23 August 2016 by David Scott
Petition of the Scottish Parliamentary Corporate Body for an Order under Section 46 of the Court of Session Act 1988 [2016] CSOH 113 – read the judgment here
The Court of Session recently ruled in favour of the eviction of the Indy Camp outside Edinburgh Parliament.
by David Scott
Background
Since November 2015, the foot of Arthur’s Seat has been home to a continuous encampment, known as Indy Camp, promising to remain stationed until a second referendum on Scottish independence is called. In December 2015 the Scottish Parliamentary Corporate Body brought proceedings seeking the eviction of the camp, as it encroached on the property of the Parliament.
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22 August 2016 by Guest Contributor
By Pritesh Rathod
RT v (1) The First-Tier Tribunal (Social Entitlement Chamber) and (2) Criminal Injuries Compensation Authority [2016] UKUT 0306 (AAC) – read judgment.
The Upper Tribunal has ruled that, in deciding whether or not an applicant has cooperated with the prosecution of her assailant where she made and later retracted an allegation of rape, it was necessary to see why that retraction was made and whether it was done truly voluntarily, rather than simply assessing whether she was responsible for the retraction.
Background facts
The Applicant (“RT”) was married to H and had four children with him between 2001 and 2008. From 2004, she was subject to physical and mental abuse by H, culminating in three incidents of rape. What followed was a somewhat protracted and complicated course of events relating to H’s prosecution.
Initially, H was arrested and charged with six counts of rape. He was bailed subject to certain conditions. While H was in custody, RT wrote to him saying that she missed him and wanted him back home. Over Christmas 2009, H returned home and he and RT had “something of a reconciliation”, including having consensual sexual intercourse.
By January 2010, RT sought to withdraw the complaint (she had commenced divorce proceedings against him). In February 2010, RT telephoned the police to ask what would happen if she had lied about the rapes. Later that month, she retracted her allegations, saying that all of them were untrue. H appeared at the Crown Court and was acquitted after the prosecution offered no evidence.
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15 August 2016 by Paul Reynolds
National Aids Trust v National Health Service Commissioning Board (NHS England) [2016] EWHC 2005 (Admin) (Local Government Association intervening)
Summary
In this case NHS England argued it lacked the power to commission (and be responsible for paying for) preventative HIV drugs. It said this was solely the responsibility of local authorities and, in so doing, disavowed any responsibility for preventative medicine.
The High Court rejected this. It undertook a purposive interpretation of the legislation and found that NHS England had broad and wide-ranging powers of commissioning, and could commission preventative HIV drugs. NHS England is appealing.
The interest in this case extends beyond Mr Justice Green’s interpretation of the particular provisions. The judge was ready to find that the provisions were to be interpreted purposively, and was then very ready to look to the overall objectives and duties of the NHS as expressed in other parts of the relevant legislation, and in the NHS Constitution and Mandate.
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9 August 2016 by David Hart KC
C (a child) [2016] EWCA Civ 798 read judgment
This is the most recent in the long series of legal steps touching on the violent career of Ben Butler, recently convicted of the murder of his daughter, Ellie.
Butler was convicted for Grievous Bodily Harm, and then cleared on appeal. Care proceedings were commenced at the end of which Ellie was ordered to be returned to her parents by Hogg J in October 2012. A year later, on 28 October 2013, Ellie was found dead.
C, the subject of this appeal, is Ellie’s younger sister. In June 2014, Eleanor King J, in the family courts, found that Butler had caused Ellie’s death, Ellie’s mother (Jennie Gray) had failed to protect her from Butler, and C had been the victim of physical and emotional abuse. This judgment had been the subject of reporting restrictions.
Immediately after Butler’s conviction in June 2016, media organisations applied for the release of Eleanor King J’s judgment to Pauffley J in the family court. Pauffley J dismissed this application. Her decision was roundly reversed in this decision of the Court of Appeal.
The human rights clash is the familiar one of freedom of expression under Article 10 versus the right to a fair trial under Article 6 ECHR.
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8 August 2016 by David Hart KC
Many readers will know that I have banged on, long and hard, via this blog about the constant problem we have in the UK trying to ensure that the cost of planning and environmental litigation is not prohibitively expensive for ordinary people. The UK system has been held repeatedly to be in breach of Article 9 of the Aarhus Convention, which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. For Aarhus beginners, have a look at my bluffers guide – here
So I was delighted to be asked recently to chair the Environmental Law Foundation whose main role is to help out people, for free, with their planning and environmental problems. ELF is going to have its 25th birthday next year, and this short post is an unashamed plug for the job that it does – together with an invitation to contact it (see below) if you have a problem you think they may be able to help with, or if you want to volunteer to assist on someone else’s problem.
