12 March 2014 by Adam Wagner
I will be giving evidence tomorrow at around 3pm to the Public Bill Committee scrutinising the Criminal Justice and Courts Bill.
I will be giving evidence along with Nicola Mackintosh, Nick Armstrong and Michael Fordham QC, on the potential impact of the Bill on Judicial Review. The session should be available to view online live here. The full programme, which should be very interesting, is listed here.
For more on the Bill, see this recent post by JUSTICE’s Angela Patrick and this one by David Hart QC.
Continue reading →
12 March 2014 by Jessica Elliott
Elizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) – Read judgment / court summary
The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.
Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.
Continue reading →
10 March 2014 by Dominic Ruck Keene
EM (Eritrea) and Others v Secretary of State for the Home Department [2014] UKSC 12 – read judgment
The Supreme Court overturned the Court of Appeal’s decision on the correct test for when an asylum seeker or refugee resists their return to another EU country (here Italy) in which they first sought or were granted asylum. The parties before the court all agreed that the test applied by the Court of Appeal, namely a requirement for a systemic deficiencies in the listed country’s asylum procedures and reception conditions was incorrect.
The Supreme Court agreed and held that even when the Dublin II Regulation was engaged, the correct test was that laid down in Soering v United Kingdom (1989) 11 EHRR 439 – the removal of a person from a member state of the Council of Europe to another country was contrary to the ECHR “where substantial grounds have been shown for believing that the person concerned… faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to article 3 of the Convention].”
Continue reading →
7 March 2014 by Rosalind English
DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) – read judgment
The police have a duty to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. There had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so called “black cab rapist” amounting to a breach of the of the victims’ rights under Article 3 of the ECHR.
The claimants were among the victims of the so called “black cab rapist” (W), who over a six year period between 2002 and 2008 had committed more than 100 drug and alcohol assisted rapes and sexual assaults on women whom he had been carrying in his cab. Both DSD and NVB complained to the police, who commenced investigations, but failed to bring W to justice until 2009. Under the common law the police do not owe a duty of care in negligence in relation to the investigation of crime: See Hill v Chief Constable of West Yorkshire [1989] AC 53 per Lord Keith at pp. 63A-64A and per Lord Templeman at p. 65C-E; Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495; and Smith v Chief Constable of Sussex [2009] 1 AC 225.
Continue reading →
5 March 2014 by David Hart KC
THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. THE UNITED KINGDOM, ECtHR, 4 March 2014 – read judgment
An apparently dry dispute about business rates on one of the Mormons’ temples in Preston (see pic) has reached Strasbourg and raises interesting issues about indirect discrimination on religious grounds. The underlying question was whether the temple was a place of “public religious worship” and therefore exempt from rates.
There are over 12 million Mormons in the world, with 180,000 in the United Kingdom and Ireland. Their organisation is important for this application. Local congregations are called wards, and are presided over by a local bishop. Each ward meets in a local chapel. Five to 15 wards constitutes a “stake”. In each stake one of the larger chapels is designated as a stake centre, where meetings from members of all the wards in the stake can take place.
Preston is one of two temples in the UK. Mormons regard these temples as the holiest places on earth – top of the religious hierarchy. But the question was – is worship there “public”?
Continue reading →
3 March 2014 by David Hart KC
Coventry v. Lawrence [2014] UKSC 13, 26 February 2014, read judgment
The law of private nuisance is the way of balancing the rights of neighours, the right to be noisy or smelly, and to be free of noise or smells. Hitherto it is has been explicitly a private law remedy, and has slightly odd rules. But it has been struggling with public interests for some years; are they irrelevant, or can they carry the day for claimant or defendant in a private nuisance claim?
Fortunately, enough of the big issues bedevilling this area of the law came before the Supreme Court in one fell swoop. And they have led to an important re-balancing of the rules. In particular, public interest is relevant, but not at the first stage of deciding whether someone has a claim, but later – can they get an injunction to stop the noise or should they be confined to damages?
And all this arose in the context of some speedway, stock car, banger and motocross racing in an otherwise fairly rural bit of Suffolk.
Continue reading →
2 March 2014 by
R(Gul) v Secretary of State for Justice [2014] EWHC 373 (Admin) – read judgment
Mr Gul had been imprisoned for a period, on 24 February 2011, for disseminating terrorist publications. When he was released on 6 July 2012, this was under licence, as is common following the release of dangerous prisoners. Mr Gul challenged some of the conditions of his licence by judicial review. The court rejected his challenge.
The purposes of releasing offenders from prison on licence, allowing them liberty under conditions to be supervised by a probation officer, are clear enough – protecting the public, preventing reoffending, and securing the successful reintegration of the prisoner into the community, as set out in Section 250 (8) Criminal Justice Act 2003.
