Category: LEGAL TOPICS
18 January 2013 by Jim Duffy
Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) – Read judgment
Earlier this month, Rocknroll came to the Chancery Division. Mr Justice Briggs set out his reasons yesterday for granting Kate Winslet’s new husband an interim injunction prohibiting a national newspaper from printing semi-naked photographs of him taken at a party in July 2010 and later posted on Facebook.
In Edward Rocknroll v. News Group Newspapers Ltd, the Judge decided that the Claimant was likely to succeed at a full trial in establishing that his right to respect for his family life (protected by article 8 of the European Convention on Human Rights) and his copyright over the photographs should prevail over The Sun’s right to freedom of expression (protected by article 10 ECHR). As such, the photographs cannot be published nor their contents described pending a full trial.
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18 January 2013 by Guest Contributor
Mark Kennedy
AKJ & Ors v Commissioner of Police for the Metroplis & Ors [2013] EWHC 32 (QB) – Read judgment
The High Court has ruled that the Investigatory Powers Tribunal was the exclusive jurisdiction for Human Rights Act claims against the police as a result of the activities of undercover police officers, authorised as Covert Human Intelligence Sources, where such conduct was not a breach of a fundamental right. The Tribunal did not have jurisdiction to determine proceedings brought by Claimants at common law.
The decision of AKJ and related litigation is the latest instalment of the fallout from the activities of undercover police officer or Covert Human Intelligence Source (CHIS) Mark Kennedy and another police officer. Kennedy infiltrated environmental protest groups including those that resulted in convictions following events at Ratcliffe on Soar power station. The convictions were later quashed following revelations about Kennedy’s activities which included allegations he had engaged in sexual relationships with a number of female protestors and other prosecutorial impropriety: R v Barkshire [2011] EWCA Crim 1885 (UKHRB post). A number of those affected by Kennedy’s actions subsequently brought claims in tort (for example alleging deception) and under the Human Rights Act 1998.
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17 January 2013 by Adam Wagner
The Government’s consultation on Judicial Review ends on Thursday 24 January – please forward your response to the consultation by email and I will include it in a roundup.
It is fashionable at the moment to speak about ‘evidence-based’ policy. The concept has been imported from the sciences by advocates such as Dr Ben Goldacre. In short, policies should be based on empirical evidence, statistics and perhaps even randomised trials. Very sensible. So sensible, you would hope that Government has been doing it anyway.
Which brings me to the planned reform of Judicial Review, the process by which legislative and executive decisions are reviewed by judges to make sure they are lawful. The Government’s ideas are fairly significant, although not quite as major as defeating Hitler, as the Prime Minister intimated they were when he announced them. I have already looked at the proposals in some detail – see also this excellent post. I wanted to concentrate here on the broader picture; the ‘mood music’, as it has been described by Mark Elliott.
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16 January 2013 by Guest Contributor
YILDIRIM v. TURKEY – 3111/10 – HEJUD [2012] ECHR 2074 – Read judgment
In the case of Yildrim v Turkey the European Court of Human Rights decided that a Court order blocking access to “Google Sites” in Turkey was a violation of Article 10. The measure was not “prescribed by law” because it was not reasonably foreseeable or in accordance with the rule of law. The judgment is available only in French.
He owned and ran a website hosted by the Google Sites service, on which he published his academic work and his opinions on various matters. On 23 June 2009 the Denizli Criminal Court of First Instance ordered the blocking of an Internet site whose owner had been accused of insulting the memory of Atatürk. The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner.
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15 January 2013 by David Hart KC
R (Clientearth) v Secretary of State for Environment, Food & Rural Affairs, forthcoming Supreme Court appeal against Court of Appeal 30 May 2012 read CA judgment Updated
Back in the late spring, it seemed as if ClientEarth’s claim against Defra in respect of air pollution had run into the buffers. It had been refused by the Court of Appeal, in reasons given extempore: see my earlier post before Bailii received the judgment. Not many such refused cases make it to the Supreme Court, but this one has.
The Supreme Court lets appeals within its doors or denies them in an inscrutable way – it says yea, or, more commonly, nay, with no reasons. But the Justices thought that there was more to this case than had met the eye of the Court of Appeal. Anyway, hearing on March 7 2013, as the excellent Supreme Court website tells us. I am also told that the Court granted ClientEarth a Protective Costs Order.
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15 January 2013 by Rosalind English
Eweida and Others v. the United Kingdom – read judgment
The Strasbourg Court has today come up with something of a mixed message in relation to religion at work. They have voted that there is a right to manifest individual faith by wearing religious adornments but not by objecting to practices that are protected by anti-discrimination legislation.
All four applicants are practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality. Further details of all these cases can be found in our posts here, here, and here (as well as in the “related posts” section below).
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15 January 2013 by Adam Wagner
Section 5 of the Public Order Act 1986, which outlaws the use of “threatening, abusive or insulting words or behaviour” will be amended to remove the word ‘insulting’. The amendment is the result of a successful, high-profile campaign which asked “Do we really need the police and the courts to deal with insults?“
That campaign, supported by major organisations and many MPs, prompted a successful House of Lords vote to amend the wording in December. That vote was supported by the Crown Prosecution Service, with Director Keir Starmer writing that his organisation was “unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as ‘abusive’ as well as ‘insulting“. The Home Secretary has now, rather grudgingly, said she will not oppose amendment.
