Category: LEGAL TOPICS
23 April 2012 by Karwan Eskerie
R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) – Read judgment
The detention of a mentally ill person in an Immigration Removal Centre (IRC) amounted to inhuman and degrading treatment and false imprisonment, and was irrational, the High Court has ruled.
Mr Justice Singh heard a judicial review application by a Nigerian National against decisions to continue to detain him under the UK Borders Act 2007 and the conditions of that detention. From August 2009, HA, an overstaying visitor and asylum seeker, was detained at various IRCs following his release from prison for a drug-related offence which triggered the automatic deportation provisions of the 2007 Act. His behaviour during detention became increasingly disturbed and strange. In January 2010, he was seen by a psychiatrist who recommended HA’s transfer to a mental hospital for assessment and treatment.
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22 April 2012 by hrupdateadmin
The Brighton Declaration is the latest Declaration (see previously the Interlaken and Izmir Declarations) on the future (and reform) of the European Court of Human Rights made on behalf of the 47 member States to the Council of Europe, the parent organisation for the ECHR. Brighton was the venue, the United Kingdom having taken up the six month Chairmanship of the Committee of Ministers of the Council of Europe late last year.
The workload problem
So what was agreed? A nine page, highly influential Declaration, building on Interlaken and Izmir, which is primarily concerned with trying to make the Court system sustainable, since it is overwhelmed by the number of applications reaching it. Over 150,000 applications are currently pending before the Court.
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20 April 2012 by Wessen Jazrawi
Who should decide questions of human rights, Parliament or the courts? Is there a democratic deficit in human rights? If so, how do we go about addressing it? These are just some of the many questions asked at the conference hosted by the Arts and Humanities Council on Redressing the Democratic Deficit in Human Rights.
This conference took place on 17 and 18 April and was timed to coincide with the Brighton Conference. It was also timed to coincide with the launch of “Parliament and Human Rights”, research undertaken by Paul Yowell and Hayley Hooper, both of Oxford, and Murray Hunt, legal advisor to the Joint Committee on Human Rights (“JCHR”).
The conference featured a variety of eminent speakers and some lively debate took place over the two days. David Feldman, first legal advisor to the JCHR, kicked off events yesterday with the quote (I paraphrase): “there is nothing so dangerous in Parliament as when everyone agrees”, indicating that this is what took place following 9/11, and it was due to this that the JCHR’s mission became clear.
by Wessen Jazrawi
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20 April 2012 by Guest Contributor
The Abu Qatada deadline debacle has once again thrust the European Court of Human Rights – and in particular, its relationship with the UK – into unwanted controversy just as European representatives gathered in Brighton to debate the Court’s future. This new fracas over the deportation of Abu Qatada has acted as a lightning rod for well-rehearsed criticisms of the Strasbourg Court – that it is a ‘meddling pseudo-judiciary’ and the enforcer of a villains’ charter.
A new report for the Equality and Human Rights Commission by researchers at London Metropolitan University and LSE, including myself, addresses these critiques as part of a broad analysis of the relationship between the UK and Strasbourg.
Among those interviewed for the report were the President of the European Court, Sir Nicolas Bratza; the outgoing Council of Europe Commissioner for Human Rights, Thomas Hammarberg; and, in the UK, Baroness Hale, Sir John Laws and Jack Straw, along with two members of the Commission on a Bill of Rights, Lord Lester QC and Anthony Speaight QC. The report also conducts a thematic analysis of case law, as well as examining wider literature and the voluminous statistics produced by the Court.
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19 April 2012 by Guest Contributor
The BBC reported yesterday that there’s “doubt” about the deportation of Abu Qatada, following his arrest on Tuesday and now his appeal to the European Court of Human Rights – which the Home Secretary Theresa May says is out of time. So: is she right? Is the appeal out of time? How has the Home Office got into this apparent mess? And what if any difference does this appeal make?
The European Court’s judgment in Abu Qatada’s case was dated January 17th 2012. Of that there’s no doubt; and it’s irrelevant whether the government or anyone else was given notice of the judgment before, or received it later.
