The Round up: statelessness, Romanian prisons, parental vaccine dispute and UN

23 September 2018 by

CHILDRENRIGHTSDECLARATIONThis week, two Scottish children are playing a key role in the development of the UN Day of General Discussion (Friday, Sept 28). They are the only children from the UK represented, working alongside children from across the world, including Moldova, Norway and India. See below for more details of this event.
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Who is reading your email…?

21 September 2018 by

European_Court_of_Human_Rights,_2010BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM

In an exhaustive and detailed judgment coming to over 200 pages, the ECtHR held that both the bulk electronic communications interception regime operated by the UK’s intelligence agencies under the Regulation of Investigatory Powers Act 2000 and its provisions for acquiring communications data from telecommunications operators violated Articles 8 and 10 of ECHR.

However, the ECtHR held that there was no violation of Article 8 through the UK’s receipt and use of similar information obtained from other countries.

The ECtHR’s judgment is as noteworthy for what it deemed to be incompatible with the ECHR as what it deemed to be incompatible. In contrast to the tenor of many of the headlines in the media about the judgment, it was not an unreserved endorsement of the criticisms that have been levelled at the intelligence services in light of the Snowden revelations. The ECtHR’s comments as to the proportionality and necessity of the bulk collection of electronic communications, as well as about the adequacy of the safeguards and oversight structures will be of some consolation to the government.

The real issue for the Government is whether the ‘checks and balances’ in the Investigatory Powers Act (which is not yet fully in force) will be sufficient to defeat the criticisms made by the ECtHR of the previous regime under RIPA; in particular over the selection criteria for material that would be seen by human eyes and whether there are sufficient ‘journalistic’ safeguards.

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ALBA Summer Conference 2018: A Review (Part 2)

18 September 2018 by

Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

alba

‘The relevance of unincorporated international law’. Speakers: John Larkin QC (Attorney General for Northern Ireland) and Caoilfhionn Gallagher QC

The relevance of unincorporated international law (John Larkin QC):

Mr Larkin suggested that the courts’ approach towards international law may be split into three parts:

  1. International law is determinative if it is incorporated.
  2. It ‘may have a bearing’ on the common law.
  3. It may be relevant to the application of Human Rights, via the Human Rights Act 1998.

The HRA 1998:

The orthodox view of unincorporated treaties is that they have no substantive effect. This approach was supported in SG & Ors [2015] UKSC 16, albeit by the ‘narrowest majority’. Lord Reed’s lead judgement held that courts ought to respect the considered opinion of democratically elected institutions, who are best placed to make judgements about proportionality. Miller [2017] UKSC 5 gave further weight to the traditional view that unincorporated human rights treaties have no effect.

However the matter is not entirely clear cut, especially where the HRA 1998 is concerned. In SG & Ors Lord Hughes suggested such treaties may be relevant in a number of situations, including those in which the court applies the ECHR (via the HRA 1998). Support for this view has also been given by Lady Hale and Lord Kerr in the Northern Ireland Human Rights Commission [2018] UKSC 27 case [328]. The Vienna Convention states at Article 31(3)(c) that account should be taken of “any relevant rules of international law applicable in relations between the parties”. It is clear, then, that even unincorporated international law still has relevance for human rights.

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“To the wisdom of the Court” — India decriminalises homosexuality

18 September 2018 by

Supreme_Court_of_India_-_Central_Wing.jpgIn a landmark judgment on 6 September 2018, the Supreme Court of India decriminalised homosexuality.

The decision in Navtej Johar v Union of India was the culmination of years of tireless campaigning by LGBT rights activists in India. This article seeks to provide an overview of the road to that led to this judgment, alongside some interesting themes emerging from the decision of the Supreme Court.