So, we will be able to insult in public. But thanks to section 127 the Communications Act 2003, it is still up to the police and the courts to decide whether we have sent grossly offensive messages on Facebook, Twitter and in practically any other communications medium.
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13 January 2013 by David Hart KC
Decision of the European Ombudsman on complaint against the European Commission, 17 December 2012 – Read decision
The UK secured what Tony Blair described as an opt-out in respect of the EU Charter on Fundamental Rights as part of the negotiations leading up to the Lisbon Treaty – which contains the Charter. Rosalind English has summarised here what the Charter involves, and whether the “opt-out” really changes anything. This recent EU Ombudsman’s decision concerns the attempts of an NGO to extract certain EU Commission documents in the run-up to the Lisbon Treaty. The EU Commission was taking its usual head-in-the-sand approach to disclosure (see various posts listed below), hence the complaint to the Ombudsman. And, as we shall see, the Ombudsman gave the Commission both barrels in this highly critical decision.
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13 January 2013 by Rosalind English
Bristol City Council v C and others [2012] EWHC 3748 (Fam) – read judgment
This was an application for a reporting restriction order arising out of care proceedings conducted before the Bristol Family Proceedings Court. The proceedings themselves were relatively straightforward but, in the course of the hearing, information came to light which gave rise to concerns of an “unusual nature”, which alerted the interest of the press.
Background
After family court proceedings decided that child A was at risk of violence from her father, an interim care order was implemented and A was moved to foster carers. However some time afterwards the local authority received information from the police suggesting that someone living at the address of A’s foster carers had had access to child pornography. A also told social workers that another member of the foster household (also respondent to this action) had grabbed her around the throat. As a consequence police and social services visited the foster carers, informed them of the concerns about pornography, removed all computers from the house and moved A to another foster home. On the following day the male foster carer was found dead, having apparently committed suicide.
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11 January 2013 by Adam Wagner
On 29 December 2012 The Daily Telegraph published an article under the headline Christians have no right to refuse to work on Sundays.
This has now been shown to be nonsense. The judgment in Mba v London Borough of Merton was released yesterday and is analysed here. Mr Justice Langstaff made entirely clear that the judgment only applies to the individual worker who brought the appeal, not more generally. Here is some inaccurate reporting from David Barrett (remember this by him?), Telegraph Home Affairs correspondent:
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10 January 2013 by Guest Contributor
Mba v London Borough Of Merton (Religion or Belief Discrimination) [2012] UKEAT 0332/12/1312 (13 December 2012) – Read judgment
The Employment Appeal Tribunal (EAT) has dismissed the appeal of a Christian care worker against the decision of an Employment Tribunal that she was not constructively dismissed as a result of her refusal to work on Sundays.
Mr Justice Langstaff, President of the EAT, made it clear in his judgment however that anyone hoping either for ‘a ringing endorsement of an individual’s right not to be required to work on a Sunday’ or an employer’s right to require it would be disappointed, as ‘no such broad general issue arises’. [3]
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10 January 2013 by David Hart KC
One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.
The US Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.
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9 January 2013 by Rosalind English
Schwartz and another v Insogna and another, United States Court of Appeals for the Second Circuit – read judgment
Never doubt the authority of the law, particularly in the US, where a six year battle triggered by a middle finger gesture continues to rage in the New York courts.
In May 2006, Mr. Swartz was a passenger in a car in a rural part of upstate New York when he spotted a police car that was using a radar speed-tracking device. The driver, a Vietnam veteran and retired airline pilot, acted on instinct to show his displeasure: he extended his right arm outside the passenger’s side window, and then further extended his middle finger over the car’s roof. As the New York Times reports
The reaction was swift. The officer followed the car; words were exchanged; backups were called; and Mr. Swartz was arrested on a charge of disorderly conduct.
Mr Schwartz maintained that his gesture was provoked by his anger that the local police were spending their time running a speed trap instead of patrolling and solving crimes.
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9 January 2013 by Shaheen Rahman
R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – Read judgment
In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan. The Claimant’s father was killed during such an attack in March 2011.
The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law. The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]
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8 January 2013 by Adam Wagner
With apologies for the boring title, here are three quick things.
First, the Government’s consultation on Judicial Review changes ends on 24 January 2013, so you have just over two weeks to respond. As with some previous consultations, I will be collating responses on the blog so please feel free to email them to me. My most recent thoughts are here: Quicker, costlier and less appealing: plans for Judicial Review reform revealed
Secondly, the European Court of Human Rights is to rule next Tuesday 15 January on four key cases involving discrimination and religious rights. The full background is here: Religious freedom in UK to be considered by Strasbourg Court and you can watch the entire hearing here. We will, of course, be covering the judgment in full.
Thirdly, in November 1 Crown Office Row hosted a mock trial on the topic of public inquiries and inquests at which a number of 1COR barristers, including me, spoke. The podcast of the event is now online and you find it here and also below the page break. You can also download the handout, which includes a number of very useful skeleton arguments for the mock trial, here.
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