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UK Human Rights Blog - 1 Crown Office Row
Search Results for: environmental/page/22/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
Last week the Queen revealed that the newly-elected government had delayed its promised proposals to repeal the Human Rights Act. If this signals a willingness to listen and reflect, rather than an opportunity to bring potential rebels into line, then so much the better. Let us keep talking.
In this post, I want to talk about the European Court of Human Rights in Strasbourg.
The government’s key concern – judging by the Grayling paper published last October – is that the Strasbourg Court has got too big for its boots and won’t stop telling us what to do. Hence the manifesto commitment to introduce a British Bill of Rights. The Prime Minister’s personal gripe – with some justification – is the Court’s 2005 ruling on prisoner voting: Hirst v UK (No.2) (2005) 42 EHRR 849. Continue reading →
Dunnage v. Randall & UK Insurance Ltd [2015] EWCA Civ 673, 2 July 2015 – read judgment
This is an extraordinary case, and one which goes deep down into why the law of wrongs (or torts) makes people compensate others for injury and losses, whereas the criminal law may decide that a crime has not been committed.
Imagine this. Your uncle (Vince) arrives in your home. He is behaving very hyper. Unbeknownst to you he is in the middle of a florid paranoid schizophrenic episode. He suddenly announces that he will go and fetch a copy of Autotrader from his car. He returns without it, but with a petrol can and a lighter. He sits down and becomes all aggressive and paranoid about you and your partner. He knocks over the petrol can and starts rolling the lighter trigger. After more incoherent accusations by him (e.g. “Why have you got my Hoover?”), you try to drag him clear to save him, but he ignites the lighter. You are badly burned and jump off the balcony. You are very brave. Vince dies at the scene.
You (the man with the dog) sue Vince’s estate, except you don’t really, because you are really suing his household insurers.
You try to pursue a tightrope between arguments. Vince may have been mad-ish, but not that mad, so that he is still civilly responsible for his actions. But the household policy only applies to “accidental” injury, and excludes wilful or malicious actions. So he cannot have been too sane and capable of deliberate and malicious actions.
The judge disallows your claim, on the basis that Vince lacked volition. The Court of Appeal allows it. Why?
The case arose from the Snowden leaks, which unveiled a vast communications interception program led by the US National Security Agency (‘NSA’). Intercepted communications can include the content of emails as well as ‘metadata’, and can extend to purely internal communications as well as communications with a US connection. For example, an email exchange between Leeds and London may be liable to interception by the NSA simply because it happens to be routed through a US server at some stage along the line. The Regulation of Investigatory Powers Act 2000 (‘RIPA’) establishes a framework for interception of communications by UK authorities, but of course those provisions don’t apply to interceptions by foreign state authorities in their own territory. Once intercepted by the NSA, mutual intelligence sharing arrangements can lead the same Leeds-London email to be handed over to the UK authorities, notwithstanding that the UK authorities would have needed a RIPA warrant had they wished to conduct the interception themselves. Continue reading →
JM (a child), Re[2015] EWHC 2832 (Fam), 7 October 2015 – read judgment
Mostyn J, ruling in the Family Division that a child should receive surgical treatment for bone cancer against the wishes of his parents, has referred to Ian McEwan’s “excellent” novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion. The judge noted however that the book was in fact “incorrectly titled”:
a question of whether a medical procedure should be forced on a 16 or 17 year old should be sought solely under the High Court’s inherent jurisdiction, and not under the Children Act.
This case on the other hand concerned a ten year old child, J. The NHS Trust sought permission to perform urgent surgery of a serious nature on his right jawbone, where he has a very rare aggressive cancer. Its medical name is a craniofacial osteosarcoma, presenting a tumour in the bone of about 4 inches long and 1½ inches wide. The unambiguous medical evidence before the court was that if it was not removed very soon then in 6 months to a year J would die “a brutal and agonising death”. The oncologist had spelt this out in unflinching detail:
J will not slip peacefully away. The cancer will likely invade his nerve system affecting basic functions such as speaking, breathing and eating. His head will swell up grotesquely. His eyes may become closed by swelling. A tracheostomy may be needed to allow breathing. Above all, the pain will likely be excruciating.
