Category: LEGAL TOPICS
1 February 2012 by Adam Wagner
The Julian Assange circus rolls back into London today for the UK Supreme Court’s 2-day hearing of his appeal against extradition. It will be broadcast on Supreme Court live from 10:30am.
The Wikileaks founder was granted permission in November 2011 to appeal to the Supreme Court under Section 32 of the Extradition Act 2003. If he loses, unless he brings a claim at the European Court of Human Rights, he will have to face charges of sexual assault and rape in Sweden.
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31 January 2012 by Guest Contributor
The European Court of Human Rights has announced today that it will deliver two Grand Chamber judgments, in the cases of Axel Springer AG v Germanyand von Hannover v Germany (No.2) on 7 February 2012. The cases were both heard more than 15 months ago, on 13 October 2010.
We had a post about the hearing at the time (and an earlier preview).Both cases concern the publication in the media of material which is alleged to be private. The Axel Springercase concerned the publication in “Bild” of an article about a well-known television actor, being arrested for possession of cocaine. The article was illustrated by three pictures of the actor. The German court granted him an injunction to prohibit the publication of the article and the photos. The applicant company did not challenge the judgment concerning the photos. The newspaper published a second article in July 2005, which reported on the actor being convicted and fined for illegal possession of drugs after he had made a full confession.
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31 January 2012 by Daniel Sokol
Debbie Purdy
Philip Havers QC of 1 Crown Office Row is representing Martin in the judicial review proceedings. He is not the author of this post.
Albert Camus famously wrote: ‘there is but one truly serious philosophical problem and that is suicide.’ However profound a philosophical problem, the question of suicide or, more precisely, assisted suicide is proving quite a legal conundrum.
It is a well-known fact that, at present, it is lawful in England and Wales to commit (or to attempt to commit) suicide but unlawful to help someone else to do so. Encouraging or assisting suicide is an offence under section 2 of the Suicide Act 1961, carrying a maximum penalty of 14 years’ imprisonment. On a literal reading of the Act, even obtaining information about euthanasia for someone who plans to commit suicide could constitute a breach of section 2.
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31 January 2012 by Alasdair Henderson
The Prime Minister’s speech at the Council of Europe (see our coverage here) has attracted significant press attention over the past week – ranging from flag-waving, sabre-rattling support to criticism from Sir Nicholas Bratza (the British President of the Court).
Hot on the heels of Cameron’s address on Wednesday, the Attorney-General Dominic Grieve gave a speech on Thursday which set out in further detail the Government’s plans for reform of the European Court of Human Rights and the incorporation of human rights into UK law.
The full text of the Attorney-General’s speech is not yet available (although a similar speech he gave last year and his own speech to the Council of Europe can be found here). However, it was interesting to compare his comments with those of David Cameron just a day before.
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31 January 2012 by Adam Wagner
A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the consultation into whether “closed material” (secret evidence) procedures should be extended to civil trials.
Of the responses that I have read, there is very little support for the proposals as they stand and, as journalist Joshua Rozenberg has pointed out, the most damning criticism has come from the very lawyers who are currently involved in “closed” proceedings.
If you are interested in the issue, the Joint Committee on Human Rights is hearing evidence on it today from two special advocates, including my co-editor Angus McCullough QC (see his post on the topic), as well as the current and former independent reviewers of terrorism legislation. The session begins at 2:20pm and can be watched live here.
As I did with the Bill of Rights Commission consultation, I asked people to send me their consultation responses. What follows is a wholly unscientific summary of the ones I received:
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29 January 2012 by Rosalind English
Dr John Sentamu, the Archbishop of York, has thrown a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is. “It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.
Gay rights campaigners have poured scorn on this pronouncement, calling the Archbishop a “religious authoritarian” who wants to “impose his personal opposition to same-sex marriage on the rest of society.” But this outbreak of bad temper – not unpredictable, given the skirmishing over the consultation on the same issue which took place in Scotland last year – raises the wider issue of the role and influence of church leaders in the process of legal change.
In a secular society, the participation of clerics in the House of Lords is grudgingly accepted as part of an ancient tradition. And on this issue at least, the general view seems to be that the Church has grounds for complaint. The current system recognises gay partnerships under the Civil Partnership Act 2004 (CPA). But the main change is to alter the Equality Act so as to allow such partnerships to take place on religious premises, and it is that which is being so bitterly opposed, apparently because it brings the matter within the church’s bailiwick. But even if it does, we have to ask what it is that privileges Sentamu’s voice over any others in the debate over whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered.
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27 January 2012 by Guest Contributor
Two recent posts on this blog have brought deserved attention to the question of the European Court’s handling of admissibility decisions. In the course of criticising the substantial misrepresentation of the statistics for UK petitions to the European Court, Andrew Tickell’s piece highlighted the significant contribution of “highly discretionary concepts” in the filtering of the Court’s caseload.
Alongside clearer procedural hurdles such as the six month time bar and exhaustion of domestic remedies, the “manifestly ill-founded” criterion may be a clear and meaningful legal term but certainly isn’t manifest exactly what obstacle it sets.
