Witness Protection: Can non-parties appeal critical findings made in a judgment which infringe their human rights?

30 November 2016 by Guest Contributor

Re: W (A child) [2016] EWCA Civ 1140 – read judgment

Summary

A Family Court judgment was severely critical of two witnesses and the applicant local authority. In an oral “bullet point” judgment at the end of the hearing, the Judge found that the witnesses, a social worker (‘SW’) and a police officer (‘PO’), had improperly conspired to prove certain allegations regardless of the truth, or professional guidelines.

Those matters were not in issue before the court or put to those concerned. Limited amendments were subsequently made to the judgment following submissions by those criticised. Unsatisfied, they went to the Court of Appeal.

The Court considered (1) whether they were entitled to appeal at all (2) whether their appeal based on Articles 8 and 6 of the Convention succeeded and (3) the appropriate remedy.

The Court held that the appellants’ Convention rights had been breached by the manifestly unfair process in the court below, so they had a right to appeal under the Human Rights Act 1998. The defective judgment was not cured by the amendments, and the findings were struck out.

The judgment addresses some interesting procedural questions regarding appeals. This post focuses mainly on the human rights issues, but the judgment of McFarlane LJ, described as “magisterial” by Sir James Munby, merits reading in full.

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Rules, Rights (rings) and the Twitter Joke – The Human Rights Roundup

30 July 2012 by Sam Murrant

Gratuitous Olympics image

Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

Whilst the eyes of the world are on London’s Olympic Games, the eyes of this blog are on a series of important rulings which our judges produced last week just before they took the short stroll from the Royal Courts of Justice to Horse Guards Parade watch the beach volleyball. There were three particularly important decisions: firstly, Paul Chambers won his appeal against criminal conviction following a Twitter Joke. Secondly, the recent Alvi case clarified the meaning of the word “rule” in immigration law as a response; and finally the RT (Zimbabwe) case established that a person subject to deportation is not to be expected to lie about one’s beliefs (or lack thereof) to avoid persecution.

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Defamatory Tweets, Legal Aid Armageddon and Burkha Bans – The Human Rights Roundup

2 June 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular chocolate selection box of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

Much of the news this week relating to the media: tweeting, printing and everything in between.Chris Grayling’s thriftiness also maintains the interests of commentators, academics and lawyers; and cases involving the freedom of religion remain at the forefront of the ECtHR as the Strasbourg Court reforms.

by Daniel Isenberg

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Tory ECHR Withdrawal, Prisoner Cold Turkey & Niqabs Again – The Human Rights Roundup

29 September 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular airport departure board of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.

This week the Conservative Party Conference  is likely to generate human rights headlines. Meanwhile,  previous controversies still bubble away. Chris Grayling, taking a break from legal aid cuts, offered his opinion on the Europe debate. Meanwhile, others considered the role of transparency, demeanour, religious freedom and niqabs in the courts, and, with the proposed smoking ban in prisons, smokers may have found another reason not to break the law.

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Abu Qatada, Rise of the Secret Court and the European Question – The Human Rights Roundup

31 March 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

The focus this week has been on the continuing Abu Qatada saga. The Home Secretary lost her appeal and for the time being, Abu Qatada will remain in the country. In other news, the Justice and Security Bill edges towards the finish line, discussion continues on whether the UK will be able to remain in the EU if they leave the ECHR and people are split on the proposed press regulation measures.

by Sarina Kidd

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Five posts on why we shouldn’t leave the European Convention on Human Rights

29 September 2013 by Adam Wagner

The Conservative Party Conference began today. As has been the case in past years, human rights policy will have a prominent role to play, but much of which is said will be bluster. The Prime Minister has already said that all options are on the table, including withdrawal from the European Convention on Human Rights (ECHR). Expect more tomorrow when Lord Chancellor Chris Grayling and Home Secretary Theresa May step up to the podium from 2:30pm to 4pm.

Judging from the Prime Minister’s comments as well as Chris Grayling’s in the Spectator, it appears likely that this party conference will be similar to previous ones. Government ministers will promise that a majority Conservative government will replace “Labour’s” Human Rights Act with a Bill of Rights – a longstanding Tory policy which also featured in the party’s 2010 manifesto (at p.79). The promise was scuppered after the 2010 election due to demands from coalition partners, the Liberal Democrats. And, the Tories will continue to make vague threats that “people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg” (Grayling, a self-described “staunch Eurosceptic”) and that ECHR withdrawal “may be… where we end up” (Cameron).

