16 January 2013 by Guest Contributor
YILDIRIM v. TURKEY – 3111/10 – HEJUD [2012] ECHR 2074 – Read judgment
In the case of Yildrim v Turkey the European Court of Human Rights decided that a Court order blocking access to “Google Sites” in Turkey was a violation of Article 10. The measure was not “prescribed by law” because it was not reasonably foreseeable or in accordance with the rule of law. The judgment is available only in French.
He owned and ran a website hosted by the Google Sites service, on which he published his academic work and his opinions on various matters. On 23 June 2009 the Denizli Criminal Court of First Instance ordered the blocking of an Internet site whose owner had been accused of insulting the memory of Atatürk. The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner.
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15 January 2013 by David Hart KC
R (Clientearth) v Secretary of State for Environment, Food & Rural Affairs, forthcoming Supreme Court appeal against Court of Appeal 30 May 2012 read CA judgment Updated
Back in the late spring, it seemed as if ClientEarth’s claim against Defra in respect of air pollution had run into the buffers. It had been refused by the Court of Appeal, in reasons given extempore: see my earlier post before Bailii received the judgment. Not many such refused cases make it to the Supreme Court, but this one has.
The Supreme Court lets appeals within its doors or denies them in an inscrutable way – it says yea, or, more commonly, nay, with no reasons. But the Justices thought that there was more to this case than had met the eye of the Court of Appeal. Anyway, hearing on March 7 2013, as the excellent Supreme Court website tells us. I am also told that the Court granted ClientEarth a Protective Costs Order.
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15 January 2013 by Rosalind English
Eweida and Others v. the United Kingdom – read judgment
The Strasbourg Court has today come up with something of a mixed message in relation to religion at work. They have voted that there is a right to manifest individual faith by wearing religious adornments but not by objecting to practices that are protected by anti-discrimination legislation.
All four applicants are practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality. Further details of all these cases can be found in our posts here, here, and here (as well as in the “related posts” section below).
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15 January 2013 by Adam Wagner
Section 5 of the Public Order Act 1986, which outlaws the use of “threatening, abusive or insulting words or behaviour” will be amended to remove the word ‘insulting’. The amendment is the result of a successful, high-profile campaign which asked “Do we really need the police and the courts to deal with insults?“
That campaign, supported by major organisations and many MPs, prompted a successful House of Lords vote to amend the wording in December. That vote was supported by the Crown Prosecution Service, with Director Keir Starmer writing that his organisation was “unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as ‘abusive’ as well as ‘insulting“. The Home Secretary has now, rather grudgingly, said she will not oppose amendment.
So, we will be able to insult in public. But thanks to section 127 the Communications Act 2003, it is still up to the police and the courts to decide whether we have sent grossly offensive messages on Facebook, Twitter and in practically any other communications medium.
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13 January 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
This week the government’s proposals for judicial review reform came under scrutiny, as did the effect of legal aid cuts on immigration law practice and foreign national prisoners. It was not only the government on the defensive this week, but The Daily Telegraph has also been criticised for its coverage of a an employment case. Reform has been on the agenda beyond the sphere of judicial review, with The Economist taking a look at the recent criminalisation of squatting and proposed changes to the probation service.
In the news
Judicial Review reform
Adam Wagner will be collating Judicial Review consultation responses, please email him your or your organisation’s response if you would like it to be included in the roundup. Don’t forget, the consultation closes on 24 January.
by Daniel Isenberg
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13 January 2013 by David Hart KC
Decision of the European Ombudsman on complaint against the European Commission, 17 December 2012 – Read decision
The UK secured what Tony Blair described as an opt-out in respect of the EU Charter on Fundamental Rights as part of the negotiations leading up to the Lisbon Treaty – which contains the Charter. Rosalind English has summarised here what the Charter involves, and whether the “opt-out” really changes anything. This recent EU Ombudsman’s decision concerns the attempts of an NGO to extract certain EU Commission documents in the run-up to the Lisbon Treaty. The EU Commission was taking its usual head-in-the-sand approach to disclosure (see various posts listed below), hence the complaint to the Ombudsman. And, as we shall see, the Ombudsman gave the Commission both barrels in this highly critical decision.
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13 January 2013 by Rosalind English
Bristol City Council v C and others [2012] EWHC 3748 (Fam) – read judgment
This was an application for a reporting restriction order arising out of care proceedings conducted before the Bristol Family Proceedings Court. The proceedings themselves were relatively straightforward but, in the course of the hearing, information came to light which gave rise to concerns of an “unusual nature”, which alerted the interest of the press.
Background
After family court proceedings decided that child A was at risk of violence from her father, an interim care order was implemented and A was moved to foster carers. However some time afterwards the local authority received information from the police suggesting that someone living at the address of A’s foster carers had had access to child pornography. A also told social workers that another member of the foster household (also respondent to this action) had grabbed her around the throat. As a consequence police and social services visited the foster carers, informed them of the concerns about pornography, removed all computers from the house and moved A to another foster home. On the following day the male foster carer was found dead, having apparently committed suicide.
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11 January 2013 by Adam Wagner
On 29 December 2012 The Daily Telegraph published an article under the headline Christians have no right to refuse to work on Sundays.
