Category: Judges and Juries


Whose law is it anyway?

26 July 2011 by

What is a “tort”? No,  not a rich multilayered cake, but rather an “actionable wrong”. Tort law is also the means through which five Kenyans alleging they were mistreated in British detention camps in the 1950s may get damages. How do I know this? Because Mr Justice McCombe told me in a helpful summary of his judgment which was released on Thursday.

It is heartening but unfortunately rare to see a judge explaining an important ruling of to the public. Save for supreme court rulings, which are always accompanied by an excellent press summary, the public is left alone to puzzle out the meaning of judgments. Journalists do their best to explain, but often get it wrong either by accident or design.

Continue reading →

Secret evidence v open justice: the current state of play

17 July 2011 by

1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.

On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here.  Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case.  In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.

The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.

In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases.
Continue reading →

British judge to head European Court of Human Rights

5 July 2011 by

Sir Nicolas Bratza, the only UK judge at the European Court of Human Rights, has been elected as its new President. The start of his presidency will coincide with the UK’s 6-month chairmanship of the Council of Europe which begins in November 2011.

Bratza will succeed Frenchman John Paul Costa on 4 November 2011 after being elected in a secret ballot by the court’s 47 judges, and has been elected for a term of 3 years. He may use the opportunity to improve relations with the UK government which are tense following the Council’s warning that the UK must comply with a 2005 ruling against the UK’s indiscriminate ban on prisoners voting. The Prime Minister said in November that the thought of giving prisoners the vote makes him feel “physically ill“. The deadline for UK compliance is 11 October 2011.

Continue reading →

Lady Hale on access to justice, legal aid and staying at The Ritz

28 June 2011 by

As reported by Guardian.co.uk, Lady Hale, one of the 12 UK Supreme Court justices, has said in a speech to The Law Society that the government’s proposed reforms to legal aid will have a “disproportionate effect upon the poorest and most vulnerable in society“.

Although the current crop of senior judges has not been afraid to express opinions on controversial issues, it is unusual for a sitting senior judge to criticise current and controversial government plans. The Legal Aid, Sentencing and Punishment of Offenders Bill has only just been published, and is being debated tomorrow in Parliament. The Guardian.co.uk article presents the comments as a “direct challenge” to the policy. However, upon a closer reading, Lady Hale cleverly steered clear of criticising the plans in her own words, but rather quoted the government’s own analysis of the bill.

The speech was entitled Equal Access to Justice in the Big Society, and was in memory of solicitor Henry Hodge, and can be downloaded in full here (PDF). It is also republished below the page break.

Continue reading →

Bill of Rights Commission on politics, preconceptions and football metaphors

27 June 2011 by

Members of the UK Bill of Rights Commission, an independent body asked by the government to investigate the case for a UK Bill of Rights, has been giving evidence to the Political and Constitutional Reform Committee (transcripts here: part 1, part 2). The sessions give an interesting if predictable insight into the likely discussions between the Commission’s members.

The group has made slow progress so far, and little is known about how it will operate, save that any proposed bill must “incorporate.. and build.. on all our obligations under the European Convention on Human Rights“. It is under no great time pressure, having been asked to report by the end of 2012. It is comprised of 9 people, mostly Queen’s Counsel and not all of whom are human rights experts. It also has a website, which provides little information beyond the dates of meetings. Given the importance of the process and lack of information so far, the evidence sessions are of interest.


Continue reading →

Judicial review golden goose has narrow escape in Supreme Court

24 June 2011 by

R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011 – read judgment; press summary here

Unappealable decisions of the Upper Tribunal are still subject to judicial review by the High Court, but only where there is an important point of principle or practice or some other compelling reason for the case to be reviewed. Unrestricted judicial review in this context is unnecessary and a waste of resources.

This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three was the extent to which decisions of the Upper Tribunal,  established under the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”), are properly subject to judicial review by the Administrative Court in England and Wales and the Court of Session in Scotland.
In all of them the claimant failed in an appeal to the First-tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First-tier Tribunal and by the Upper Tribunal. In all three the claimant sought a judicial review of the refusal of permission to appeal by the Upper Tribunal.
Continue reading →

The power of unelected judges – Part 1 of 2

30 May 2011 by

Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.

Starting with the Sharon Shoesmith decision, which has been helpfully summarised by Obiter J. The Spectator reports that the Secretary of State for education Michael Gove intends to appeal the decision to the Supreme Court. The reported grounds of that appeal, gleaned from “Whitehall sources”, are interesting. Although Gove “recognises that Balls blundered in the way he dismissed her“,

he also believes that there are important constitutional principles at sake in this case about how Ministers make important and urgent decisions and what the role of the courts is in challenging such decisions. Gove wants the Supreme Court to consider these issues because of the huge importance of judicial reviews, which are being used repeatedly by opponents of the government to try and stymie its agenda.



Continue reading →

Let’s talk about sex

26 May 2011 by

In 1991 US band Salt-n-Pepa reached number 2 in the UK charts with Let’s Talk About Sex. It is difficult to imagine now, 20 years on, why such an inoffensive and gently educational song generated huge controversy.

That difficulty highlights how much less prudish we are about sex now than we were then. Salt-n-Pepa talked about sex on the “radio and video shows“. Now the song would include Twitter, YouTube and Facebook too. In the post-internet age, sex is everywhere. So why are judges and politicians still making decisions about whose sex the public can or cannot talk about?

Continue reading →

Murder, toil and trouble – three new Supreme Court judgments

25 May 2011 by

The Supreme Court has delivered three judgments this morning, all of which are of interest from a human rights perspective. We will cover them in more detail soon, but for now, a brief summary. 

