20 December 2010 by Rosalind English
R (on the application of Edwards and another) (Appellant) v Environment Agency & others(Respondents) [2010] UKSC 57 – Read judgment
The development of the principles of access to justice in environmental cases moves on apace.
This case arose out of a failed attempt to seek judicial review of the Environment Agency’s decision to issue a permit for the operation of a cement works. The application was made under the Environmental Impact Assessment Directive 85/337/EC and the Intergrated Pollution Prevention and control Directive 96/61/EC, both of which incorporate Article 9 of the Aarhus Convention, which requires that costs for environmental proceedings should not be prohibitively expensive.
Continue reading →
Like this:
Like Loading...
20 December 2010 by Adam Wagner
Updated | Following the US Senate’s vote to repeal the ban on gay soldiers serving in the US military, it is interesting to compare the situation in the British Army, where gay soldiers have been allowed to serve since 2000.
The UK government was in fact forced to change its policy following a series of court rulings, as the US government might have been if the “don’t ask, don’t tell” policy had made it to the Supreme Court, which was looking inevitable before the Senate vote.
Continue reading →
Like this:
Like Loading...
19 December 2010 by Adam Wagner
The long-standing ban on homosexuals serving in the United States military has been struck down by the US Senate. Now the repeal needs to be confirmed by President Obama, who is a long-standing opponent of the ban.
The Senate voted 65 to 31 to approve a repeal of the Clinton-era policy which sought to diminish the ban by not asking soldiers about their sexual orientation, but also requiring them to keep it a secret during their service. It was argued that this policy ultimately led to discrimination which was found to be unconstitutional.
Continue reading →
Like this:
Like Loading...
17 December 2010 by Adam Wagner
Chester v Secretary of State for Justice & Anor [2010] EWCA Civ 1439 (17 December 2010) – Read judgment
The Court of Appeal has rejected a claim by a man convicted of raping and murdering a seven-year-old girl that the court should grant him the right to vote. Meanwhile, following the judgment the government has announced that it plans to allow all prisoners less than four years to vote.
Mr Chester’s case is interesting from a constitutional perspective, although the decision is not too surprising, as I will explain. But it does highlight the complex and sometimes unsatisfactory manner in which human rights are protected in the UK.
Continue reading →
Like this:
Like Loading...
17 December 2010 by Catriona Murdoch
Secretary of State for the Home Department v DD (Afghanistan) [2010] EWCA Civ 1407 (10 December 2010) – Read judgment
It is a sometimes controversial aspect of immigration law that asylum seekers facing a real risk of persecution will nevertheless be denied the protection of the Refugee Convention, through the application of Article 1F of that Convention. One of the bases for exclusion from protection is Article 1F(c), which applies where a person “has been guilty of acts contrary to the principles of the United Nations”. How does a court decide such cases?
The Court of Appeal has reversed the decision of the Asylum and Immigration Tribunal (AIT) in a case involving an Afghani asylum seeker. The AIT had ruled that Article 1F did not apply, and so DD was entitled to refugee status. The AIT’s conclusion was reached despite DD admitting a history of involvement with organisations engaged in violent activities against the Afghan Goverment and UN-mandated forces: Jamiat-e-Islami, the Taliban, and Hizb-e-Islami. The Home Secretary’s appeal was allowed and the case was remitted to the AIT for a limited reconsideration.
Continue reading →
Like this:
Like Loading...
16 December 2010 by Rosalind English
Ofulue v United Kingdom, Application no. 52512/09 – read judgment
The Strasbourg Court has confirmed that the inadmissibility of a “without prejudice” letter neither interferes with an applicant’s fair trial rights under Article 6 nor does it prejudice their rights to enjoyment of property under Article 1 Protocol 1 where the production of such a letter might have proved their title in proceedings challenging adverse possession.
The applicant was the registered owner of a property in London which became subject to adverse possession. In the dispute over whether or not her title had been extinguished she sought permission to produce a “without prejudice” letter from the tenants which had been written some years before making an offer on the house.
Continue reading →
Like this:
Like Loading...
16 December 2010 by Adam Wagner
CASE OF A, B AND C v. IRELAND (Application no. 25579/05) – Read judgment / press release
The Grand Chamber of European Court of Human Rights has ruled unanimously that abortion must be more accessible in Ireland for women whose lives are at risk. It rejected applications that abortion must be more widely available in other circumstances.
The ruling does not represent a significant departure from the current state of Irish law – in that it does not require the state to legalise abortion more than it technically already has done – but the probable changes in the law may result in a general softening towards abortion in general, as, in theory at least, it will be much easier for women in life threatening situations to obtain an abortion. Up until now, the law has made it practically impossible to do so.
Moreover, the recognition that abortion falls under article 8 (the right to private and family life) may also lead in future to more wide-ranging judgments, along the lines of Roe v Wade in the United States.
Continue reading →
Like this:
Like Loading...
16 December 2010 by Rosalind English
O’Donoghue and Others v. the United Kingdom(application no. 34848/07):
The government’s system for preventing sham marriages as an entry ploy for immigrants breached the right to marry and was discriminatory – read judgment.