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Courts should take note of Strasboug’s doctrine of deference

6 July 2012 by Rosalind English

R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment

This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.

Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.

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Transforming Strasbourg’s A1P1 right to property?

20 July 2013 by David Hart KC

“Transforming the right to property” is the title of an interesting and controversial recent post (17 July 2013) on the Strasbourg Observers blog by Laurens Lavrysen.  He declares his position up front: 

“Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons.”

These reasons can be summarised as (i) the right assumes the current distribution of wealth, and thus protects that status quo; (ii) the right can amount itself to a violation of other human rights – slavery being the most egregious example, though Lavrysen asserts more controversially the fact that intellectual property rights may restrict access to medicines affecting the right to health (iii) the right does not distinguish between the types of property its protects

thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht.

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

23 September 2018 by Thomas Hayes

This 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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We shall fight, on the beaches

6 April 2013 by Rosalind English

The Queen (on the application of Newhaven Port and Properties Limited (Respondent)) v East Sussex County Council (Appellant) and Newhaven Town Council (Interested Party)  [2013] EWCA Civ 276 – read judgment

This is a tale of common law rights, open water swimming, and individual freedoms. It is about the flip side of codified human rights: the time-honoured principle, that that which is not specifically prohibited, is – or should be – permitted in English law.

Our current preoccupation with certain sorts of intolerance must not allow us to lose sight of  another threat to our individual freedoms: the encroaching requirement that our use of wild spaces is subject to the permission of the public authority who happens to be vested with certain statutory power over the land in question.  This ruling confirms, if it needed confirming, that “toleration” does not mean the same as “permission”. If we allow the one to collapse into the other, the inference will become widespread that use of such land is permissive by virtue of an implied licence, a licence which can be easily withdrawn at any time. 
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Challenge to legality of lockdown succeeds in New Zealand

21 August 2020 by Rosalind English

Andrew Borrowdale v Director-General of Health (First Respondent), the Attorney General (Second Respondent) and the New Zealand Law Society (Intervener) CIV-2020-485-194  [2020] NZHC 2090 

Even in times of emergency, … and even when the merits of the Government response are not widely contested, the rule of law matters.

Thus commenced a lengthy judgment by the New Zealand High Court, Wellington Registry, ruling that the first nine days of New Zealand lockdown were unlawful. The three judge panel found that

While there is no question that the requirement was a necessary, reasonable and proportionate response to the Covid-19 crisis at the time, the requirement was not prescribed by law and was therefore contrary to section 5 of the New Zealand Bill of Rights Act.

The European Court of Human Rights: anti-democratic or guardian of fundamental values? – Judge Robert Spano

19 November 2014 by Guest Contributor

This post is adapted from a speech given by Judge Robert Spano of the European Court of Human Rights at Chatham House on 13 October 2014. It is reproduced here with permission and thanks.

There is currently a vigorous debate in the UK on the status and future of the European Convention on Human Rights in national law and also on the relationship between my Court, the Strasbourg Court (ECtHR), the UK Parliament and the domestic judiciary. 
In principle, democratic debates on such fundamental issues should always be welcome. Indeed, discussions on the role and functions of institutions of public power lie at the core of the democratic concept. It is therefore essential for the Court and its judges to engage in reasoned and informed debate about their work and its wider European implications. 


How Does the ECtHR Discharge Its Mandate? 


I have been asked to discuss the question of how the Strasbourg Court discharges its mandate. To give an answer, one must first respond to the fundamental question: What is the Court‘s mandate?

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More developments under Schedule 7

28 August 2013 by Rosalind English

Sylvie Beghal v Director of Public Prosecutions, [2013] EWHC 2573 (Admin) – read judgment

In a judgment with implications for the detention of David Miranda, the High Court has today dismissed an appeal against a conviction for wilfully failing to comply with a duty imposed by virtue of Schedule 7 to the Terrorism Act 2000.