 

Background: The Indian Penal Code of 1860

There is a widely-held view that, prior to the colonisation of India, same-sex relationships were not frowned upon. The source of the prohibition on homosexuality is the Indian Penal Code, enacted in the 1860s by the government of the British Raj. It is thought that the ban enacted by the British represented an attempt to ‘civilise’ the Indian population through the imposition of Victorian standards of morality

The provision in question, section 377, simply states:

Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

 

The Indian Constitution

Following independence in 1947, the Constitution of India became effective in 1950. It created a system in which laws deemed to be incompatible with the Constitution could be struck down by the Supreme Court. In this sense, the Indian Constitution is similar to the US Constitution, and differs from the UK constitutional model.

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The Round Up: attempted murder, mass data collection, and what the Vote Leave judgement really said.

17 September 2018 by

Skripal

Credit: The Guardian

Conor Monighan brings us the latest updates in human rights law

In the News:

The CPS has said there is enough evidence to charge two Russian men with conspiracy to murder Sergei and Yulia Skripal.  Although the Skripals survived, another lady called Dawn Sturgess later died of exposure to Novichok.

The two men visited Salisbury last March, at the same time the nerve agent attack took place. It is believed the two men, Alexander Petrov and Ruslan Boshirov, are military intelligence officers for GRU, the Russian security service.  The CPS has not applied for their extradition because of Russia’s longstanding policy that it does not extradite its own nationals. A European Arrest Warrant has been obtained in case they travel to the EU.

In response, the two men have claimed they were merely tourists. In an appearance on Russia Today (RT), they said the purpose of their visit to Salisbury was to see its cathedral. Arguing that their presence was entirely innocent, the two men said they were following recommendations of friends. Petrov and Boshirov went on to say that, whilst they had wanted to see Stonehenge, they couldn’t because of “there was muddy slush everywhere”. The men insisted they were businessmen and that, whilst they might have been seen on the same street as the Skripals’ house, they did not know the ex-spy lived there. The Russian President, Vladimir Putin, has said they are “civilians” and that “there is nothing criminal about them”.
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ALBA Summer Conference 2018: A Review (Part 1)

13 September 2018 by

alba

Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

This year’s ALBA conference featured an impressive list of speakers and they did not disappoint. Delegates heard from a Supreme Court judge, an Attorney General, top silks, and some of the best legal academics working in public law.

The conference dedicated much of its time to public international law, a discipline which is often thought to have little relevance for most public lawyers. In fact, the conference showed that domestic public law is heavily intertwined with international law. This post summarises the key points from the conference, with a particular focus on human rights.
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Litigation Privilege: rationale and scope defined — Guy Mansfield QC

10 September 2018 by

0b65d491c5d653754e01e0f4905f59ec-bigThe Director of the SFO v ENRC [2018] EWCA Civ 2006 – read judgment 

Eurasian Natural Resources Corp, the defendant to the Serious Fraud Office’s application to enforce notices seeking to compel the production of documents, has had a chequered history in the last 10 years since it came to the London market (in January 2014 it delisted and went private). In December 2010, a whistleblower alerted the company by email to serious allegations of corruption, fraud and bribery within its group.

After substantial internal enquiries and investigations on the part of ENRC and professionals instructed by it, accompanied by correspondence and meetings between the SFO and lawyers instructed by ENRC, in February 2016 the SFO issued a Part 8 claim against ENRC. This sought a declaration that documents in for specific categories were not “information or… Any document which ENRC would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court” within the meaning of section 2 (9) of the Criminal Justice Act 1987. The SFO’s pleaded case was that neither litigation privilege nor legal professional privilege attached to the documents in the first place, not that any privilege had been waived.
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The Round-Up: A Landmark Ruling for Gay Rights, Misogyny as a Hate Crime, and a Human Right to Divorce?

10 September 2018 by

india

Image Credit: Guardian

NAVTEJ SINGH JOHAR & ORS VS. UNION OF INDIA, THR. SECRETARY, MINISTRY OF LAW AND JUSTICE: India’s supreme court has unanimously ruled that section 377 of the penal code, which criminalises consensual sex acts between same sex adults, is unconstitutional.

The judgment accordingly decriminalises gay sex, in a landmark ruling for gay rights. Chief Justice Dipak Misra said in his decision that “Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary.”

