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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)
Re K and H [2015] EWCA Civ 543, Court of Appeal, 22 May 2015 – read judgment
Philippa Whipple QC and Matthew Donmall of 1 COR appeared for the Lord Chancellor in this case. They have played no part in the writing of this post.
Lord Dyson for the Court of Appeal has recently reversed the decision of HHJ Bellamy (see my post here) who had ordered legal aid to help an unrepresented father in family proceedings. The conundrum was that the father wanted contact with his children aged 5 and 4, but a 17-year old step-daughter, Y, told her teacher that the father sexually abused her – which the father denied.
That issue had to be decided first – and understandably the father felt unable to cross-examine Y himself. Hence the judge’s order that the Courts Service (HMCTS) should pay for legal representation for the father limited to that cross-examination of Y.
The UK has seen an increasingly falling rate in arrests and prosecutions for cannabis possession over recent years, as police forces no longer see the point in enforcement. The Liberal Democrats have campaigned for its legalisation since 2016, and the first medically-prescribed cannabis was permitted in the UK in 2018. However, crucial NHS cannabis-based medicines for epilepsy remained prohibitively difficult to access for another year, with the majority of self-reported ‘medicinal’ users still turning to the black market. With growing numbers of US states, alongside Canada and South Africa decriminalising recreational use over the past three years, some UK MPs believe that cannabis legalisation will occur in the UK within five to ten years.
In recent years direct challenges to the authority of the Court within a handful of member states have also become more explicit and vocal” and “the Convention system crumbles when one member state, and then the next, and then the next, cherry pick which judgments to implement.
So said Nils Muižnieks, the Council of Europe’s Commissioner for Human Rights, last year. This raises the question of whether the Convention system is facing an implementation crisis and what more might be done by the Committee of Ministers, the regional body responsible for supervising the execution of judgments of the European Court of Human Rights.
Last month, the Bingham Centre for the Rule of Law and Leicester Law School convened a public event that asked an expert panel to consider these issues. Speakers included Merris Amos (Queen Mary University London); Dr Ed Bates (Leicester Law School); Eleanor Hourigan (Deputy Permanent Representative, UK Delegation to the Council of Europe); Nuala Mole (The AIRE Centre); and Prof Philip Leach (EHRAC, Middlesex University London and the European Implementation Network). Murray Hunt (Legal Adviser to the UK Joint Committee on Human Rights and incoming Director of the Bingham Centre) chaired the event.
Art.3 European Convention on Human Rights provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
This provision corresponds with Art.4 of the EU Charter which has the same wording.
Theoretically, treatment must reach an intense level of severity for a challenge under this provision to succeed. The Strasbourg authorities originally set a high threshold for treatment falling within the scope of Art.3 ; it must exceed “a certain roughness of treatment” (The Greek Case (1969) Application Nos 00003321-3/67, 11 YbK of the ECHR 501).
In principle the rule is that conditions in the home State, however appalling, do not engage the responsibility of the deporting country. However, Art. 3 is often cited in deportation and asylum cases and allegations of institutional “torture” and “degrading treatment” in the receiving states, advanced by intervening NGOs, are hard to disprove.
Following the judgment in D v United Kingdom (1997) 24 EHRR 423, that an HIV patient could not be returned to a state of origin where medical treatment was inadequate, Art. 3 has been extended to cover conditions of impoverishment and social decay in non-Convention states. In R(Adam, Limbuela and Tesema) v Home Secretary [2005] UKHL 66 the House of Lords applied this extended right to overrule legislation denying social support to asylum seekers who fail to submit their claims as soon as “reasonably practicable”. That the denial of social support was deemed to amount to torture and inhuman treatment shows how far the Convention has developed its reach as a social and economic rights instrument, where claims to social services, accommodation and a high standard of medical care can be made out under the prohibition that was drafted into the Convention in order to prevent the repeat of the sort of atrocities perpetrated in Nazi Germany. Indeed, in 2008 the Strasbourg Court stated in terms that the prohibtion on deportation extends to
the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.(N v UK, 27 May 2008)
The Strasbourg Court has recently started to distinguish “torture” from “inhuman and degrading treatment” as separate elements of Article 3 although the results in practice are the same. In the case of Gäfgen v. Germany (1 June 2010) the Grand Chamber considered that police officers threatening the applicant imminent pain for the purpose of extracting information constituted “inhuman treatment” falling within the scope of Article 3. But they also held that this method of interrogation did not reach the level of cruelty to attain the threshold of torture under that provision. On the other hand, the bar for offending treatment may being set somewhat lower according to more recent case law from Strasbourg. For example, the Court found degrading treatment in breach of Article 3 when a person was deprived of his spectacles (Slyusarev v Russia 20 April 2010) even though there was no evidence of impairment to the eyes caused by the delayed replacement. The fact that the applicant could not read or write normally was sufficient to amount to treatment in breach of Art.3. When riot police burst into schools used as shelters by G8 protestors and meted out punishment with riot sticks, this was found to have reached the level of torture under Art.3: Cesaro v Italy, 7 April 2015. Where a prisoner with chronic health conditions and a medical note recommending the avoidance of cigarettes was confined almost all day in overcrowded cells where the other occupants smoked, the passive smoking element was relevant in the finding of conditions incompatible with Art. 3 (Florea v Romania 14 September 2010). The Court has also stated that states are under an obligation to take measures to protect prisoners from passive smoking where their state of health so requires (Elefteriadis v Romania, 25 January 2011).
