Category: CONVENTION RIGHTS
26 October 2010 by Adam Wagner
Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43 – Read judgment / press summary
The UK Supreme Court has ruled unanimously that Scottish criminal law, which allows a person to be detained and questioned by the police for up to six hours without access to a solicitor, breached the European Convention on Human Rights. The decision will not allow closed cases to be reopened but will affect cases which have not yet gone to trial.
The court ruled that whilst the Scottish High Court’s decision was entirely in line with previous domestic authority, that authority cannot survive in the light of the Grand Chamber of the European Court of Human Rights’ decision in Salduz v Turkey (2008) 49 EHRR 421 and in subsequent cases. Properly interpreted, Salduz requires a detainee to have had access to a lawyer from the time of the first interview unless there are compelling reasons, in light of the particular circumstances of the case, to restrict that right.
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26 October 2010 by Isabel McArdle
Anam v Secretary of State for the Home Department [2010] EWCA Civ 1140 – Read judgment
This appeal raises interesting questions about the approach the courts should take when considering whether detention pending deportation is legal in a case involving an ex-convict with serious psychiatric illness. A failure to implement a Home Office policy on the subject did not automatically make the decision to detain unlawful. However, the Court of Appeal was not unanimous on what the correct test for legality was.
This was an appeal against a deportation decision by the Secretary of State for the Home Department. The Appellant had a long criminal record and in 2007 was sentenced to 4 years in prison for robbery. Later that year, the deportation decision was made. However, the Appellant also had a history of serious psychiatric illness.
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22 October 2010 by Angus McCullough KC
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here.
Today I concentrate on Article 3: inhuman and degrading treatment (click here for previous posts on Article 3).
A range of cases – as ever, mostly arising in the context of immigration, extradition, and prisons – have been decided in the last year, but most are fact-specific, and few have given rise to particularly significant developments of principle.
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21 October 2010 by Rosalind English
Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42 (On appeal from the Court of Appeal [2009] EWCA Civ 649) Read judgment
The Supreme Court has ruled that ante-nuptial arrangements should be binding and enforceable in ancillary proceedings. Thus in future it will be natural to infer that parties who enter into an ante-nuptial agreement to which English law is likely to be applied intend that effect should be given to it.
Although human rights were not in issue in this litigation, there is an interesting question to explore here in relation to the parties’ rights to peaceful enjoyment of their possession without interference by the state (in the form of a court order reversing the provisions of a private settlement). Now the Supreme Court has given nuptial agreements considerably more weight in the fall-out folllowing marital breakup the likelihood of a Convention-based challenge in this context falls away but does not disappear altogether because the statutory regime still obliges courts to interfere with agreements if they are considered unfair in any way, or prejudicial to the children of the marriage.
First, the following summary is based on the press release of the case published on the Supreme Court website.
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20 October 2010 by Adam Wagner
Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42 On appeal from the Court of Appeal [2009] EWCA Civ 649 – Read judgment / press summary
The Supreme Court has ruled by an 8-1 majority (Lady Hale dissenting) that a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.
The court robustly dismissed Mr Granatino’s appeal against a Court of Appeal decision to enforce his pre-nuptial agreement with Ms Radmacher. The agreement provided that if they were to separate, he would receive none of her considerable independent wealth.
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20 October 2010 by Catriona Murdoch
Ben King and Secretary of State for Justice [2010] EWHC 2522 (Admin) – Read Judgment
True or False: 1. A non-independent tribunal can determine your civil rights? 2. A non-independent tribunal can curtail your civil rights?
The high court has answered “true” to both of these questions . The non-independent tribunal in this case was the adjudication system in young offender institutions (YOI). The high court ruled that whilst the governor adjudicator was not an independent tribunal for the purposes of Article 6(1) ECHR, it could still determine and ultimately curtail an inmates civil rights.
The case of “King” raises important issues concerning the regime for adjudication of disciplinary charges brought against inmates at prisons and young offender institutions across England and Wales. In 2008 alone 190,192 punishments were imposed for disciplinary offences in young offender institutions.
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19 October 2010 by Adam Wagner
Updated x 2 – full details of review below | The much-heralded Ministry of Justice budget cuts will be announced shortly as part of the government spending review. Previously, it had been reported that the department’s budget would be cut by around 20%, or £2bn (see our post). However, over the weekend the Observer reported that the cut would be much larger, running to £3bn – around 30% of the total budget – which represents a 50% increase on the original figure.
The justice minister Ken Clarke is believed to have had to take an extra hit “after the defence secretary, Liam Fox, and Michael Gove at education won more generous agreements than previously expected“.