This has now been shown to be nonsense. The judgment in Mba v London Borough of Merton was released yesterday and is analysed here. Mr Justice Langstaff made entirely clear that the judgment only applies to the individual worker who brought the appeal, not more generally. Here is some inaccurate reporting from David Barrett (remember this by him?), Telegraph Home Affairs correspondent:
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10 January 2013 by Guest Contributor
Mba v London Borough Of Merton (Religion or Belief Discrimination) [2012] UKEAT 0332/12/1312 (13 December 2012) – Read judgment
The Employment Appeal Tribunal (EAT) has dismissed the appeal of a Christian care worker against the decision of an Employment Tribunal that she was not constructively dismissed as a result of her refusal to work on Sundays.
Mr Justice Langstaff, President of the EAT, made it clear in his judgment however that anyone hoping either for ‘a ringing endorsement of an individual’s right not to be required to work on a Sunday’ or an employer’s right to require it would be disappointed, as ‘no such broad general issue arises’. [3]
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10 January 2013 by David Hart KC
One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.
The US Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.
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9 January 2013 by Guest Contributor
This is a short version of an article on the subject to be published by John Edwards, Professor Emeritus of Human Rights at London University
There have been three major conferences over the past two years (at Interlaken, Izmir, and Brighton) to discuss the functioning of the European Court of Human Rights and possibilities for its development and reform. Each provided an opportunity to scrutinise such important components of the Court’s work as the subsidiarity principle, the (quite separate) principle of the margin of appreciation, the prioritisation of Convention articles, admissibility criteria, the idea of “European consensus”, “just satisfaction”, and “significant disadvantage” as well as broader topics such as the future role of the Court and whether a court of individual petition with case law as its only corpus of wisdom is the best way of promoting and protecting human rights in Europe. On each occasion debate was hijacked by the singular topic of reducing the backlog of cases. Wherever one of these components had a bearing on the Court’s overload, discussion was virtually confined to how it could be amended to cut the backlog and bring applications and judgements into balance.
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9 January 2013 by Rosalind English
Schwartz and another v Insogna and another, United States Court of Appeals for the Second Circuit – read judgment
Never doubt the authority of the law, particularly in the US, where a six year battle triggered by a middle finger gesture continues to rage in the New York courts.
In May 2006, Mr. Swartz was a passenger in a car in a rural part of upstate New York when he spotted a police car that was using a radar speed-tracking device. The driver, a Vietnam veteran and retired airline pilot, acted on instinct to show his displeasure: he extended his right arm outside the passenger’s side window, and then further extended his middle finger over the car’s roof. As the New York Times reports
The reaction was swift. The officer followed the car; words were exchanged; backups were called; and Mr. Swartz was arrested on a charge of disorderly conduct.
Mr Schwartz maintained that his gesture was provoked by his anger that the local police were spending their time running a speed trap instead of patrolling and solving crimes.
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9 January 2013 by Shaheen Rahman
R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – Read judgment
In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan. The Claimant’s father was killed during such an attack in March 2011.
The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law. The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]
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8 January 2013 by Adam Wagner
With apologies for the boring title, here are three quick things.
First, the Government’s consultation on Judicial Review changes ends on 24 January 2013, so you have just over two weeks to respond. As with some previous consultations, I will be collating responses on the blog so please feel free to email them to me. My most recent thoughts are here: Quicker, costlier and less appealing: plans for Judicial Review reform revealed
Secondly, the European Court of Human Rights is to rule next Tuesday 15 January on four key cases involving discrimination and religious rights. The full background is here: Religious freedom in UK to be considered by Strasbourg Court and you can watch the entire hearing here. We will, of course, be covering the judgment in full.
Thirdly, in November 1 Crown Office Row hosted a mock trial on the topic of public inquiries and inquests at which a number of 1COR barristers, including me, spoke. The podcast of the event is now online and you find it here and also below the page break. You can also download the handout, which includes a number of very useful skeleton arguments for the mock trial, here.
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7 January 2013 by Richard Mumford
J Council v GU and others [2012] EWHC 3531 (COP) – Read judgment
On 11 December 2012 Mr Justice Mostyn handed down judgment in J Council v GU and others [2012] EWHC 3531 (COP) approving arrangements aimed at safeguarding the Article 8 (private and family life) rights of a 57 year old man detained under the Mental Capacity Act 2005 in a private care home. At seven pages, the judgment was admirably concise.
The detained man concerned, referred to in the judgment as George, suffered from a number of separable mental disorders: childhood autism, obsessive-compulsive disorder, dissocial personality disorder, mixed anxiety disorder and paedophilia. He lacked the capacity to litigate or to make decisions concerning his care needs (including where he lives), medication he should take, contact he should have with others and about his finances, property and affairs. It was likely that this incapacity would continue, possibly for the remainder of his life. He lived in a private care home and it was agree by all, including the Official Solicitor (who represented George in the proceedings) that it was in his best interests for him to remain living there indefinitely. Furthermore, he should be subjected to restrictions in relation to his contact with others and correspondence in order to minimise the risks that he presented.
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