26 July 2011 by Matthew Flinn
Binyam Mohamed
The Terms of Reference and the Protocol for the Government’s impending Detainee Inquiry have recently been published. The Protocol makes clear that the Inquiry is to be granted unfettered access to a broad range of information, but the limitations on the publication of that information have prompted criticism from human rights groups.
On 6th July 2010, Prime Minister David Cameron announced to the House of Commons that an independent inquiry would be held into whether or not the UK Government was implicated in or aware of the improper treatment of detainees held by other countries in the aftermath of the September 11th terrorist attacks. On the same day, he wrote to Sir Peter Gibson inviting him to lead the inquiry, and appointed as his fellow panel members Dame Janet Paraskeva and Peter Riddell. Philippa Whipple QC of 1 Crown Office Row has been appointed as counsel to the inquiry – she is not the writer of this post.
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26 July 2011 by Adam Wagner
What is a “tort”? No, not a rich multilayered cake, but rather an “actionable wrong”. Tort law is also the means through which five Kenyans alleging they were mistreated in British detention camps in the 1950s may get damages. How do I know this? Because Mr Justice McCombe told me in a helpful summary of his judgment which was released on Thursday.
It is heartening but unfortunately rare to see a judge explaining an important ruling of to the public. Save for supreme court rulings, which are always accompanied by an excellent press summary, the public is left alone to puzzle out the meaning of judgments. Journalists do their best to explain, but often get it wrong either by accident or design.
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25 July 2011 by Rosalind English
A A O v Entry Clearance Officer [2011] EWCA Civ 840 – read judgment
1 Crown Office Row’s Sarabjit Singh appeared for the Respondent in this case. He is not the writer of this post.
“No”, seems to be the Court of Appeal’s answer to the question posed by the heading above; indeed Rix LJ goes as far to say that “the provision of such money can be as much an insulation against family life as evidence of it.”
In this case the appellant, a 69 year old Somalian national who had been living in Kenya, appealed against the respondent entry clearance officer’s refusal to grant her leave to enter the UK to join her daughter. The daughter, who sponsored this claim, had been granted British citizenship. She had seven children and was living on benefits, out of which she sent a monthly contribution to her mother. The appellant, who was said to be in poor health and dependent on a neighbour for daily care, had applied for indefinite leave to join her daughter as a relative and financial dependant of a person settled in the UK under the Immigration Rules r.317. The entry clearance officer refused her request, having found that she did not satisfy r.317(iva) in respect of her ability to be maintained without recourse to public funds and that any interference with her rights under Article 8 of the European Convention on Human Rights was justified and proportionate for the purpose of maintaining effective immigration control.
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25 July 2011 by Melina Padron
The Lord Chief Justice
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here. You can also find our table of human rights cases here.
by Melinda Padron
In the news last week…
In a short speech to the Lord Mayor’s dinner for HM Judges, Lord Judge LCJ referred to 2011 as a difficult year for the judiciary amid attacks on individual judges and the judiciary as a whole for doing what is appropriate for judges to do: applying the law as they find it to be. The LCJ, however, reminded all that in a moment of crisis, such as the phone hacking scandal, the judiciary has a key role to play because of its recognised independence and impartiality.
The Government has accepted all recommendations made by Lady Justice Hallett, the coroner in the 7/7 inquests (see our previous post for the full recommendations), all of which are aimed at improving the work of the security services and medical emergency services. Whilst within the subject of terrorism, Simon Hetherington wrote a post for Halsbury’s Law Exchange regarding emergency extension of custody limits of suspects in terrorism investigations from 14 to 28 days. In such procedure there is a balancing exercise to be made between the competing interests of an individual’s liberty and national security. Hetherington then considers what happens to this balancing exercise when Parliament is not involved in scrutinising a given case and concludes that the balance tilts in favour of security. See also Adam Wagner’s review of recent developments in terrorism law.
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21 July 2011 by Rosalind English
Jakobski v Poland (December 2010) – read judgment
Mahayana Buddhists have profound moral objections to eating meat. According to the rules, a Mahayana Buddhist should avoid eating meat to cultivate compassion for all living beings.
Even peaceable Buddhists commit crimes sometimes and go to prison. Meat free diets however are not available in all European penitentiaries. Should committed vegetarians be made to forfeit their beliefs once their offences against society have committed them to penal servitude?
In Poland, apparently, the answer is yes. The refusal to provide a Buddhist prisoner with a meat-free diet was not unlawful under local law which provided only that prisoners should receive meals taking into consideration their employment, age and where possible religious and cultural beliefs. That let-out clause allowed the Polish government to issue an ordinance requiring the provision of special meals for diabetics and a “light diet”. Both contain meat products.
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21 July 2011 by Guest Contributor
Review: Family Courts without a Lawyer: A Handbook for Litigants in Person – Lucy Reed – Buy book here
Family Courts without a Lawyer : A Handbook for Litigants in Person is written by Lucy Reed, barrister and author of the Pink Tape blog. A title that may, on its first reading, strike fear into the heart of family lawyers and, hopefully, give a sense of relief to many litigants in person. However, this is the book that all family practitioners wish they had written and which litigants in person may consider buying, its aim being to make any interaction with the Family Courts, for the uninitiated, as stress free as possible.
The book is described as providing “as practical tool to help you in court and a reference to help you understand what happens in family proceedings, whether or not you have a lawyer”. It does not suggest going to court as a litigant in person is to be preferred over attending at court with a lawyer, nor does it suggest the opposite; it allows the reader freedom of choice.