The 160-year-old law was imposed on India by the British empire as part of a package of laws against public vice. Thursday’s judgment follows 24 years of legal challenges: most recently, the Delhi high court ruled against section 377 in 2009, but was overturned by the supreme court in 2013.

The breakthrough for lawyers came in August 2017, when the supreme court held that there was a fundamental right to privacy. In an unprecedented move, five judges commented in that judgment that the 2013 section 377 decision was wrong.

Trinidad & Tobago’s high court will also rule this month on whether to decriminalise sex between men, and similar rulings on decriminalising gay sex are awaited in Kenya and Botswana.

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Bereaved mother entitled to widow allowance – Supreme Court

31 August 2018 by

Hero_Landscape_Supreme_Court_rule_unmarried_mother_widowed_parents_allowanceCredit_PA.jpgIn the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48- read judgment

An unmarried mother has won a landmark Supreme Court case which could allow cohabitees to claim Widowed Parent’s Allowance, a benefit previously only applicable to married parents.

Background

Widowed Parent’s Allowance (“WPA”) is a contributory non-means-tested, social security benefit payable to men and women with dependent children, who were widowed before March 2017. The widowed parent’s entitlement depends upon the contribution record of the deceased partner. Under the relevant law  (“s39A”) the widowed parent can only claim the allowance if he or she was married to or the civil partner of the deceased.

The issue before the court was whether this requirement was an unjustifiable discrimination against the survivor and/or the children on the basis of their marital or birth status, contrary to Article 14 of the Convention on Human Rights together with the right to respect for family life under Article 8, or the protection of property rights in Article 1 of the First Protocol ECHR.
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The Intricacies of Proportionality – Katherine Barnes

12 August 2018 by

CRBR (AR) v Chief Constable of Greater Manchester Police  [2018] UKSC 47 – read judgment

The Supreme Court has given important guidance on the correct approach of the appellate courts to assessing proportionality under the ECHR. The main issue before the court was whether an Enhanced Criminal Record Certificate (“ECRC”) issued in respect of the appellant, AR, under s.113B of the Police Act 1997 is compatible with Article 8 of the Convention on Human Rights.

Background

AR was a married man with children, of good character, and a qualified teacher, and worked for a time as a taxi driver. It had been alleged that, in the early hours of 4 November 2009, he raped a 17 year old woman, who was a passenger in his taxi. AR’s defence was that there had never been sexual contact with the alleged victim. In January 2011 he was acquitted of rape by the Crown Court.

AR subsequently applied for an ECRC in connection with an application for a job as a lecturer. The police duly issued the ECRC which contained details of the rape charge for which AR had been acquitted. A second ECRC which also contained this information was later issued in respect of an application by AR to work as a private hire driver.

Having exhausted the various internal appeal mechanisms available to him, AR issued a claim for judicial review. Amongst other matters he argued that the inclusion in the ECRC of information concerning the rape charge and acquittal was procedurally unfair because it had been disclosed without consulting him. It was also said that the disclosure amounted to a substantive breach of Article 8.
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New podcast on legal milestones to Brexit

9 August 2018 by

 

preparing_for_the_brexit_negotiations_tjeerd_royaards.jpgIn our ongoing reposts of Professor Catherine Barnard’s series 2903 CB, Catherine discusses her reaction to the publication of the government’s White Paper, the Cabinet resignations of David Davis and Boris Johnson, and the negotiating positions of the EU since the UK triggered Article 50 in March 2017.

Listen to Episode 41 of Law Pod UK Brexit – The White Paper, now available for free download from iTunes, Audioboom, or wherever you get your podcasts.

The Mau Mau litigation: fear is not a personal injury

7 August 2018 by

shoutKimathi & Ors v Foreign and Commonwealth Office [2018] EWHC 1305 (QB) – read judgment.