Article 3 imposes an obligation on the state to ensure the health and well-being of persons deprived of their liberty, although they are not expected to provide equivalent health care in prisons as compared with the outside world (Aleksanyan v Russia, 22 December 2008). In McGlinchey v UK the failure by the prison medical staff to properly monitor the state of the applicant, who was vomiting repeatedly under withdrawal symptoms, and suffering from dehydration, disclosed treatment in breach of Article 3 (29 April 2003). Outside the prison walls there is less case law, and the threshold is higher; for example lack of access by cancer patients to potentially life-saving experimental drugs which were not yet authorised did not amount to treatment in breach of Art.3 (Hristozov v Bulgaria, 13 November 2012). Leaving an asylum seeker to fend for himself on the street for over a year, without provision for shelter, food or other needs, breached Art.3 in MSS v Greece and Belgium (2011).
Domestic courts may be rowing back from their earlier generous approach to Article 3 claims – see R (on the application of EW) v Secretary of State for the Home Department, [2009] EWHC 2957 and our post on the case. More recently, the Court of Appeal has confirmed that foreign nationals may be removed from the UK even where their lives will be drastically shortened due to a lack of healthcare in their home states. Removal in those circumstances does not breach Articles 3 or 8 ECHR except in the most exceptional cases (GS (India) and Ors v SSHD [2015] EWCA Civ 40. D v UK is rarely followed in current times, as signatory states’ medical and social services become more pressed and cash strapped.
However it remains the case that Article 3 has been interpreted to cover not only state sponsored persecution but the acts of private individuals as well, since it obliges governments not to return or deport anyone to a destination country where they might be exposed to danger, whether at the hands of state agents or rebel groups. This interpretation of Article 3 has prevented the deportation of a convicted armed robber to Somali because of the risk that he might get caught up in the civil war there – see Ahmed v Austria (1997) 24 EHRR 278.
Chahal v UK (1997) 23 EHRR 413 set a strong precedent for preventing states from deporting individuals to countries where they risk treatment in breach of Article 3. In Saadi v Italy (2008) No. 37201/06 the Court emphasised that Art.3 imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to inhumane treatment. The conduct of the person concerned, however undesirable or dangerous, cannot be taken into account. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return. In Othman (Abu Qatada) v UK [2012] ECHR 56 the Court accepted that the UK and the Jordanian governments had made genuine efforts to provide detailed assurances that the applicant would not be ill treated on his return to Jordan; although in fact the applicant won on the basis of Article 6, as the Court found that he faced a flagrant denial of his right to a fair trial if deported.
The Strasbourg Court has also attracted criticism from high places for applying Article 3 to the way Parliament regulates the “reasonable chastisement” of children by their parents in the home (A v UK (1999) 27 EHRR 611).
Macklin v Her Majesty’s Advocate [2015] UKSC 77, 16th December 2015 – read judgment
The Supreme Court has unanimously dismissed an appeal against a decision of Scotland’s High Court of Justiciary (available here) in which it refused to overturn a criminal conviction on the basis that the non-disclosure of evidence breached the appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).
Blood donation centres all over Europe are grateful for volunteers, but sometimes people don’t make it through the assessment process. Restrictions on male homosexual blood donors are particularly tricky, because they fly in the face of equality, whilst reflecting our current, no doubt inadequate, understanding of how infectious diseases are transmitted, and how long pathogens remain viable in human blood.
This case started when a French citizen, M. Léger, presented himself at his local blood donation centre. He was turned down after interview. The relevant law in France implements two EU Directives on blood donation which lay down specific conditions regarding eligibility.