B and G (Children) (No.2) [2015] EWFC 3 – read judgment
Contemplating the details of different forms of female genital mutilation is not for the faint hearted. But that is what the courts and the relevant experts have to do, not only to protected alleged victims but to defend the interests of those suspected of perpetuating the procedure, whether it is a question of criminal liability under the FGM Act 2003, or determining that a threshold of harm has been passed so as to initiate care proceedings if the victim is a child.
This case concerned the latter; although in the end the court was not satisfied that the evidence was sufficient to satisfy the “significant harm” requirement under the Children Act 1989, Sir James Munby P considered the case sufficiently important to explore the inclusion of FGM, and, more controversially, male circumcision, in the array of cultural and religious rituals that can trigger the state’s intervention in family life.
These were “deep waters” which the judge was “hesitant to enter”, yet, enter them he did, all the better for the clarification of this difficult issue in care proceedings. Continue reading →
The Court of Appeal has delivered a judgment in PN (Uganda) v Secretary of State for the Home Department [2020] EWCA Civ 1213 regarding unlawful detention under the Detained Fast Track system, which indicates that a fact sensitive approach must be adopted to each case. This judgment is likely to be particularly relevant in giving guidance to practitioners whose client has previously lost an appeal under the Detained Fast Track Rules who are considering or working on claims for damages for unlawful detention.
Legal Background
In July 2015 the Court of Appeal declared that the Detained Fast Track system, which provided strict time limits for preparing appeals alongside mandatory detention, was unlawful. This was primarily because “the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases” ([45], per Lord Dyson). It did not, however, say what would happen to appeals that had been decided under this system, where wrong results may have been reached owing to this unfair procedure.
In R (TN (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 2838(‘TN (Vietnam)’), the Court of Appeal answered this question. Lord Justice Singh emphasised that whether a First-tier Tribunal decision must be quashed owing to unfairness will be a matter of fact based on how far the Detained Fast Track Rules touched on the decision. The Court of Appeal in PN (Uganda) summarised the principles established in TN (Vietnam) as follows:
35. … (1) a high degree of fairness was required in the proceedings; (2) the 2005 DFT Rules created an unacceptable risk of unfairness in a significant number of cases; (3) there was no presumption that the procedure was fair or unfair; (4) finality in litigation was important; and (5) a long delay in locating what was said to be critical evidence might suggest that the unfairness in the 2005 DFT Rules did not make the proceedings in the FTT unfair. The Court noted at paragraph 90 that whether the proceedings were in fact unfair and liable to be set aside would “depend on a careful assessment of the individual facts”.
The decision in PN (Uganda) provides a helpful application of these principles.
Followers of the blog will know I am developing a new initiative, the Human Rights Information Project (HRIP). The aim is to radically rethink the way we communicate about human rights.
I need some help from you. I want to crowd-source data from readers of this blog about the 50 human rights cases absolutely everyone needs to know about. All contributors will be attributed on the HRIP site and I will publish the text of the best nominations.
This data is going to be a central the project so I would really appreciate you taking the time to help out.
In rejecting the claim of Just for Kids Law, Mr Justice Supperstone affirmed that the legal framework for deploying juvenile covert human intelligence sources (JCHIS) was lawful and adequately safeguarded the child’s welfare.
Midcounties Co-Operative Ltd v. Forest of Dean [2015] EWHC 1251 (Admin) 6 May 2015, Singh J, read judgment here
Out of what some may think to be an everyday spat between the Co-Op (existing supermarket) and an out-of-town supermarket proposer, comes a salutary reminder from Singh J that local authorities cannot behave like private litigants when they are judicially reviewed. Different rules apply.
A little bit of context. Cinderford, like many small towns, has been subject to supermarket wars for some years. Unfortunately, the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, and then twice, and then, as we shall see, for a third time. And the response on this last occasion to the challenge – we disagree with the challenge, but we won’t appear to dispute it, and will leave it all to the supermarket to whom we gave planning permission to say why we were not unlawful in granting them permission.
Bank Mellat v HM Treasury [2015] EWHC 1258 (Comm), Flaux J, 6 May 2015, read judgment
Two recent judgments underscoring the potential high cost of the UK getting it wrong in its dealing with businesses and hence being liable to pay damages under the Human Rights Act for breach of its A1P1 obligations. Regular readers will know that A1P1 is the ECHR right to peaceful enjoyment of property.