Continue reading →
26 February 2014 by Rosalind English
SG and others, R (on the application of) v Secretary of State for Work and Pensions, 21 February 2014 [2014] EWCA Civ 156 – read judgment
The Court of Appeal has rejected on all grounds a claim that the cap on housing benefit amounted to unlawful discrimination against women.
The appellants were single mothers who claimed that the regulations capping housing benefit discriminated against women generally, and particularly those who were victims of domestic violence. The Divisional Court had dismissed their application for an annulment of the Benefit Cap (Housing Benefit) Regulations 2012 on the basis that the regulations were in breach of Article 14 of the ECHR read with Article 8, and the same Article read with the right to peaceful enjoyment of possessions under Article 1 Protocol 1. The court below had also rejected their submission that the regulations infringed the UN Convention on the Rights of the Child, or that they were unlawful on grounds of irrationality. In essence, the Divisional Court upheld the Secretary of State’s arguments that the aim of the benefit cap was primarily to bring about a change in culture by giving people some incentive to work, thereby reducing what the Government believes is the debilitating effect of long term dependency on benefits. It also accepted the government’s contention that the cap struck a fairer balance between the interests of taxpaying working households and those on benefits. Any interference with family life and any discriminatory impact of the benefit cap on women generally (and female victims of domestic violence who flee from their homes in particular) was therefore said to be justified and lawful.
The appellants’ appeal against that ruling was dismissed.
Continue reading →
25 February 2014 by David Hart KC
Brown v. HM Coroner for Norfolk [2014] EWHC 187 (Admin) – read judgment
This is the sad tale of a young woman aged 31 dying in mysterious circumstances where the inquest went off entirely on the wrong footing. Joanne Foreman was not a diabetic but lived with a young boy who was. It was suspected that on the night before she died she had drunk heavily and then injected herself with insulin. The inquest proceeded on this basis. Nobody told the expert that the paramedics had taken a blood glucose from Joanne, which was entirely normal. Once this was known, it was obvious that the court would quash the findings at inquest and order a new inquest.
But the case contains powerful guidance from the Chief Coroner (sitting as a judge on this decision) about how to conduct the pre-inquest review.
Continue reading →
25 February 2014 by Celia Rooney
Welcome back to the UK Human Rights Roundup, your regular high water mark of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, the detention of David Miranda (pictured) was declared lawful by the High Court, while, in other news, the Court of Appeal has thrown in its lot to the saga of the whole-life tariff and the Supreme Court considered the thorny issue of religion and law.
Continue reading →
24 February 2014 by Guest Contributor
As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
For law students who slept their way through their first latin 101 lessons in ‘ultra vires’, public law and judicial review may have seemed very detached from the realities of everyday life; less relevant to the man on the Clapham Omnibus than the rigours of a good criminal defence or protection from eviction offered by landlord and tenant law.
The Lord Chancellor may be hoping that the public and Parliamentarians are similarly unfocused.
Continue reading →
23 February 2014 by David Hart KC
R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 read judgment
Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.
L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.
So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.
But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.
Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.
Continue reading →
19 February 2014 by Rosalind English
David Miranda v Secretary of State for the Home Department, the Commissioner of Police for the Metropolis and three interveners [2014] EWHC 255 (Admin) – read judgment
The High Court has rejected all the arguments supporting David Miranda’s application for judicial review of his detention at Heathrow Airport in August last year. In a highly readable and pungent judgment, Laws LJ has some robust things to say about the vaunting of journalistic interests over public security in the guise of Article 10, and the ‘mission creep’ of requirements demanded by the courts for state action to be considered “proportionate”.
This is the long-awaited conclusion to the substantive hearing since judicial review proceedings were initiated seven months ago; see our posts on previous stages of this saga here, here and here. It will be remembered that Mr Miranda was detained and questioned by police officers under the Terrorism Act 2000, and various items in his possession, notably encrypted storage devices, were taken from him. Miranda claims that all this was done without any legal authority.
The claim, which was supported by numerous civil liberties interveners, raised three questions:
- Did paragraph 2(1) of Schedule 7 to the Terrorism Act 2000 empower the police to stop and question the claimant for the purpose of determining whether he appeared to be “concerned in the commission, preparation or instigation of acts of terrorism”?
- Even if it did, was the use of the power proportionate to the legitimate aim?
- Is the paragraph 2(1) power repugnant to the right of freedom of expression guaranteed by Article 10 of the ECHR?
Laws LJ, giving judgment for the three judge panel, answered the first two in the affirmative, and said a firm “no” to last.