Legal background
This was a request to the European Court (CJEU) for a preliminary ruling on Directive 2002/98/EC which imposes safety standing on the collection of blood for therapeutic use (the “Blood Directive”). It requires that blood should only be taken from individuals “whose health status is such that no detrimental effects will ensue as a result of the donation and that any risk of transmission of infectious diseases is minimised”. It also states that potential donors should be assessed by way of interview for their suitability. Continue reading →
Animal welfare groups and campaigners for humane farming have welcomed the latest ruling by the European Court of Justice upholding the refusal of German authorities to allow the export of live cattle to Kazakhstan, a 7,000 km journey involving insufficient rest stops and unloading. According to Compassion in World Farming,
Every year, over three million animals are exported from the European Union to non-EU countries. Hundreds of thousands are destined for countries in Russia, Turkey, The Middle East and North Africa. (Live exports from the EU)
This was a referral from German municipal authorities on just this question. It sought a ruling from the European Court of Justice (CJEU) regarding the interpretation of Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations. Continue reading →
R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 read judgment
Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.
L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.
So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.
But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.
Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.
Elvanite Full Circle v. AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC), Coulson J read judgment
The Jackson reforms, which are designed to stop lawyers spending too much of their clients’ or their opponents’ money, are still but young, and therefore not yielding much in the way of decided cases. But there were some pilot schemes which are very similar, and this case about one such scheme (in the Technology & Construction Court) is an interesting, and tough, example of why costs budgets must be taken seriously.
Elvanite claimed that AMEC had given them negligent planning advice about waste management. Coulson J dismissed the claim. AMEC sought and got their costs. But, from the judge’s judgment on costs, it seems unlikely that they will recover more than 50% of their actual costs. Why?
Coalition for Responsible Regulation v. EPA US Federal Court of Appeals, DC, 26 June 2012, read judgment
This week, two big decisions which will have come as a relief to the President. The US Supreme Court did not strike down his healthcare law (judgment here), and, to the subject of this post, neither did the Federal Courts of Appeal in Washington declare invalid key greenhouse gas rules set by the Environmental Protection Agency. This saga is a perfect illustration of how closely law and politics get intertwined in the US.
As I pointed out in my previous post, Massachusetts v. EPA (549 U.S. 497 (2007)). told the EPA that it had a duty to regulate greenhouse gas (GHG) emissions because they were “any air pollutant” within the meaning of the Clean Air Act – as two prior general counsels had repeatedly told it. The EPA (under the previous administration) needed to be taken to the Supreme Court before responding. Thereafter, the EPA, with a new head appointed after Obama’s election, reached an Endangerment Finding, to the effect that GHGs may “reasonably be anticipated to endanger public health or welfare”. In the pellucid prose of this Court,
Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.
Industry and a whole host of states (no prizes for guessing which fossil fuel producing states were in support) sought to challenge these rules.
Julian Assange has been released from HM Prison Belmarsh after accepting a plea deal with American prosecutors. Assange pleaded guilty to one charge of conspiracy to violate the Espionage Act, for communicating with whistleblower Chelsea Manning and receiving and publishing classified information regarding Guantanamo Bay, the Afghan and Iraq war, and US diplomatic cables. After being released from Belmarsh, he travelled to the North Mariana Islands to enter his plea, before travelling on to Australia now a free man. NGOs and media figures have voiced concerns that Assange’s guilty plea will have a chilling effect on journalists.
This week saw multiple international courts react to Russia’s invasion and occupation of Ukraine. International Criminal Court (ICC) judges have issued arrest warrants against Russian officials Sergei Kuzhugetovich Shoigu (former Minister of Defence) and Valery Vasilyevich Gerasimov (Chief of the General Staff of the Armed Forces and First Deputy Minister of Defence). The ICC judges found that there are reasonable grounds to believe that they bear individual criminal responsibility for crimes including directing attacks at civilian objectives, causing excessive incidental harm to civilians or damage to civilian objects and inhumane acts. The European Court of Human Rights (ECtHR) found that Russia is responsible for a wide variety of human rights abuses in Crimea, a Ukrainian territory annexed by Russia in 2014. The judgment deals with events that took place before the full scale invasion in 2022, and chronicles a systematic campaign of repression against Ukrainian and Crimean Tatar civil society. This includes the transfer of political prisoners to Russia and restrictions on Ukrainian language and culture. The ECtHR unanimously found breaches of articles 2, 3, 5, 6, 8, 9, 10, 11, articles 1 and 2 of Protocol 1, articles 2 of Protocol 4, and articles 14 and 18.
The Court of Appeal has held that the National Crime Agency (NCA) misdirected itself in law when deciding not to investigate whether imported cotton products from the Xinjiang Uyghur Autonomous Region (XUAR) were the product of forced labour or other human rights abuses committed by China. The Uyghurs are a Turkic Muslim minority subject to intense repression in China, which some argue amounts to a genocide(this is disputed by the UK government). The court recognised that there is a consensus regarding widespread exploitation and abuse within China’s cotton production and that 85% of Chinese cotton comes from XUAR. The court held that the NCA was wrong to state that it could not start an investigation unless a specific consignment of cotton produced through human rights abuses was identified. Furthermore, the NCA was wrong to state that providing “adequate consideration” for goods could prevent goods imported into the UK from constituting criminal property.
