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In her analysis of the decision Suzanne refers to: the control mechanisms established by the House of Lords in Alcock v Chief Constable of South Yorkshire[1992] 1 AC 310, the House of Lords decision in Page v Smith[1996] 1 AC 155 and the decision of the Court of Appeal in A Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588. Continue reading →
The wedding of Prince Harry to Meghan Markle and the start of the first phase of hearings in the Grenfell Inquiry occurred within hours of each other but could not have been more different in terms of how they were received by the British public.
By welcoming into its ranks a biracial, divorced, professional American actress, the Royal Family appears to have gained some much needed legitimacy, and the very modern Royal wedding, undeniably a celebration of diversity, is perhaps a sign that this bit of the British Establishment is moving with the times.
The start of the Grenfell Inquiry — almost a year after the fire on 14 June 2017 which claimed 71 lives — has not been met with such optimism nor enjoyed such accolades. Instead, from the moment the question of who would chair it arose, the Inquiry has been dogged by accusations of “whitewashing”, a persistent failure to listen to the victims and bereaved, and a failure to give them a proper voice.
Is there any hope that the Grenfell Inquiry will finally gain legitimacy? As with the successful McPherson Inquiry following the Stephen Lawrence murder, recognition of diversity and inclusivity are essential.
In announcing the Terms of Reference, the Prime Minister indicated that, at that stage, she had not appointed any other members to the Inquiry Panel but she noted that the Inquiries Act 2005 did allow for such appointments to be made with the consent of Sir Martin, during the course of the Inquiry, so that the composition of the Inquiry Panel could be “kept under review”.
R (ota Mr Samuel Daniels) v The Rt Hon Theresa May, the Prime Minister & Sir Martin Moore-Bick [2018] EWHC (1090) Admin — read judgment
On various dates commencing in September 2017, solicitors representing Mr Daniels, the son of an elderly disabled man who died in the Grenfell fire wrote to Sir Martin, the Solicitor to the Inquiry, and the Prime Minister, asking whether the Prime Minister would exercise her powers under s7 of the Inquiries Act to appoint a panel to sit alongside Sir Martin.
Much controversy has been raised by the sentencing meted out to some of those charged with offences committed during the recent disorder. Many cases have already been sentenced either in the Magistrates’ Court. A lesser number of cases have been dealt with by the Crown Court. (Given the short time between committal to Crown Court and sentence, the latter would be guilty pleas).
In the Magistrates’ Courts, the majority of the cases have been dealt with by professional District Judges (Magistrates’ Courts). The use of “lay benches” has been very much the exception. The reason for that is not entirely clear at this time.
One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.
The US Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.
Wagner is one of 14 authors who contributed to a new working publication entitled ‘Justice Wide Open’, produced by the Centre for Law, Justice and Journalism (CLJJ), City University London, following an event on February 29 2012. The individual chapters can be accessed electronically.
Lord Neuberger has published his long-awaited report on super-injunctions. His committee was set up in April 2010 in order to “examine the issues around the use of injunctions which bind the press and so-called ‘super-injunctions“.
In summary, the report emphasises the principles of open justice and the right to freedom of speech, and that courts should “ensure that any derogation from open justice is the minimum necessary to secure the proper administration of justice”. It recommends that Civil Procedure Rule 39.2 (concerning public hearings) should be amended to make reference to the strict necessity test.
It seeks to address “the tension between concerns about “secret justice” and legitimate expectations of privacy and confidentiality for the family (update – read Lucy Series’ analysis with a focus on Court of Protection cases).
This is interesting and, on a quick glance through the detailed document, useful. Family judges have been critical of journalists’ reporting of sensitive cases recently, and this guide is clearly an attempt to guide judges on what can and can not be reported, and journalists on how to report responsibly. The guide would benefit from a contents page and executive summary, but aside from that it will no doubt prove useful to practitioners and journalists.
