Category: LEGAL TOPICS
17 February 2013 by Adam Wagner
The Home Secretary has launched a major attack on immigration judges in today’s Mail on Sunday, in language which even the Mail says is “highly emotive”. She finds it “depressing” that judges are consistently refusing to allow deportation of foreign criminals in “defiance of Parliament’s wishes”.
We will cover the issue in more detail by way of a guest post tomorrow, and you can read our analysis of the rulings which have caused her such annoyance but first I thought I would share a few thoughts.
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17 February 2013 by Rosalind English
Tamiz v Google Inc [2013] EWCA Civ 68 – read judgment
The Court of Appeal has ruled that in principle, an internet service provider that allowed defamatory material to remain on a blog hosted on its platform after it had been notified of a complaint might be a “publisher” of this material, although in this case the probable damage to the complainant’s reputation over a short period was so trivial that libel proceedings could not be justified.
This interesting case suggests there may be an opening for liability of Google for defamation, if certain steps have been taken to fix them with knowledge of the offending statement. Mr Tamiz, who claimed to have been defamed by comments posted on the “London Muslim Blog” between 28 and 30 April 2011, appealed a decision in the court below to decline jurisdiction in his claim against the respondent corporation and to set aside an order for service of proceedings on Google out of the jurisdiction.
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15 February 2013 by Amy Mannion
BETTERIDGE v. THE UNITED KINGDOM – 1497/10 – HEJUD [2013] ECHR 97 – Read judgment
On 29 January the Chamber of the European Court of Human Rights held that convicted rapist Samuel Betteridge’s Article 5(4) rights had been breached due to delays in his cases being considered by the Parole Board, and awarded him damages for his ‘frustration’. The media furore, at varying degrees of accuracy, here and here.
The issue, by the time the matter reached the ECtHR, was whether the High Court (and the Government’s) “acknowledgment” of that Mr Betteridge’s Article 5(4) rights had been violated was sufficient redress. In short, the ECtHR held that it wasn’t, particularly in circumstances where the systemic delays on the Parole Board Review System were caused by the Government’s failure to recognize and plan for the full effects of the IPP sentence (brought into force in the Criminal Justice Act 2003). The ECtHR accepted that putting Mr Betteridge to the front of the Parole Board queue wasn’t the answer: that would simply jump him ahead of those who hadn’t sought judicial review. However, damages could meet the ‘frustration’ he had been caused.
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13 February 2013 by David Hart KC
Ofgem (Gas & Electricity Markets Authority) v. Infinis) [2013] EWCA Civ 70, Court of Appeal 13 Feburary 2013 read judgment, on appeal from decision of Lindblom J Read judgment and my previous post
This decision upholding an award of damages for a claim under Article 1 Protocol 1 (right to possessions) may seem rather straightforward to a non-lawyer. Infinis lost out on some subsidies because the regulator misunderstood a complex legal document. It could not claim those subsidies any more, so it claimed and got damages from the regulator. But the relatively novel thing is that English law does not generally allow claims for damage caused by unlawful action by the state. And yet the Court of Appeal found it easy to dismiss the regulator’s appeal on this point.
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13 February 2013 by Rosalind English
Reilly & Anor, R (On the Application of) [2013] EWHC Civ 66 – read judgment
Adam Wagner has also commented on this case in The Times (£) as well as on Newsnight (from the start)
The Court of Appeal has ruled that regulations under the Jobseekers Act 1995 were unlawful as not meeting the requirements of that statute.
This was an appeal against a decision by Foskett J that the regulations were lawful. The two appellants were unemployed and claiming the Jobseekers’s Allowance. After refusing to participate in schemes under the Regulations in which they were required to work for no pay ( the Sector-Based Work Academy in Miss Reilly’s case and the Community Action Programme (CAP) in Mr Wilson’s), they were told that they risked losing their allowance.
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12 February 2013 by Martin Downs
Pharmacists Defence Association Union v Boots Management Services Ltd – Read judgment
The consequences of the change of approach of the European Court of Human Rights in the Article 11 case of Demir has definitely washed up on the shores of the UK
In a recent decision of the Central Arbitration Committee presided over by Mary Stacey, it was decided that it was necessary to amend the wording of the Trade Union and Labour Relations (Consolidation) Act 1992 (Sched 1A para 35) to make it compliant with Article 11 of the ECHR and the decision of the Strasbourg Court in Demir and Baykara v Turkey.
The decision of the CAC is a report from the front line of the battle between independent unions and employers about granting the former recognition.
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12 February 2013 by Guest Contributor
Case C-396/11 Radu [2013] ECR I-0000 – Read judgment
The European Court of Justice’s Grand Chamber has ruled that the Charter of Fundamental Rights does not allow refusal to execute a European Arrest Warrant (EAW) on the basis that the person was not heard by the issuing authority.
With reform of the EAW at the centre of the debate concerning the UK’s big 2014 opt-out decision, all eyes were on the Court of Justice of the EU (CJEU) when it gave judgment in this case widely seen as an opportunity for it to address some key issues in the operation of the EAW system. There is some disappointment at the outcome.
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10 February 2013 by Adam Wagner
I was watching the England football team beat Ireland in the World Cup earlier when I was tweeted a cracking bit of legal gobbledegook from The Sun: Youngsters at risk after EU ruling. According to The Sun, Now the “EU could let fiends like him prey on your children“.
