1 April 2016 by Jim Duffy
This week, the mosaic shrine adorning the wall outside Stockwell underground station once again became the focal point for difficult questions surrounding the police response the terrorist attacks of 2005.
The judgment of a Grand Chamber of the European Court of Human Rights in Da Silva v the United Kingdom draws a line under a long legal battle mounted by the family of Jean Charles de Menezes, the young Brazilian electrician shot dead by the Metropolitan Police on 22 July 2005 having been mistaken for a suicide bomber.
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1 April 2016 by Rosalind English
The leader of South Africa’s main opposition party, the Democratic Alliance, has called for President Zuma to be impeached following the Constitutional Court’s finding that he had flouted the Constitution by failing to “uphold, defend and respect the Constitution.”
The case was brought by the Democratic Alliance, amongst others, seeking validity for the Public Protector’s remedial action against the President. Public Protector Thuli Madonsela had reported that Zuma should reimburse the country the money he has spent on upgrades to his palatial homestead. As a course of this remedial action, she recommended that he pay back a portion of the funds used for the upgrades. But this report was set aside by the National Assembly after Zuma made submissions on why he should not pay back the funds.
Chief Justice Mogoeng Mogoeng, giving judgment for the Court, said that the remedial action had a binding effect.
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30 March 2016 by Fraser Simpson
Hammerton v. the United Kingdom, Application no. 6287/10 – read judgment.
The European Court of Human Rights has held that the detention of an individual following his breach of a civil contact order, where he had no legal representation, did not violate his rights under Article 5, ECHR (Right to Liberty and Security of Person). However, the decision not to provide compensation to the individual following a failure to provide him with a lawyer during domestic proceedings resulted in a violation of Article 6 (Right to a Fair Trial).
by Fraser Simpson
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30 March 2016 by Charlotte Bellamy
In the news
Radovan Karadžić, the former Bosnian Serb leader, has been sentenced to 40 years in jail for genocide and war crimes committed during the 1992-95 Balkans war, including the massacre of more than 8,000 Bosnian men and boys at Srebrenica and the siege of Sarajevo, during which 13,952 people were killed. Despite the 70-year-old former leader’s insistence that his actions were aimed at protecting Serbs during the conflict, he was found guilty of 10 out of the 11 charges he faced, in a verdict delivered 18 months after the end of his five-year trial.
Karadžić had been indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) which was established by the UN in 1993. He was on the run for the next 13 years, during which time he assumed the identity of ‘Dr Dragon Dabic’, a bearded health guru who lived openly in the Serbian capital. He was finally arrested in 2008 and handed over to the Hague by the Serbian government.
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24 March 2016 by Guest Contributor
“Roses are red.
Violets are blue.
Whatever your political colour;
Human rights should matter to you”
Some legal oratory flows into the profound, beautiful and inspiring. Most of the time when it comes to poetry – as this particularly appalling ditty is designed to demonstrate – we lawyers should stick to the day job.*
This week human rights commentators celebrated both World Poetry Day and the launch of a new project on the conservative commitment to human rights. Announcing a Commission made up of MPs and commentators – including Maria Miller MP, Dominic Grieve QC MP and Matthew D’Ancona – Bright Blue this week published a series of essays by Conservative leaders on a range of human rights threats; from the refugee crisis to the repeal of the Human Rights Act.
Bright Blue now joins the Labour Campaign for Human Rights in taking steps to take the current debate beyond the heat and light of party politics and into a greater conversation about how we protect the rights of the most vulnerable in our communities and about the UK’s place in the world.
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22 March 2016 by Hannah Lynes
Brought to you by Hannah Lynes
In the news
According to research released by the Home Office, large increases in stop and search operations have no discernible effect on crime reduction. The official study examined crime rates across 10 London boroughs in the first year of Operation Blunt 2, which led to a surge in the number of searches from 34,154 in the year before to 123,335 in 2008/2009.
The findings are likely to lend support to the position of the Home Secretary, Theresa May who in 2014 introduced new measures to curtail reliance on the powers. She has previously been critical of claims by the Metropolitan Police that a rise in knife crime in recent months is linked to a drop in the use of stop and search, warning against a “knee-jerk reaction.”
