Dismissal of hospital consultant did not breach fair trial rights

3 August 2011 by Richard Mumford

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB)- Read judgment

The High Court has dismissed Dr Raj Mattu’s claim that his dismissal by an NHS Trust was in breach of contract and in breach of his Article 6 right to a hearing before an independent and impartial tribunal. This is one of the first judgments on the applicability of Article 6 to disciplinary and dismissal proceedings since the decision of the Supreme Court in R (G) v X School Governors [2011] UKSC 30 (read our post).

Dr Mattu was employed by the Trust as a consultant in non-invasive cardiology and general medicine in 1998. In 2002 he was suspended on disciplinary grounds; however, the relevant disciplinary hearing did not occur until 2007 and the suspension was in place until July 2007. Further, Dr Mattu was on sick leave for at least a year from September 2006.

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An ABC on proportionality – with Bank Mellat as our primer

22 June 2013 by David Hart KC

Bank Mellat v HM Treasury [2013] UKSC 39 (see judgment)

My post of earlier this week explained why the majority of the Supreme Court struck down a direction telling all financial institutions not to deal with this Iranian Bank. The legal ground (involving, as Lord Sumption described it, “an exacting analysis of the factual evidence in defence of the measure” [20]) was that the direction was “disproportionate”. The judgments (particularly the dissenting one of Lord Reed) tell us a lot about the scope of proportionality. And there is a good deal more to it than there might at first sight appear.

So it may be worth doing a bit of a bluffers guide, hand in hand with Lord Reed.

The concept arises in human rights law and in EU law. Its ECHR and EU incarnations derive from German administrative law, but its development in English law shows strong common-law influences. It applies in many different contexts, and the intensity of the review required critically depends on that context as well as the right being interfered with. So it is no simple thing to explain, but Lord Reed at [68] – [76] distils the main elements.

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Should asylum seekers take action to avoid persecution on the ground of political opinion incorrectly attributed to them?

22 July 2016 by Lois Williams

Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener) [2016] EWCA Civ 715 – Read judgment

The Court of Appeal dismissed the Secretary of State’s appeal challenging the Upper Tribunal’s decision that MSM would have been at risk on return to Somalia on the ground of political opinion.  Exceptionally, the court went on to consider the modification of conduct issue in relation to imputed political opinion on an obiter basis, which gave rise to interesting analysis.

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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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Article 5

1 June 2010 by Adam Wagner

Article 5 | Right to liberty and security of the person

Read posts on this Article

Art.5 of the European Convention on Human Rights provides as follows:

(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

The corresponding provision in the EU charter, Article 6, is much shorter:

Everyone has the right to liberty and security of the person.

The explanatory notes on the Charter state that the rights in Article 6 have the same meaning and scope as Article 5 ECHR. The limitations which may be imposed on them may not exceed those permitted by the ECHR.  The liberty of the subject is within the competence of the EU institutions and engages EU law ever since immigration and aspects of criminal justice have come within the jurisdiction of the European Court of Justice. Furthermore, member states may also arrest and detain persons pursuant to EU law, most often in the fields of immigration and asylum and cross-border cooperation in criminal proceedings. Any domestic proceedings under the European Arrest Warrant will necessarily engage the Charter and its rights.

The right to liberty cannot be absolute and although most of this Article is dedicated to a list of conditions under which a person’s liberty can lawfully be curtailed, each of these permissible forms of detention depends for its legitimacy on the availability of review. In other words, there must be periodic scrutiny of the legality of the detention by an independent court or tribunal. It is important to note that this list is exhaustive, i.e. there are no other permissible derogations to the right to liberty of the person.

The first part of Art.5 governs all situations where people are deprived of their physical liberty; this can extend from detention for less that two hours for the purpose of deportation (X & Y v Sweden Application No.00007376/76) to the holding of a patient in an open ward of a mental hospital (Ashingdane v United Kingdom (1985) 7 EHRR 528), as well as the more obvious situations involving arrest for criminal offences. As far as detention of people of “unsound mind” is concerned (Article 5(1) (e)), proof of an established mental disorder is not required at the initial taking into detention. For an initial period of assessment, it may be enough that there is some medical evidence, and genuine concern that the person is of risk to themselves or others (SR v Netherlands, Application no. 13837/07) 28 December 2012).  Detention for unsound mind will only be lawful under Article 5(1)(e) if effected in a hospital, clinic or other appropriate institution (Aerts v Belgium, 1998 29 EHRR 58).