By the time this case was lodged the Certificate of Approval Scheme had been much diluted by a series of amendments, but even so the Court found itself to be “gravely concerned” with the policy. This, along with the surprisingly lenient approach to the applicants’ failure to exhaust local remedies, suggests that the Court was anxious to address what it sees as endemic problems in the UK’s border control policy. If states want to use impediments to marriage as an entry deterrent, it says, then they must face being rapped with the Article 12 stick.
Continue reading →
Like this:
Like Loading...
15 December 2010 by Adam Wagner
Principal Reporter (Respondent) v K (Appellant) and others (Scotland) [2010] UKSC 56 – Read judgment / press summary
The Supreme Court has ruled that Scottish law, which previously did not give unmarried fathers the right to take part in a hearing relating to a child with whom they have established family ties, is incompatible with human rights law.
The statutory provision which defines the categories of people who have a right to take part in the hearings must be read to include anyone who has established family life with the child. The Human Rights Act empowers courts to “read” legislation in such a way as to give effect to the European Convention on Human Rights.
Continue reading →
Like this:
Like Loading...
15 December 2010 by Caroline Cross
PF and EF v UK (Application No. 28326/09) – Read judgment
The European Court of Human Rights has dismissed an application brought against the police in Northern Ireland by a mother and her daughter who argued the police had failed to take sufficient action to protect them from loyalist riots on their route to primary school.
The court held that the police must be afforded a degree of discretion in taking operational decisions, and that in this case the police took all “reasonable steps” to protect the applicants.
Continue reading →
Like this:
Like Loading...
14 December 2010 by Adam Wagner
Julian Assange, the founder and head of Wikileaks, has succeeded in an initial challenge to last week’s refusal to grant bail in his extradition case. And, in an appropriate nod to the internet age, the judge granted two people the right to tweet from the court.
The tweeters (definition: users of Twitter, a social website which allows people to post 140 character messages to people who chose to follow them) are Alexi Mostrous, a Times special correspondent, and Heather Brook, a writer. Mostrous tweeted at 14:30:
judge just gave me explicit permission to tweet proceedings “if it’s quiet and doesn’t disturb anything”.
#wikileaks
Continue reading →
Like this:
Like Loading...
14 December 2010 by Adam Wagner
You may have noticed that we have started to provide a bit more detail in the “Latest news” and “Case law” sections on the right sidebar.
This is so we can provide quicker news updates, and can notify readers of cases before we have had a chance to post on them in more detail. You can access the full list (RSS – for those who know what that means) of news updates here, or case law here.
The recent cases are:
Continue reading →
Like this:
Like Loading...
14 December 2010 by Maria Roche
R v Khan [2010] EWCA Crim 2880 – Read judgment
The Court of Appeal has increased the sentences of two human traffickers from 3 to 4 years and upheld the 3 year sentence of a third trafficker (despite her mental health problems) for systematic and well-planned exploitation of trafficked restaurant workers.
The offenders, Shahnawaz Ali Khan, Raza Ali Khan and their mother Perveen Khan, were family restaurateurs in Harrogate. Over a period of four years they recruited nine men from the Middle East and the Indian subcontinent to work in the restaurant. All the workers entered the country legally on non-EEA work permits, after the offenders made assurances of good pay and working conditions to both the workers and the Home Office.
Continue reading →
Like this:
Like Loading...
13 December 2010 by Adam Wagner
Terry Jones, an American pastor who threatened to burn Korans on the 9th anniversary of the 9/11 attacks, may be banned from visiting the UK by the home secretary.
Jones, an otherwise unknown local pastor in Gainsville, Florida, cause worldwide controversy earlier this year when he proposed an “International Burn a Koran Day”. He has not as yet carried out his threat.
It is well known that free speech protections mean that we have to protect the rights of those we disagree with. A recent High Court case involving an Indian preacher shows that the protection probably does not extend to non-UK residents such as Jones, but it may to his supporters.
Continue reading →
Like this:
Like Loading...
13 December 2010 by Rosalind English
The “sovereignty clause” included in the European Bill to shield UK legislative supremacy is not only ineffective but could positively threaten the very principle by inviting speculation and litigation, say experts. This is the thrust of the EU Scrutiny Committee’s report on the European Bill, published on 6 December.
The report is an exemplar of clarity and even-handedness in this controversial field, and here is the bottom line. The debate over whether EU has primacy over national law, or vice versa, is a matter of political ideology only, and not a very complex one at that. It is not a philosophical, scholastic, juridical or even legal question, despite the amount of ink spilt over it during the four decades or so since accession under the European Communities Act 1972. As the Committee received evidence on the question from a wide range of experts in the field, one thing became clear; that instead of thinking out the question afresh, the temptation for everyone involved in this subject is to adumbrate a series of conclusions towards entrenched positions on either side of the divide. And here they are:
Continue reading →
Like this:
Like Loading...
R (on the application of Edwards and another) (Appellant) v Environment Agency & others(Respondents) [2010] UKSC 57 – Read judgment
Recent comments