The Court rejected the submission that the Schedule 7 powers in question violated the Appellant’s right under Articles 5, 6 and 8 of the ECHR. However, the Court urged consideration of a legislative amendment introducing a statutory bar to the introduction of Schedule 7 admissions in subsequent criminal trials.

Part of the following report is taken from the Court’s press summary, part is based on the judgment itself.

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The Sun gets regulator reprimand and publishes correction for misleading on European human rights

26 June 2013 by Adam Wagner

Updated | Remember Inhuman Rights, The Sun’s garbled reporting of this Court of Appeal decision on Criminal Record Bureau checks? In February, I wrote this: No, The Sun, the Human Rights Act is not the EU. My complaint was about the headline, which screamed “Now  EU could let fiends like him prey on your children“. This was obvious nonsense, since the judgment had nothing to do with the EU.

Well, I am delighted to report that following my post, the European Commission, which represents the interests of the European Union, complained to the Press Complaints Commission and the complaint has now been upheld. There was a “clear failure to take appropriate care over the accuracy of the coverage and a breach of the Editor’s Code, which was particularly significant at a time when the roles of both the EU and the Convention were a matter of major public debate“.

The newspaper has now published a correction. The full Adjudication can be found here. This is the main bit: 
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About

3 December 2009 by Guest Contributor

The UK Human Rights Blog aims to provide a free, comprehensive and balanced legal update service. Our intention is not to campaign on any particular issue, but rather to present both sides of the argument on issues which are often highly controversial. We post on a huge range of legal issues, from human rights, to public, medical and environmental law.

Jasper Gold is the Blog’s Commissioning Editor, with Allyna Ng as Editing Assistant and an Editorial Team comprising Rosalind English, Angus McCullough KC, David Hart KC, Martin Downs, Jim Duffy and Jonathan Metzer.

The Blog is written by members of 1 Crown Office Row. Its searchable archive of case reports and comments dating back to 1998 (when the acclaimed Human Rights Update service  was launched) is freely available. The Blog also delivers a weekly Rights Round-up, written by our talented team of recent law graduates. We welcome posts from legal academics as well as practising lawyers.

In May 2017 the podcast series Law Pod UK was introduced alongside the Blog, featuring lively interviews with members of Chambers on caselaw and general legal developments.

Adam Wagner founded the Blog in 2010. The Blog has had over 6 million hits and averages well over 500,000 hits a year. The blog also has thousands of subscribers across email, Facebook and Twitter. It is regularly acclaimed by commentators and cited by leading lights in the legal community.

If you like the Blog, please do subscribe to our regular email updates. Law Pod UK episodes are freely available for download from Spotify, Apple Podcasts, Audioboom and many more platforms.

We would welcome your comments.

Editorial team

Jasper Gold

1 Crown Office Row

Jasper is developing a broad practice and accepts instructions in all chambers’ practice areas. As well as clinical negligence, public law, discrimination, data law, inquests and tax, Jasper gained experience as a pupil in commercial disputes and is comfortable with cases containing contractual or other commercial elements.

Since joining 1COR, Jasper has undertaken advocacy in the high court, county court and coronial court. He has appeared in several inquests, including ‘Article 2’ and jury inquests. He is currently instructed as junior counsel to the Commissioner of the Metropolitan Police in the Undercover Policing Inquiry, and is the Co-Commissioning Editor of the UK Human Rights Blog.

Twitter: @JasperSGold

Full C.V.

Allyna Ng

1 Crown Office Row

Allyna joined Chambers as a tenant in April 2025, following a probationary tenancy under the supervision of Amy Mannion KC, Shahram Sharghy, and Rachel Marcus.

Allyna is building experience in all of Chambers’ practice areas including public law and human rights, education, employment, and inquests and inquiries.

Prior to coming to the Bar, Allyna practised as a lawyer in Kuala Lumpur, Malaysia where she handled a variety of matters in all aspects of civil litigation. In her role, Allyna worked on cases involving freedom of religion, judicial review applications, defamation, and misfeasance in public office. Allyna has appeared in the Sessions Court, High Court, and the Industrial Tribunal, and assisted in cases before the Court of Appeal in Malaysia.

Full C.V.

Rosalind English

1 Crown Office Row

Rosalind English is one of the editors of the UK Human Rights Blog. She also presents Law Pod UK, a series of podcasts on legal developments relevant to Chambers work. 