Police powers to conduct the searches have proved highly controversial, with campaigners arguing that ethnic minority groups are disproportionately targeted. An analysis by the Independent found that between December 2014 and April 2015, black people were more likely to be stopped than white people in 36 out of 39 police forces.
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16 March 2016 by acwessely
Photo credit: Guardian
This week’s round up comes from Alex Wessely.
In the news
A highly experienced magistrate – Richard Page – has been sacked for airing views opposing same-sex couples being allowed to adopt. In a statement the Judicial Conduct Investigations Office said his views – which he had expressed in an BBC interview in 2015 – constituted “serious misconduct which brought the magistracy into disrepute”. Alice Arnold in the Guardian agrees with the decision to sack him (“the law is clear… magistrates must respect it”), whereas the Christian Legal Centre say this represents a “new political orthodoxy” and “modern day madness”. In a subsequent development, Mr Page is now planning to sue Michael Gove, citing religious discrimination.
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15 March 2016 by Dominic Ruck Keene
Photo credit: The Guardian
In Secretary of State for Justice v Paul Black [2016] EWCA Civ 125 (read judgment) the Court of Appeal ruled that the Crown was not bound by Part 1 of the Health Act 2006 to ban smoking inside public prisons.
Paul Black, an inmate at HMP Wymott in Lancashire, complained that prison smoking rules were being flouted and should be made legally enforceable under Part 1. His lawyers told the hearings he suffered from a range of health problems due to frequent exposure to second-hand smoke, in particular on prison landings, in laundry rooms and in healthcare waiting rooms.
The Master of the Rolls, Lord Dyson, gave the only judgment. He identified the relevant issue as whether Part I of the Health Act 2006 applied to Crown premises, and in particular whether it applies to HMP Wymott. Part 1 made provision for the prohibition of smoking in certain defined ‘smoke-free’ premises and places, as well as for exceptions to the general prohibition. Section 3(2) enables ministers to make a special exemption for prisons.
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8 March 2016 by Kate Richmond
Two important Supreme Court judgments concerning vicarious liability were handed down last week.
Mohamud v WM Morrison Supermarkets [2016] UKSC 11 affirms the “close connection” test set out in Lister v Hesley Hall Ltd [2001] UKHL 22 and rejects the formulation of a new test for vicarious liability based on “representative capacity”.
Cox v Ministry of Justice [2016] UKSC 10 extends the sorts of relationships where a defendant can be made vicariously liable for the conduct of an individual and evaluates Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (the ‘Christian Brothers’ case)
The two judgments are intended to be complementary; Mohamud addresses the relationship between the defendant and the wrongdoer while Cox centres on the sufficiency of connection between that relationship and the wrongdoer’s act such that the defendant can be held vicariously liable.
Mohamud
The claimant was assaulted at a Morrisons petrol station by an employee, Mr Khan. The claimant had entered the petrol station and had enquired about using printing facilities. Mr Khan responded using foul, racist and threatening language before following the claimant out ino the forecourt where Mr Khan punched and kicked him.
The Court of Appeal found that there was not a sufficiently close connection between what Mr Khan was employed to do and his tortious conduct so as to give rise to vicarious liability on the part of Morrisons. The “close connection” test was applied as laid down by Lord Steyn in Lister.
Lord Toulson gave the leading judgment in Mohamud. He surveyed the origins and development of vicarious liability and explored the possibility of a new, broader test based on “representative capacity”. The new test was dismissed by the court, it being unclear whether the “representative capacity” approach was substantively different to the “close connection” test [46,53]. However, the judgment provides a clear exposition of the developments and shortcomings in the law on vicarious liability.
Lord Touslon draws together various authorities to identify the underlying public policy rationale for vicarious liability, first enunciated by Holt CJ in Boston v Sandford (1691) 2 Salk 440 [17]. It was described by Scarman LJ in Rose v Plenty [1976] 1 WLR 141 at p148 as follows:
“But basically, as I understand it, the employer is made vicariously liable for the tort of his employee… because it is a case in which the employer, having put matters into motion, should be liable if the motion which he has originated leads to damage to another”
Lord Touslon examined the second limb of the Salmond definition of vicarious liability (Salmond, J.W (1907) The Law of Torts London: Stevens & Haynes). The second limb relates to “unauthorised modes of authorised acts” which was unsatisfactorily applied to cases such as the Lister case concerning sexual abuse.
