Category: CONVENTION RIGHTS
15 June 2011 by Matthew Flinn
R (on the application of E and Ors) v The Director of Public Prosecutions [2011] EWHC 1465 (Admin) – Read Judgment
In a case involving rather distressing facts, the High Court has quashed a decision of the Crown Prosecution Service to prosecute a 14-year-old girl (identified only as “E”) for the sexual abuse of her younger siblings.
On 26 January 2010 the Child Exploitation and Online Protection Centre discovered a video on the internet, in which E appeared to be sexually abusing her two younger sisters. The acts portrayed allegedly occurred between January and November 2001, when E was aged 12, and her sisters were aged 2 and 3.
Continue reading →
14 June 2011 by Rosalind English
E (Children) FC [2011] UKSC 27 – read judgment ; see previous post for summary
This case shows some of the difficulties thrown up by the interesting tension between the primacy of children’s interests implied by Article 8 of the European Convention on Human Rights and the controls on child abduction exerted by the 1980 Hague Convention.
The Human Rights Convention, in requiring that states ensure respect for family life, protects first and foremost the rights of the child. But of course the Hague Convention has different priorities. The first aim of that instrument is to deter either parent from taking the law into their own hands and removing themselves and their children to another jurisdiction. If abduction does take place, the next object of the Convention is to restore the children as soon as possible to their home country, so that any dispute can be determined there, since the parent left behind is the wronged party, and should not be put to the trouble and expense of coming to the requested state in order to participate in the resolution of factual issues here. Article 12 therefore requires a requested state to return a child forthwith to its country of habitual residence if it has been wrongfully removed in breach of rights of custody. Article 13(b) mitigates that obligation if there is a “grave risk” of “physical or psychological harm.”
Continue reading →
14 June 2011 by Guest Contributor
The latest issue of the Index on Censorship magazine is entitled “Privacy is Dead! Long live privacy” and includes an interview with Mr Justice Eady, conducted by the veteran legal commentator Joshua Rozenberg entitled “Balancing Acts“.
This is a rare example of an interview with a serving judge. It was conducted on 11 April 2011 – before heat was turned up in the “Superinjunction Spring”. Despite the worst efforts of the “Sunday Times” – of which more in a moment – the interview contains few surprises for those who have taken the trouble to read Mr Justice Eady’s judgments (and lectures) on the subject of privacy.
Continue reading →
13 June 2011 by Adam Wagner
Tomorrow sees the beginning of a contempt of court prosecution against a juror who allegedly communicated on the social networking site Facebook with a defendant who had already been acquitted.
The co-editor of this blog, Angus McCullough QC, is representing the Attorney General in the case; he is not the writer of this post. Isabel McArdle has already posted on the case – for background, see Silence please: A Facebook contempt of court – allegedly.
Continue reading →
13 June 2011 by Matthew Hill
McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment
The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?
The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length. The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.
Continue reading →
10 June 2011 by Rosalind English
In the matter of E (Children) [2011] UKSC – read judgment
The Supreme Court has ruled that two girls, aged seven and four respectively, be returned with their mother to Norway, after she had removed them without the father’s consent. The decision was made largely under the Hague Convention on the Rights of the Child which gives more specific direction to the courts in abduction cases than the European Convention on Human Rights, although, as the Supreme Court observed, a little more reassurance that the necessary safeguards can be enforced in the destination country would make it easier for the courts in the requesting country to make orders protecting the interests of the child.
Continue reading →
10 June 2011 by Maria Roche
RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651 – Read Judgment
Further to our recent post on the deportation of foreign criminals, the matter has once again come to the attention of the Court of Appeal. This case determines how the First-tier Tribunal, the first court of call for challenges to threatened deportations, should consider and weigh the issue of deterrence when deciding whether to deport a single offender.
The court made some interesting statements about the “public interest” aspect of deporting foreign criminals, and how the logic of a deterrence system must work.
Continue reading →
9 June 2011 by Rosalind English
Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment
1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.
This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.
The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
Continue reading →
7 June 2011 by Alasdair Henderson
R (Imran Bashir) v. The Independent Adjudicator, HMP Ryehill and the Secretary of State for Justice [2011] EWHC 1108 – read judgment here.
