Category: LEGAL TOPICS
26 July 2010 by Adam Wagner
Medical Justice, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin) (26 July 2010) – Read judgment
The High Court has ruled that a fast-track scheme for the removal of failed asylum seekers with little or no notice is unlawful as it does not provide sufficient access to justice.
Permission to appeal has been granted but the decision could put a stop to the policy being implemented for the time being.
The challenge was brought by Medical Justice, a charity which advises asylum seekers, represented by the Public Law Project, a legal charity which aims to improve access to public law remedies (see their press release here). The policy being challenged came into effect in January 2010, and gives individuals who fall into certain specified categories and who have made unsuccessful claims to enter or to remain in the United Kingdom, little or sometimes no notice of their removal directions.
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26 July 2010 by Adam Wagner
KS v R [2010] EWCA Crim 1756 (23 July 2010) – Read judgment
J, S, M v R [2010] EWCA Crim 1755 – Read judgment
The Lord Chief Justice has emphasised in two Court of Appeal judgments that the jury-less trials must be a last resort and take place only in truly extreme cases. His comments are clearly aimed at putting the breakers on an accelerating trend of requests for jury-less trials in prosecutions of serious crime, following the ground-breaking but controversial ‘Heathrow heist’ trial.
The Criminal Justice Act 2003 limited for the first time the right to trial by jury in the Crown Court, where trials for serious crimes take place. Section 44 provides for the option of judge-only trials if there is a “real and present danger” of jury tampering.
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23 July 2010 by Adam Wagner
Tsipi Livni - she can come back now
The present system means that the threshold for an arrest for war crimes is low, and as such visiting ex-ministers can be arrested if only limited (or “
flimsy” as the MoJ puts it) proof of the alleged crime is presented to a magistrate. The highest profile cases have been those involving ex-ministers from Israel, and in particular
Tsipi Livni. As a result of the threat of arrest warrants, Israeli ex-ministers have largely stayed away from the UK.
As the MoJ statement says, war crimes under the Geneva Conventions Act 1957, and a small number of other grave offences, are subject to universal jurisdiction. This enables prosecution to take place here even though the offence was committed outside the United Kingdom, and irrespective of nationality.
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23 July 2010 by Matthew Hill
Updated, 1/9/10 | R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment
When faced with conflicting authorities from the European Court of Human Rights and the House of Lords (now the Supreme Court) on the indefinite retention of DNA profiles and fingerprints by the police, the Divisional Court held that they were bound to follow the House of Lords.
This was so despite clear indications from the previous and current governments that the law would be changed to take account of the Strasbourg decision. However, as leave to appeal was granted, the Supreme Court will now have the opportunity to revisit the issue and determine the law in this controversial area.
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23 July 2010 by Isabel McArdle
G v E and others [2010] EWCA Civ 822 – Read judgment
This post was written with the kind help of Jaime Lindsey
The Court of Appeal has held that a person who lacks mental capacity can be detained if the Court of Protection considers that it is in their best interests, without having to meet additional conditions under Article 5 of the European Convention on Human Rights.
This case was a challenge to the decision of Jonathan Baker J in the Court of Protection and raises issues about the relationship between ECHR Article 5 (right to liberty and security) and the Mental Capacity Act 2005 (MCA). It reinforces the point that it is for the Court to decide what is in an incapacitated patient’s best interests, and that Article 5 imposes no further requirements.
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22 July 2010 by Adam Wagner
A (A Child) v The Chief Constable of Dorset Police [2010] EWHC 1748 (Admin) (16 July 2010) – Read judgment
The High Court has ruled that the gist of sensitive evidence in a case involving a child being picked up for being spotted with an “inappropriate adult” must be disclosed in order that the child can bring a claim against the police.
The case is probably the first to follow the significant restriction of the use of secret evidence resulting from the Al Rawi decision (see our previous post), in which the Court of Appeal rejected a request by the Government that evidence in a torture compensation claim be kept secret from the public, and emphasised that the interests of open justice would be seriously compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.
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22 July 2010 by Adam Wagner
Gary Flood
The fall-out from last week’s Court of Appeal judgment in Flood v Times Newspapers Ltd continues as the Times’ long-standing in-house lawyer parts company with the newspaper, and commentators remain unsure as to whether the case marks a significant blow for press freedom.
We posted last week on the Flood case, in which a police officer accused of taking bribes won his battle to prevent the Times relying on the Reynolds defence, which allows allegations to be reported even if they turn out to be wrong. The well-known and much used defence arises from the 1999 case of Reynolds v Times Newspapers in which the House of Lords (now the Supreme Court) extended the defence of qualified privilege to cover the media. Lord Nichols also provided 10 criteria which should be taken into account when deciding whether the defence applies (see the end of his judgment). Since 1999, the defence has been an important weapon in the press’ armoury in libel cases, and has undoubtedly led to greater press freedom.
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21 July 2010 by Adam Wagner
Simon Hoggart has written an entertaining sketch in the Guardian, suggesting that the new Ministry of Justice is in fact a “nest of liberals”, and may end up being a fifth column inside the Coalition Government.