The Supreme Court preferred a broader approach and endorsed the dicta of Lord Cullen in Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co (1925 SC 796, 802). Lord Cullen considered whether the tortious conduct was “within the field of activities” assigned to the employee.
The thrust of the Supreme Court’s analysis in Mohamud case was: 1) the nature of the employee’s job was to be considered broadly; and 2) the court ought to examine whether there is sufficient connection between the employee’s position and his wrongful conduct to make it just for the employer to be held liable [44].
Lord Toulson then addressed the imprecision of the close connection test quoting from Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, who pointed to:
‘…the lack of guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm or employer… this lack of precision is inevitable, given the infinite range of circumstance where the issue arises.’
Lord Touslon concluded that courts are required to make an evaluative judgement when applying the test and consider all of the circumstances. Lord Dyson agreed with the inevitability of imprecision, likening it to a ‘quest for a chimaera’ [54].
In the present case, the court found that Mr Khan had not “metaphorically taken off his uniform” when the tortious action occurred [47]. Lord Toulson considered it “a seemless episode” where Mr Khan also ordered the claimant to keep away from his employer’s premises. Taken together, Mr Khan’s actions were pursued in connection with the business in which he was employed and therefore Morrisons was vicariously liable.
Lord Dyson added that vicarious liability law is on the move but only in relation to the relationship between individual and defendant, not in regard to the circumstances when an employer may be held vicariously liable [55].
Cox
This was a case about a prisoner working in the kitchen of HMP Swansea who negligently dropped a 25kg bag of rice on to the claimant, causing serious injuries. Ms Cox was working at the time as the prison’s catering manager. She claimed that the Ministry of Justice was vicariously liable for the prisoner’s actions.
Lord Reed gave the leading judgment. He noted that the Christian Brothers case identified five features which could be applied in situations where there is a contract of employment and where there is no such contract but the relationship bears all the hallmarks of a contractual employment relationship. In that case, Lord Phillips said [19]:
“…There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
- i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (“means”)
- ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
iii) The employee’s activity is likely to be part of the business activity of the employer;
- iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
- v) The employee will, to a greater or lesser degree, have been under the control of the employer.” (“control”)
Lord Reed said that the five features are not all equally significant. He added that features relating to “means” or “control” are no longer independently significant or realistic in modern life [20,21]. Lord Phillips in Christian Brothers weaved together the remaining three features ((ii),(iii) and (iv) above). These are inter-related and can produce a situation whereby a relationship other than one of employment is in principle capable of giving rise to vicarious liability.
Lord Reed focused on the integration, of the employee’s activities with the employer’s business, citing with approval Lord Phillips’ summary of Ward LJ’s approach in E v English Province of Our Lady of Charity [2012] EWCA Civ 938 where Ward LJ asked:
“whether the workman was working on behalf of an enterprise or on his own behalf and, if the former, how central the workman’s activities were to the enterprise and whether these activities were integrated into the organisational structure of the enterprise” [26]
Lord Reed confirmed that the scope of vicarious liability extends beyond acts or omissions during the course of the worker’s employment. However, it does not extend to where a tortfeasor’s activities are entirely attributable to his independent business or a third party’s business. The court considered that this new wider scope should protect victims whilst acknowledging changes in the legal relationships between enterprises and their workforces [29].
Applying the above analysis, the court considered (i) that prisoners are integrated into the operation of prisons and (ii) that prisoners’ activities are an integral part of the prison service’s activities. Consequently, the MoJ was vicariously liable in the present case.
In short, many will see these judgments as extending further the circumstances in which vicarious liability will be held to exist. The concept of workers acting ‘on a frolic of their own’ has perhaps never been so tightly circumscribed.
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8 March 2016 by Guest Contributor
The JUSTICE Student Conference 2016 is on 19 March 2016, at the University of Law in London. The full programme is available here and you can book online here.