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8 August 2016 by Gideon Barth
SSHD v ZAT (Syria) and ors (UNHCR and anor intervening) [2016] EWCA Civ 810
Court of Appeal decides, in the absence of an application under the Dublin III regulations, asylum seekers can only succeed on article 8 ECHR grounds in “exceptional circumstances”
Four asylum seekers, namely three unaccompanied minors and one disabled adult, were in “the jungle” – the (increasingly permanent) temporary refugee and migrant camp in Calais – since October 2015. Having fled from war-torn Syria, they were trying to join their siblings in the UK. The problem was that the French system for processing asylum claims under EU rules would involve considerable delays and the evidence showed that the conditions in the camp were wholly inadequate: these children experienced physical violence and their medical needs were unmet. So they ignored the EU rules and issued a claim in the UK.
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6 August 2016 by David Hart KC
Hayward v. Zurich [2016] UKSC 48 27 July 2016 read judgment
and Versloot Dredging BV v HDI Gerling Industrie Versicherung AG [2016] UKSC, 20 July 2016 read judgment
Twin doses of dishonesty in the Supreme Court, last month. Both raised dilemmas for the SC trying to steer a principled way (in different circumstances) towards determining the cost of lying.
In the first, Mr Hayward claimed over £400,000 from his employers for a back injury at work. The Zurich smelt a rat and alleged exaggeration in its defence but felt ultimately they could not sufficiently prove it in court. So in 2003 they settled the claim by paying Mr Hayward just under £135,000. In 2005, his neighbours told insurers that they thought he had been dishonest. So the Zurich started proceedings to set the compromise aside and to get its money back. Mr Hayward sought to strike it out, saying “a deal was a deal”, without success. So he then faced a trial of Zurich’s claim, at the end of which Zurich was successful. But the saga was not over. He now faced a retrial of his original claim, in which he repeated the lies he had come out previously. The judge was thoroughly unconvinced, and gave him £14,700. It was that result which was eventually appealed to the Supreme Court.
The second claim concerned marine insurers of a ship who sought to repudiate a claim on the policy because the insured owners had told a lie in presenting the claim, even though the lie proved to be irrelevant to the insurer’s liability. Owners claimed over €3,200,000 for the loss of a vessel. They said that the crew had informed them that the bilge alarm had sounded at noon that day, but could not be investigated because of heavy weather. This was a lie told by the owners to strengthen the claim. But it turned out to be irrelevant to the result, because of the judge’s finding that the vessel’s loss had been caused by a peril of the seas.
Both lower courts found that this lie was a “fraudulent device”, which meant the insurers did not have to pay out under the policy.
So what did the Supreme Court do with these two claims about lying?
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29 July 2016 by David Scott
The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland) [2016] UKSC 51 – read judgment here
The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).
by David Scott
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26 July 2016 by Charlotte Bellamy
Photo Credit: Steve Parsons/PA
In the News
In a new report on the much-delayed Counter-Extremism Bill, the Joint Committee on Human Rights (JCHR) has concluded that the proposed legislation is confusing, unnecessary, and likely to be counter-productive.
Though first announced by the Government in the Queen’s Speech in May 2015, the Bill itself has yet to appear. The JCHR report is a result of what was in effect a pre-legislative scrutiny inquiry into the Government’s proposals, due to the Committee’s concerns that it would be likely to raise significant human rights concerns, specifically where Articles 9 (freedom of religion), 10 (freedom of expression) and 11 (freedom of association) are concerned.
Five key problems which the report has identified are:
- No clear definition of extremism – The Counter-Extremism Strategy, launched in October 2015 (previously covered here) defines extremism as the “vocal or active opposition to our fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of those of different faiths and beliefs”. This is currently too vague to be workable as a legislative definition. There is neither a consensus on the meaning of “extremism” nor “British values”. The extent to which a lack of mutual respect and tolerance towards different faiths and beliefs will be unlawful is likely to be particularly contentious.
- Discrimination and religious freedom – The difficulty here is twofold. Measures which impact on those expressing religious conservatism would either operate indiscriminately against any religious conservatism which had no intention of inciting violence (including, for example, Islam, Orthodox Judaism, Evangelical Christianity), or would operate discriminately, specifically targeting Muslims and alienating the Muslim community.
- The “escalator” approach – In trying to tackle extremism by placing restrictions on religious conservatism, the Government has wrongly assumed that violent jihadism necessarily follows from religious conservatism. Yet there is no proof that the two are correlated. The focus should rather be on extremism which leads to violence. Placing restrictions on religious conservatism amounts to suppressing views with which the Government disagree.
- Conflicting duties on universities – Universities are under a duty to promote free speech under Section 202 of the Education Reform Act 1988, which provides that University Commissioners have a duty to ensure that academic staff have “freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions.” It is unclear how “controversial or unpopular opinions” will be differentiated from “vocal or active opposition to our fundamental values”, and therefore what will count as extremism.
- The civil order regime – in the Queen’s speech in May 2016, a “new civil order regime” was mentioned, though with little detail. There is concern that ill-defined civil orders, breach of which would be a criminal offence, should not be used by the Government to avoid having to make a criminal case to a higher standard of proof, especially where a proper definition of the prohibited behaviour is lacking. It is likely that these orders may interfere with freedom of religion, expression and association.
The Committee concluded that the Government should not legislate, least of all in areas which impinge on human rights, unless there is a clear gap in the existing legal framework for terrorism and public order offences. In their view, the Government has not been able to demonstrate that such a gap exists, and there is a danger that any new legislation would be counter-productive.
Other news
- Turkey has told the Council of Europe that it wants to temporarily derogate from the human rights protections under the ECHR, due to the state of emergency in the country declared by President Erdogan last week. Emma Sinclair-Webb, Senior Turkey researcher at Human Rights Watch, writes that it is unclear whether the current situation meets the required “threat to the life of the nation” criterion for derogation, provided for under Article 15. Even if this criterion is met, derogation from certain Convention rights is not permitted, including the prohibition on torture and inhuman and degrading treatment (Article 3), the right to life (Article 2); prohibition on slavery (Article 4(1)). Though Turkey has pointed to France’s state of emergency powers (extended after the Nice attack) to justify its own derogation, a state of emergency imposed where there are clear signs that the government is ready to crack down more broadly is an “alarming prospect”. Amnesty International has gathered evidence that detainees in Turkey are being subjected to beatings, torture, including rape, in official and unofficial detention centres in the country. Amnesty calls on Turkish authorities to allow international monitors to visit these places of detention.
- A clause in the contracts of Deliveroo workers say that they are not allowed to take their grievances to an employment tribunal, and that if they do they must indemnify the company against all costs and expenses it incurs. Michael Newman, partner at Leigh Day, has said that the clause is likely to be unenforceable as they attempt to exclude or limit established employment rights, and imposed penalties. Deliveroo say that their contracts reflect the fact that riders are allowed to work flexibly on a freelance basis. Deliveroo joins several other companies in the spotlight for their use of self-employed workers, who do not receive the same rights as employees. A group of drivers are currently taking legal action against Uber, arguing that they should be entitled to the living wage, sick pay, and pensions. Uber is arguing that drivers are “partners”, not employees. It has also recently emerged that some workers for parcel firm Hermes have claimed that they earn as little as £5.50 an hour over some periods.
In the Courts
Foulon and Bouvet v France – Mr Didier Foulon and his daughter Emilie were the applicants in the first case. Mr Foulon is a French National and his daughter Emilie was born in Bombay, India. In the second case the applicants were Mr Philippe Bouvet, a French National, and his twin sons Adrien and Romain Bouvet, who were also born in Bombay. In both cases the applicants were unable to obtain recognition under French law of their biological affiliation. The French authorities were refusing to transcribe birth certificates issued in India, due to their use of Gestational Surrogacy Agreements (GPA) in India, which are unlawful in France. The Court de Cassation in both cases provided reasons for the refusal to transcribe the certificates, partly on the basis of fraude à la loi (evasion of the law) due to the conclusion of the unlawful GPA agreements. A violation of Article 8 was found (right to respect for private life) with respect to Emilie Foulon and Adrien and Romain Bouvet.