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18 April 2012 by David Hart KC
Dudgeon Offshore Wind v. Secretary of State for Communities and Local Government et al, HHJ Waksman QC, hearing 23 March 2012, read judgment
Running a hearing can be difficult enough when you are sitting as a judge and are faced with parties in a civil case. At least then you have an agenda set by the legal documents (or pleadings) and your primary role as judge is to decide whether the points made by one or other side are good or bad. Sometimes you may be sorely tempted to suggest better ones, but usually you do not run parties’ cases for them. And if you do, it is obviously fair for you to tell both parties what is going through your mind. After all, there may be very good reasons why a party has not taken a point apparently advantageous to them. Anyway, you must give the other side the opportunity to deal with the point.
All the more difficult in an inquiry, of which a planning inquiry is a good example. Here you are not just the judge. Your job is to inquire into whatever you think is necessary to decide whether to let a scheme proceed. Much of the time, it is a bit like a civil case, with the local planning authority trying to uphold its grounds for refusal, and the developer trying to show why the grounds do not stack up. But then in many planning appeals you have the third or fourth dimension, a group or groups of (usually) objectors who are saying that there are additional grounds for refusing the scheme. Sometimes, these issues come out all tidily before the inquiry starts, because the objectors have asked to participate in the formal procedures (Rule 6 parties in the jargon). On other occasions, it all just comes out as the inquiry proceeds.
This case is a good example of the latter.
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18 April 2012 by Adam Wagner
As the last hurrah of its Chairmanship of the Council of Europe, beginning today the United Kingdom is hosting the High Level Conference on the Future of the European Court of Human Rights in Brighton. As delegates settle into their Eurostar seats on the way over, here are a few useful tips:
1. If you have forgotten sun cream, don’t worry! The weather forecast is terrible.
2. All of the important documents are on the Conference website, including the Conference Programme and the declarations from the last two such conferences: Izmir (2011) and Interlaken (2010). There is also a CoE press release. In case you need to refresh yourself on the CoE itself, the BBC has this useful profile.
3. The most important document is the draft Declaration which you are being asked to approve. The document has been the subject of frantic negotiations and you will no doubt receive an up to date version. In the meantime, here is a slightly out-of-date version which even has useful track changes to show what has changed since the UK’s first draft. The somewhat ugly buzz-word for the Conference will be subsidiarity.
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17 April 2012 by Guest Contributor
This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the European Court of Human Rights (ECtHR) is taking an approach that looks like one of appeasement of certain signatory states.
Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconcilable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?
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16 April 2012 by Rosalind English
MP, R(on the application of) v the Secretary of State for Justice [2012] EWHC 214 (Admin) – read judgment
The prison authorities had acted unlawfully in restricting childcare resettlement leave to prisoners who were within two years of their release date and had been allocated to “open” conditions.
Two female prisoners applied for judicial review of decisions of the defendant secretary of state and prison governors to refuse them childcare resettlement leave (CRL). CRL is a type of temporary licence available to prisoners who have sole caring responsibility for a child under 16. CRL enables prisoners to spend up to three days at home (including nights), provided certain conditions are met. The principal issue in the claim was whether the secretary of state was acting lawfully in restricting CRL to female prisoners who have less than 2 years until their earliest release date.
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16 April 2012 by Guest Contributor
Department of Health v IC, Healey and Cecil(EA/2011/0286 & EA/2011/0287) – Read Decision
In a recent post, Panopticon brought you, hot-off-the-press, the Tribunal’s decision in the much-publicised case involving publication, under Freedom of Information Law, of the NHS Risk Register. Somewhat less hot-off-the-press are my observations. This is a very important decision, both for its engagement with the legislative process and for its analysis of the public interest with respect to section 35(1)(a) of Freedom of Information Act 2000 (formulation or development of government policy) – particularly the “chilling effect” argument. At the outset, it is important to be clear about what was being requested and when.
Risk registers in general
The DOH prepared two “risk registers” documenting the risks associated with implementing the “far-reaching and highly controversial” NHS reforms under what was then the Health and Social Care Bill. The Tribunal heard that risk registers are used widely across government for project planning. They provide snapshots (rather than detailed discussions) combining the probability of and outcomes from any given risk associated with the proposed reform; risks are then classified in red, amber or green terms. According to Lord Gus O’Donnell, who gave evidence in support of the DOH’s case, risk registers are the most important tool used across government to formulate and develop policy for risk management in advising ministers. John Healey MP, one of the requesters in this case, said that he was a minister for ten years and was never shown such a register.
