4 May 2012 by David Hart KC
Chandler v. Cape Plc, Court of Appeal, 25 April 2012, read judgment.
This may sound like a rather dreary topic, but the problem is vitally important for the proper reach of environmental and personal injury law. Some may have seen from my post on the Erika disaster the difficult issues which can arise when a multi–national (in that case, Total) does business through a number of corporate entities, particularly where they are domiciled in different countries. But the present case is a good example where liabilities are not confined to the party directly responsible for the injury or disaster. Good thing, too, for this claimant, who stood to gain nothing from his former employer, a company now dissolved, or indeed its insurers.
In the late 1950s and early 1960s Mr Chandler worked for a Cape company, Cape Products, loading bricks. Asbestos was also produced at his workplace, and dust from that part of the works was allowed to blow around the works. Mr Chandler recently contracted asbestosis, and wanted to claim for the admitted negligence of Cape Products. But Cape Products was no more, and there had been excluded from its employers liability insurance any cover for pneumoconiosis. So that led nowhere. Hence this claim against Cape Plc, its parent company, on the basis that Cape Plc had “assumed” responsibility for the health of its subsidiary’s employees.
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3 May 2012 by Leanne Buckley-Thomson
Transport for London (TfL) v Griffin & Ors [2012] EWHC 1105 (QB) – Read Judgment
Transport for London (TfL) have succeeded in their High Court application for an injunction restraining Addison Lee Taxis from encouraging drivers to use London bus lanes. Mr Justice Eder ruled that the injunction would not breach Addison Lee Chairman John Griffin’s free expression rights.
This case is about traffic regulation orders (TROs) made by TfL dealing with the use of designated bus lanes. TfL’s policy is that private hire vehicles (PHVs – or mini-cabs in ordinary parlance) can only enter bus lanes to pick up or set down whereas taxis can use them as a through-route. The adopted definition of “taxi” means only Hackney Carriages qualify (reg. 4 of the Traffic Signs Regulations and General Directions). Failure to comply with, or acting in contravention of, TROs is an offence under s8(1) of the Road Traffic Regulation Act 1984.
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3 May 2012 by Rosalind English
M.S. v United Kingdom, 3 May 2012 – read judgment
In a ruling revealing stark differences between the UK courts and the Strasbourg court’s approach to the threshold for Article 3 treatment, Strasbourg has ruled that the detention of a mentally ill man in police custody for more than three days breached his rights under that provision
The Court held in particular that the applicant’s prolonged detention without appropriate psychiatric treatment had diminished his human dignity, although there had been no intentional neglect on the part of the police.
The following details are taken from the Strasbourg Court’s press release:
The applicant was arrested in Birmingham in the early morning of 6 December 2004, after the police had been called to deal with him because, highly agitated, he was sitting in a car sounding its horn continuously. His detention at a police station was authorised under the 1983 Mental Health Act, which allows the detention of a person suffering from a mental disorder for up to 72 hours for the purpose of being examined by a doctor and receiving treatment. The police subsequently found the applicant’s aunt at his address, seriously injured by him.
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2 May 2012 by Karwan Eskerie
R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521 – Read judgment
Whether expert evidence relied upon by an asylum seeker amounted to “independent evidence” of torture was the key issue before the Court of Appeal in this case . The issue arose in the context of AM’s claim against the Home Office for wrongful imprisonment contrary to the UK Border Agency’s Enforcement Instructions and Guidance. The Guidance, which contains the policy of the Agency on detentions (amongst other things), says that where there is “independent evidence” that a person has been tortured, that person is suitable for detention only in “very exceptional circumstances”.
AM, an Angolan national, was detained pending removal following an unsuccessful appeal from the refusal of her asylum claim, the Asylum and Immigration Tribunal having found her to have “no credibility whatsoever” and rejected her evidence that she had been raped and tortured. She later launched a fresh asylum claim on the basis of new evidence, in the form of an expert report by a wound and scar specialist, Ms Kralj, which linked the various scars on her body to torture. The claim was refused again but AM won her appeal. The Tribunal this time found that she had been raped and tortured as she had claimed, causing the scars on her body.
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2 May 2012 by Adam Wagner
In law, time can be everything. Every lawyer will have experienced waking up in the middle of the night in a cold sweat at the realisation that a time limit has been missed. Courts often have the discretion to extend litigation time limits, such as under rule 3.1 of the Civil Procedure Rules, but simple mistakes by lawyers rarely generate sympathy from judges. Even scarier, judges sometimes do not even have the power to extend time at all, however unfair the circumstances. The idea is to encourage certainty and predictability in the legal system.