First, murder. In 2003 Nat Fraser was convicted of murdering his wife and sentenced to 25 years in prison. In Fraser (Appellant) v Her Majesty’s Advocate (Respondent) [2011] UKSC 24, the court unanimously decided to quash his conviction send back to a Scottish appeal court the question of whether a new prosecution should be brought.

Continue reading →

No legal aid cuts to avoid bad days in court

18 May 2011 by

R (on the application of Evans) v The Lord Chancellor and Secretary of State for Justice [2011] EWHC 1146 (Admin) – Read judgment

The High Court has found that the Ministry of Justice, when making a decision to cease the state’s funding of judicial review challenges on purely public interest grounds (apart from one exception), took into account the fact that to do so would reduce the number of decisions being made which were not in the government’s interests. Unsurprisingly, the Court to concluded that the decision was unlawful and should be quashed.

The Applicant applied for judicial review of a decision by the Respondent to amend the Legal Services Commission (LSC) Funding Code, which funds litigation for those who meet certain criteria. The effect of the amendments, which were introduced in April 2010, was to prevent public funding by the LSC for judicial review proceedings (challenging decisions of public bodies) which were pure public interest challenges. That is, where the Applicant stood to gain nothing from the litigation and was bringing it solely to promote a particular public interest. The one exception was in environmental cases.

Continue reading →

Unelected, underqualified and frankly bonkers

9 May 2011 by

A near-hysterical reaction has greeted some recent European court rulings. If you believed the coverage, you would think that unelected, underqualified and frankly bonkers judges are dictating our laws and making our Prime Minister physically ill.

With this week potentially heralding another hang-the-judges media storm over Max Mosley’s Strasbourg privacy case, it is a relief to read three sensible and balanced pieces on European courts this week, all of which highlights the courts’ shortcomings, but also the risks of a UK withdrawal.

First up is Charlemagne, the European columnist in The Economist, who finds a European court system which is “bewildering” – rightly wondering what the difference is between the European Council and the Council of Europe – and staffed by judges who “annoy most national politicians some of the time and infuriate some most of the time“.

Continue reading →

Silence please: A Facebook contempt of court – allegedly

28 April 2011 by

A juror has found herself facing contempt of court charges, it being alleged that she communicated on Facebook with a defendant who had already been acquitted.

These types of proceedings can have human rights implications in two ways: Article 6, providing the right to a fair trial can be infringed upon by improper communicaton by jurors, and to a lesser extent, Article 10, which provides the right to freedom of expression may be engaged. As Article 10 includes a large number of circumstances where freedom of expression may be lawfully restricted, raising freedom of expression arguments to challenge the bringing of contempt proceedings would be very unlikely to succeed in these circumstances.

Continue reading →

Expert immunity ruling – analysis by Guy Mansfield QC

5 April 2011 by

The decision of the Supreme Court in Jones v Kaney (see earlier post by Rosalind English) removes the immunity previously enjoyed by those who have acted as experts from suit by their former clients.  To understand the significance of the decision, a number of important points should be kept in mind.

  • The immunity from suit for damages for a former client in respect of the retained expert’s activity in a civil action was already a limited one. In Palmer v Durnford Ford, [1992] QB 483, the High Court held that an expert witness was not immune from suit in respect of work done primarily for the purpose of advising the client.
  • Expert witnesses have, since the decision of the Court of Appeal in Meadow v General Medical Council [2007] QB 462, been liable to disciplinary sanction in respect of their activity and evidence as experts in courts and tribunals. That flows from the public interest in the fitness to practice of the professional (particularly, but not only, a medical practitioner).
    Continue reading →

Reform of the European Court of Human Rights: response to a modest proposal

4 April 2011 by

In an interesting post, Aidan O’Neill QC concludes that the European Court of Human Rights is “in danger of imminent collapse” due to its backlog of 140,000 applications with around 1,600 arriving every month; a conclusion compounded by inherent delays. He suggests that the way to draw back Strasbourg from the brink of judicial Armageddon is to abolish the individual right to petition Strasbourg and to introduce a referral system whereby national courts request Strasbourg’s opinion on human rights issues, akin to the Court of Justice of the European Union (CJEU).

by Graeme Hall

I must disagree. Strasbourg’s jurisdiction spreads across 47 contracting States, ranging from diverse populations such as Liechtenstein and Malta to Russia and Turkey. In turn, the Court is the guardian of the European Convention on Human Rights for over 800,000,000 individuals. The 61,300 valid applications which Strasbourg received in 2010 represent applications from 0.0077 per cent of the population to which the Convention applies. Given the importance of the Convention to the protection of fundamental human rights and freedoms, I find it surprising that Strasbourg does not receive more applications.

Continue reading →

Avoiding contempt of court: Tips for bloggers and tweeters

7 March 2011 by

Update 9/5/11 – for more on super injunctions, see Gagging on privacy, the Human Rights Roundup and Unelected, underqualified and frankly bonkers.

Last week the High Court convicted two newspapers, the Daily Mail and the Sun, of contempt of court for the publication on their websites of a photograph of a man toting a gun during the ongoing criminal trial of that man. They are now likely to face large fines.

It was the first such case of contempt relating to an online publication. By way of background, Alex Bailin QC has posted an excellent comment piece on the Inforrm blog. I have also already discussed the judgment, and the ominous warning by the court that “instant news requires instant and effective protection for the integrity of a criminal trial“.

My post generated comments from concerned bloggers and tweeters asking what this meant for contempt and online publishing going forward. This is a hard question to answer as it mostly depends on which cases the Attorney General choses to prosecute. But, although the following is not legal advice, reviewing the case-law on contempt provides some indication of may be to come, and common-sense ways in which publishers, including tweeters and bloggers, can avoid being prosecuted.

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: