Category: LEGAL TOPICS
12 April 2010 by Isabel McArdle
SAMUEL KINGSFORD BUDU v THE BRITISH BROADCASTING CORPORATION [2010] EWHC 616 (QB), 23 March 2010
Read judgment
A claim for libel in respect of three articles in a news website’s archive has been struck out in the Hight Court by Mrs Justice Sharp. When read in context, the articles were incapable of bearing the alleged defamatory meaning, the publisher had attached Loutchansky notices to them, and it would be a disproportionate interference with the publisher’s rights under ECHR Article 10 to allow the claim to proceed where it had been brought after four years had passed since the publication of the articles.
Summary
The Claimant brought proceedings in respect of three archived articles published by the BBC in mid 2004. They related to the decision of Cambridgeshire Constabulary to withdraw an oral job offer made to the Claimant after subsequently investigating the legality of his immigration status. Within weeks of first being published, the articles became accessible only in the archive, via search engines. The action related to the articles in the archive and the related Google snippets.
Continue reading →
Like this:
Like Loading...
9 April 2010 by Adam Wagner
The Law Society of Scotland have sounded the alarm in relation to new Government powers to block an individual’s internet access, and argue that this is likely to amount to a breach of their Human Rights.
The Digital Economy Bill, which has now passed through Parliament and has royal assent, has attracted wide attention in the past few days for a number of reasons. Many have been concerned at the apparent lack of debate in relation to the wide-ranging Bill.
However, a pressing concern amongst internet users has been the proposed new powers for the Government to block an individual’s internet access as a punishment for internet piracy.
The Law Society of Scotland consider that blocking an individual’s internet access would be breach their human rights. They are concerned in particular with the lack of a requirement for a court order before access is cut off, which would amount to a breach of Article 6 of the European Convention. Jim McLean, convener of the Society’s Intellectual Property Committee says:
Continue reading →
Like this:
Like Loading...
9 April 2010 by Adam Wagner
The Bill of Rights will be one of the major issues in the May 6th Election, even if it may not capture as much public attention as crime or the NHS. Whichever party (or parties) takes control after May 6th, their attitude towards the Human Rights Act 1998 (HRA) will have significant and long lasting consequences for the UK.
Joshua Rozenberg blogs today on his verdict of Labour’s record from 1997-2010. He says that the HRA is “what legal historians will remember as the defining reform of Labour 1997-2010 (if this year does, indeed, mark the end of an era). Even if the Human Rights Act 1998 is modified by an incoming government, it will not be repealed. There would be little point in doing so; no government would withdraw from the European Convention on Human Rights, jeopardising the UK’s membership of the Council of Europe and even of the EU.”
He continues:
I am closer to Dominic Grieve than David Cameron on this one. I don’t regard Labour’s “incorporation” of the convention into domestic law as a disaster. I saw it as a political imperative – although it was one that would never have happened if Lord Irvine of Lairg, who became Lord Chancellor in 1997 – had not hit the ground running. It is he, I believe, who devised the subtle “declaration of incompatibility” on which the entire Act rests, preserving parliamentary sovereignty while giving judges strong powers to “read down” legislation in a way that complies with human rights standards.
Continue reading →
Like this:
Like Loading...
8 April 2010 by Rosalind English
Sharon Shoesmith’s court action over her sacking by Haringey Council has once more brought to the fore the sorry account of neglect and mismanagement by police and local authorities of that led to the death of baby Peter Connelly (‘Baby P’). It has also, however, highlighted the increasingly significant role of courts in the UK and Europe in holding public and private authorities to account in claims involving allegations of child abuse.
It is not just local authorities that are under pressure. Allegations of sexual abuse by members of the Catholic church rumble on, occasionally erupting into well publicised court dramas. For example, the recent groundbreaking claim brought against a Catholic priest, Father Clonan, relating to events in Coventry in around 1976 (MAGA v The Trustees Of The Birmingham Archdiocese Of The Roman Catholic Church [2010] EWCA Civ 256).
The claimant (MAGA) was at the time a child of 12 with learning disabilities. The High Court had ruled that the Church was not liable for the abuse as MAGA was not a Roman Catholic, and as such Father Clonan had no business having any dealings with him and was not doing so in his capacity as a priest. MAGA succeeded on appeal because the Court of Appeal accepted that a priest’s duties are very wide, and involve him befriending non-Catholics, such as in the course of his evangelising role.
Continue reading →
Like this:
Like Loading...
7 April 2010 by Adam Wagner
Shirley Chaplin, an NHS nurse who was moved to a desk job for wearing a crucifix at work, has lost her employment discrimination claim against the NHS.
The Employment Tribunal judgment is not available at present, but The Times reports:
John Hollow, the tribunal chairman, ruled that the Royal Devon and Exeter Hospital had acted reasonably in trying to reach a compromise. It had argued that the objection to the crucifix, which Mrs Chaplin, from Kenn, near Exeter, had worn for 30 years, was based on health and safety concerns about patients grabbing the necklace, not religion.
According to the Christian Legal Centre (CLC), which strongly supports Ms. Chaplin’s case, the Tribunal held that Mrs Chaplin had not been indirectly discriminated against by the application of the uniform policy because she could not prove she was part of a group affected by the policy.
The Tribunal applied the reasoning in the previous case of Nadia Eweida v British Airways [2009] EWCA Civ 1025. Ms Ewieda’s claim also involved her being banned from wearing a Christian cross at work, in that case at British Airways. The Court of Appeal made clear that in an indirect discrimination cases brought under Reg. 3(1) of the Employment Equality (Religion or Belief) Regulations 2003, it was necessary to show that there had to be evidence of a “group disadvantage”, i.e. that more than one person had been affected by the policy. Ms Eweida could not establish a ‘group’ and as such her case failed.
The CLC claim that “the Tribunal has now decided that a group must be more than two people as well—leaving the law in a ludicrous level of uncertainty”. Ms Chaplin has already said she plans to appeal the decision.
Read more:
Like this:
Like Loading...
6 April 2010 by Guest Contributor
Lord Goldsmith
Sir William Gage, the Chairman of the Baha Mousa Public Inquiry, has refused an application by participants in the Inquiry to compel the Ministry of Defence (MoD) to disclose advice produced by the former Attorney General, Lord Goldsmith.
The MoD claimed legal professional privilege in respect of the Attorney-General’s Advice of 2003 on the application of the European Convention of Human Rights (ECHR) to the British Army’s operations in Iraq during the Iraq war.
The Inquiry, which has been ongoing since July 2009, aims to investigate and report on the circumstances surrounding the death of Baha Mousa by the British Army and the treatment of those detained with him, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen’s Lancashire Regiment in Iraq in 2003.
Read more:
- You can read the Chairman’s full Ruling here.
- Read coverage in The Times
Like this:
Like Loading...
6 April 2010 by Adam Wagner
We posted last week on Carson and Others v The United Kingdom (read judgment), in which the European Court of Human Rights rejected a claim that UK pensioners living abroad should have their pensions index-linked (i.e., that they be raised in line with inflation).
It turns out that it is not just the UK, or indeed Europe, being affected by the long reach of the ECtHR. Alison Steed in The Daily Telegraph reports that the Australian Government are footing the bill for 170,000 ex-pat British pensioners living there. They have said in response to the judgment:
“The Australian government believes this policy is discriminatory. We have been actively lobbying the UK government on this issue… This policy continues to place an increasing burden on all Australian taxpayers, as the Australian government picks up the tab for around 170,000 UK pensioners who also receive means-tested Australian pensions – estimated at about A$100 million (£60 million) per year in additional social security payments.”
Australia ended its social security agreement with the UK in 2001 in light of this issue, which affects around 500,000 ex-pat UK pensioners living worldwide.
Read more:
- 28 March 2010 post
- The ECtHR judgment
- Our case summary of Carson; Reynolds v Secretary of State for Work and Pensions (May 2005 – House of Lords, 2003 – Court of Appeal)
- Media coverage of the Carson judgment in The Guardian and on the BBC website
Like this:
Like Loading...
5 April 2010 by Adam Wagner
The Scottish and Northern Irish Human Rights Commissions have issued a joint statement responding to the Conservative Party’s plans to repeal the Human Rights Act and introduce a British Bill of Rights.
Professor Alan Miller, Chair of the Scottish Human Rights Commission (SHRC), is quoted on their website. Interestingly, he makes the link between the HRA and devolution for Scotland: “The Human Rights Act in combination with the Scotland Act is an important pillar of devolution for Scotland. Rather than needing to be repealed it needs to be progressively built upon in Scotland.” Justice, a Human Rights organisation, made the same point on devolution in a recent report.
Professor Monica McWilliams, Chief Commissioner of the Northern Ireland Human Rights Commission said: “Nowhere in the world has the repeal of existing human rights protections been a starting point for discussing a proposed Bill of Rights.”
Read more:
Continue reading →
Like this:
Like Loading...
2 April 2010 by Rosalind English
AD and OD v United Kingdom (Application No 28680/06), 2 April 2010
Read judgment
The European Court of Human Rights (ECtHR) has ruled unanimously that a local authority’s failure to conduct a risk assessment, which resulted in a child being placed with foster parents, breached the right to respect for family life under Article 8 of the Convention. It also concluded that the mother should have had available to her a means of claiming that the local authority’s handling of the procedures was responsible for any damage which she suffered and obtaining compensation for that damage. As such redress was not available to her, the Court held that she had suffered a violation of Article 13.
Continue reading →
Like this:
Like Loading...
2 April 2010 by Adam Wagner
Lord Judge, the Lord Chief Justice, has used the annual Judicial Studies Board (JSB) lecture to complain that the English courts were being influenced too heavily by judgments of the European Court of Human Rights (ECtHR).
This is becoming something of a tradition at the annual JSB lecture. Lord Hoffman used the same platform last year (read lecture here) to criticise the ECtHR, saying it had been “unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States.”
In this year’s lecture, Lord Judge suggested that “statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court” and that the Luxembourg-based ECtHR was encroaching on the legal territory of its Strasbourg cousin, the European Court of Justice.
The full lecture can be found here, or you can read more of the address after the page break below:
Continue reading →
Like this:
Like Loading...
1 April 2010 by Adam Wagner
Allen v. The United Kingdom (Application no. 18837/06), Date of judgment: 30 March 2010
(Read judgment)
The European Court of Human Rights (ECtHR) has ruled that, in the circumstances, it was a breach of the applicant Susan Allen’s rights under article 5(4) of the European Convention on Human Rights (ECHR) for a Deputy District Judge to refuse her permission to attend an appeal against the grant of her bail.
In October 2005 Ms Allen was charged with two offences of conspiracy to supply Class A drugs. She was produced at Liverpool City Magistrates’ Court. Following a contested bail application she was granted bail by the Deputy District Judge, and the prosecution subsequently appealed. Her counsel requested that the judge allow her to be present at the appeal. The judge declined the request, reasoning that the applicant could be given a full report of what had happened from her counsel. Moreover, her attendance would be undesirable as one of the applicant’s co-accused had not been present at the hearing of the appeal against the grant of bail to him, and it would therefore be unfair to treat the applicant more favourably.
Continue reading →
Like this:
Like Loading...
31 March 2010 by Angus McCullough KC
The Parliamentary Joint Committee on Human Rights (‘the Joint Committee’) has released its report on the Annual Renewal of Control Order Legislation 2010, in which it heavily criticised the control order scheme. The scheme, introduced in 2005, allows courts to put terror suspects under restrictions resembling house arrest by placing them under curfews of up to 16 hours a day and, typically, constraints on their movements and communications. There were 12 suspects subject to control orders in December 2009.
Whereas the Joint Committee has previously criticised the scheme, this is the first time that it has recommended for it to be discontinued. The committee said:
We have serious concerns about the control order system. Evidence shows the devastating impact of control orders on the subject of the orders, their families and their communities. In addition detailed information is now available about the cost of control orders which raises questions about whether the cost the system is out of all proportion to the supposed public benefit. We find it hard to believe that the annual cost of surveillance of the small number of individuals subject to control orders would exceed the amount currently being paid to lawyers in the ongoing litigation about control orders. Finally, we believe that because the Government has ignored our previous recommendations for reform, the system gives rise to unnecessary breaches of individuals’ rights to liberty and due process.