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20 July 2011 by David Hart KC
Barkshire & others v. R. Read Judgment
The remaining Ratcliffe on Soar climate change prosecution reached the Court of Appeal on Tuesday, and led to appeals being allowed today. We have covered this trial, here and here, most recently on the collapse of a second prosecution after the revelation of activities by an undercover police officer.
The Court of Appeal was very concerned by the lack of disclosure given by the prosecution concerning the undercover police officer, and it was this which ultimately led to the convictions being quashed. But the judgment is not all good news for climate change protesters, as we shall see.
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20 July 2011 by Adam Wagner
Updated |The UK public only really worries about terrorism after an attack or a credible threat of one. Certainly, at the moment, it would take a serious threat to knock the Shakespearean drama of phone-hacking off the front pages. Nevertheless, the government and others continue their efforts to contain the threat, and it is perhaps a sign of the strategy’s success that we are not unduly worried by it.
Part of that strategy is that under terrorism law the secretary of state must appoint a person to review the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2000, and in particular proscription of organisations, stop and search powers, arrest and detention powers and prosecutions for terrorist offences. To that end, the new Independent Reviewer of Terrorism Legislation, David Anderson QC, has released his first annual report.
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20 July 2011 by Alasdair Henderson
In the midst of all the coverage of the phone hacking scandal and the mounting woes of News Corporation an interesting piece of human rights news from the past week got lost: the announcement by the Equality and Human Rights Commission (“EHRC”) that it is applying to intervene in four cases before the European Court of Human Rights being brought by Christians who claim their Article 9 rights are not being sufficiently protected in UK law.
The applicants are Nadia Eweida, Shirley Chaplin, Lillian Ladele and Gary McFarlane, each of whom has lost claims of workplace discrimination on the grounds of religion and belief in the UK courts over the past couple of years (see our general comment pieces here and here). The EHRC has now said that in its view “Judges have interpreted the law too narrowly in religion or belief discrimination claims” and that “the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.”
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19 July 2011 by Rosalind English
Christopher Hutcheson (formerly known as KGM) v News Group Newspapers and others – read judgment
In these turbulent times for Rupert Murdoch (see our contempt post) it seems strange to see one of his newspapers being vindicated by the courts, but, for once, The Sun seems to be coming up smelling of roses.
These proceedings concerned Mr. Hutcheson’s application to restrain NGN from publishing certain information. In 1968 he married a lady with whom he had four children, who are now grown up. The marriage still subsists. In the meantime, from about 1976 he developed a relationship with another woman with whom, in 1979 and 1981 respectively, he had two children.
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19 July 2011 by Adam Wagner
Attorney General v Associated Newspapers Ltd & Anor [2011] EWHC 1894 (Admin) – Read judgment
The High Court has handed down fines of £15,000 each and to Associated Newspapers and News Group Newspapers (NGN), owners of The Daily Mail and The Sun, for contempt of court. The companies will also have to pay £28,117.23 to cover the Attorney General’s costs. This blog’s co-editor Angus McCullough QC appeared for the Attorney General in the case but is not the writer of this post.
The newspapers’ owners, particularly NGN, probably have other things on their minds at the moment. But the fines, which relate to contempt proceedings decided in March (read judgment / my post) represent something of a landmark, as they are the first relating to online publication. In this case, The Sun Online and Mail Online published pictures of Ryan Ward holding a gun whilst he was on trial for murder.
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19 July 2011 by Rosalind English
When the Welsh Assembly voted to ban the use of the electronic training collar, which works by emitting an electric stimulus when the dog goes near a forbidden object like a fence, the main opponents of the ban the Electronic Collar Manufacturers’ Association were quick to take judicial review proceedings against the Welsh lawmakers.
They alleged that the ban was in breach of Article 1 of the First Protocol to the European Convention on Human Rights (the right to enjoyment of possessions and property) and the prohibitions in Articles 34 and 56 of the Treaty on the Functioning of the European Union, which prohibit restrictions to free trade.
They were unsuccessful in their bid to disqualify the ban and we posted an analysis of the case and the issues it raised. Since this post has attracted over three thousand hits since its publication, we feel it only right to follow it up with this story of the first prosecution under the ban.
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18 July 2011 by Graeme Hall
In the week that saw the UK Human Rights Blog reach half a million hits, we welcome you back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here. You can also find our table of human rights cases here.
by Graeme Hall
In the news:
Phone-hacking
With the resignation of the Metropolitan Police Commissioner, Sir Paul Stephenson, and the arrest of the former Chief Executive of News International, Rebekah Brooks, the phone-hacking scandal revelations continue to snowball. Adam Wagner considers what role human rights may have played in the News of the World’s demise, here.
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17 July 2011 by Rosalind English
1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.
On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here. Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case. In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.
The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.
In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases.
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15 July 2011 by David Hart KC
U & Partners (East Anglia) Ltd, R (on the application of) v. The Broads Authority [2011] EWHC 1824 (Admin) 13 July 2011. Read judgment
I posted recently about a case, Buglife, which affects the rule that judicial review must be commenced “promptly and in any event not later than 3 months.” Buglife decided that, contrary to a previous Court of Appeal case, Finn-Kelcey, a court could not bowl out certain claims if they were commenced within those 3 months, even if not “promptly”. And the Broads case of this week reached the same conclusion. The key to these cases is that they involve challenging the application of a Euro-directive.
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