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19 October 2010 by Kate Beattie
In August we commented on the risk that long-awaited reform of the coronial system would be shelved by the Ministry of Justice, arguing that the wait for promised reforms had left relatives of the dead in legal limbo.
To the dismay of campaigners, the new office of the Chief Coroner for England and Wales has fallen victim to the “bonfire of the quangos“.
The post was created by the Coroners and Justice Act 2009, which the Ministry of Justice said aimed “to deliver more effective, transparent and responsive justice and coroner services for victims, witnesses, bereaved families and the wider public”. In February, the previous Government heralded the post:
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18 October 2010 by Rosalind English
An injunction sought against the publication of certain information has been granted by the High Court in Northern Ireland under Article 2 (the right to life). The claimant also invoked the Prevention of Harassment (NI) Order and sought damages for misuse of private information. The Article 8 claim was only partially successful and the harassment claim was dismissed.
The claimant, who had been accused and subsequently cleared of murdering a journalist working for the defendant newspaper sought to prevent the publication of details relating to his address, his partner, his wedding plans and other personal information and photographs. The judge held that the publication of this information, in the light of threats from loyalist paramilitaries and dissident republican paramilitaries, would result in a “real and immediate risk” to the claimant’s life.
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18 October 2010 by Alasdair Henderson
A (a minor) and B (a minor) v. A Health and Social Services Trust, [2010] NIQB 108 – Read judgment
In a fascinating case involving IVF treatment, the High Court in Northern Ireland has held that no duty of care is owed to human cells and that having a skin colour different to that intended cannot be considered legally recognisable loss and damage.
Professor Robert Edwards, the British scientist who pioneered in vitro fertilisation, was recently awarded the Nobel Prize for Medicine. But while Professor Edwards’ achievements have changed the lives of millions of infertile couples around the world, they have also given rise to a whole host of thorny ethical and legal questions. A recent decision by Mr Justice Gillen in an extremely unusual case has attempted to wrestle with some of these issues, and in particular with the rights (if any) of human cells.
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18 October 2010 by Matthew Hill
No victory this time
R (British Gurkha Welfare Society and ors) v Ministry of Defence [2010] EWCA Civ 1098 – read judgment
The Court of Appeal has rejected a fresh attempt, based on Article 14 of the European Convention on Human rights (anti-discrimination), to obtain equal pension rights for Gurkhas who served in the British Army before 1997.
The long-running campaign for Gurkha rights has been highly publicised and successful, but it has not ensured equality of treatment in respect of pensions. The MoD continues to calculate accrued pension rights at a lower rates for Gurkhas than for other soldiers in respect of service performed before 1997, the date on which the majority of Gurkhas ceased to be based in Hong Kong and were instead moved to the UK.
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15 October 2010 by Rosalind English
Communications from an accountant giving legal advice do not attract legal professional privilege. The rule is only available if the advice is sought from a lawyer.
Notices under the Taxes Management Act 1970 (“Section 20 notices”) were served on the appellant company by the Revenue with a view to investigating a commercially marketed tax avoidance scheme. The appellant asserted that the notices required production of documents by which they sought or received legal advice on tax matters, in some cases from counsel and foreign lawyers, and in others from accountants.
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14 October 2010 by Rosalind English
Full body scanners are to become the only security option for people flying out of Manchester Airport, the BBC reports today. The excessive amount of coverage given to the disapproval expressed by civil liberties groups has now been counterbalanced by passengers’ attitudes, since it appears that people actually prefer the scanners to the full body pat down, and have been voting with their feet.
According to Manchester Airport, 95% of travellers prefer the scanners and queuing times have been radically reduced. It takes 2 minutes to undergo a pat down, but a mere 27 seconds to pass through a scanner.
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11 October 2010 by Adam Wagner
Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.
Interestingly, two crucial aspects of open justice have been reinforced as a result of a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.
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8 October 2010 by Isabel McArdle
(1)A Chief Constable, (2) AA v (1)YK, (2)RB, (3)ZS, (4)SI, (5)AK, (6)MH, [2010] EWHC 2438 (Fam) – Read judgment
The High Court has given guidance on the role which special advocates may play in forced marriage and honour violence cases. The controversial special advocates system has been used in anti-terrorism trials to prevent national secrets being revealed to terrorist subjects. However, recently the courts have roundly rejected attempts for the advocates to be used in non-criminal scenarios, on the basis that open justice is a fundamental legal right.
Forced marriage cases often involve information which it is in the public interest not to disclose because to do so would, for example, endanger police informants. Special advocates are not normally needed, because the legislation in question allows the courts to make orders to prevent forced marriages without those suspected of attempting to force a marriage from being notified at all.
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Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43 – Read judgment / press summary
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