The US Supreme Court has struck down the Chevron v Natural Resources Defense Council, one of the most influential precedents in US administrative law. The “Chevron doctrine” was a rule of statutory interpretation; it stated that where Congress did not directly address the meaning of a statute, a court was required to defer to the administrative agencies’ interpretation as long as it was reasonable. In the leading judgment, Judge Roberts stated that it is the role of the courts to “decide legal questions by applying their own judgment” and “it thus remains the responsibility of the court to decide whether the law means what the agency says”. Therefore, this case represents a big shift in the balance of power from the executive to the judiciary.
The Employment Appeal Tribunal has found that belief in climate change is capable of constituting a “philosophical belief” within the meaning of the Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”).
The decision of 3 November 2009 also provides important guidance for what constitutes a “philosophical belief” under the 2003 Regulations, as well as raising a number of questions regarding the status of ‘beliefs’ in relation to ‘scientific evidence’, a matter which, the EAT’s findings do not entirely resolve.
The Supreme Court ruled that the police have a positive obligation to conduct an effective investigation into crimes involving serious violence to victims, in line with Article 3 of the ECHR. In this case the obligation had been breached.
The case concerned the police’s investigation into the ‘black cab rapist’, John Worboys. Two of his victims brought a claim for damages against the Commissioner of the Metropolitan Police Service (MPS), on the basis of an alleged failure of the police to conduct an effective investigation into Worbys’ crimes. The victims were awarded compensation in the first instance. The Court of Appeal dismissed the MPS’ appeal, and the case came before the Supreme Court. Continue reading →
‘In peril’: Human Rights Watch publishes their World Report 2026
On Wednesday, Human Rights Watch published World Report 2026, the 36th edition of its annual review of human rights practices in over 100 countries.
Introducing the Report, Executive Director Philippe Bolopion describes 2025 as a potential ‘tipping point’: US hostility to multilateral institutions, he argues, now compounds longstanding efforts by China and Russia to erode the rules-based international order.
The Report’s UK chapter highlights restrictions on protest, including the proscription of Palestine Action, alongside rising absolute poverty, disability benefit cuts and far-right anti-migrant mobilisation. It criticised the Supreme Court’s ruling that ‘sex’ in the Equality Act 2010 refers to biological sex rather than legal gender identity (For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16). The same ruling forms part of a report by the UN Special Rapporteur on violence against women and girls, discussed further below.
The World Report also welcomed Parliament’s vote to decriminalise abortion. Although the Abortion Act 1967 permitted lawful terminations in specified circumstances, abortion itself remained a criminal offence. In June 2025, the House of Commons voted 379 to 137 to add Clause 191 to the Crime and Policing Bill, removing women from criminal liability in relation to their own pregnancies at any gestational stage. The provision, which represents the most significant reform of abortion law in England and Wales in nearly 60 years, is currently before the House of Lords.
Human Rights Watch’s full global report can be accessed here.
The recent Health and Care Act 2022 has come under scrutiny for introducing a cap on social care spending. From October 2023, the government will introduce a cap of £86,000 on the amount anyone in England will need to spend on their care over their lifetime. The cap will no longer count contributions from local authorities towards care costs. Disabled people living in the UK already spend an average of £583 a month in relation to their healthcare. The cap is much larger than the £35,000 recommended by the 2011 Dilnot Commission. There are concerns the cap breaches the Equality Act 2010 by discriminating against disabled people and other groups.
In a report published on Tuesday 31 May, the Information Commissioner’s Office highlighted the need to reduce the requirements for complainants in rape and serious sexual offence cases to sign Stafford statements. These forms give officers consent to obtain often highly sensitive third-party materials, including medical, education and counselling records. They are said to be undermining trust and confidence in the criminal justice system. The report also called for police to stop assuming alleged rape victims have consented to searches of their phones and other devices.
An impact assessment paper on the dangers of lifting restrictions on police stop and search powers, dated January 2022, was published on Tuesday. In the equality impact assessment, commissioned by the Home Office, officials warned that easing of conditions could damage community relations and lead to more people from minority ethnic backgrounds being targeted.
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Re K and H [2015] EWCA Civ 543, Court of Appeal, 22 May 2015 – read judgment 
Macklin v Her Majesty’s Advocate [2015] UKSC 77, 16th December 2015 – 
R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 
Grainger PLC v T Nicholson
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