Shahanov and Palfreeman v Bulgaria – This case concerned the disciplinary punishments given to prisoners for complaining to the prison authorities about prison officers. Mr Nikolay Shahanov, a Bulgarian national, and Mr Jock Palfreeman, an Australian national, are serving a life sentence and a sentence of 20 years respectively in Bulgarian prisons. Mr Shahanov had made two written complaints to the Minster of Justice, in which he accused two prison officers of favouritism towards a prisoner because they were related. Mr Palfreeman had written to the governor of the prison alleging that unnamed prison officers were rude to two journalists who had visited him in prison and had stolen other visitors’ effects from lockers during their visit. Both were found guilty of making defamatory statements and false allegations about prison officers. Mr Shahanov was placed in solitary confinement for ten days and Mr Palfreeman was not allowed to receive food parcels for three months. A violation of Article 10 (freedom of expression) was found in respect of both applicants.
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22 July 2016 by Lois Williams
Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener) [2016] EWCA Civ 715 – Read judgment
The Court of Appeal dismissed the Secretary of State’s appeal challenging the Upper Tribunal’s decision that MSM would have been at risk on return to Somalia on the ground of political opinion. Exceptionally, the court went on to consider the modification of conduct issue in relation to imputed political opinion on an obiter basis, which gave rise to interesting analysis.
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19 July 2016 by Hannah Lynes
In the news
Theresa May has been sworn in as Prime Minister of the United Kingdom, prompting speculation about the impact her leadership will have on human rights.
The former Home Secretary has been a vocal and long-standing critic of the Human Rights Act. In a 2011 speech she insisted that the legislation “needs to go”, making controversial reference to what legal commentators argued was a “mythical example” of an immigrant who could not be deported because “he had a pet cat”. Her appointment of Liz Truss as Justice Secretary, who has previously spoken out against the HRA, suggests that the Government will continue with plans to replace the Act with a British Bill of Rights.
Nonetheless, it appears that the UK will remain a signatory to the European Convention on Human Rights, at least in the near future. During her campaign to be Prime Minister, Theresa May stated that she would not pursue pulling out of the ECHR, describing the issue as divisive and lacking majority support in Parliament. Amnesty International have said that they “warmly welcome” this commitment, and have called on the Prime Minister to “turn the corner on human rights” in the UK.
In an examination of “Theresa May’s Eight Human Rights Highs and Lows”, RightsInfo has noted that in 2012 May “came out strongly in support of the proposal to change the law so people of the same sex could marry”. Pink News charts her evolution on LGBT rights to become the “unsung hero” of equal marriage, while pointing out criticisms that conditions for LGBT asylum-seekers have worsened under her tenure as Home Secretary.
On the issue of freedom of religion, commentators have similarly looked to Teresa May’s actions as Home Secretary for an indication of her position. David Pocklington provides an overview for Law & Religion UK, noting her recent launch of an independent review into the operation of sharia law in England and Wales.
Meanwhile, the Government’s review into whether victims of trafficking have effective access to legal advice has yet to be published. Writing in the Justice Gap, Juliette Nash has called on Theresa May to deliver on her promise to tackle modern slavery and implement any recommendations of the review as soon as possible: “the spotlight is now on …the Prime Minister…to ensure that justice is done”.
In other news:
The Guardian: Lawyers acting on behalf of a British citizen are seeking to challenge the lawfulness of the Government triggering Article 50 of the Treaty on the European Union without parliamentary approval. We have posted on the “divorce” process here. The UK Constitutional Law Association Blog provides extensive academic discussion of the constitutional issues surrounding the UK’s withdrawal from the EU.
Law Society’s Gazette: In a report on the impact of tribunal fees published on 20 June, the House of Commons Justice Committee made a number of recommendations, including that the fees charged in the employment tribunal should be ‘substantially reduced’. In the meantime, Unison has continued to pursue its quest for judicial review of the lawfulness of the fees, with an appeal to the Supreme Court set for December 2016.
BBC: An investigation is under way following the death of 18 year-old Mzee Mohammed in police custody, who had been detained by security staff at a shopping centre. The charity Inquest has called for “the most thorough and robust scrutiny of the actions of the security guards and the police” who were in contact with Mr Mohammed before his death.
Daily Telegraph: Figures released by the CPS show that the number of prosecutions for hate crimes against disabled people has increased by 41.3% in the last year, while prosecutions for homophobic and transphobic crime have risen by 15% over the same period.
