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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)
Following an Article 2 inquest into the tragic death of Prince Fosu, a vulnerable foreign national detained in an immigration removal centre, a jury has found that Mr Fosu’s death was avoidable and was caused by a number of gross failures on the part of the Home Office and various agencies to provide appropriate care in immigration detention at Harmondsworth Immigration Removal Centre.
Background
Mr Fosu, a car parts dealer from Ghana, entered the UK in April 2012 on a valid business visa. However, on arrival, he was refused leave to enter. His subsequent in-country appeal was rejected in September 2012 and he was booked on a flight to leave the UK on 5 November 2012.
A month after his unsuccessful appeal, he was arrested after walking naked on the road. He continued to act bizarrely at the police station and kept undressing. However, following assessment, mental health professionals at the station determined that he did not need to be sectioned and was fit for detention. When he urinated in his cell, he was seemingly labelled as a “dirty protestor” rather than being re-referred for medical assessment. After three days in police custody, Mr Fosu was transferred to Harmondsworth on the basis that he had overstayed his stay and was liable to immigration removal.
As part of reception screening at Harmondsworth, Mr Fosu was seen by a nurse, who carried out a five-minute healthcare assessment, without having access to any of his medical records. At the inquest the nurse accepted that she had done a “completely inadequate assessment” and that she was “out of her depth”.
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Graeme Hall
In the news
Phone-hacking
The Leveson Inquiry has had a star-studded parade of witnesses and phone hacking has dominated the headlines. This week’s highlights have been comprehensively covered by Inforrm’s Blog here, here and here.
David Allen Green, writing in the New Statesman, remarks that this Inquiry is a boost for democracy as it gives a voice to those who have been at the sharp end of press intrusion – normally all to easily ignored and silenced by papers. Freedom of expression, at least during the Inquiry, is not just the preserve of the press.
The family courts were opened up to media scrutiny by the Justice Secretary Jack Straw at the end of April 2009. One year on, the Times legal editor reports that not only have family courts remained closed, but media access is even more restricted than before the reforms.
In a week where promoting open justice has been high on the Court of Appeal’s agenda in cases involving terrorism, Frances Gibb writes that the family courts are still sealed shut: “After a flurry of interest, the media have stopped reporting family cases in all but rare high-profile disputes because a restrictive reporting regime makes coverage meaningless.”
The Justice Secretary’s 2009 reforms were the outcome of years of campaigning by the media and pressure groups to open up the secretive family courts. The arguments had centred on the conflict between the privacy of those involved in proceedings versus the public benefit of open justice; a balancing exercise which all public authorities are now familiar with by virtue of Article 8 of the European Convention on Human Rights (the right to privacy). It is an often quoted principle of English law that justice must not just be done but be seen to be done, and it seemed that that the family courts were moving onto that side of the balance.
In the heady days of late April 2009, Camilla Cavendish, who had campaigned for the changes predicted that “more than 200,000 hearings involving sensitive and traumatic cases, and with decisions that will have a huge impact on the lives of children and their families, will now be open to media scrutiny.”
In For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37 (“For Women Scotland 2”), the Inner House of the Court of Session has confirmed (for Scotland, at least) the relationship between the Gender Recognition Act 2004(“GRA”) and Equality Act 2010 (“EqA”). In summary, it was held that the meaning of sex in s.11 EqA incorporated the GRA framework. The upshot is that, for transgender people, sex under the EqA is determined by possession of a GRC. Thus, for EqA purposes, the sex of a transgender person without a GRC is their natal sex. On the other hand, the sex of a transgender person with a GRC is their “acquired” (to use the language of the GRA) gender.
This case note briefly sets out some of the relevant law, explores the background to the case and the judgment, and then offers some brief comments by way of conclusion. References in square brackets are to paragraphs of the judgment.
A short post to say that I was interviewed by Joshua Rozenberg for today’s Law in Action programme on BBC Radio 4. I was debating, with Nadine Dorries MP, a recent series of criminal prosecution (see my post from last week) brought against social media users. The debate centred on the implications for freedom of speech as protected by Article 10 of the European Convention on Human Rights.
The full programme can be listened to here (UK only, I think) – the social media section is from around 20 minutes in. You may have guessed from my post as well as this interview that I think the current state of the law under the Communications Act 2003 is causing very significant problems for freedom of expression.
