Articles 8, 10 and the ‘Super Injunction’ [updated x2]

1 February 2010 by

There was significant media attention over the weekend on the imposing and then lifting of a so-called ‘super injunction’ against press coverage of Chelsea footballer and England Captain John Terry’s alleged extra-marital affair. Mr Justice Tugendhat reversed a previous decision to impose the injunction (read judgment). Super injunctions not only block publication of the details of the case, but also any mention of the case existing at all. This morning’s Guardian asks whether this decision could be the beginning of the end for the super injunction:

Article 8 of the European Convention on Human Rights enshrines the right to privacy. But Index on Censorship is concerned that this right is increasingly used as a pre-emptive alternative to a defamation suit. In some ways, a superinjunction works better than a libel suit: after all, in libel cases, the allegations must be published first, and there is a chance (though only slight) that the litigant may actually lose.

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Supreme Court refers question of public interest in disclosure about mobile phone masts to ECJ

29 January 2010 by

Office of Communications v Information Commissioner [2010] UKSC 3

SC (Lord Hope (Deputy President), Lord Saville, Lady Hale, Lord Mance, Lord Collins) January 27 2010

Article 4(2) of the European Directive 2003/4 imposes a duty to disclose environmental information. The Environmental Regulations were passed in 2004 to give effect to the Directive, the duty being contained in Regulation 12.. There are a number of different exceptions to this duty, one of which is the public safety exception in reg 12(5)(a), and another the intellectual property rights exception in reg. 12(5)(c).

The information commissioner had ordered that the respondent (OFCOM) disclose information as to the precise location of mobile telephone base stations in the United Kingdom. The Information Tribunal had dismissed OFCOM’s appeal against the order, finding that although disclosure fell within the scope of the two exceptions under 12(5)(a) and (c), both were outweighed by the public interest in disclosure.

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Supreme Court rules rules that terror suspects assets cannot be frozen

27 January 2010 by

Her Majesty’s Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants); Her Majesty’s Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant); R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty’s Treasury (Appellant) [2010] UKSC 2

The Supreme Court has ruled that the Treasury cannot make orders to freeze the assets of terror suspects. The Terrorism (UN Measures) Order 2006 and the 2006 al-Qaeda and Taliban (UN Measures) Order were made under section 1 of the 1946 UN Act in order to implement resolutions of the UN Security Council, and were found by the Court to be unlawful.

As a preliminary point, the Court considered that a press report identifying M would engage article 8. In a separate judgment, the Court repealed all of the suspects’ anonymity orders, finding that these would not breach the suspects’ Article 8 rights to privacy.

Read press summary and full judgment relating to the asset freezing

Read press summary and full judgment relating to the anonymity orders

Teacher subject to disciplinary proceedings entitled to legal representation if his name is to be added to children protection register

23 January 2010 by

Governers of X School v R(on the Application of G) (Claimant) & Y City Council and Secretary of State for Children and Schools and Families (Interveners) & Equality and Human Rights Commission (Interested Party)

[2010] EWCA Civ 1;CA (Civ Div) (Laws LJ, Wilson LJ, Goldring J) January 20 2010

Where an individual had a civil right being determined in one set of proceedings for the purposes of Article 6, he would be able to claim protection under that provision in any other proceeding involving him if the outcome of that other would have a substantial effect on the determination of that civil right.

SUMMARY

The claimant had been employed as a teaching assistant at the appellant school. As a result of alleged incident of a sexual nature with a pupil, disciplinary procedures were instigated against him which culminated in the hearing before the committee. He was told that in these hearings employees could be represented by a colleague or a trade union representative but that any other form of legal representation would not be permitted.

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Jewish Free School policy on admissions in breach of race relations law

18 January 2010 by

R (on the application of E) (Respondent) v (1) JFS Governing Body (2) Admissions Panel of JFS (Appellants) : R (on the application of E) (Respondent) v (1) JFS Governing Body (2) Admissions Panel of JFS (Appellants) & ORS (United Synagogue) – [2009] UKSC 15 – Read judgmentPress summary

A school for Orthodox Jews which tested applicants for matrilineal descent was acting on the basis of ethnic origin, meaning that their admission requirement constituted direct racial discrimination.

The Court of Appeal has decided there that the appellant school’s admissions policy had directly racially discriminated against the son of the respondent father, contrary to the Race Relations Act 1976 s.1 (RRA).

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The Grainger case – a double edged sword for climate change campaigners?

18 January 2010 by

Grainger PLC v T Nicholson

Employment Appeal Tribunal (Burton J), November 3 2009 – Read judgment

The Employment Appeal Tribunal has found that belief in climate change is capable of constituting a “philosophical belief” within the meaning of the Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”).

The decision of 3 November 2009 also provides important guidance for what constitutes a “philosophical belief” under the 2003 Regulations, as well as raising a number of questions regarding the status of ‘beliefs’ in relation to ‘scientific evidence’, a matter which, the EAT’s findings do not entirely resolve.


