Category: LEGAL TOPICS
16 November 2012 by Adam Wagner
You may have heard that the Special Immigration Appeals Commission (SIAC) decided on Tuesday that Abu Qatada, an alleged terrorist who has been detained for the best part of the last seven years awaiting deportation to his native Jordan, cannot be deported. There would be a real risk, ruled SIAC, that he would face a flagrant denial of justice in his ensuing trial.
Jim Duffy has already commented on the case here, but I thought it would be useful to look at some of the commentary which followed the decision. A bit like the latest Israel-Gaza escalation, controversial human rights decisions now elicit an almost instant (and slightly sad) our-camp-versus-theirs reaction. Following a decision each ‘side’ trundles into action, rolling out the clichés without thinking very hard about the principles. The Prime Minister himself somewhat petulantly said he was “fed up” and “We have moved heaven and earth to try to comply with every single dot and comma of every single convention to get him out of this country.”
It is easy to moan about inaccurate coverage (I often do). But in this case, I do think the strong, almost visceral, reaction to the decision is justified. Leaving aside the slightly mad tabloid anti-Europe or effectively anti-justice coverage, it is understandable that people are uneasy and upset about this decision to keep a suspected terrorist within our borders, and then release him. But that doesn’t mean the decision is wrong.
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14 November 2012 by Matthew Hill
Methadone
Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors [2012] EWHC 2768 (Admin) – read judgment
The High Court – including the new Chief Coroner – has held that the enhanced investigative duty under Article 2, the right to life, is not engaged in an inquest into the death of a 14 year old boy, despite “many missed opportunities” for intervention by social services being identified.
Another sad case on when and how the enhanced investigative duty under Article 2 ECHR is engaged. EB, a troubled 14 year old, died of a methadone overdose in November 2009. He was known to the claimant’s social services department, who were the subject of criticism in a serious case review following his death. The review found that there had been “many missed opportunities” to intervene, but felt that: “It cannot be concluded that a different approach … would have prevented [EB]’s death, but there is a possibility that there may have been a different outcome.” The council have since apologised unreservedly to the family.
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13 November 2012 by Jim Duffy
Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 – read judgment
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.
Earlier today, Abu Qatada was released from Long Lartin prison following his successful appeal before the Special Immigration Appeal’s Commission (SIAC). Qatada was challenging the decision to deport him to Jordan, where he faces a retrial for alleged terrorism offences.
For most of the last decade, Abu Qatada has been detained pending deportation to his home country. At his two original trials, he was convicted in absentia and sentenced to full life imprisonment with 15 years’ hard labour.
In his latest challenge to his deportation, SIAC concluded, as the European Court of Human Rights had in May 2012, that due to the real risk of a flagrantly unfair trial in Jordan, Qatada could not be deported there.
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13 November 2012 by Rosalind English
Peta Deutschland v Germany (No. 43481/09) – read judgment
Referring to the concentration camps has become an offence on a par with holocaust denial, it seem, in certain contexts.
In 2004 the applicant animal welfare association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.
Three individuals filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. They submitted that the intended campaign was offensive to them as survivors of the holocaust and violated their human dignity.
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9 November 2012 by Adam Wagner
Last month 1 Crown Office Row hosted a fascinating panel debate on the Court of Protection and the incredibly difficult issues surrounding assisted dying. The panel included Philip Havers QC, the philosopher A.C. Grayling and Leigh Day & Co.’s human rights partner Richard Stein. You can now view the video here or below. Also see here for Rosalind English’s report of the event.
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9 November 2012 by Guest Contributor
Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 – Read judgment
Updated – the first two paragraphs of this post have been amended as they were factually inaccurate. Many apologies for this.
Last month, the Court of Appeal decided that the negligence claims of the families of five British soldiers killed or injured on duty in Iraq could go ahead. It would be for the High Court to decide on the facts whether decisions made about troops’ equipment and training fell within the long-standing doctrine of ‘combat immunity’. The appellants were however unsuccessful in arguing that the Human Rights Act 1998 (HRA) applied.
