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UK Human Rights Blog - 1 Crown Office Row
Search Results for: environmental/page/16/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
Privacy International v. Investigatory Powers Tribunal [2017] EWHC EWCA Civ 1868, Court of Appeal, 23 November 2017
Introduction
As all lawyers know, the great case about courts confronting a no-go area for them is the late 1960’s case of Anisminic.
A statutory Commission was given the job of deciding whether compensation should be awarded for property sequestrated, in the particular case as a result of the 1956 Suez crisis. The Act empowering it said that the
determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.
The House of Lords, blasting aside arcane distinctions, said that this provision was not enough to oust judicial review for error of law.
Fast forward 50 years, and another Act which says
determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.
The Court of Appeal has just decided that, unlike Anisminic, this Act does exclude any judicial review.
Mark Zuckerberg’s Meta platform is under pressure from the UK’s data watchdog, the Information Commissioner’s Office (ICO), over reports that their latest virtual reality headset, the ‘Oculus Quest 2’, does not have adequate parental controls, exposing children to harmful content. The ICO said it will investigate whether it violates the so-called ‘Children’s Code’, a set of regulations introduced in the UK four months ago which seeks to protect children online. The campaign group, Centre of Countering Digital Hate (CCDH), conducted research on the device, finding frequent instances of inappropriate behaviour on the app often used by Oculus Quest 2 players, VRChat. This included two ‘heavily breathing’ men following a child’s avatar, and another man joking that he was ‘a convicted sex offender’. If Meta has breached the code, it could be fined up to £2.5bn. However, it is unclear whether the device will be found to have breached the Code even if insufficient parental controls are in place, given that the regulations largely focus on the misuse of data, rather than the content children are exposed to on apps.
What’s a judge to do when the Magna Carta/Freeman on the Land crew threaten you with hanging and start menacing court clerks as well?
As Rosalind English noted in a previous post, Canada’s latest Freemen judicial decisions in AVI and MHVB and Jacqueline Robinson (I and II) have had to answer those pointed questions.
Rosalind’s note canvassed the first decision by Justice Robert Graesser of the Alberta Court of Queen’s Bench calling out the actions of Jacqueline Robinson who had inserted herself into a high-conflict child custody case with disastrous results for the mother she was ‘helping’. Robinson’s efforts included invoking Article 61 of the 1215 Magna Carta despite it having been repealed some 800 years previous and a demand for the return of the mother’s “property” (read ‘child’). With Robinson’s Magna Carta Lawful Rebellion help, the mother went from having shared child access to no access and being removed as a guardian.
R (NM) Secretary v of State for Justice [2011] EWHC 1816 – Read judgment
This case concerned whether the prison authorities were in breach of the Disability Discrimination Act 1995 and the Equality Act 2010 when they failed to conduct a form investigation into a sexual assault against a prisoner with learning disabilities, NM.
It was further considered whether the failure to conduct a formal investigation was in breach of NM’s Article 3 rights. The claimant was assisted in bringing his case by the Howard League for Penal Reform. The court found in relation to all points that the defendant had acted lawfully.
Charlotte Bellamy brings you the latest human rights news
Children in privately-run youth detention centres are being seriously injured whilst being restrained by staff, according to a redacted Ministry of Justice report released to the Director of the children’s rights charity Article 39. The report focuses on four secure training centres (STCs) and two young offender institutions (YOIs) – the worst three of which are all run by G4S.
The report lists ‘restraints-gone-wrong’, where children were injured or suffered breathing difficulties in the process. Rainsbrook SCT – where teenager Gareth Myatt died in 2004 after choking on his own vomit while being restrained – had the highest number of incidents of serious injury. One child vomited from a prolonged restraint whilst being held in a seated position similar to the one used on Myatt. Government guidelines classify vomiting during restraint as a medical emergency.