Factual background
The claimant is a Brazilian citizen and the spouse of Glenn Greenwald, a journalist who at the material time was working for the Guardian newspaper. Some months after an initial contact made in late 2012 Mr Greenwald met Edward Snowden, who provided him with encrypted data which had been stolen from the National Security Agency of the United States. The data included UK intelligence material. Some of it formed the basis of articles in the Guardian on 6 and 7 June 2013 and on later dates. On 12 August 2013 the claimant travelled from Rio de Janeiro to Berlin in order to meet the other journalist involved, Laura Poitras. He was carrying encrypted material derived from the data obtained by Mr Snowden and he was travelling to collect computer drives containing further such material to assist in the journalistic activity of Mr Greenwald. He was stopped at 0805 on Sunday 18 August 2013 at Heathrow on his way back to Rio de Janeiro.
A series of Port Circulation Sheets (PCS) were circulated to counter-terrorism police alerting them that the claimant was “likely to be involved in espionage activity which has the potential to act against the interests of UK national security”, and requesting them to establish the nature of his activity, assess the risk that he posed to UK national security and to mitigate as appropriate. A PCS essentially triggers the powers of the police under certain circumstances to carry out a ports stop against a named individual.
The claimant was detained for approximately 9 hours. According to a statement from the Intelligence, Security and Resilience in the Cabinet Office, the encrypted data contained in the external hard drive taken from the claimant contained approximately 58,000 highly classified UK intelligence documents. Many were classified SECRET or TOP SECRET.
Judicial review proceedings started shortly afterwards, and in November 2013, after various interlocutory hearings, the substantive hearing came before the High Court.
The Court’s Decision: Improper purpose
The Schedule 7 purpose – determining whether [the subject] appears to be a person who “has been concerned in the commission, preparation or instigation of acts of terrorism” – must be the purpose for which the officers execute the stop if it is to be lawful. It doesn’t make the stop unlawful if there is a subsidiary purpose – “killing two birds with one stone” – but the permitted purpose must be the “true and dominant purpose behind the act” (R v Southwark Crown Court ex p. Bowles [1998] AC 641, [1998] UKHL 16].
The fact that the police officers in question had not been given sufficient information about the intelligence did not mean that they had not executed their instructions in good faith:
Given the context – the possible apprehension of terrorism – Parliament must have enacted Schedule 7 in the knowledge that there might be very good reasons why the examining officers … should not be privy to the whole story. (para 21)
The purpose of the stop thus disclosed was to “ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination”. Moreover, the proper exercise of the Schedule 7 power did not require that the examining officer have any grounds whatever for suspecting that a person was connected with terrorism within Act’s definition. The Schedule 7 purpose was not to determine whether the subject is, but only whether he “appears to be” a terrorist. The Schedule 7 power was created by Parliament in order to provide “a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2)”.
Given the facts stated in the last PCS and the National Security Justification, Laws LJ for the Court concluded that the purpose of the stop – to ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination – “fell properly within Schedule 7 of the 2000 Act on the latter’s true construction.”
Proportionality
The classic three step proportionality test – was the objective important enough to justify limiting a right, was the measure connected to that objective, and was the measure no more intrusive than other necessary – has been elaborated over the past decade, most recently by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) 3 WLR 170, [2013] UKSC 39. This adds a fourth question, which is to ask whether, even if the measure in question is not particularly intrusive, did it nevertheless fail to strike a fair balance has been struck between the rights of the individual and the interests of the community? Laws LJ pondered on the implications of such a requirement, and found it not to his liking:
It appears to require the court, in a case where the impugned measure passes muster on points (i) – (iii), to decide whether the measure, though it has a justified purpose and is no more intrusive than necessary, is nevertheless offensive because it fails to strike the right balance between private right and public interest; and the court is the judge of where the balance should lie. I think there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government. If it is properly within the judicial sphere, it must be on the footing that there is a plain case.
Free Speech and the Protection of Journalistic Expression
Laws LJ commenced his consideration of this element of the claim with a brisk dismissal of all the Strasbourg case law on the matter. The idea of free speech has received sufficient emphasis in the law of England –
I do not therefore think it necessary, on this part of the case, to place any reliance on the jurisprudence of the European Court of Human Rights; the common law is a sufficient arena for the debate.
In any event, much of the law on free speech in journalism was of no relevance here since it concerned protection of sources. No such issue arose here. The source was no secret: “Mr Snowden stole the material, and the claimant (however indirectly) got it from Mr Snowden.” (para 48).
Furthermore, the mistaken idea seems to have taken hold that the essential justification of free expression as a fundamental value is the promotion or betterment of democratic government. Freedom of speech may indeed be “the lifeblood of democracy”; but that is not the same thing.