Continue reading →
Like this:
Like Loading...
30 March 2010 by Adam Wagner
We have been following with interest the debate over the proposed “Bill of Rights” which all of the major parties are considering in some form. Dominic Grieve QC, the Shadow Justice Secretary, gave a speech last week to the Human Rights Lawyers Association which touched upon the Conservative Party’s proposals. Francis Klug wrote in The Guardian that:
Some of us asked Grieve to clarify the effects of these proposed interpretation clauses at yesterday’s meeting. I am not sure we were any the wiser. The purpose appears to be to free our judges from the approach of the Strasbourg court (they are already free from slavishly following the case law) where rights are not absolute. The text of the ECHR could still be used, Grieve says (although he suggests this is only his personal preference, not necessarily his party’s). But it is not at all clear that the human rights framework for balancing or limiting rights – based on preventing harm rather than creating eligibility criteria – will survive these suggested “interpretation clauses”.
The text of the speech has not been published, but Mr Grieve has published a speech on the same topic on his website, given in November 2009. In that speech he made clear that the Human Rights Act would not be replaced without a wide public consultation. However, he did provide some clues as to the nature of the “interpretation clauses”, saying:
Continue reading →
Like this:
Like Loading...
29 March 2010 by Rosalind English
R (on the application of LG) (Appellant) v Independent Appeal Panel for Tom Hood School (Respondent) & Secretary of State for the Department for Children, Schools and Families (Interested Party) [2010] EWCA Civ 142
(Read judgment here)
CA (Civ Div) (Rix LJ, Wilson LJ, Sir Scott Baker) February 26 2010
An exclusion hearing by a school does not engage the pupil’s Article 6 of the Convention since there is no “civil right” to education recognized as such either by the Convention or by domestic law.
Summary
The appellant pupil (VG) had been involved in a fight at the school. He was accused of having a knife, which he denied. The school permanently excluded VG and he appealed. The panel, in accordance with the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 reg.7A, found on the balance of probabilities that he had carried a knife, and upheld his exclusion. VG appealed against a decision ((2009) EWHC 369 (Admin), (2009) BLGR 691) to refuse his application for judicial review of the decision of the respondent panel to uphold a decision to permanently exclude him from a school. He argued that his right to a fair hearing under Article 6 was engaged, either on the basis that the panel had determined his civil right not to be excluded from the school without good reason, or on the basis that the panel had determined a criminal charge against him, and that right had been infringed by the decision to exclude him having been based on allegations established against him on the balance of probabilities rather than on the criminal standard of proof. He also contended that regulation 7A(c), although purportedly made pursuant to the Education Act 2002 s.52, was ultra vires in that a rule about standard of proof was one of evidence and not procedure as permitted by s.52(3)(d).
Continue reading →
Like this:
Like Loading...
28 March 2010 by Elspeth Wrigley
The European Commission has sent an official warning letter to the UK regarding the prohibitive expense of challenging the legality of environmental decisions.
The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) was signed by the United Kingdom in 1998, and came into force in October 2001. It was ratified by the United Kingdom in February 2005, at the same time as its ratification by the European Community. Article 9(4) of the Convention provides that access to environmental justice must be fair, equitable, timely and not prohibitively expensive.
The European Convention on Human Rights (ECHR) does not provide for a specific human right to a clean environment, nor a right to environmental justice, although Article 2 (right to life), Article 6 (right to a fair trial) and Article 8 (respect for family and private life) do provide some scope for environmental protection, Conventions such as Aarhus are important in supporting these rights in an environmental context, particularly where the ECHR may provide inadequate protection. This connection is recognised in the preamble to the Aarhus Convention which identifies that, “the adequate protection of the environment is essential for human well-being and the enjoyment of basic human rights, including the right to life itself.”
Continue reading →
Like this:
Like Loading...
SAMUEL KINGSFORD BUDU v THE BRITISH BROADCASTING CORPORATION [2010] EWHC 616 (QB), 23 March 2010
Recent comments