Carolyne Willow, Director of Article 39, has been engaged in legal proceedings against the MoJ for access to an unredacted version of the manual ‘Minimising and Managing Physical Restraint’, published in 2012, which details the restraint techniques used in STCs and YOIs. However, the Upper Tribunal recently dismissed her appeal in Willow v Information Commissioner & Ministry of Justice [2016], holding that disclosure of the information would threaten the good order and security of prisons, as inmates might develop countermeasures to the techniques. Willow had argued – unsuccessfully – that Article 3(1) of the UN Convention of the Rights of the Child required a greater emphasis to be placed on the child’s interests when balancing them against the public interest (see the Panopticon Blog for further analysis).
It came to light last week that Medway SCT – the subject of a BBC Panorama exposé aired in January this year which showed G4S staff appearing to use excessive force on children – is to be taken over by the Ministry of Justice. Four members of staff had been arrested on charges of child neglect in relation to the allegations, following which G4S announced in February it was selling off the contracts to run Medway, Oakhill SCT, and 13 local authority children’s homes.
Andrew Neilson of the Howard League for Penal Reform had called at the time for SCTs to be shut down completely, calling them a “failed model”. The Ministry of Justice is due to announce the findings of the Independent Improvement Board set up by Michael Gove in response to the Medway allegations, which will detail the future of the centre.
A wider review is currently being conducted into youth justice by Charlie Taylor, former head teacher and child behavioural expert, the final report of which is expected in July. The interim findings (available here) recommend an overhaul of the youth custodial estate, replacing youth prisons with smaller secure schools focusing on education.
Other news
In addition to the polling day problems in Barnet, it seems that thousands of women living in safe houses and refuges after fleeing domestic violence may have been disenfranchised. Mehala Osborne, a mother-of-one living in a refuge in Bristol, found it impossible to register anonymously as she could not adduce the required evidence to prove her safety would be at risk if her name and address appeared on the register. She estimates that 70% of women in refuges in Bristol and possibly across the country could be in the same situation. The evidence required for Anonymous Voter Registration is a court order or the attestation of an “authorised person” – a Police Superintendent, a Director of Adult Social Services, or the Director General of the Security Services or National Crime Agency. For many in Osborne’s situation, who have fled their homes quickly, there is no time to source such authorisation. The right to vote is protected by Article 3 Protocol 1 ECHR which states that the UK will “hold free elections … under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”. Osborne suggests that refuge and safe house management staff ought to be included in the definition of an “authorised person”.
Egyptian President Abdel-Fattah el-Sisi last week told a US delegation that human rights in Egypt should not be viewed from a “Western perspective”. Though reportedly keen to emphasise his commitment to democracy, he explained that “differences in domestic and regional conditions” make it difficult to apply the same standards. 237 human rights protestors were arrested last week during a peaceful demonstration in Cairo against the el-Sisi regime, including two journalists – Mahmoud al-Sakka and Amr Badr, who work for the opposition website Bawabet Yanayer – for “spreading false news and endangering national security”. Amnesty International have described el-Sisi’s remarks as “deeply troubling”, saying that “he should stop making excuses … There’s nothing remotely ‘Western’ about basic human rights like the right not to suffer torture or to be able to speak freely without fear of arrest or imprisonment”.
Arthur Scargill, the former miners’ union president, has called for an inquiry into the conduct of the South Yorkshire Police at the 1984 ‘Battle of Orgreave’. Thousands of minors clashed with the South Yorkshire police at the coking plant near Rotherham during the year long minors’ strike of 1984-5. A redacted version of the Independent Police Complaints Commission report into Orgreave was released last year, but the Yorkshire Post has now reported that the redacted sections proved the same senior police officers were involved in the aftermath of Orgreave as Hillsborough. Shadow Home Secretary Andy Burnham recently said that the full truth of policing at Hillsborough would not be known until there is transparency over Orgreave.