Relatedly, I am chairing an interesting panel debate tomorrow (Wednesday) evening on this very topic. I understand the event is full but you can submit questions ahead of the event to or follow for live tweets @HumanRightsLawA ; #lawandtwittering
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
The Government’s Green Paper on secret evidence
In my previous roundup, I mentioned that the government had published a Green Paper which proposed the extension of “closed material procedures”. Last week, the blogger Obiter J wrote a three-part detailed piece about the Green Paper and its proposals, which you can read here and here. In our blog, Adam Wagner pondered whether more trials should be held in secret, whilst Angus McCullough QC expanded on Adam’s piece, offering his comment from the perspective of an experienced Special Advocate.
We all know that these days you cannot just say you want to employ a Muslim or a Catholic without a good reason. But what about the potentially different question as to whether you can choose your own private judge, namely an arbitrator, by reference to his or her religion?
This problem faced the Supreme Court recently. Its answer involved a detailed analysis of what was involved in the whole process of arbitration, and the similarities and difference between it and a more typical relationship between client and professionals. The Court also touches on the exception to the rule against discrimination, based upon the job having a genuine occupational requirement for a person of a given religion.
In both cases Christian bakery owners refused to create certain cakes for customers on the basis that it would contravene their religious objection to gay marriage. The judgments in Masterpiece may foreshadow some of the arguments to be discussed in the upcoming UK decision.
In this case, the US Supreme Court held that the Colorado Civil Rights Commission failed to approach the matter in accordance with its obligation of religious neutrality. The baker’s appeal was therefore upheld — but only on technical grounds.
Background
The owner of Masterpiece, Jack Phillips, refused to create a wedding cake for a same-sex marriage ceremony between two of his potential customers, Charlie Craig and Dave Mullins. He did, however, say that he would be prepared to make birthday cakes or other products. His stated reason for refusing to make a wedding cake was that to do so would have been a personal endorsement and participation in a ceremony and relationship which contravened his deep and sincerely held religious beliefs.
In Hughes v Rattan [2021] EWHC 2032 (QB), the High Court was asked to answer the following question. Was the owner of a dental practice liable for the dental negligence of a self-employed dentist engaged to work in the practice? The claim arose from NHS care provided by three different associate dentists. The preliminary issue was whether the practice owner was liable by reason of: a) a non-delegable duty of care; or b) vicarious liability. The Court answered: “yes” and “yes”.
(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is a characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
(3) The claimant has no control over how the defendant chooses to preform those obligations i.e. whether personally or through employees or through third parties.
(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.
The Home Office has announced its intention to create new offences relating to actions taken by attendees at protests. The plans include making it an offence to possess flares or pyrotechnics at a protest, to wear a face covering at a protest, and to climb on war memorials. The changes will be added as amendments to the Criminal Justice Bill. The Home Office has emphasised that the new rules are not a blanket ban on face coverings, and only apply where the protester’s intention is to conceal their identity. Police officers already have the power to order a person to remove any item which the officer reasonably believe is being worn wholly or mainly for the purpose of concealing their identity. The changes will mean that a protestor who flouts such an order could be subject to a £1,000 fine or a one-month custodial sentence. The Home Office also added their intention to amend the law to prevent protestors from “using the excuse of protest to avoid prosecution” for offences such as criminal damage.
In international news
Israeli Prime Minister Benjamin Netanyahu has ordered the evacuation of civilians from the city of Rafah in southern Gaza ahead of an anticipated offensive operation. Rafah had a pre-war population of approximately 280,000 people and is now believed to be sheltering an additional 1.4 million Palestinians, making it home to over half the population of Gaza. The plans have attracted widespread international criticism. US President Joe Biden said that Israel should not conduct a military operation in Rafah without a “credible and executable” plan to protect civilians. Irish Minister for Foreign Affairs Micheál Martin went further, stating that a military operation would “entail grave violations of international humanitarian law” and that the evacuation order “risks mass forced displacement”. Netanyahu has said that the offensive is necessary to achieve Israel’s strategic goal of eliminating Hamas and that the IDF will pursue a “combined plan for evacuating the population and destroying the [Hamas] battalions”.