Spend a Saturday talking human rights and the Human Rights Act with Dominic Grieve QC, Shami Chakrabarti of Liberty, and the JUSTICE team.
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8 March 2016 by Adam Wagner
I wanted to let you know about the totally redesigned RightsInfo. As well as a new look, the site now has an explainers section, revamped issues pages (e.g. children, disability, equality, family… and so on), news, features, opinion… why not have a look? And if you want to sign up for email updates, you do it here.
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8 March 2016 by Hannah Lynes
Photo Credit: The Financial Times
In the news
Stemming migration flows from Turkey has been set as “a priority” at the 7 March emergency summit of EU and Turkish leaders in Brussels. EU officials are seeking to persuade Turkey to enforce the ‘action plan’ signed in November, under which Ankara agreed to curb the number of refugees crossing into Greece in return for three billion euros in aid and the speeding up of its EU membership bid.
However, human rights groups have been critical of the EU focus on ensuring refugees remain in Turkey. Amnesty International warned ahead of the meeting that is was “unacceptable” to expect that responsibility should be carried by a country already hosting three million refugees.
“Using Turkey as a ‘safe third country’ is absurd. Many refugees still live in terrible conditions, some have been deported back to Syria and security forces have even shot at Syrians trying to cross the border,” said Gauri van Gulik, Amnesty’s Deputy Director for Europe and Central Asia.
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29 February 2016 by Charlotte Bellamy
In the news
The UK government is letting companies “off the hook” for human rights abuses, according to Amnesty International. In an 80-page report, Obstacle course: How the UK’s National Contact Point handles human rights complaints under the OECD Guidelines for Multinational Enterprises, Amnesty claims that the National Contact Point (NCP) within the Department for Business Innovation and Skills – who is charged with handling complaints that private contracts may conflict with human rights commitments – is “unqualified to make complex human rights judgments”. The NCP is a non-judicial mechanism tasked with holding companies to account over breaches of the international standards set by the Organisation of Economic Cooperation and Development (OECD) – but has, it seems, rejected 60% of human rights complaints in the past five years without full investigation.
Amnesty describes the NCP as “totally failing in numerous ways”, with its complaint handling procedure being “inconsistent, unreliable and biased towards businesses” resulting in companies being let “off the hook”. The failures to investigate include allegations of serious abuse, such as claims that Vodafone, BT and others allowed GCHQ to access its networks for the mass interception of phone calls, emails and Facebook posts, which it shared with the US authorities under the Tempora program.
The all-party foreign affairs select committee is currently investigating whether the Foreign Office has downgraded its commitment to defending human rights in favour of trade. MPs on the committee decided to hold an enquiry after the permanent secretary at the Foreign Office, Sir Simon McDonald, commented that human rights no longer had the same profile within his department that they had in the past.
A BIS spokesperson has said in response that their review process meets all the obligations under the OECD guidelines for trading and that there should be no suggestion the government is not committed to human rights.
Last week also saw David Cameron describe UK arms exports to Saudi Arabia as “brilliant” – on the same day that the European Parliament voted for an arms embargo on the country for its aerial bombings on Yemen.
Other news
- Last week a seven-judge Supreme Court heard a case on whether the minimum-income visa requirements for UK nationals to bring over a non-EU spouse are in contravention of the right to respect for private and family life under Article 8, the Guardian reports. Under the Family Migration Rules, which changed in July 2012, UK nationals must have available funds equivalent to a minimum gross income of £18,600 to bring over a non-EU spouse, rising to £22,400 if they have a child of non-British citizenship. Two of the appellants, Abdul Majid and Shabana Javed, are British and married to Pakistani nationals; another, MM, is a Lebanese refugee; and the fourth, AF (also MM’s nephew) is a refugee from the Democratic Republic of Congo. The appellant counsel described the threshold as “completely unachievable” for many. Judgment is expected within six months.