The lesson of principle is that lawyers should never take risks on time limits. The practical reality is that this is a very easy to say in retrospect. And so we reach the difficult case of Abu Qatada, in which 5 European Court of Human Rights judges are to decide next Wednesday 9 May whether an appeal by the preacher will be heard in full by the court’s Grand Chamber. Whoever you think was right, Abu Qatada’s lawyers or Home Secretary Theresa May, this controversy has demonstrated that rules designed to provide certainty can have exactly the opposite effect in practice.
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2 May 2012 by Shaheen Rahman
“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator Julia Donaldson, the latest high profile recruit to the campaign against planned library closures.
There have been a number of developments since we last blogged on this issue:
First, in R(Bailey And Others) V Brent London Borough Council & All Souls College (Interested Party) & Ehrc (Intervener) [2011] Ewca Civ 1586, The appellants failed to overturn the dismissal of their application for judicial review of a local authority’s decision to close half its public libraries. See previous post here. The Court of Appeal dismissed the appeal on every ground, noting that the local authority’s decision to reduce its expenditure on public services was primarily one for it to make as a democratically elected body. Given the scale of the spending reductions required the decision was not unlawful.
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1 May 2012 by Alasdair Henderson
R (Medihani) v. HM Coroner for Inner South District of Greater London [2012] EWHC 1104 (Admin) – Read judgment.
In what circumstances is a criminal trial not sufficient to discharge the State’s duties under Article 2, the right to life, towards a victim of murder? The High Court held last week in this tragic case that a Coroner unlawfully and unreasonably decided not to resume an inquest into the death of a teenage girl where her killer had been ruled unfit to plead at the Old Bailey and handed an indefinite hospital order.
The right to life, protected by Article 2 of the ECHR, has been the subject of several major cases over the past few years, both in the UK courts and in Strasbourg, relating to the extent of the State’s duty to investigate someone’s death. In particular, the courts have emphasised and extended bit by bit the need for a proper examination of the circumstances of a death which occurs whilst a person is in custody, in a mental health institution or otherwise within the State’s care or control.
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1 May 2012 by Rosalind English
A High Court judge has raised the prospect that national security implications may necessitate the closed material procedure (CMP) in a case being brought against the Foreign Office by the son of a drone strike victim, the Telegraph reports today.
Mitting J has made a “rare order” that a two-day High Court hearing must take place in which both sides tackle the issue of whether the full case could go ahead in public, or whether it would require a CMP.
Background
On 12 March legal proceedings were issued against the Secretary of State for Foreign and Commonwealth Affairs, on behalf of Noor Khan, whose father was killed last year in a drone strike on a Jirga – or council of elders – in North West Pakistan. The case is highly sensitive because it would involve the disclosure of information supplied by British intelligence agencies to the CIA on the whereabouts of alleged Pakistani militants.
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30 April 2012 by Isabel McArdle
The Foreign and Commonwealth Office has launched the Human Rights and Democracy- The 2011 Foreign & Commonwealth Office Report, which aims to provide “a comprehensive look at the human rights work of the Foreign & Commonwealth Office (FCO) around the world in 2011“. The report makes for essential reading for anyone with an interest in human rights at the global level.
The report contains a section devoted to the Arab Spring, which it describes as being “about citizens demanding their legitimate human rights and dignity” and having “no single cause“. The report also comments on the role of human rights protection in safeguarding Britain’s national security and promoting Britain’s prosperity.
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30 April 2012 by Wessen Jazrawi
Welcome back to the UK Human Rights Roundup, your weekly buffet 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.
In the news
A mixed bag this week: Theresa May remained in the news over Abu Qatada, a number of people blogged on the Brighton Declaration, and the issue of cameras and tweeting in court was high on the agenda. Closer to home, a team from 1 Crown Office Row is walking the London Legal Walk to raise funds for the London Legal Support Trust, the Free Representation Unit and the Bar Pro Bono Unit, so if you like the UKHRB, please sponsor them here.
by Wessen Jazrawi
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26 April 2012 by Matthew Flinn
Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – read judgment
1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.
Late last year I posted about the case of Mr Mahajna, a national of Israel (but of Palestinian origin), who appealed against a deportation order issued by the Home Secretary under section 3(5) of the Immigration Act 1971 on the basis that his presence in the United Kingdom was not conducive to public good. To recap:
- The Government has a list of “Unacceptable Behaviours” which forms the basis of its policy on excluding non-nationals under that provision. This includes actions expressing views which are likely to foster hatred and lead to inter-community violence in the UK (this policy was recent the focus of judicial consideration in the Court of Appeal in the case of R (Naik) v Secretary of State for the Home Department [2011] EWCA Civ 1546).
- The Home Secretary relied on five pieces of evidence which were said to fall within the scope of the list of unacceptable behaviours and justify her conclusion that Mr Mahajna’s presence was not conducive to the public good.