For the record, the Court of Appeal, which produced the judgment, is not an EU court. It is an English and Welsh court, based in the Royal Courts of Justice in London. And the EU had absolutely nothing to do with this judgment, which was about CRB checks and Article 8 of the European Convention on Human Rights (the right to family and private life); you can find our analysis here. I won’t address the detail if the judgment here; read our summary and see if you think The Sun is right.
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8 February 2013 by Rosalind English
Sandiford, R(on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] 168 (Admin) – read judgment
In this highly publicised case, the Administrative Court has come up with some firm criteria for the scope of the Convention’s protective reach for UK citizens abroad. The judgment is also something of a body blow for those who are looking to the EU Charter of Fundamental Rights and Freedoms for a wider human rights umbrella.
Lindsay Sandiford, the 56 year old claimant, was arrested for drug smuggling in Indonesia and sentenced to death. She issued judicial review proceedings seeking an order requiring the FCO to provide and fund an “adequate lawyer” on the basis that she had not had proper representation in Indonesia. The broad basis of this claim was that the UK government should back up its opposition to the death penalty by putting its money where its mouth is.
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7 February 2013 by David Hart KC
Bank Saderat Iran v Council of the European Union, EU General Court, 5 February 2013 read judgement
Last week I posted on the Bank Mellat case where an Iranian Bank succeeded in persuading the General Court to unfreeze its assets from orders made by EU institutions. The Bank Saderat case is virtually identical, and annulment was duly granted by the General Court. But it is troubling that the EU Council should go so wrong in wielding its draconian powers more than once. It does rather support the suspicions of the Bank (common to this and the Bank Mellat case) that pressure was brought to bear on the Council ultimately emanating from the US – hence the Wikileaks cables again – such that the EU did not robustly analyse the assertions made to them before making the orders. Basic errors were made again, and, as will emerge, the EU had no evidence for much of what it said.
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6 February 2013 by Guest Contributor
This guest post is by Sanchita Hosali, Deputy Director at the British Institute of Human Rights. A number of 1 Crown Office Row barristers represented parties to the Inquiry, none of whom has contributed to this post.
Hundreds of people have died; others have been starved, dehydrated and left in appalling conditions of indignity, witnessed by their loved ones. Surely this is what Chris Grayling, Justice Secretary, had in mind when he recently cautioned to need to “concentrate on real human rights”?
Yet the rights, legal accountability, and practical benefits of the Human Rights Act are rarely mentioned in discussions about the shocking failures of care such as those featured in today’s Public Inquiry Report in events at Staffordshire Hospital between 2005-2008.
As Mr Francis makes clear, what happened at Staffordshire Hospital was a breach of basic rights to dignity and respect, and what is needed now are stronger lines of accountability and culture change which places patients at the heart of healthcare. Human rights speak to the fundamental standards that the Report says are needed to achieve this transformation in care.
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6 February 2013 by Adam Wagner
The Mid Staffordshire NHS Foundation Trust Public Inquiry report has been published. Robert Francis QC was tasked to investigate the role of the commissioning, supervisory and regulatory bodies in the monitoring of Mid Staffordshire Foundation NHS Trust.
Read the report:
The report built on the work of Francis’s earlier independent inquiry into the care provided the hospital between January 2005 and March 2009. A number of 1 Crown Office Row barristers, including me, represented various participants at the Inquiry. They were:
- Sally Smith QC and Christopher Mellor for the Strategic Health Authority;
- David Hart QC for the CQC
- Owain Thomas for the NHSLA;
- Jeremy Hyam and Kate Beattie for a number of the families;
- Shaheen Rahman and Peter Skelton for AVMA and the Patients Association;
- Adam Wagner for the Department of Health.
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4 February 2013 by Rosalind English
Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) – read judgment
The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.
This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.
Background
The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8.
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2 February 2013 by Adam Wagner
Remember Pearl Harbour? Not the 1941 attack which propelled the USA into World War II, but the awful 2001 film starring Ben Affleck. What really sticks in the mind wasn’t the film itself, but the critical reaction. It is hard to remember a more gleeful spectacle, captured here, than reviewers falling over themselves to see who could produce the most withering response.
No doubt inspired by the Prime Minister’s own World War II analogy (on reflection, something of a hostage to fortune), legal commentators and organisations have also been falling over themselves, if not gleefully, to express their collective displeasure and disbelief at the poor quality of the Government’s proposals to reform Judicial Review.
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1 February 2013 by Rosalind English
Denise McDonagh v Ryanair Ltd [2013] EUECJ C-12/11 (31 January 2013) – read judgment
“Congratulations! You have arrived on yet another ontime Ryanair flight. Ryanair – for the lowest fares and the best ontime record. Outstanding”
… or maybe not so outstanding.
On 11 February 2010, Ms McDonagh booked a flight with Ryanair from Faro (Portugal) to Dublin (Ireland) scheduled for 17 April 2010. On 20 March 2010, the Eyjafjallajökull volcano in Iceland began to erupt. On 14 April 2010, it entered an explosive phase, casting a cloud of volcanic ash into the skies over Europe. On 15 April 2010, the competent air traffic authorities closed the airspace over a number of Member States because of the risks to aircraft. Ms McDonagh’s flight was cancelled following the closure of Irish airspace. Ryanair flights between continental Europe and Ireland resumed on 22 April 2010 and Ms McDonagh was not able to return to Dublin until 24 April 2010. In the intervening week, no efforts were made by the airline to provide Ms McDonagh with the care to which she was entitled under the relevant EU Regulation No 261/2004, providing rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
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