- Proposals to replace the Human Rights Act with a British Bill of Rights have been “put on ice”. Though it is claimed that the legislation is finished and “sitting on a desk inside No.10”, Downing Street is refusing to publish it, allegedly due to Gove’s decision to “defect to the Out camp” in the referendum. An unsurprised David Allen Green comments that the Human Rights Act is not likely to be repealed in this Parliament, saying that the hurdles to doing so still remain (such as the Good Friday Agreement), and suggests that the Conservatives may have begun to realise that its repeal and replacement “is not worth the time and effort”.
In the Courts
- Civek v Turkey – The Court held unanimously that the Turkish authorities had violated Article 2 (right to life) by failing to protect the life of a woman who had been seriously threatened by her husband, HC. Ms Civek had made continued complaints of harassment to the Turkish authorities yet they had failed to take measures reasonably available to them to avoid her murder. Ms Civek had been subjected to sustained abuse from her husband culminating in 2010 in his remand in custody and a court order to refrain from being violent towards his wife. After his release in November 2010 (under judicial supervision), Ms Civek had complained that he was threatening to kill her. Again in December 2010 Ms Civek lodged a complaint, which led to HC being charged with threatening to kill her – but the State Prosecutor took no practical action, even though the husband could have been legitimately arrested for non-compliance with court orders. The Court found the authorities should have acted to protect Ms Civek’s life, and through their failure, her husband had been able to murder her on a street in January 2011, stabbing her 22 times.
- Société de Conception de Presse et d’Édition v. France – An order by the French domestic courts that an unauthorised photograph published by Choc magazine be blacked out was not a violation of freedom of expression under article 10. Choc magazine, published by the applicant company, had published photos of a young man, IH, taken whilst he was in captivity, wearing shackles, and showing visible signs of torture. He had later died from his injuries. The Court found that the photograph had never been intended for public viewing, permission had not been obtained from IH’s relatives, and that its publication showed a grave disregard for the grief of his family. It was therefore a serious interference with the private life of IH’s relatives. The Paris Court of Appeal had ordered that the photograph in question be blacked out in all magazines put on sale, rather than withdrawn completely. The European Court of Human Rights found that such a restriction on freedom of expression was proportionate, as the text of the report remained unchanged, and that in the circumstances the penalty imposed would not have a “chilling effect” on freedom of expression.
- Nasr and Ghali v Italy – This case concerned the CIA abduction and extraordinary rendition (the transfer of a person without legal process to another country for interrogation where there is a risk they might be tortured) with the cooperation of the Italian authorities, of the Egyptian imam Abu Omar (also known as Osama Nasr), who had been granted political asylum in Italy. He was held in secret in Egypt for several months in cramped and unhygienic cells where he was periodically interrogated and tortured. An investigation into Mr Nasr’s disappearance had been carried out by the national authorities but this had been ineffective due to the executive’s invocation of ‘State secrecy’ – which resulted in those responsible being granted impunity.
- The Court found in respect of Mr Nasr violations of Article 3 prohibition on torture (in previous cases the Court had already held that the treatment of detainees under the CIA’s extraordinary rendition programme amounted to torture), Article 5 (right to liberty and security) – due to the unlawful nature of the detention; Article 8 (right to respect for private and family life) and Article 13 (right to effective remedy) read together with Articles 3, 5 and 8. The Court also found in respect of Ms Ghali, Mr Nasr’s wife, violations of Article 3 (because she had suffered significant non-pecuniary damage as a result of her husband’s sudden disappearance), Article 8 and Article 13.
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26 February 2016 by Matthew Hill
An NHS Trust v CS (By Her Litigation Friend, the Official Solicitor) ] EWCOP Read the judgement.
The Court of Protection does the work of Solomon on a daily basis. Matters of life and death are brought before it, and with them come a mass of conflicting rights, overlapping statutes, and an array of case law from which arguments can be drawn. At the end of it, an individual judge must make a stark decision, which may have the most profound impact on another human being. One of those charged with making such decisions once divided the advocates who appeared before him into those who complicate and those who clarify. There is no surprise as to which he preferred.