The case concerned claims brought by the families of five men killed or injured in south-east Iraq. Corporal Allbutt was killed and Troopers Twiddy and Julien injured in Challenger II tanks in fratricide, or ‘friendly fire’, incidents on 25 March 2003. Privates Hewett and Ellis and Lance Corporal Redpath were killed in their Snatch Land Rovers by improvised explosive devices (IEDs) on 16 July 2005, 28 February 2006 and 9 August 2007 respectively (the ‘Snatch Landrover claims’).
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8 November 2012 by Rosalind English
MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment
This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see Adam’s post on the Home Office’s proposals earlier this year).
Before the new immigration rules were introduced in July, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act 2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions to the automatic deportation regime, “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.
But then there was a move to set out an extensive, codified definition of the Article 8 balancing factors, in order to
unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.
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7 November 2012 by Guest Contributor
In a couple of weeks’ time, the government’s relationship with the Council of Europe will reach something of a turning point.
If the UK is going to comply with its international treaty obligations, ministers will have to “bring forward legislative proposals” by 22 November that will end what the European court of human rights calls the “general, automatic and indiscriminate disenfranchisement of all serving prisoners”.
That’s all the government has to do. There’s no need to give all or even most prisoners the vote. Parliament doesn’t even have to approve the proposals, although its failure to do so would lead to further challenges in due course.
But the prime minister painted himself into a corner last month. It’s true he offered to have “another vote in parliament on another resolution”. But a resolution is not the same as a bill. And David Cameron said, in terms: “Prisoners are not getting the vote under this government.”
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7 November 2012 by Adam Wagner
I have an opinion piece in this week’s Jewish Chronicle, We should support and not condemn Human Rights Act. The “we” in the title is the Jewish community, of which I am a part, although it also amounts to a fairly broad defence of the Human Rights Act.
The article was at first intended as a direct response to an opinion piece by Jonathan Fisher QC entitled The wrongs of human rights, but because of editorial pressures at the Jewish Chronicle it could not be published until a few weeks later, and as such ended up being a more general article. I have already commented on this blog on why I thought the timing of Fisher’s article was a little odd given that the Bill of Rights Commission, on which he sits, was still consulting the public on the very issues he addressed passionately in the article. I said:
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6 November 2012 by Martin Downs
REDFEARN v. THE UNITED KINGDOM – 47335/06 – HEJUD [2012] ECHR 1878 – read judgment / press release
The BNP has been a relentless opponent of Human Rights Act and its manifesto for the 2010 General Election made no less than three separate declarations of its intention to scrap the Act and abrogate the European Convention of Human Rights which it described charmingly as being, “exploited to abuse Britain’s hospitality by the world’s scroungers.”
This has not stopped the European Court of Human Rights (ECtHR) riding to the rescue of one of their erstwhile councilors in Redfearn v United Kingdom
The ECtHR, by a majority of four to three (with British judge Sir Nicolas Bratza being one of the dissenters), decided that, despite the margin of appreciation, the positive obligation placed on the UK by Article 11 (right to free assembly and association) meant that a person dismissed on account of his political beliefs or affiliations should be able to claim unfair dismissal despite not having the qualifying one year’s service then applicable.
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6 November 2012 by Adam Wagner
A quick note to say that the UK Jewish Film Festival is showing a fascinating new Israeli documentary (with subtitles), The Law in These Parts, this Sunday at 2:30pm at the Tricycle Cinema in Kilburn. The film will be followed by a discussion, chaired by me, between Danny Friedman of Matrix chambers and Jonathan Turner of 13 Old Square chambers. All details are here.
I have seen the film and it is excellent. It is an examination of legal proceedings in the territories occupied by Israel since 1967. The documentary is made up almost entirely of interviews with former judges in Israel’s security courts, including a Supreme Court justice, which in itself of great interest. Although the legal and moral issues faced up to in the film are in one way unique to Israel, many from the UK legal community will recognise themes in relation to Northern Ireland during the Troubles, as well as broader problems which we are still grappling with involving the use of secret evidence and evidence obtained by torture.
In short, one of the best legal documentaries I have seen, and highly recommended (not just by me – Newsweek described it as “a gripping new documentary“). I hope to see you there, do come and say hello if you can make it. Book here – trailer below
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3 November 2012 by Rosalind English
Catholic Care (Diocese of Leeds) v Charity Commission (on appeal to the Upper Tribunal) CA/2010/0007 – read judgment
A private adoption agency could not justify its exclusion of same-sex prospective parents by arguing that this policy would keep open a source of funding that would otherwise dry up and reduce the number of adoption placements.