One line I am predictably fond of: “Although it remains a matter for the judge, senior members of the judiciary have encouraged the making of public judgments”
It has been widely reported that the German magazine Die Aktuelle recently ran a front cover with a picture of a smiling Schumacher and the headline promising ‘Michael Schumacher, the first interview’.
The strapline added: “it sounded deceptively real”.
Anyone walking past a news stand would have assumed that this was a genuine interview with the former Formula 1 driver, who has suffered catastrophic brain injury since a skiing accident in 2013. Only buyers of the edition would have learned from the full article inside, that the ‘quotes’ had been produced by AI.
The news agency Reuter reports that “Schumacher’s family maintains strict privacy about the former driver’s condition, with access limited to those closest to him.”
And in a 2021 Netflix documentary his wife Corinna said
Tucked away on page 48 of the Conservative Party 2019 election manifesto, the following passage could be found in a section entitled “Protecting our Democracy”:
After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.
That is something of a laundry list of many of the most charged constitutional issues faced by the United Kingdom. But of all the matters cited, the one which has received perhaps the most attention of late is the Government’s apparent intention to consider changes to our system of judicial review.
UPDATED | I have been sent the Statement of Facts and Grounds for Judicial Review on behalf of Abu Hamza, dated 25 September 2012. These are open court documents and have been obtained directly from the Royal Courts of Justice.
Abu Hamza’s extradition has been put on hold whilst this Judicial Review claim is being dealt with this coming Tuesday [update – I understand that another issue is being dealt with on Tuesday, and that the passport point is not the one which has held up the extradition]. I think this may be a ‘permission hearing’ (the first hurdle a JR claim has to surmount) although it may well be a ‘rolled up’ hearing, which means the permission and substantive aspects will be dealt with all at once. A few points to note (nb. this is my quick summary, and is only of course of one side of the case – Abu Hamza’s):
This particular claim is very limited. He applied for and was granted a passport on 11 November 2011 and although this was sent on 20 November 2011 to Belmarsh Prison, where he was located, the passport has not yet been given to him. He has also requested photocopies, to no avail.
He claims that the failure to provide him with his passport or copies of it is contrary to Home Office Guidance Note 20, as well as potentially Article 8 of the European Convention on Human Rights (the right to private and family life) and the EU Citizen’s Directive 2004/38/EC. For what it’s worth, this is fundamentally a legality challenge under ordinary public law principles – the human rights aspect of it is likely to be in the background. So although it would technically be correct to say he is challenging this decision on human rights grounds, that aspect is only likely to play a small part in the claim.
The government’s proposals for reform of the law on defamation have been published. The bill seeks to address concerns that libel law has a chilling effect on freedom of speech, failing to strike the right balance between free speech and protection of reputation.
The pressure of the widely-supported reform campaign, inspired by recent libel actions stifling comment on issues of scientific and academic debate, has no doubt contributed to the manifesto commitment on the part of all three parties which the coalition is now following through. The consultation paper and draft bill has been met with muted enthusiasm, with critics claiming that the proposed statute at best codifies the common law, with all its confusions and complexities, and that the whole is at worst “too little, too late” to meet their reform demands.
Last month I posted on the troubling case of Rachel Corrie, a 23-year-old protester killed by an Israeli military bulldozer in 2003. In August, an Israeli court ruled that the Israeli Defence Ministry bore no responsibility in civil law for her death.
I complained that the reporting of the ruling had been poor, despite a reasonably good summary in English produced by the court. One of the main problems undoubtedly was the lack of an English translation of the 73-page Hebrew ruling. Until now, that is. Through the magic of the internet – and a huge amount of work – Irène Solomon, a legal advisor at Ofgem and reader of this blog, has translated the judgment from Hebrew into English. She has taken on this mammoth task for free in her personal capacity and has given me permission to publish her work online as a UKHRB exclusive.
You can download the translation here (PDF) and it is also reproduced after the break below. I should emphasise that this is not an official translation, but it does appear to me to be a very good effort indeed.