1 Crown Office Row’s John Joliffe appeared for the Secretary of State for Justice in this case. He is not the writer of this post.
The High Court held last week that disciplining a Muslim prisoner for failing to give a urine sample in a drugs test when he was in the midst of a voluntary fast was a breach of his right to manifest his religious beliefs.
Recent claims or defences on the basis of Article 9, the right to freedom of thought, conscience and religion, have mostly been unsuccessful – see our comments on the Catholic adoption agencies, fostering and Cornish hotel cases, as well as Aidan O’Neill’s feature article. However, in this case His Honour Judge (HHJ) Pelling QC held that the failure to even consider a prisoner’s Article 9 rights meant that the decision to discipline him was fatally flawed.
Continue reading →
3 June 2011 by Lucy Series
I watched Panorama’s exposé of institutional abuse of adults with learning disabilities at Winterbourne View Hospital with mounting horror. What legal mechanisms were available to prevent abuses like this, or bring justice to victims?
There can be little doubt that the acts of the carers towards the patients were inhuman and degrading, a violation of their Article 3 rights. It is highly questionable whether the establishment fulfilled their rights to privacy and dignity under Article 8, the right to private and family life.
Continue reading →
2 June 2011 by Rosalind English
R. and H. v. United Kingdom (no. 35348/06) – Read judgment
This ruling from Strasbourg sheds little light on how Article 8 can help adoption procedure, but it does illustrate how courts and agencies are having to square up to the deepening crisis in adoption rates.
Newspaper and charity campaigns are vocal about this issue but little attention is paid to the very difficult business of balancing the needs of children against those of the biological or (prospective) adoptive parents.
Continue reading →
2 June 2011 by Adam Wagner
The House of Commons Home Affairs Committee has today published a report, The work of the UK Border Agency (November 2010–March 2011), which accuses the UKBA of effectively creating an amnesty for hundreds of thousands of asylum seekers whose cases have been delayed for years.
The report is not particularly easy to find online – it should be available on the Home Affairs Committee website, but isn’t for some reason. You can download a PDF here, see the previous reports here or read on this page via Scribd.
As has been picked up in media reports, the report concludes that the UKBA’s success in clearing a backlog of around 400,000 to 450,000 unresolved asylum cases has been achieved
through increasing resort to grants of permission to stay… or the parking of cases in a controlled archive, signifying that the applicant cannot be found and the Agency has no idea whether or not the applicant remains in the UK, legally or otherwise.
Continue reading →
2 June 2011 by Matthew Flinn
Kambadzi v Secretary of State for the Home Department [2011] UKSC 23 – Read judgment
The Supreme Court has decided by a majority that a failure to review the detention of an immigration detainee, in accordance with immigration policy, meant that his detention was unlawful.
Immigration law always has the potential to be a political tinderbox, particularly in tough economic times when unemployment rates are high. Indeed, persistent governmental rhetoric about taking net migration “back to the levels of the 1990s” and “protecting the public” might seem to suggest that “tough on immigration” is the new “tough on crime”. The issues can be particularly acute in relation to foreign national prisoners (“FNPs”). This was demonstrated in 2006 when the Home Secretary Charles Clarke was urged to resign when it was discovered that about 1,000 FNPs had been released without being considered for deportation.
Continue reading →
1 June 2011 by Adam Wagner
Updated | As a follow-up to Isabel McArdle’s post on an unsuccessful challenge to a control order, a quick note to say that the long-heralded Terrorism Prevention and Investigation Measures Bill was published last week.
The purpose of the bill, first previewed in January by the Counter-terroism review (see my post), is to abolish control orders and make provision for the imposition of terrorism prevention and investigation measures (so-called “TPIMs”). For more information on the human rights controversies surrounding control orders, see my post: Control orders: what are they are why do they matter?
Some useful links for more information on the bill:
1 June 2011 by Isabel McArdle
CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin) Read judgment
As readers of this blog will know, control orders have often been successfully challenged in the courts on human rights grounds. But in this case, an order forcing a person to relocate to a different part of the country was found to be lawful.
The Prevention of Terrorism Act 2005 gives the Home Secretary the power create to control orders, which impose obligations on persons “for purposes connected with protecting members of the public from a risk of terrorism”. One of the obligations permitted is a restriction on an individual’s place of residence.
Continue reading →
Recent comments