An Italian court has ruled that the theft of a piece of cheese and a wurstel sausage by a homeless man was not a crime because he acted in “desperate and immediate need of nourishment”. Roman Ostriakov had been sentenced by a lower court in Genoa to six months in jail and €100 fine after being arrested for slipping the sausage and cheese into his pocket when buying breadsticks in the supermarket. The Court of Cassation finally found in his favour, after a three-part trial to determine whether the theft of the food (worth about £3.70) amounted to a crime or not, prompting some commentators to lambaste the country’s notoriously inefficient legal system. Others, however, have lauded the judgment as establishing a “sacrosanct principle” that a small theft out of hunger is not comparable to an act of delinquency, and as an act of humanity which showed that in Italy the right to survive trumps property rights – something which would be “blasphemy in America”.
In the Courts
Cerf v Turkey – The Court found a violation of the duty to conduct an effective investigation under the procedural aspect of Article 2 (right to life) into the suspicious death of the applicant’s husband. The applicant’s husband, Serf Cerf, a local politician, was shot outside a café in the town of Yüreğir in 1994 and died on the spot. In 2000, the authorities arrested a man (in the course of operations carried out against Hizbullah, an outlawed organisation in Turkey) who confessed to killing Mr Cerf. Despite criminal proceedings being initiated against him and four others in 2000, they were not concluded until 2009 and 2013. The Court considered the delays to be excessive and incompatible with the State’s obligation under Article 2, which requires proceedings to be initiated promptly and to proceed with reasonable expedition. The delays entailed the conclusion that the investigation had been ineffective.
Abdi Mahamud v Malta – violations of Article 3 and 5. This case concerned a female Somalian asylum seeker detained for more than 16 months in overcrowded conditions, with little privacy and limited access to outdoor exercise. All the care of detained women was carried out by male staff. Ms Mahamud had been detained in May 2012. A decision on her asylum application was not made until December 2012 (when it was rejected). In the meantime she had been frequently hospitalised due several medical conditions. She was interviewed for release on the grounds of ill-health in December 2012, but was not actually released until September 2013. The cumulative effect of the detention conditions was found by the Court to be a violation of Article 3 (degrading treatment); a violation of Article 5 (right to liberty and security) § 1 was found in respect of the length of both periods of detention (seven months pending the asylum decision and the rest pending her removal). The lack of available measure to challenge the lawfulness of her detention was a violation of Article 5 § 4.
In short, the changes are much wider than initially thought. The plan is not to simply ask Parliament to approve a declaration of intent on Article 8 as some suspected, but rather to ask Parliament to approve amended Immigration Rules which will set out an extensive, codified definition of the Article 8 balancing factors, in order to:
unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.
The plans, which are set out from paragraph 27 of the report, are therefore more significant than I and others had been speculating, in that they will apply not just to the deportation of foreign criminals as was the focus of the press coverage and Home Secretary Theresa May’s statement to Parliament, but to the whole of immigration law. They also set out the legal reasoning as to why this is expected to bind judges, which appears to originate from an obiter comment in paragraph 17 of the 2007 House of Lords case of Huang. Continue reading →
That was quick! The Supreme Court appear to have responded to the request I made on Thursday that hearings be broadcast live on the internet. From today, Sky News will be broadcasting all hearings live via this website.
All hearings at the court are filmed, but until now only broadcasters had been able to use footage. I first argued in October that this was a waste and the hearings should be live screened. I don’t actually believe that my posts had anything to do with this minor technological miracle, but I have tried it out and it works. This is very exciting. For the first time the general public, lawyers and law students can see the advocacy in the UK’s highest court of appeal live and unedited.
R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2010] UKSC 36 – Read judgment
The Supreme Court has ruled that the UK must provide minimum standards to asylum seekers, including the right to work, whether or not their first asylum application has failed. Asylum seekers will now be able to work if they have been waiting for over a year for a decision.