The perception of free expression as a servant of democracy, however, would tend to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government … This would fuel what is anyway one of exuberant democracy’s weaknesses, namely the intolerance of minorities. Everyone, even democracy’s enemy, must surely be allowed his say provided he advocates no crime nor violates the rights of others. The reason is that free thought, which is a condition of every man’s flourishing, needs free expression; and this is every person’s birthright, in whatever polity he has to live. There are of course undemocratic societies in which free speech is an idle hope. But free speech is not a creature of democracy; if anything, the converse. The critics of democracy may keep democracy on its toes. (para 45)
Turning to the matter in hand, Laws LJ observed that this privileging of political speech over other forms of expression has a distorting effect on the proportionality debate. The claimant, in other words, was seeking a heightened protection for himself, or at least the material he was carrying) on account of his association with the journalist Mr Greenwald. There was no basis for the court to extend such protection:
the application of requirement (iv) in the toll of proportionality – “whether… a fair balance has been struck between the rights of the individual and the interests of the community” – needs at least to be modified. The contrast is not between private right and public interest. The journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience. If there is a balance to be struck, it is between two aspects of the public interest.
The sting of the claimant’s challenge was that the defendants did not believe that the claimant’s possession of the material presented any real danger to national security or risk of loss of life. Whilst acknowledging the limits of evidence not cross-examined, Laws LJ could find “no perceptible foundation” for such a suggestion. The truth of it was that the claimant’s broader argument on proportionality – that the use of Schedule 7 was in any event unjustified – did not in fact depend on the categorisation of the GCHQ documents as journalistic material. The claimant was trying to make out a case that he had been assisting in the conduct of responsible journalism, and the law’s duty to protect that activity meant that interference with it by the summary and unsupervised process of Schedule 7 was disproportionate and unlawful whether or not any intercepted documents strictly fell within the statutory definition of “journalistic material”:
… given the substantial, often insuperable, difficulty a journalist faces in seeking to determine what classified material may be safely published and what may not (paragraph 58 above), the notion of “responsible journalism” throws little light on the proportionality issue.
The claimant’s essential argument rested on three propositions:
- Journalists, “like judges”, have a role in a democratic State to scrutinise action by government.
- The function of the free press is inhibited by an insistence that anything (in the security field) which the journalist seeks to publish must be stifled because it may be part of the “jigsaw” from which a knowing terrorist may draw harmful inferences.
- There is a balance to be struck, again in the security field, between the responsibility of government and the responsibility of journalists.
But nobody had satisfied the court that there was any constitutional basis for any of these propositions, which would confer on the journalists’ profession a constitutional status which it does not possess:
They suggest … that journalists share with government the responsibility of measuring what is required by way of withholding publication for the protection of national security. Journalists have no such constitutional responsibility. They have, of course, a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish. But that is not an adequate safeguard for lives and security, because of the “jigsaw” quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament. The constitutional responsibility for the protection of national security lies with elected government: see, amongst much other authority, Binyam Mohamed[2011] QB 218per Lord Neuberger MR at paragraph 131.
He concluded, therefore, that the Schedule 7 stop was a proportionate measure in the circumstances. Its objective was not only legitimate, but “very pressing”.
In a press freedom case, the fourth requirement in the catalogue of proportionality involves as I have said the striking of a balance between two aspects of the public interest: press freedom itself on one hand, and on the other whatever is sought to justify the interference: here national security. On the facts of this case, the balance is plainly in favour of the latter. (para 73)
For similar reasons the Court rejected the claimant’s and intervenors’ related submission, that the Schedule 7 power is over-broad or arbitrary, and for that reason not “prescribed by law” under Article 10(2).
Sign up to free human rights updates by email, Facebook, Twitter or RSS
Related posts
18 February 2014 by David Hart KC
Commission v. UK, judgment of CJEU, 13 February 2014 – read judgment – UPDATED
Litigation costs are troublesome, but they are particularly difficult in environmental cases where the claimant is not necessarily pursuing his private interests. This case is the result of a long-running and successful campaign by NGOs to persuade the EU Commission to investigate UK environmental legal costs. The main finding may not bother the UK too much, because wisely it saw this one coming and changed costs rules in environmental public law cases. A subsidiary ruling about cross-undertakings has also been more recently included in a rule change.
All of this comes from Article 9 of the Aarhus Convention (to which the EU has subscribed) which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”.
Continue reading →
18 February 2014 by Richard Mumford
Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust, Phillips J with assessors, 5 February 2014 – read judgment
Upholding the rights of individuals who lack the mental capacity to conduct proceedings can be a minefield for the unwary or even, as shown by this case, the wary. The point at issue before the court was whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer.
Continue reading →
Recent comments