Category: LEGAL TOPICS
1 February 2013 by Guest Contributor
AI v MT [2013] EWHC 100 (Fam) – Read judgment
The Times (amongst others) today deserves a spell on the legal naughty step. Its headline announces that a judge’s decision “opens way to divorces by Sharia“. One might expect therefore to find that the judgment giving rise to the headline – the decision of Baker J in the Family Court in AI v MT – was about Sharia law, or otherwise had something to do with it. In fact the judgment concerned a Jewish divorce under the auspices of the Beth Din, and had nothing to do with Sharia at all.
The judge approved a final order in matrimonial proceedings by consent. That consent order had arisen from the Beth Din. It did not elevate the Beth Din to the status of the High Court. To the contrary, the judge stated that the following legal principles applied (paras [27]-[30]):
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30 January 2013 by David Hart KC
Bank Mellat v Council of the European Union (supported by EU Commission), EU General Court, 29 January 2013 read judgment
In October 2009, Bank Mellat, an Iranian bank, was effectively excluded from the UK financial market by an Order made by the Treasury, on the basis that it had or might provide banking services to those involved in Iran’s nuclear effort. The Bank challenged the Order, and the challenge failed in the Court of Appeal, albeit with a dissent from Elias LJ: see Rosalind English’s post and read judgment. The Bank’s appeal to the Supreme Court is due to be heard in March 2013; it raises some fascinating issues about common law unfairness, Article 6, and the right to property under A1P1 , given that the Bank was not told of the intention to make the Order prior to its making.
The current case concerns an EU set of measures initiated in 2010, which led to the freezing the Bank’s assets on essentially the same grounds, namely involvement with the Iranian nuclear effort. And the EU General Court (i.e. the first instance court) has just annulled the measures – for lack of reasons, lack of respect for the rights of the defence, and for manifest error. So keep an eye on these two parallel cases, in the Supreme Court and in the EU Court of Justice on appeal from this decision.
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30 January 2013 by Guest Contributor
The government’s Justice and Security Bill has this week entered a new phase of debate in the House of Commons as it is considered in detail by a 19-member Public Bill Committee over the next month. The critics of this Bill – and there are many – argue that it will make “secret justice” a standard part of our legal process. The latest set of amendments proposed by the government were revealed yesterday and within them lies a crucial and unjustifiable secrecy provision. The significance of the amendments becomes apparent when one looks at how the Bill has progressed so far.
In its original form the Bill said that a court “must” use closed material proceedings if there would be a disclosure of information that would harm national security interests. It would not matter how small the damage, it would not matter whether there were other public interests in disclosure of the material, and the court had no discretion.
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30 January 2013 by Rosalind English
Graiseley Properties Ltd and others (Claimants) v Barclays Bank Plc (Defendant); Various employees and ex-employees of Barclays Bank plc and Telegraph Group and others (interveners) [2013] EWHC 67 (Comm) 21 January 2013 – read judgment
The Commercial Court has resisted an application to anonymise those individuals at Barclays involved in the LIBOR scandal.
In his firm dismissal of the arguments Flaux J has confirmed the principle that anonymity orders will only be made in cases where the applicant for the order has established that it is strictly necessary for the proper administration of justice. The employees’ claim they should remain anonymous until trial failed at the first hurdle, “because they had simply not established by clear and cogent evidence, or at all, that the order they seek or any aspect of it is strictly necessary for the proper administration of justice.”
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30 January 2013 by Rosalind English
T, R on the application of) v Chief Constable of Greater Manchester, Secretary of State for the Home Department and Secretary of State for Justice; AW, R (on the application of) v Secretary of State for Justice and JB, R (on the application of) v Secretary of State for Justice [2013] EWCA Civ 25 – read judgment
The Court of Appeal has ruled that the statutory requirement that criminal convictions and cautions must be disclosed in an enhanced criminal record check (“ECRC”) in the context of particular types of employment interfered with the appellants’ right to respect for private life under Article 8.
Neither of the disclosure provisions, under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, were proportionate since they went beyond the legitimate aims of protecting employers and vulnerable individuals.
See Panopticon’s post on the ruling and their previous post (republished on our blog) on the dismissal of T’s application for judicial review in the Administrative Court. We add a few words of our own.
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29 January 2013 by Guest Contributor
Now that the idea of a new UK Bill of Rights appears to be buried, choices re-emerge. The predicted outcome of the London-based Commission’s work was finally confirmed in December. Where now for human rights?
Thinking beyond the European Convention on Human Rights was never confined to this generation or any one process. The limitations of the Convention are well known, and critical material is not lacking. Talk of next steps circles around ‘going beyond’ and ‘building on’ existing achievements in several senses. The feeling that it is possible to improve; that the world of human rights captures more than the HRA or the ECHR. The more ill-defined talk of ‘ownership’ that resembles constitutional patriotism in desperate defence of a union in transition, and the disguised nationalist/unionist positions that occasionally surface.
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25 January 2013 by Rosalind English
Michael Sims v Dacorum Borough Council [2013] EWCA Civ 12 – read judgment
This was a property dispute which broke out on the marriage breakdown of two joint tenants of council property. The wife who sought termination of the periodic secure joint tenancy by unilateral notice. The husband, as the other joint tenant still living in the property, maintained that he was entitled remain there as a sole tenant.
In fact, the point had already been settled in the case of Hammersmith and Fulham LBC v. Monk [1992] AC 478 which established that at common law, a periodic joint residential tenancy is terminated automatically, if one joint tenant, without the concurrence of the other joint tenant, or tenants serves a notice to quit on the landlord.