The ruling is the latest in a line of court defeats for the Government on its asylum policy, including the recent High Court ruling that part of the fast-track deportation system is unlawful, as well as the Supreme Court’s rejection of the policy of sending gay asylum seekers back to countries where they may face persecution for their sexuality.
In a bombshell ruling on Thursday last week, the Court of Appeal (Sir Terence Etherton MR, Irwin, Singh LJJ) held that the UK government’s failure to suspend licences for the sale of military equipment to Saudi Arabia was irrational, and thus unlawful. This was based on a finding that the government had violated Article 2.2 of the EU Common Council Position 2008/944/CGSP, as adopted in the Secretary of State’s 2014 Guidance. Under this instrument, Member States must deny a licence for the sale of arms to other states if there is “a clear risk” that the military equipment exported might be used “in the commission of serious violations of international humanitarian law”. In this case, there was a substantial risk of their use in the conflict in Yemen. The issue will now be remitted to the Secretary of State for reconsideration.
Government misuse of data continues to be a hot topic, as hearings have begun for Liberty’s landmark judicial review under the Investigatory Powers Act 2016. Meanwhile in Parliament, the Joint Committee on Human Rights has launched a new inquiry into ‘Privacy and the Digital Revolution’. The committee received evidence including written submissions from Privacy International, Liberty, the Information Commissioner’s Office. In its findings so far, it has emphasised a widespread lack of knowledge and understanding about how personal data is being used, threats posed by large-scale data collection to freedom of expression and association, and the role of ‘baked-in’ discrimination in data collection algorithms. These findings will supplement the government’s Digital Harms white paper, announced in April.
The Equality and
Human Rights Commission has published a report into legal aid and access to
justice for discrimination cases. Its recommendations include reforming the
telephone service to make reasonable adjustments for disabled users, adjusting
the threshold and financial evidence requirements for financial eligibility, and
addressing the asymmetry in terms of claims for legal representation between
discrimination and other cases. The full report is available here.
The Court of Appeal yesterday overturned the decision on Nathalie Lieven J in the Court of Protection that doctors could perform an abortion on an intellectually disabled woman who was 22 weeks pregnant without her consent. The decision had been made despite opposition by the woman’s mother and social worker, and had led to some international controversy, including a transatlantic intervention by US Senator Marco Rubio. Lieven J stated in her judgement that it would be a “greater trauma” for the woman to have a baby removed into care post-pregnancy than to have an abortion, stating “I have to operate in [her] best interests, not on society’s views of termination.” She also suggested that the woman, who was considered to have a mental age of between 6 and 9, wanted a baby “in the same way that she would like a nice doll”. The judgement of the Court of Appeal is not yet published.
In the courts
Liberty, R (On the Application Of) v Director of Legal Aid Casework: in 2017, Poole BC issued a public spaces protection order to prohibit rough sleeping in the town centre. This was issued despite advice from the Home Office that PSPOs could not be used for such a purpose. Ms Sarah Walker, a homelessness worker, sought to challenge the decision under s.66 of the Anti-Social Behaviour, Crime and Policing Act 2014, and was refused legal aid for making that challenge. Murray J upheld the Director’s decision to refuse legal aid. Despite submissions about the precariousness of her (and many others’) circumstances, he held that Ms Ward was not seeking a ‘personal’ or ‘material’ benefit as required by paragraph 19(3) of LASPO 2012, read in light of the Ministry of Justice’s 2009 consultation paper. In light of this conclusion, the question of whether a s.66 challenge constitutes ‘judicial review’ under paragraph 19(10) was not addressed.
Birmingham City Council v Afsar & Ors: this case related to the recent protests outside Anderton Park School in Birmingham, against the teaching of LGBTQ relationships to young children. Warby J discharged injunctions that had been granted without notice at the end of May, on the basis of a failure to comply with the duty of full and frank disclosure. However, he granted fresh interim injunctions, as he considered that the Council had demonstrated that it would probably succeed at trial in showing a risk justifying an injunction, and that the fresh injunctions would not amount to ‘improper restraint of lawful protest’. A more detailed weighing up of Articles 9, 10, 11 ECHR and Article 2 Protocol 1 awaits in the substantive hearing.