In the courts:
Taddeucci and McCall v Italy (judgment in French only)
This case concerned the refusal of Italian authorities to grant a residence permit to a gay couple, on the basis that they did not constitute family members. The Court found that the restrictive interpretation of the notion of family member applied by the authorities did not take into account the fact that under Italian law the couple were unable to marry. In deciding to treat homosexual couples in the same manner as unmarried heterosexual couples, Italy was in breach of article 14 (freedom from discrimination) taken together with article 8 (right to respect for private and family life).
Buzadji v the Republic of Moldova
This case concerned the detention of a businessman for ten months, pending trial on an allegation of attempted fraud. The Court affirmed that judicial authorities were required to give relevant and sufficient reasons for detention, in addition to having a “reasonable suspicion” that the relevant individual had committed an offence. Importantly, this requirement was held to apply already at the time of the first decision ordering detention, and “promptly” after the arrest.
On the particular facts, the Court found that the reasons given for detention had been stereotyped, abstract and inconsistent. As such there had been a violation of article 5 (the right to liberty).
UK HRB posts
Whose fair trial prevails? – David Hart QC
Justice for everyone: another Grayling reform bites the dust – Gideon Barth
Book review: “The Inquest Book: The Law of Coroners and Inquests” edited by Caroline Cross and Neil Garnham – Michael Deacon
The Chilcot Report – an Illegal War? – Dominic Ruck Keene
Another door closes for the Chagossians – Dominic Ruck Keene
Get out the back, Jack? make a new plan, Stan? – Rosalind English
Hannah Lynes
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17 July 2016 by David Hart KC
Da Costa and another v. Sargaco [2016] EWCA Civ 764 14 July 2016 read judgment
Two people say they owned motorbikes which they kept outside their house – until, it is said, the bikes were mown down by the defendant’s car, a collision which their witness claimed to have seen. The car’s insurers said that the claim was fraudulent and it was all a conspiracy. The judge agreed it was a fraud, whereas the Court of Appeal disagreed – but still disallowed the claim because, the CA said, the owners had not proved their case.
But the point of general interest arose because the judge decided that each claimant should give evidence in the absence of the other. And the CA said this was wrong. As I shall explain, I disagree. But let’s see where the Article 6 ECHR battle lines lie so you can come to your own view.
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14 July 2016 by Gideon Barth
R (on the application of Public Law Project) v Lord Chancellor [2016] UKSC 39
Supreme Court bins the Government’s residence test for legal aid as ultra vires: just as the latest non-lawyer assumes the role of Lord Chancellor, the reforms made by the first non-lawyer to assume that role continue to fade away.
In April 2013, the Government announced it would introduce a residence test for civil legal aid funding under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act (“LASPO”) 2012. If you were not lawfully resident in the UK (or a Crown Dependency or British Overseas Territory) at the time of your application for legal aid, or for the last 12 months, you would not be eligible for legal aid.
The Public Law Project (“PLP”) challenged this residence test on two grounds: (i) the secondary legislation was ultra vires; and, (ii) the test was unjustifiably discriminatory, and has now been successful before the Supreme Court in doing so.
After a topsy-turvy trip through the courts, the case ended up before the Supreme Court who, in an apparently unprecedented step, announced it had decided the case after day one of the two-day hearing, and did not need to hear the discrimination issue. The judgment, written by Lord Neuberger, with whom the other six justices agreed, has now been handed down.
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11 July 2016 by Michael Deacon
As we mentioned here, ‘The Inquest Book: The Law of Coroners and Inquests’, edited by Caroline Cross and Neil Garnham and written by members of 1 Crown Office Row, was published last month. The Inquest Book provides practitioners with an up-to-date and comprehensive guide to the law of coroners and inquests.
Now available in hard copy and ebook format, The Inquest Book is available here with a discount of 30% available until 18 July 2016, and from Wildy’s, Waterstones and Amazon.
Please see below for a helpful review of the book by Bridget Dolan QC.
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7 July 2016 by Dominic Ruck Keene
More than 7 years after Gordon Brown first announced that a public Inquiry would be conducted to identify lessons that could be learned from the Iraq conflict, the Chilcot report was finally published on7 July 2016. However, it was worth the wait. This post does not seek to summarise the report: there are many other good overviews (such as the BBC’s ). The report’s executive summary, in particular the key findings section, is also well worth a read. The intention is to cover in this and subsequent posts some of the key legal issues raised by the report. This post considers the relevance of the Chilcot report’s findings to the broader issue of whether Britain’s intervention in Iraq was legal – an issue which was not itself within the remit of the inquiry.
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