) – read judgment
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