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Court of Appeal rules on foreign nationals’ right to stay in UK for medical treatment

15 January 2010 by

KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1354 (Sedley LJ, Longmore LJ, Aikens LJ):
Only in very exceptional cases would withdrawal of medical treatment as a result of ordering the return of a failed asylum seeker constitute a breach of Article 3 ECHR. The case of an 29 year old man with mental illness and no family support in the country of return was not sufficiently exceptional.

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Court of Appeal rules on entitlement of foreign nationals to treatment for HIV

10 January 2010 by

JA (Ivory Coast) and ES (Tanzania) v Secretary of State for  the Home Department [2009] EWCA Civ 1353 (CA (Civ Div) (Sedley LJ, Longmore LJ, Aikens LJ)
In these two cases, heard together, the Court of Appeal provided clarification of the circumstances in which Art. 8 of the European Convention of Human Rights entitles foreign nationals’ to remain in the UK in order to receive medical treatment.

Admin Court rules on immigration court appeals

13 December 2009 by

R (on the application of Rex Cart) (2) U (3) XC (Claimants) v (1) Upper Tribunal (2) SIAC (Defendants) & (1) Secretary of State for Justice (2) Secretary of State for the Home Department (3) Public Law Project (Interested Parties) & (1) Child Maintenance and Enforcement Commission (2) Wendy Cart (Interveners) DC (Laws LJ, Owen J) 1 December 2009 [2009] EWHC 3052 (QB)

The supervisory jurisdiction of the High Court, exercisable by way of judicial review, extended to decisions of the Special Immigration Appeals Commission that were not amenable to any form of appeal. It did not, however, extend to decisions of the Upper Tribunal, unless it had acted beyond its statutory remit.

Read the judgment or click the “continue reading” link below to see a comprehensive summary and case comment by Rosalind English.

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Buglife: An important decision on Protective Costs Orders

30 November 2009 by

R (Buglife) v. Thurrock Thames Gateway Development Corporation [2008] EWHC 475 (Admin), [2008] EWCA Civ 1209, [2009] EWCA Civ 29

By Angus McCullough, One Crown Office Row

Protective Costs Orders (PCOs) are a relatively new feature on the legal landscape. The Buglife case is of general significance in relation to the procedure and approach to be adopted in relation to PCOs, and associated costs caps, as set out in the Court of Appeal’s judgment of 4 November 2008, which is reported at [2009] Env LR 18 (Buglife (1)). Separately and more specifically, the substantive claim for judicial review is also notable, as an example of the Court’s approach to a planning decision to allow a development on a site of environmental significance. This was also considered by the Court of Appeal: Buglife (2).

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Court rules on injunctions against animal rights protesters

19 November 2009 by

(1)Novartis Pharmaceuticals Uk Ltd (2) Andrew Roy Grantham v (1) Stop Huntingdon Aminal Cruelty (SHAC) by its representative Max Gastone (2) Greg Avery (3) Natasha Avery (4) Heather James [2009] EWHC 2716 (QBD)

Sweeney J 30 October 2009

An injunction against animal rights protesters could not be altered to increase the restriction on their protest without a disproportionate interference with the protesters’ rights under Articles 10 and 11 of the Convention.

Click below for summary and comment by Rosalind English or here to read the full judgment

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Article 3 and the minimum standard of social support

18 November 2009 by

R (on the application of EW) v Secretary of State for the Home Department, [2009] EWHC 2957 (Admin) 18 November 2009 – read judgment

Summary and comment by Rosalind English

Article 3 does not dictate a minimum standard of social support for those in need, nor does it require the state to provide a home or minimum level of financial assistance to all within its care.

SUMMARY

W was an Eritrean national who had entered the UK illegally. Fingerprint evidence traced his irregular entry into the EC to Italy following which the UK authorities sought from the Italian authorities an undertaking to accept responsibility for W’s application for asylum under the terms of the Dublin II Regulation. Italy did not respond and therefore it was deemed to have accepted responsibility for the asylum claim by default.

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Court sets out producers’ obligations under waste electronic equipment directive

18 September 2009 by

R (on the application of REPIC Ltd) v (1) Secretary of State for Business Enterprise and Regulatory Reform (2) Environment Agency (Defendants) & (1) Scottish Environment Protection Agency (2) Electrolink Recylcing Ltd and (3) WERC Ltd T/A City Compliance Scheme (Interested Parties) [2009] EWHC 2015 (Admin)

QBD (Admin) (Wyn Williams J) 31 July 2009

The Regulations adopted pursuant to the Waste Electrical and Electronic Equipment Directive of 2002 were not breached when an operator of a producer compliance scheme collected more waste electrical and electronic equipment from private households than was necessary to meet its obligations.

The claimant, an electronics producer operating a compliance scheme under the WEEE Regulations applied for a declaration, by way of judicial review, that the defendants had failed to discharge their duties to enforce the Regulations when they refused to take action against the over-collection by the Second and Third Interested Parties.

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