The National DNA database has become another key human rights issue in the 2010 Election. It is by far the largest such database in the world, with over 1 in 10 people now on the database. The issue of whether innocent people will have their DNA retained has now become highly politicised.
The Tories have now dropped their opposition to the Crime and Security Bill 2010, which has since become law. They had initially opposed provisions which allowed the police to retain the DNA samples of innocent people for up to 6 years. However, they have pledged if elected to bring in early legislation to ensure the DNA profiles of innocent people accused by minor crimes would not be retained.
The Prime Minister and the Home Secretary recently accused the Tories of not being tough enough on crime, whilst appearing at a press conference with Linda Bowman, whose daughter was raped and murdered at age 18. Her killer was convicted in 2008 with the help of DNA evidence. Liberty, the civil liberties organisation, commented that Labour had deliberately confused the issue.
The Conservatives pledge in their manifesto to “Reform Labour’s DNA system with the slimmer and more efficient Scottish system as our model” and “Change the rules on the DNA database to allow a large number of innocent people to reclaim their DNA immediately”.
The Liberal Democrats agree they will “Remove innocent people from the police DNA database and stop storing DNA from innocent people and children in the future, too.”
For their part, Labour say they will “ensure that the most serious offenders are added to the database no matter where or when they were convicted – and retain for six years the DNA profiles of those arrested but not convicted.”
It is probably no coincidence that the criticism of the Tory policy coincides with the Government’s recent concession to strong criticism from the European Court of Human Rights (ECtHR).
We have finished experimenting with the new look for now. Thank you for all of your comments, which will be taken on board for the future. Keep posted for exciting changes as we reach our first anniversary.
One change which we will keep on is the more advanced menu system at the top of the page. If you hover over the first two menus, a series of sub menus will appear, hopefully making the site a little bit easier to navigate.
Dr Lawrence McNamara is an academic at the University of York and a Senior Research Fellow at the Bingham Centre for the Rule of Law
A new practice direction reveals some valuable progress in the management of closed judgments, but leaves uncertainty and, very worryingly, indicates that some judgments will be destroyed.
Closed material procedures (CMPs) have become an established option for the government when it wants to rely on security-sensitive evidence in civil litigation.
In immigration matters in the Special Immigration Appeals Commission (SIAC) and in the full range of civil proceedings under the Justice and Security Act 2013, CMPs permit the state to rely on evidence that will not be disclosed to the other party who may be (for example) subject to deportation or a claimant in an action alleging state complicity in rendition.
Open and closed
judgments may be handed down. The latter will not be seen by non-state parties,
their lawyers or the public.
In parallel,
there have been heavy restrictions on access to and reporting of criminal
terrorism cases, most notably Incedal.
CMPs and closed
judgments are by nature a departure from fundamental rule of law standards of equality
of arms and open justice. The Supreme Court pointed this out in Al
Rawi and the Special
Advocates have been highly critical of them. Nonetheless, there is no sign that the CMPs
will disappear. Instead, the trend has slowly been towards managing them and
finding ways to mitigate some of the deficiencies.
A six-paragraph Practice Direction on Closed Judgments, issued on 14 January 2019, reveals some significant steps in that direction, but it lacks clarity in its scope and reveals a very troubling proposal for destruction of judgments.
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In Episode No 56, Suzanne Lambert and Emma-Louise Fenelon discuss the recent judgment of Whipple J in YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB)
The wedding of Prince Harry to Meghan Markle and the start of the first phase of hearings in the Grenfell Inquiry occurred within hours of each other but could not have been more different in terms of how they were received by the British public.
Much controversy has been raised by the sentencing meted out to some of those charged with offences committed during the recent disorder. Many cases have already been sentenced either in the Magistrates’ Court. A lesser number of cases have been dealt with by the Crown Court. (Given the short time between committal to Crown Court and sentence, the latter would be guilty pleas).
The real “democratic deficit” in the courts is about limited public access not “unelected judges“, Adam Wagner 
Lord Neuberger has 
The government’s proposals 
Last month 
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