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15 April 2012 by Isabel McArdle
Balogun v UK [2012] ECHR 614 – Read judgment
It has been a week of victories for the UK government in deportation cases in the European Court of Human Rights. On the same day as the ECtHR found that Abu Hamza and four others could be extradited to the US on terrorism charges, it also rejected a case of a man facing deportation despite having lived in the UK since the age of three.
The applicant, born in 1986, had a number of criminal convictions. The Court accepted that he had been in the UK since the age of three, although he had only acquired indefinite leave to remain in December 2003. In 2007 he pleaded guilty to possession of Class A drugs with intent to supply. He was jailed for three years and later in 2007, he was given notice that the Secretary of State intended to have him deported to Nigeria, as he is a Nigerian national.
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15 April 2012 by Daniel Sokol
Photo credit: cas.sk
Stübing v Germany (no. 43547/08), 12 April 2012 – Read judgment
The European Court of Human Rights (fifth section) has ruled unanimously that Germany did not violate Article 8 of the European Convention on Human Rights (right to respect for private and family life) by convicting Patrick Stübing of incest
Professor Jonathan Haidt, a well-known social psychologist, presented this scenario as part of a study:
Julie and Mark, who are brother and sister, are traveling together in France. They are both on summer vacation from college. One night they are staying alone in a cabin near the beach. They decide that it would be interesting and fun if they tried making love. At very least it would be a new experience for each of them. Julie was already taking birth control pills, but Mark uses a condom too, just to be safe. They both enjoy it, but they decide not to do it again. They keep that night as a special secret between them, which makes them feel even closer to each other. So what do you think about this? Was it wrong for them to have sex?
Most people answered with a resounding yes, supporting their “yuck” response with reasons. Yet, Professor Haidt noticed that many respondents ignored elements of the story.
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12 April 2012 by Rachit Buch
Free speech is under attack. Or so it seems. The last few weeks have been abuzz with stories to do with free speech: a Supreme Court ruling on the Reynolds defence to libel; contempt of court proceedings against an MP for comments made in a book and the latest in a growing line of criminal trials for Twitter offences. The diversity of media at the heart of these stories – print news, traditional books and online ‘micro-blogging’ – indicates the difficulty of the task for the legal system.
Flood v Times: how does this affect calls for libel reform?
On 21 March, the Supreme Court affirmed the Times newspaper’s reliance on the Reynolds defence to libel – often referred to as Reynolds privilege or the responsible journalism defence – to a claim by a detective sergeant in the Metropolitan Police.
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12 April 2012 by Guest Contributor
Today was one of striking parallels between the USA and the UK in terms of litigation concerned with access to information.
APPGER and security bodies
First, one of The Independent‘s main stories this morning concerned a case brought in the US by the UK’s All Party Parliamentary Group on Extraordinary Rendition (APPGER). Readers will recall that in the UK, APPGER was partially successful before the Upper Tribunal last year; the decision of the First-Tier Tribunal in a second case (the hearing of which concluded in February 2012) is awaited.
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11 April 2012 by Rosalind English
Waking up in New York this morning, I find the newspapers are much exercised by the recent decision of the Strasbourg Court to allow the extradition of certain terror suspects to the US, as discussed in Isabel McArdle’s post. The colourful New York Post declares unambiguously that “Thugs face Extradition” (April 11), following its banner headline of yesterday “UK can extradite hook-handed clerk, 4 other terrorists to US”. And just in case any passing reader failed to get the point, the strapline says
Britain can extradite a one-eyed, hook-handed radical Muslim cleric and four other suspects to the United States to face terrorism charges, Europe’s human rights court ruled today.
Giving rather more detail by way of background, today’s edition of The New York Times explains that Britain
has struggled to balance civil liberties and domestic security in the face of entrenched Islamic extremism and repeated terrorist attacks, and has sought to deport some of the dozens of subjects it has detained in scores of possible plots over a decade
According to the NY Times, the director of the national prison project for the American Civil Liberties Union found the ruling “disappointing”, and showed that the Strasbourg Court seemed willing to accept “dubious” assurances from the United States.
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