Baker J’s judgment in this disturbing case will boost the cause of the clarifiers. CS has two children and, before Christmas, became pregnant by her then partner. It was a relationship that, it is alleged, became “characterised by domestic violence” (a phrase that it somehow more chilling for its judicial restraint). CS told friends and families that, in the circumstances, she intended to terminate the pregnancy. Days later she was, allegedly, assaulted by her partner. She was hospitalised with serious head injuries comprising fractures, intracranial bleeding and brain damage. She has post-traumatic amnesia and her behaviour has become extremely unsettled, marked by agitation, restlessness and disruptive acts. Her prognosis is uncertain.
The Trust treating her brought an application to the Court, seeking an urgent order to allow them to perform a surgical abortion. The urgency arose because the window of time during which such a procedure could be performed was closing. With the urgency came a plethora of issues. CS’s condition may improve in the future, but by then it could be too late to terminate the pregnancy. In those circumstances, what weight should be given to the evidence from CS family and friends of her prior intention to have a termination? How should that be balanced against her current wishes, insofar as they can be ascertained? What significance should be attached to the fact that she had previously had a termination? And what, if any, attention should be paid to the views of her partner, now arrested and remanded in custody?
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25 February 2016 by Guest Contributor
Ben Smith, Legal Research Intern at the Equal Rights Trust
I expected competition for jobs in human rights to be tough but it was only when I graduated that I realised quite how difficult it was to break into the sector. I had gained a lot academically – I had an undergraduate degree in Law from Oxford University and a Master of Laws from University College London – but this didn’t seem to be enough when applying for jobs with human rights NGOs. I tried to stay positive and kept putting in applications but the feedback I got again and again was that while I was well qualified, there was always someone with more experience. Though I had lots of pro bono experience and legal experience in other sectors, the organisations I was applying to wanted direct experience in the field.
The only options I saw to gain that experience were internships, which were generally unpaid. It was frustrating to devote so much time academically to human rights only to find that a career is out of reach unless you have the financial means to work in unpaid lengthy internships. Like many other graduates, and particularly as I didn’t have roots in London, this wasn’t an option for me.
In August 2015 I saw the position advertised for Legal Research Interns with the Equal Rights Trust which offered a needs-based grant for applicants. The Trust is an international organisation which focuses on advancing equality and non-discrimination worldwide – an area I had looked at extensively during my studies and a keen interest of mine. I jumped at the chance to apply as the internship seemed like the perfect next step – and one that was accessible to me. I was offered the post in August, after which I submitted an application for the grant (which was accepted) and I started working with the Trust in September.
What sets this internship apart from others is that the tasks I’ve carried out have been incredibly varied and I’ve had the opportunity to work across the full range of work the Trust does, including advocacy, litigation and fundraising. I’ve lost track of the number of countries I’ve been involved with, I think it must be over 20 already, which is testament to the breadth of work the Trust does. It has been an incredible chance to broaden my horizons and expand my knowledge of equality and non-discrimination law.
I’ve had the opportunity to take on genuine responsibility in my position and develop important skills – you’re not just making tea and doing photocopying, but carrying out work that has a real impact. Recently, I researched and prepared a first draft of the Trust’s submissions in a case we are intervening in before the European Court of Human Rights. This was a huge task and it was a privilege to be trusted with it.
I think the level of responsibility we are given is due in part to the Trust’s paid internship scheme – a lot of NGOs are keen to take on interns who will work for free but who aren’t always best placed to take on a high level of responsibility or work on technical outputs. This can also be problematic as interns will often leave before their placement ends. In this sense I think the scheme is a “win-win” for the Trust and for the interns.
It will be sad to leave the Trust in spring as my internship comes to an end, but I know that if my legal career takes me away from human rights work, I will be able to put the skills I’ve developed as an intern to good use.
On 23 February the Trust launched a campaign – the Bob Hepple Memorial Fund – to help others like me who would be struggling to enter the sector were it not for paid internship and fellowship placements. Through the campaign the Trust has set itself a minimum target to raise of £1,000 which could support a needs based grant for an intern for approximately six weeks. If it meets its desired target of £10,000 it could support four interns and a fellow for three months.
I’ve learned an enormous amount as an intern and it has given me a real career boost, so I hope the campaign is not only a great success but that it will be replicated elsewhere in the sector to help more people pursue their ambition.
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