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25 January 2012 by David Hart KC
Secretary of State for Energy and Climate Change v. Friends of the Earth and others, CA, 25 January 2012, read judgment
So, after an anxious wait for the affected businesses, the Court of Appeal has confirmed today that the Minister was too hasty in the way he went about modifying the scheme for subsidising small solar power schemes. But, as often, the Court went about things differently from the judgment below (see my initial and follow-up posts on this)
The Court held that the Minister had no power to do what he did, which was to say he was going to modify the subsidy rules in respect of schemes which had become eligible prior to the modification coming into effect. The legislation and rules are characteristically impenetrable, but the Minister proposed in a consultation, which closed on 31 October 2011, to reduce the subsidies for schemes which became eligible after 12 December 2011. The key point is that he proposed that this modification should come into force on 1 April 2012, and that those who had signed up to such a scheme between December 2011 and April 2012 lost much of their subsidy from 1 April 2012. The original scheme paid participants 43.3p per kilowatt hour for 25 years. The proposed revised scheme for these new joiners would pay them that rate until April 2012, but thereafter 21p per kilowatt hour for the rest of the 25 years.
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24 January 2012 by Guest Contributor
Andrew Tickell in his recent post (Is the European Court of Human Rights obsessively interventionist?) makes a number of important points about the European Court of Human Rights’ approach to admissibility, in particular the application of the manifestly ill-founded criterion. Perhaps understandably, the majority of legal scholars have preferred to focus on the more substantive aspects of the Court’s work and its leading judgments.
However, Tickell’s analysis, and his other efforts to ensure that the less glamorous work of the Court on admissibility are not overlooked, must be welcomed, both as redressing that balance and informing the wider debate on the proper role of the Court. This post seeks to build on his contribution by providing an overview of the Court’s approach to admissibility in applications brought against the United Kingdom.
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24 January 2012 by Adam Wagner
Updated | In the 1939 film Mr. Smith Goes to Washington, James Stewart plays a local Boy Rangers leader who becomes a US Senator and, against all odds, triumphs agains the corrupt bureaucrats in Washington. Tomorrow, according to The Sun, “battling” Prime Minister David Cameron will be travelling to Strasbourg in, it would seem, similar style to “tell Euro judges to stop meddling in British justice”.
Meanwhile, back in London, the British president of the European Court of Human Rights launched a preemptive strike on Mr Cameron’s speech in today’s Independent, arguing that the criticism from “senior British politicians” relating to the court’s interference is “simply not borne out by the facts“.
Bratza is right that the us-vs-them narrative is partly the result of mischievous human rights reporting by the press. Recent examples are the Daily Mail’s extravagant claim that the UK loses 3 out of 4 cases in Strasbourg, resting on a partial reading of the court’s statistics, and the Telegraph’s seemingly endless run of articles based on low-level immigration decisions, the latest being: Bigamist wins ‘family life’ human rights case. In that case, the original tribunal knew nothing about his alleged other marriages, so it is hard to see what it shows about human rights defences to deportation decisions, except that a claimant possibly lied in court, was found out and will probably now be deported.
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22 January 2012 by Guest Contributor
Associated Newspapers Ltd, R (on the application of) v Rt Hon Lord Justice Leveson [2012] EWHC 57 – Read judgment
On Friday 20 January 2012 the Administrative Court dismissed the second application for judicial review of the Leveson Inquiry. The Court dismissed an application by Associated Newspapers (supported by the Daily Telegraph) to quash the decision of the Chairman, Lord Justice Leveson. decision to admit evidence from journalists who wish to remain anonymous on the ground that they fear career blight if they identify themselves.
Lord Justice Toulson commented “that the issues being investigated by the Inquiry affect the population as a whole. I would be very reluctant to place any fetter on the Chairman pursuing his terms of reference as widely and deeply as he considers necessary”.
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22 January 2012 by Andrew Tickell
Brought to you by Andrew Tickell
Marie-Bénédicte Dembour calls them ‘forgotten cases’. As Adam Wagner demonstrated in a blog post of last week, Eurosceptic newspapers have a particular interest in overlooking the European Court of Human Right’s decisions of inadmissibility, seeking to buttress claims that the Court is wildly interventionist, imposing alien “European” logics on Britain with gleeful abandon.
Both the Telegraph and Daily Mail covered the findings of a report commissioned by backbench Tory MPs critical of the Court’s jurisdiction, both simply replicating its astonishingly misleading content. The papers contended that the UK was defeated in three in four cases brought against it, with violations of the Convention being found in 75% of human right petitions to Strasbourg.
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21 January 2012 by David Hart KC
C-28/09, European Commission v. Austria, 21 December 2011 – read judgment
Many countries in the EU are struggling to comply with its laws about air pollution. The UK is in continuing breach of its nitrogen dioxide emission limit: see my post just before Christmas. But one way a country can try to comply with these laws is by banning or limiting heavy traffic. And that is exactly what Austria did in respect of an important bit of its motorway network; it prohibited lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley. And just before Christmas, it paid the price.
The EU Court told Austria it was infringing EU law, in particular, Articles 28 and 29 of the EC Treaty (now Arts 34 and 35 of TFEU) which are the core provisions protecting free movement of goods. Why, given that it was trying to comply proactively with another requirement of EU law?
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19 January 2012 by Isabel McArdle
HARKINS AND EDWARDS v. THE UNITED KINGDOM – 9146/07 [2012] ECHR 45 – Read judgment
The European Court of Human Rights has found that there would be no breach of Article 3 ECHR (prohibition of inhuman and degrading treatment) in extraditing two men accused of murder to the US.
The men argued that they face the death penalty or life imprisonment without parole if found guilty. The US had given assurances to the UK government that the death penalty would not be sought. The following summary is based on the Court’s press release (my abridgement):
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19 January 2012 by Guest Contributor
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM – 8139/09 [2012] ECHR 56 – Read judgment – updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110).
The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.
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