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25 January 2013 by Adam Wagner
“Marriage of same sex couples is lawful”, begins the Government’s new Equal Marriage Bill, which will, amongst other things, make it legal for gay couples to marry in both civil and religious ceremonies.
Religious communities will not be forced to conduct ceremonies, but will be able to ‘opt-in’ to the new system. However, Church of England communities will not be permitted to opt in even if they want to. The progress Bill can be tracked here – the next reading is in the House of Commons on 5 February. The Bill is summarised as follows:
A Bill to make provision for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes.
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24 January 2013 by Rosalind English
Prudential plc and another , R (on the application of) v Special Commissioner for Income Tax and another [2013] UKSC 1 23 January 2013 – read judgment
The Supreme Court has ruled that legal advice privilege should only apply to advice given by a member of the legal profession; that this is what the common law has always meant, and that any wider interpretation would lead to uncertainty. Two strong dissents do not find any principled underpinning for the restriction of the privilege to advice from solicitors or barristers.
The following summary is based on the Supreme Court’s press release (numbers in square brackets denote paragraphs in the judgment).
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24 January 2013 by Adam Wagner
The European Court of Human Rights got off lightly in the Prime Minister’s In-Out speech yesterday, with just a single passing mention. No surprises there, as the speech was about the European Union, a separate organisation from the Council of Europe, which runs the Strasbourg court. Withdrawing from the European Union would not mean withdrawing from the European Court of Human Rights.
Yesterday was, however, an exception. Ordinarily, the European Court of Human Rights is a large presence in the in-out Europe debate. And, from the amount of coverage and political argument the court generates, you might be forgiven for thinking it rules against the UK hundreds of times per year. The Court has just released its statistics for 2012, and the figures may surprise you.
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23 January 2013 by David Hart KC
Piper v. Hales, HHJ Simon Brown QC, 18 January 2013 read judgment
Two types of readers may be interested in this case; the first, who are interested in the age-old judging problem of whom to believe when faced with a conflict of evidence, and the second (and I don’t want to do any gender-stereotyping) those who are fascinated in whether a replica Porsche 917 (think Steve McQueen in Le Mans) over-revved and blew because (a) it had a gearbox fault or (b) the Defendant driver missed a gear.
I will disappoint the second set of readers – but the judgment is short and well-written, so, chaps, read it for yourselves to find out why the gearbox was acquitted of all charges laid against it.
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22 January 2013 by Guest Contributor
Supreme Court Live in action
Following yesterday’s welcome announcement that the UK Supreme Court (UKSC) is uploading judgment summaries to YouTube (see Adam’s post), there has been some speculation as to whether the UKSC will take the next step in its embrace of digital technology and upload full hearings of trials. But could taking this step result in falling foul of the UK’s copyright law?
There are several issues to consider here. Firstly: who owns the recording? Secondly: what rights do the individuals involved in the recording have? And finally: what defences (if any) apply?
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21 January 2013 by Adam Wagner
The UK Supreme Court has today launched a YouTube channel showing short summaries of judgments. The summaries are read out by justices when a judgment is released. There are already ten online and more will be uploaded each time a judgment is released.
Since its launch in 2009, the UK’s new Supreme Court has been doing rather well at online access to justice. Its website is clear and elegant, it publishes excellent press summaries at the same time as judgments, it was the first supreme court to join Twitter (@uksupremecourt now has over 27,000 followers) and its hearings can be watched live online thanks to a partnership with Sky News.
Judgment summaries are a good start. Without wanting to sound ungrateful, what would really be useful is to be able to access recordings of full hearings on YouTube, as is provided on the superb Brazilian Supremo Tribunal Federal YouTube channel.
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20 January 2013 by David Hart KC
Inuit Tapiriit Kanatami et al v. European Parliament opinion of Advocate General Kokott, 17 January 2013, read opinion, on appeal from the General Court read judgment & my post on it
The EU makes a rule. When can the ordinary person affected seek annulment of the rule on the basis that it is unlawful? This is the big issue tussled with in this important and informative Advocate General’s opinion. You might have thought that if the basic ground for challenge was unlawfulness (and that is a high hurdle in itself), then as long as you were in some way affected by the decision, then you should be able to complain about the decision. That is broadly how we do things here in our UK system of judicial review.
But when you get to the EU Courts very different rules of engagement apply – far fewer people can complain about the illegality directly.
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19 January 2013 by Rosalind English
An NHS Trust v SR [2012] EWHC 3842 (Fam) – read judgment
The highly publicised case about a seven year old boy whose estranged parents could not agree about the necessary treatment following surgery for his brain tumour was resolved by a firm ruling in favour of orthodox medicine by Bodey J, four days before Christmas.
The facts of the case are well known, but it may be instructive to lay out some of the details of the procedure that follows in a situation like this, and to point up the approach of the courts to a matter where orthodox science lies flat against the claims of complementary medicine. Where the life of a child is at stake, there is no polite equivocation between the two.
Background
Briefly, the mother would not agree to the recommended post-operative course of chemo- and radiotherapy (carrying an 80% chance of success), believing instead that her son would fare better with alternative forms of treatment and would avoid or reduce the undoubtedly detrimental long-term side effects of the treatment package being proposed. In a serious matter such as this, where the parents cannot agree, an application has to be made to the court for a declaration that the procedure in question is lawful. That involves a decision as to the child’s best interests, being the court’s paramount consideration. Hence it was incumbent on the NHS Trust concerned to apply to the High Court to determine the issue of N’s treatment following on from his brain surgery two months previously.
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