- The First-Tier Tribunal (FTT) examined those pieces of evidence. It concluded that the Home Secretary was entitled to conclude that they constituted examples of unacceptable behaviour and fell within the scope of the exclusion policy.
- Although the order to deport Mr Mahajna constituted an interference with his right to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR) because he was unable to carry out a number of public speaking engagements in the UK, the views of the Home Secretary as to what was in the public interest were entitled to significant weight in assessing whether or not that interference was proportionate.
- The FTT ultimately concluded that the interference was proportionate, and the deportation order was upheld.
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25 April 2012 by Rachit Buch
Royal Brompton and Harefield NHS Foundation Trust, R (on the application of) v Joint Committee of Primary Care Trusts & Anor [2012] EWCA Civ 472 – Read judgment.
Marina Wheeler of 1 Crown Office Row appeared for the successful Appellant in this case. She is not the author of this post
When is reorganisation of healthcare services unlawful? When can consultation, rather than a final decision, successfully be challenged? These were the questions dealt with by the Court of Appeal in relation to the reconfiguration of paediatric heart surgery services. The Bristol Royal Infirmary scandal had left these services in need of change; the Court of Appeal found that there was nothing unlawful in the consultation process resulting in the Royal Brompton failing to be chosen as one of the two specialist centres in London.
Following the failures in Bristol that were subject to a public inquiry in 1998, there have been a number of reports on paediatric heart surgical care. This is an extremely specialised area of medicine. The recent trend has been for such specialist areas (another example is major trauma care) to become concentrated in fewer hospitals: the principle being that when professionals come into contact with such work more regularly they become better at it; spreading such cases wide and thin results in poor outcomes.
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24 April 2012 by David Hart KC
In his thought-provoking Guardian post Climate change is a human rights issue – and that’s how we can solve it, Olivier De Schutter, UN Special Rapporteur on the right to food, makes a case for human rights playing a radical new part in our response to climate change.
His argument involves a number of propositions:
(i) global climate talks have reached an impasse;
- yes, indeed, and from today’s perspective, there is no obvious way through that impasse;
(ii) carbon emissions cannot possibly be stalled or reversed until our politicians recognise that continued economic growth is inconsistent with a long-term climate change strategy;
- many would agree that we can spend a bit of time deck-chair re-arranging or limiting increases in emissions, but the time will come when the world economies have to stop growing;
(iii) if that direction is not going to come from our politicians, then
those political processes are clearly not fit for purpose.
Does this mean that democracy has failed, and must be sacrificed for authoritarian solutions? The solution may in fact be the polar opposite. A system where failing governance procedures are forced to think long-term does not necessarily require anti-democratic “climate tzars”. Instead, this revolution can be hyper-democratic and guided by human rights.
Climate change represents an enormous threat to a whole host of human rights: the right to food, the right to water and sanitation, the right to development. There is therefore huge scope for human rights courts and non-judicial human rights bodies to treat climate change as the immediate threat to human rights that it is. Such bodies could therefore take government policy to task when it is too short-sighted, too unambitious, or too narrowly focused on its own constituents at the expense of those elsewhere. Fossil fuel mining, deforestation, the disturbance of carbon sinks, and the degradation of the oceans are developments that can be blocked on human rights grounds.
Whoa, slow down!
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24 April 2012 by Rosalind English
London Christian Radio Ltd and Anor v Radio Advertising Clearance Centre (RACC) and Secretary of State for Culture – read judgment
The High Court has upheld the refusal of the broadcasting regulator to clear an advertisement for transmission on the grounds that it offended the prohibition on political advertising.
This restriction, said Silber J, was a necessary one for the purposes of Article 10(2) of the European Convention. The purpose of the ban on political advertising was to protect the public from the potential mischief of partial political advertising, and the views of the advertiser, as to whether an advertisement was political, were irrelevant.
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23 April 2012 by Karwan Eskerie
R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) – Read judgment
The detention of a mentally ill person in an Immigration Removal Centre (IRC) amounted to inhuman and degrading treatment and false imprisonment, and was irrational, the High Court has ruled.
Mr Justice Singh heard a judicial review application by a Nigerian National against decisions to continue to detain him under the UK Borders Act 2007 and the conditions of that detention. From August 2009, HA, an overstaying visitor and asylum seeker, was detained at various IRCs following his release from prison for a drug-related offence which triggered the automatic deportation provisions of the 2007 Act. His behaviour during detention became increasingly disturbed and strange. In January 2010, he was seen by a psychiatrist who recommended HA’s transfer to a mental hospital for assessment and treatment.
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Chandler v. Cape Plc, Court of Appeal, 25 April 2012, read judgment.
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