The first case was the photovoltaics case of Breyer, all about reducing renewables subsidies unfairly: see my post of last weekhere. The second, this case, involves a much more direct form of impact, namely the Treasury’s direction under the Counter-Terrorism Act 2008 that no-one else should have any commercial dealings with Bank Mellat, because, the Treasury said, the Bank had connections with Iran’s nuclear and ballistic missile programme.
Bank Mellat’s challenge got to the Supreme Court: see judgment and my post. The Court (a damn’d close run thing – 5:4) concluded that the direction was arbitrary and irrational and procedurally unfair. The nub of the complaint is that there were other Iranian banks against whom this very draconian measure was not taken, and that there was nothing specific about the Bank which made it more implicated than the rest of the banking system.
The Supreme Court remitted the case for trial as to HRA damages.
The current judgment of Flaux J is the first stage in that trial process. As we will see, Bank Mellat are distinct winners at this stage.
It has been widely reported that Theresa May will stay on as Prime Minister following the election on June 8th. The Conservative PM will seek to form a government with the support of the Democratic Unionist Party (the DUP).
A recent Round-Up by Poppy Rimington-Pounder highlighted some welcome changes in the parties’ approaches to human rights in the pre-election manifestos. With the recent shift in political climate it seems that changes may be on the horizon.
What does the election result mean for human rights?
This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.
‘Practice and Procedure Update’ – Chair: Lord Justice Singh; Speakers: Catherine Dobson, Jo Clement, Christopher Knight
Catherine Dobson: Costs in Public Interest Litigation
Sir Rupert Jackson’s 2009 review of costs in civil litigation found that reform was required in relation to judicial review. This was because it was “not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”. Whilst the government did not take up the proposal for qualified one-way costs shifting in judicial review, it did introduce a scheme for cost capping orders in judicial review. This change was the focus of Ms Dobson’s talk.
R (Victor Nealon) v Secretary of State for Justice : R (Sam Hallam) v Secretary of State for Justice [2015] EWHC 1565 (Admin), 8 June 2015 – read judgment
As Michael Gove contemplates the future of the Human Rights Act 1998, the High Court has considered how far the presumption of innocence in Article 6(2) ECHR spreads into decisions on payment of compensation for a miscarriage of justice. In doing so, Burnett LJ also managed to find some less than complimentary sentiments about the Strasbourg court’s decision-making.
Sam Hallam was convicted of murder in 2011. Victor Nealon was convicted of rape in 1997. Both successfully appealed against their convictions and then applied to the Secretary of State (‘SoS’) for compensation under s133 of the Criminal Justice Act 1988 (the ‘1988 Act’’), as amended by the Anti-Social Behaviour, Crime and Policing Act 2014 (the ‘2014 Act’). Both men were refused compensation on the basis that their circumstances did not meet the s133 statutory test (as amended). Continue reading →
DL v SL [2015] EWHC 2621 (Fam) 27 July 2015 (Mostyn J) – read judgment
This was a simple, if contentious, divorce case in which the judge took the opportunity to make a point about balancing the principle of open judgment – allowing media coverage of cases – against the privacy of the parties involved. Whilst he was ready to acknowledge that publicity ensures not only the probity of the judge but the veracity of the witnesses, and that such publicity served promote understanding and debate about the legal process, in some cases privacy should trump the rights of the press.
There are many cases which are heard publicly, or privately with the media in attendance, but where, by a process of anonymisation, the privacy of the parties, and of their personal and other affairs, is sought to be preserved. This compromise, or balance, between open justice and the privacy of the individual has arisen for two reasons. First, the increased recognition that is given to the interests of children who are caught up in the dispute between the adult parties. And secondly, the rise of the idea that privacy is an independently enforceable right. Continue reading →
Nominations close tomorrow (Friday) at 5pm for the human rights cases which absolutely everyone should know about.
Full guidelines below – please feel free to nominate as many as 50 or as few as 1 case. The more people who contribute, the better the final list will be. I have already had some brilliant entries.
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Last week the Queen revealed that the newly-elected government had delayed its promised proposals to repeal the Human Rights Act. If this signals a willingness to listen and reflect, rather than an opportunity to bring potential rebels into line, then so much the better. Let us keep talking.
Nominations close tomorrow (Friday) at 5pm for the human rights cases which absolutely everyone should know about.
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