This was an appeal by the Catholic adoption services agency against the First Tribunal’s confirmation of the decision by the Charity Commission that it was not permitted to amend its constitution so as to permit it to continue its previous practice to refuse to offer its adoption services to same sex couples. Here is our post on the FTT’s ruling, which sets out the facts and arguments in the case. To recap briefly, the charity argued that the adoption of its proposed objects was justified under the general prohibition on discrimination under Article 14 ECHR (and its statutory analogy, Section 193 of the Equality Act). The legitimate aim it pursued was that of providing suitable adoptive parents for a significant number of children who would otherwise go unprovided for. The Charity maintained that unless it were permitted to discriminate as proposed, it would no longer be able to raise the voluntary income from its supporters on which it relied to run the adoption service, and it would therefore have to close its adoption service permanently on financial grounds. The FTT rejected this submission, holding that though the charity’s aim of increasing adoption placements was a legitimate one, the evidence before it did not show that the increased funding of the agency’s adoption work under the auspices of the Roman Catholic church would “inevitably” lead to the prospect of an increased number of adoptions.
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2 November 2012 by Lois Williams
Irene Wilson v. The United Kingdom (Application no. 10601/09) – read admissibility decision
Sadly barely a month seems to go by without a report in the media about the police and the justice system failing to protect the victims of domestic violence.
The Strasbourg Court has been required on a number of occasions to assess whether the response of domestic authorities to domestic violence has been compatible with their positive obligations under Article 8 (right to respect for family and private life) of the Convention. Given that such individuals are of a particular vulnerability, Strasbourg has repeatedly emphasised the need for active state involvement in their protection. However, in this particular admissibility decision, the Court held that the Northern Irish authorities had not failed in their duty under the Convention to protect the applicant.
Background Facts
The applicant, Irene Wilson, was assaulted by her husband after they had been out drinking. She suffered a severed artery on her head, requiring eight stitches as well as multiple bruising. Her husband was arrested and charged with causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. He was granted bail and required to reside at an alternative address to the matrimonial home.
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1 November 2012 by Rosalind English
The Queen on the application of Totel Ltd v The First-Tier Tribunal (Tax Chamber) and The Commissioners for Her Majesty’s Revenue and Customs [2012] EWCA Civ 1401 – read judgment
Tax litigation is not the most obvious hunting ground for human rights points but if claimants feel sufficiently pinched by what they perceive as unfair rules, there is nothing to stop them appealing to the courts’ scrutiny of the lawfulness of those rules.
Human rights were not raised per se in this appeal but constitutional principles which arguably play the same role made all the difference to the outcome.
This case concerned the removal of a right of appeal by an Order in Parliament that stopped the appellant company (T) in its tracks, so naturally it turned to judicial review to find a remedy that the tax tribunal was not prepared to grant. T prayed in aid a fundamental principle of our unwritten constitution set out in R (Spath Holme Ltd) v Secretary of State for Transport, the Environment and Regions [2000] 2 WLR 15:
Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation. When it does so the enabling power should be scrutinised, should not receive anything but a narrow and strict construction and any doubts about its scope should be resolved by a restrictive approach.[35]
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31 October 2012 by Jim Duffy
The Coroners and Justice Act 2009 has created the office of Chief Coroner, plucked at the very last minute from the Coalition’s ‘bonfire of the quangos’. On Friday, the first Chief Coroner, His Honour Judge Peter Thornton QC, delivered The Howard League for Penal Reform’s 2012 Parmoor Lecture.
Six weeks into his post, Judge Thornton presents a frank exposition of the challenges facing the system he now heads, sets out what he considers to be its purpose, and charts its remarkable genesis.
Coroners have, it seems, occupied for the best part of a millennium a peculiar pocket of public life, adapting their function and purpose over time in a manner not always understood by those working outside the system, or even by they themselves. From the Articles of Eyre to the 2009 Act, via Robin Hood and Richard the Lionheart (the latter does not come out well), the Chief Coroner describes how ‘crowners’, as they were originally known, have evolved from lay magistrates or collectors of fines, to the judges they are today.
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