We posted earlier this week on the mixed reactions which have been inspired by the government’s early civil liberties agenda, although the majority opinion seems fairly positive. Hoggart suggests that in fact a dose of liberalism is sorely needed in the current government:
The Ministry of Justice turns out to be a nest of liberals in the coalition government. They need a few – the current Lib Dems are roughly as liberal as combination of Ayn Rand and Hanging Judge Jeffreys.
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21 July 2010 by Adam Wagner
The deputy leader of the Liberal Democrats has said that gay couples are likely to gain full rights to marriage under the current Parliament. This would represent a revolution for gay rights, but there is still a long way to go before same-sex couples achieve full rights to marriage as they are arguably entitled to under human rights law.
Simon Hughes MP has told Yoost.com, a question and answer website, that Liberal Democrat MPs would be consulted on the rights of gay couples. He said “I don’t know the answer because we haven’t had the discussion“, but that
I see absolutely no reason why we shouldn’t all be able to support what Nick Clegg said, which is that it would be appropriate in Britain in 2010-11 for there to be the ability to have civil marriage for straight people and gay people equally.
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19 July 2010 by Adam Wagner
The Coalition Government promised in the first days of its rule to “reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion“. This policy is now in play and appears to be making quick progress.
The Coalition’s Program for Government contains a long shopping list of civil liberties promises. Some are specific; scrapping ID cards, restricting DNA retention by police and reviewing libel laws. Some more vague, such as the Freedom / Great Repeal Bill, for which Deputy Prime Minister has just launched an online public consultation. As we posted last week, even the Lord Chief Justice is getting in on the act.
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19 July 2010 by Rosalind English
Ali Zaki Mousa and others v Secretary of State for Defence and Legal Services Commission 16 July 2010 – Read judgment
Permission has been given to around 100 Iraqi applicants to bring proceedings to compel the Secretary of State to hold a single public inquiry to investigate breaches of Article 3 in relation to each of the claimants with respect to their treatment whilst in detention in Iraq
The claimant was representative of a group of Iraqis numbering about 100 who either have brought, or wish to bring, judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces in breach of Article 3. It is possible that up to 100 other Iraqis may wish to join the group in the future.
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16 July 2010 by Rosalind English
A (Appellant) v Essex County Council & National Autistic Society (Intervener) [2010] UKSC 33
Supreme Court (Lord Phillips, Lady Hale, Lord Brown, Lord Kerr, Lord Clarke) July 14 2010
The right to education under Article 2 Protocol 1 of the Convention was not breached by the delay in catering for the special educational needs of a child. Convention rights must be intepreted pragmatically; it is not right to equate a failure to provide the educational facilities required by domestic law with a denial of access to education.
This was an appeal against a decision ([2008] EWCA Civ 364, [2008] H.R.L.R. 31) upholding the dismissal by summary judgment of the appellant’s claim that the respondent local authority had breached his right to education under A1P1.
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16 July 2010 by Adam Wagner
Updated – 6/8/10
Five activists were recently acquitted for causing £180,000 damage to an arms factory after successfully deploying the defence of lawful excuse. But did the judge’s politically coloured summing up of the evidence to the jury render the trial a miscarriage of justice?
Article 6 of the European Convention on Human Rights guarantee a “fair and impartial tribunal”, and it is sometimes claimed in courts that a judge or judicial panel are biased and therefore cannot preside over a fair trial. While not often successful, the complaints are always taken seriously. As any law student knows, justice must not only be done but also be seen to be done.
To this end, judicial impartiality has been much in the news of late. Cherie Booth QC, an observant Christian, was apparently rapped by the Office for Judicial Complaints for reducing a defendant’s sentence on the grounds that he was a “religious man” who knew what he did was wrong. Meanwhile, in a less successful challenge to a judicial decision, Lord Carey failed to convince the Court of Appeal that a judicial panel of special religious expertise was needed in the case of a Christian marriage councilor sacked for refusing to counsel gay couples.
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16 July 2010 by Adam Wagner
Hall & Ors v Mayor of London (On Behalf of the Greater London Authority) [2010] EWCA Civ 817 (16 July 2010) – read judgment
The Mayor of London has won a court order to evict a camp of protesters from Parliament Square, with the Court of Appeal upholding a decision of the High Court stating that the Mayor’s response to the protest was proportionate and not a breach of the protesters’ human rights.
The protesters had gained a temporary reprieve by appealing the decision to the Court of Appeal, but that appeal has now been rejected. The BBC report that Boris Johnson, the mayor of London, said “I think it’s wonderful that as a city we can protest. But it is nauseating what they are doing to the lawn“.
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15 July 2010 by Adam Wagner
The Guardian have published a number of documents which have been disclosed to the High Court as part of a claim for compensation by men claiming they were mistreated abroad with the knowledge of UK security services.
The Guardian claims that the documents reveal the “the true extent of the Labour government’s involvement in the illegal abduction and torture of its own citizens”. Key passages can be found here.
The documents were disclosed as part of the ongoing case of Al Rawi and Ors v The Security Services. Although the case has not yet been heard, it has been the subject of a number of high-profile applications for secret documents which the Government have generally lost. We posted recently on the judgment of Mr Justice Silber leading to the disclosure of some of the most recent documents which the Guardian have published (see also here).
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Medical Justice, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin) (26 July 2010) – Read judgment
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