Chief Constable of Norfolk v Coffey: a front-line police officer with serious hearing loss applied to be transferred from the Wiltshire Constabulary to the Norfolk Constabulary, but was refused because her hearing fell “just outside the standards for recruitment strictly speaking.” The police officer was awarded compensation in the Employment Tribunal, on the basis of discrimination based on a perceived disability, under s.13 and Sch 1 of the Equality Act 2010. the Chief Constable appealed. In dismissing that appeal, the court emphasised the Chief Constable’s failure to take into account the Home Office guidance, and dismissed any suggestion that front-line duties were different in Norfolk and in Wiltshire as ‘half-baked’.
MacKenzie v The University of Cambridge: a lecturer in the Faculty of Law at the University of Cambridge was dismissed in 2013. Upon a challenge, the Employment Tribunal made an order for re-engagement following unfair dismissal under Part X of the Employment Rights Act 1996. The claimant sought to enforce this decision by issuing judicial review proceedings in the High Court, relying on s.3 and s.6 HRA 1998, Articles 6 and 13 ECHR, and Article 1 of the first Protocol. The court held, however, that ss.115-117 of the Employment Rights Act indicated that an ‘order for re-engagement’ did not create an ‘absolute and indefeasible obligation’ on the employer to re-engage the employee, or an equivalent right in the employee to be re-engaged. Therefore, in the absence of special circumstances, the order was not enforceable in the High Court, and the application for judicial review was dismissed.
On the UKHRB
Amelia Walker discusses the investigation into abuse at Brook House.
On Episode 85 of Law Pod UK, Emma-Louise Fenelon talks to Jo Moore and Laura Bruce about equality, diversity, and access to the Bar.
Thomas Beasley reviews the Supreme Court’s decision on ‘intentional homelessness’ in Samuels v Birmingham City Council.
On Law Pod UK Rosalind English discusses with Alaisdair Henderson the Welsh government’s decision to scrap the M4 Newport relief road.
As any working parent will tell you, childcare is expensive. Unlike in some other European countries, there is no universal provision of free or affordable childcare for school age children in the UK. This can create a barrier for parents, especially lone parents, returning to work.
There is some support in the system of universal credit, a means-tested benefits for families on low income. This provides for a childcare costs element (CCE), which allows eligible claiming parents to be re-imbursed up to 85% of the costs of childcare.
However, the system has a flaw. Unlike other parts of universal credit, such as the housing costs element (HCE), a claimant is entitled to be paid the CCE only if she has already paid the charges, rather than merely incurred them (the ‘Proof of Payment rule’). This means that a parent claiming the CCE (who is disproportionately more likely to be a woman) must first pay her childcare provider and then re-claim the costs several weeks afterwards. Some may not be able to afford to do so.
Ms Salvato is one such lone mother, who brought judicial review proceedings claiming that the differential method for reimbursing childcare costs constituted indirect discrimination against women contrary to Article 14 (read with Article 8 and/or Article 1 Protocol 1) ECHR and was irrational at common law. The Administrative Court agreed on both grounds.
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.
The conflict between Israel and Hamas has continued to escalate, with some 1,400 Israelis and over 5,000 Palestinians dead, over 15,000 people injured, and over 600,000 people displaced. No end to the conflict, nor a ceasefire, is in sight. Aid entering Gaza remains far below the level required for the population size, and one-third of Gazan hospitals and nearly two-thirds of primary health care clinics have had to shut due to damage or lack of fuel. International law is being disregarded, both in the atrocious attacks by Hamas on October 7 and the subsequent retaliation by Israel, leading a group of prominent Jewish lawyers to pen an open letter in the FT (paywall) calling for restraint and an adherence to the rule of law. However, “proportionality” as a rule of international law in warfare has to be closely scrutinised when it comes to self defence. See Joshua Rozenberg’s extract from the speech given in the House of Lords by Guglielmo Verdirame, a professor of international law at the King’s College London department of war studies. The law of armed conflict is a detailed and difficult area, and has not been properly attended to by media reports following the Hamas/Israel situation. Veridrame said, regarding proportionality,
“Israel has described its war aims as the destruction of Hamas’s capability. From a legal perspective, these war aims are consistent with proportionality in the law of self-defence, given what Hamas says and does and what Hamas has done and continues to do.”