She teaches law at Cambridge University Institute of Continuing Education.

Twitter: @rosalindenglish

Full C.V.

Angus McCullough KC

1 Crown Office Row

Angus McCullough has a varied practice which covers public law (including human rights), professional negligence, regulatory and disciplinary law, and the environment. He has acted as a special advocate in many of the most high profile national security cases in recent times (e.g. Abu Qatada, Ekaterina Zatuliveter, Al Jedda). Instructed by the Attorney General, he has appeared in contempt of court applications against the press and jurors (including the ‘Facebook juror‘ and the first internet press contempt case to be brought). He is also a recognised expert in medical law: complex and high value medical claims constitute a major part of his practice and in 2009, the year before taking silk, he was named ‘Personal Injury and Clinical Negligence Junior of the Year by Chambers & Partners. Before becoming a QC in 2010 he was on the panel of Treasury Counsel (A list from 2001-2010).

Twitter: @amccqc

Full C.V.

Martin Downs

1 Crown Office Row

Martin Downs practises in the field of equality and human rights. He has co-authored two books about Civil Partnership and Same-Sex Marriage and is a regular contributor to Family Law and Tolley’s Employment Law. He lectures on employment, equality, education and family law amongst other subjects and has made a number of media appearances – particularly about radicalisation.
He is very interested in the history, culture and politics of South Asia as well as Ireland. He tweets on legal matters too.

Twitter: @MartinJDowns

Full CV.

David Hart KC

1 Crown Office Row

David Hart practises in environmental law, medical law (particularly clinical negligence), professional negligence and construction. He has also appeared at a number of major public inquiries. David has particular experience of group actions in the environmental field and in medical cases.

He has been Chair of the Environmental Law Foundation since 2016, and has done pro bono work for them. He sat on a Research Ethics Committee at St Thomas’ Hospital for 10 years, and he has a particular interest in genetics. He is an accredited mediator. He has been a regular contributor to the Blog for the last 5 years, on all subjects under the sun.

Twitter: @hart_david

Full CV.

Jim Duffy

1 Crown Office Row

Jim was the Blog’s Commissioning Editor in 2017. His practice spans human rights, inquests, clinical negligence and employment law. Before transferring to the Bar in 2012, Jim was a solicitor whose work involved human rights cases on behalf of Iraqi civilians, British soldiers, jobseekers and immigrants.

After becoming a tenant at 1 Crown Office Row, he acted as Judicial Assistant to Lord Reed and Lord Hodge at the UK Supreme Court in 2013-14.

Twitter: @JimDuffy12

Full C.V.

Jonathan Metzer

1 Crown Office Row

Jonathan joined chambers as a tenant in September 2017 after completion of 12 months of pupillage. He has a broad practice across all areas of chambers’ work, with particular expertise in public and human rights law, asylum and immigration, clinical negligence and inquests. He appears regularly in the County Court, the Coroner’s Court and the Immigration Tribunals, and has also undertaken hearings in the High Court. 

Before coming to the Bar, Jonathan undertook voluntary work at The Death Penalty Project, Simons, Muirhead & Burton LLP. He also worked on a pro bono basis for the School Exclusion Project, acting as lay legal representative for the parents of excluded pupils at hearings in front of school governors and independent review panels. Jonathan was the Blog’s Commissioning Editor from 2017-2022.

Twitter: @JonathanMetzer 

Full C.V.

Founding Editor:  Adam Wagner

Adam was the founding editor of the UK Human Rights Blog. He was longlisted for the 2011 Orwell Prize for blogging. He is a tenant at Doughty Street, specialising in public law, human rights and medical law.  In 2015 he set up RightsInfo, an innovative new website that aims to bring human rights to life using infographics, stories and social media.

Twitter: @adamwagner1

About 1 Crown Office Row

1COR is a leading set of civil law Chambers. We are recognised as having leading practitioners in all aspects of healthcare law, clinical negligence and personal injury, professional disciplinary proceedings, public and administrative law, human rights, employment, professional negligence, costs, matrimonial finance, VAT and environmental law. We also have a team of 15 accredited mediators. You can read more about 1COR by clicking here.

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