Stewart J has recently dismissed the first test case in this group litigation, in which over 40,000 Kenyans bring claims for damages against the UK Foreign & Commonwealth Office, alleging abuse during the Kenyan Emergency of the 1950s and early 1960s, in Kimathi & Others v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB). Jo Moore discusses this in her blog post of 6 August 2018.

Earlier this year however he considered, as a preliminary matter, whether fear, caused either by the tort of negligence or trespass, amounts to personal injury so that the Court has the discretionary power to exclude the 3-year limitation period which arises under section 11 of the 1980 Act. Stewart J concluded that “despite the comprehensive and innovative submissions of the Claimants” (para 37), which included arguments on human rights grounds, fear did not amount to a personal injury.
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Kenyan “Mau Mau” claim dismissed: Fair trial not possible because of half century delay

6 August 2018 by

article-0-0B84CC4D00000578-861_634x400Kimathi & Others v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB) read judgment 

Stewart J has dismissed the first test case in this group litigation, in which over 40,000 Kenyans bring claims for damages against the UK Foreign & Commonwealth Office, alleging abuse during the Kenyan Emergency of the 1950s and early 1960s.

The mammoth hearing lasted 223 days, and the judgment accordingly runs to nearly 500 paragraphs. The decision turns on whether the judge should allow the claim to be heard over 50 years after the primary deadline expired.

In personal injury claims, section 33 of the Limitation Act 1980 provides that in certain circumstances, a claim which would otherwise be out of time (“statute-barred”) can nevertheless be heard. The court has a discretion to disapply the usual three-year time limit where it is equitable. This involves balancing the prejudice to the defendant of facing a late claim against the prejudice the claimant will suffer if the claim is statute-barred.

In this test case, Stewart J determined that it would not be equitable to extend time in the claimant’s favour. The severe effects of the passage of time on the defendant’s ability to defend the claim was a crucial factor, particularly due to the depleted cogency of the evidence available, as were the lack of good reasons for the delay, and the very substantial length of the delay itself. This carefully reasoned judgment will provide detailed guidance for the trial of ‘stale’ claims.
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No need for court order for withdrawal of nutrition in case of PVS patients – Supreme Court

2 August 2018 by

persistent_vegetative_state1344818676044NHS Trust v Y (by his litigation friend, the Official Solicitor) and Others, Supreme Court 30 July 2018 – read judgment

The question for the Court was a simple but important one: whether the permission of a court was always required by law before doctors could withdraw feeding from a person in a persistent vegetative state.

Background

The patient at the heart of this case, known only as Y, had been an active man in his 50s before suffering a cardiac arrest which led to severe brain damage. He never regained consciousness and needed to be fed through a tube (known technically as “clinically assisted nutrition and hydration” or “CANH”) to stay alive.

Doctors had determined that Y was suffering from a “prolonged disorder of consciousness”known as “PDOC”.PDOC covers those who are in a persistent vegetative state and also those in a minimally conscious state, what we might informally call a coma.
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“Same roof” rule excluding compensation for abuse is unlawful – Court of Appeal

31 July 2018 by

w1200_h678_fcropJT v First Tier Tribunal [2018] EWCA Civ 1735 – read judgment

Between 1968 and 1975 the appellant JT was repeatedly assaulted and raped by her stepfather in her family home. Many years later, her assailant was prosecuted for those crimes and convicted on all counts in 2012. As a victim of violent sexual crime, JT applied for compensation under the Criminal Injuries Compensation Scheme. Her application was refused on the basis of the “same roof” rule, which stated that an award would not be made in respect of a criminal injury sustained before 1 October 1979

if, at the time of the incident giving rise to that injury, the applicant and the assailant were living together as members of the same family

This criterion may sound odd to anyone with a professional or even mild interest in crime stories, where the prime suspect is considered to be a member of the family of the victim, whether of rape, abuse, or even murder. But the thinking behind the rules  – and there has to be a bright line for eligibility – was that there should be a requirement that the victim and the assailant no longer live together. This would at least suffice to ensure that the rapist or abuser would not benefit from the award accruing to his victim, and, if possible, is brought to justice.
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