The Home Secretary has met with the Met Commissioner after the Met chose not to intervene when protestors at a pro-Palestine rally chanted “jihad”. The Met said “jihad” had numerous meanings and it believed, after consultation with the Crown Prosecution Service (CPS), that no offence had been committed. No. 10 has pushed back at suggestions that more police powers are needed, citing existing powers as adequate. The Immigration Minister, however, told ITV that “Chanting ‘Jihad’ on the streets of London is completely reprehensible … It is inciting terrorist violence”. The Merriam-Webster definition of “jihad” can be found here.
Greta Thunberg has been charged with a public order offence after she was arrested while taking part in a protest against a conference in London described as “the Oscars of oil”. According to the Met, she was charged with “failing to comply with a condition imposed under section 14 of the Public Order Act”. Police had demanded protesters move from the road on to the pavement. She was one of 29 arrested during a protest trying to stop delegates entering the Energy Intelligence Forum at the InterContinental London Park Lane in Mayfair.
In Episode 84, Emma-Louise Fenelon talks to Jo Moore, Head of Outreach at 1 Crown Office Row, and Laura Bruce, Head of Programmes and Partnerships at the Sutton Trust. They discuss improving equality and diversity at the Bar by improving access to the Bar for future generations. Listen here.
To speak to Jo about getting involved with outreach, email her at jo.moore@1cor.com. To speak to Laura about getting involved with the Sutton Trust email her at info@suttontrust.com.
Law Pod UK is available on Spotify, iTunes,Audioboom, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
This week sees the launch of the Halsbury’s Law Exchange, a new independent legal think-tank funded by LexisNexis.
The new organisation describes itself as “an independent and politically neutral think tank which contributes to the development of law and the legal sector“, aiming to “promote debate through papers, reports, events and media pieces.” The think-tank is chaired by legal journalist Joshua Rozenberg, who is joined by a number of eminent barristers and solicitors.
The recent European Court of Human Rights (ECtHR) judgment in Al-Skeini will certainly enter the Court’s hall of fame as a landmark judgment for pushing the boundaries of the European Convention on Human Rights’s jurisdiction. While it may take us some time to appreciate the full implications of this judgment, one of its possible consequences is the potential opening of the Court’s doors to claims arising from international armed conflicts.
by Melinda Padron
In Al-Skeini, the ECtHR determined that there may be instances when the European Convention on Human Rights may apply outside the ‘espace juridique’, that is the Convention’s ‘legal space’, or within the territories of the Convention’s member states (see Alasdair Henderson’s post on the ruling, which concerned Article 1 of the Convention). This may occur when agents of a member state are exercising authority and control over individuals (personal rather than strictly territorial control) within a given territory upon which that same member state is exercising some public powers. Accordingly, in the case of Al-Skeini, the Convention was found to be applicable to actions taken by British troops in Basra (Iraq), where the UK assumed the exercise of some of the public powers normally exercised by a sovereign government (see paras. 149-150 of the judgment).
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Privacy International v. Investigatory Powers Tribunal [2017] EWHC EWCA Civ 1868, Court of Appeal, 23 November 2017
R (NM) Secretary v of State for Justice [2011] EWHC 1816 – 
The Home Office has released its 
That was quick! The Supreme Court appear to have responded to the 
The recent European Court of Human Rights (ECtHR) 
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