In the Courts
On 5th February the Employment Tribunal handed down judgment in David Miller v University of Bristol. The Claimant had been dismissed from his position at the University following comments he made which included his view that Zionism is a “racist, violent, imperialist ideology premised on ethnic cleansing” which “has no place in any society”. The Tribunal held that the Claimant’s anti-Zionist beliefs constitute a protected philosophical belief under the Equality Act 2010. The Tribunal concluded that the University’s decision to dismiss the Claimant was a disproportionate interference with his Article 9 and 10 rights to freedom of conscience and freedom of speech, and that his dismissal was unfair and wrongful. The Tribunal emphasised that the Claimant’s views were worthy of respect in a democratic society because he was not fundamentally opposed to the idea of Jewish self-determination, but rather to “the exclusive realisation of Jewish rights to self-determination within a land that is home to a very substantial non-Jewish population”, and because he did not support violence as a means of opposing Zionism [237]. The Tribunal reduced the Claimant’s compensatory award for unfair dismissal by 50% because his behaviour in commenting on individuals students and student societies was deemed culpable and blameworthy and had contributed to his dismissal [472].
JUSTICE, a law reform and human rights organisation, has today published a significant and wide-ranging critique of state surveillance powers contained in the Regulation of Investigatory Powers Act (RIPA).
The report – Freedom from Suspicion – Surveillance Reform for a Digital Age – is by Eric Metcalfe, former director of JUSTICE and recently returned to practise as a barrister. It reveals some pretty stunning statistics: for example, in total, there have been close to three million decisions taken by public bodies under RIPA in the last decade.
The report is highly critical of the legislation, which it argues is “neither forward-looking nor human rights compliant“. Its “poor drafting has allowed councils to snoop, phone hacking to flourish, privileged conversations to be illegally recorded, and CCTV to spread.” Metcalfe recommends, unsurprisingly, “root-and-branch” reform.
Nadhim Zahawi has been sacked from the Cabinet after making what he calls a “careless and not deliberate” mistake with his taxes. He reportedly paid a 30% penalty fee on top of the money owed to HMRC in connection with his use of an offshore company to hold shares in the polling company YouGov. The Prime Minister had been resisting calls to fire his Minister Without Portfolio, who also serves as Chairman of the Conservative Party, until the independent advisor tasked to investigate the issue made clear that there had been a “serious breach of the ministerial code.” Zahawi’s lawyers had been attempting to obstruct journalists exposing that he was being investigated over his tax affairs with threats of legal action.
Another investigation is being launched by the BBC into the hiring of its current chairman, Richard Sharp. The Tory donor allegedly helped Boris Johnson secure a large loan soon before being recommended by the then prime minister for the job. Sharp has denied he was involved in making the loan, claiming that he had “simply connected” people. The Labour Party has called for a parliamentary investigation into the allegations.
As prefigured on this Blog here, Keehan J has handed down a public Judgment explaining how he used the inherent jurisdiction of the High Court to make novel and far-reaching Orders against ten men.
The inherent jurisdiction is the power vested in the Higher Courts to maintain their authority and prevent their processes being obstructed and abused. Traditionally this has also included the exercise on behalf of the sovereign as parens patriae of particular powers concerning children – most commonly wardship.
Birmingham City Council were addressing a real and significant issue. This had been highlighted in Rotherham. The gold standard response is to secure criminal convictions as occurred in Bristol. However, in some instances, the evidence will not secure jury convictions and hence the search is on for alternatives.
Following my post on the Weimar District Court judgment, here is news from Belgium. This summary of the ruling is from the journal LeVif.
The police tribunal in Brussels issued a judgment on 12 January acquitting a man summoned for non-wearing of a mask, according to his lawyer, Hélène Alexandris. The judge concluded that the enforced wearing of the mask in public space was unconstitutional. Interior Minister Annelies Verlinden said the public prosecutor has appealed against the decision.
Protesters in Los Angeles on Saturday. Credit: The Guardian.
The usual purpose of these round ups is to try and avoid repeating the headline news of the previous week whilst instead summarising the key legal developments. There are some weeks, however, in which events tend to put the judgments of the Court of Appeal into the shade.
The death of George Floyd on May 25th not only placed concerns about policing attitudes and deaths in custody onto the front pages, but also shone a light on to wider systemic racism. Protests in response were ongoing as of Sunday, both in the USA and around the world. The use of force by police in the aftermath of demonstrations has been widely reported upon, particularly in the United States, where the extent of force deployed against the British media led to a formal raising of the matter by the British embassy in Washington. Continue reading →
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Welcome back to the human rights roundup. Our full list of links can be found 
A short post to say that I was interviewed by Joshua Rozenberg for today’s Law in Action programme on BBC Radio 4. I was debating, with Nadine Dorries MP, a recent series of criminal prosecution 
Welcome back to the human rights roundup. Our full list of links can be found 
This week the US Supreme Court handed down judgment in 
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