Those parts of Article 5(1)(d) – (f) that deal with types of administration detention that do not follow a court order, makes it all the more important that the individual has a right to examine the legality of that detention under Article 5(4). Note however that the Strasbourg Court has held that Article 5(1)(f) is distinct from the other forms of detention permitted under (a) – (e) in that detention may not be “necessary” or “proportionate” to secure the deportation or extradition of someone detained in a signatory state, nor to prevent their illegal entry (Chahal v United Kingdom (1997)). The Court needs to retain its legitimacy in the eyes of signatory states by respecting their sovereign right to control their borders and refuse aliens the same general rights to liberty enjoyed by their citizens (Saadi v United Kingdom 2008).

The reference to the “liberty and security of the person” means simply that the arrest must not be arbitrary; individuals should be “secure” from the unexplained and unlawful actions of the State: Bozano v France (1986) 9 EHRR 297.

The right to review of detention under Article 5(4) was held not to have been breached by the UK government in having so called “closed” procedures when information about a terrorist suspect is not available either to the individual concerned or their lawyers. The special advocate performed “an important role” in counterbalancing the lack of full disclosure and the lack of an open adversarial by putting arguments on behalf of the detainee in the closed hearings. Although in the same case (A v United Kingdom (2009) No. 3455/05) the Grand Chamber found, in respect of some of the applicants, that the closed procedure could not be fair when decisive evidence was contained in the closed material that they had no chance to challenge.

• Return to Incorporated Rights Index
• Introduction to Human Rights

Supreme Court dismisses protestors’ appeal over PKK flag conviction

3 February 2022 by Samuel March

Pwr v Director of Public Prosecutions [2022] UKSC 2 — judgment here

On 26 January 2022 the Supreme Court ruled that s.13(1) Terrorism Act 2000 (“TA 2000 “) is a strict liability offence and that, whilst it does interfere with Art.10 ECHR (freedom of expression), the interference is lawful, necessary and proportionate.

BACKGROUND

S.13 provides that it is a criminal offence for a person in a public place to carry or display an article “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary-only and carries a maximum sentence of six months imprisonment.

The three appellants in this case, Mr Pwr, Mr Akdogan and Mr Demir were convicted in the Westminster Magistrates’ Court of an offence contrary to s.13 TA 2000. All three had attended a protest in central London on 27 January 2018. The protest concerned perceived actions of the Turkish state in Afrin, a town in north-eastern Syria. The convictions related to carrying a flag of the Kurdistan Workers Party (the Partiya Karkerên Kurdistanê (“the PKK”), an organisation proscribed under the TA 2000. Mr Pwr and Mr Akdogan were given three-month conditional discharges. Mr Demir received an absolute discharge.

Government successfully appeals in ‘Right to Rent’ case

22 April 2020 by Samuel March

R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, judgment here

On 21^st April 2020, the Court of Appeal allowed the Home Office’s appeal in the ‘right to rent’ case. The decision below was covered on this blog here.

Notably, the Court of Appeal agreed with the High Court’s view that the scheme does result in landlords discriminating against tenants without British passports on the basis of their actual or perceived nationality. However, the Court held that this discrimination was justified.

The subtle hand of human rights – and more Aarhus

20 October 2016 by David Hart KC

R (o.t.a. Dowley) v. Secretary of State for Communities and Local Government [2016] EWHC 2618 (Admin) Patterson J, 20 October 2016 – read judgment

This challenge was about a landowner not wishing to let those wishing to develop Sizewell C nuclear power station onto her land to carry out surveys and investigations. But it came down to a disagreement about the terms which such entry might occur. For s.53 Planning Act 2008 enables the Secretary of State to allow such entry, subject to conditions, and with the proviso that the landowner may claim compensation for “damage caused to lands or chattels” (s.53(7)) via a claim to the Upper Tribunal.

The entry in question was not insubstantial; the developer wished to have access to some 75 acres of the 420 acres of the claimant’s estate, for surveys relating for possible spoil storage, roads and builders accommodation if the project was to proceed.

The major fall-out was over the issue of the extent of compensation. And this, as we shall see, is where human rights came in, albeit in a topsy-turvy way.

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HS2 challenges fail but powerful dissent

26 July 2013 by David Hart KC

R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, 24 July 2013, Court of Appeal – read judgment 

HS2 is the proposed high speed rail link to Birmingham and beyond.  Its opponents sought to challenge the decision to promote it by way of a hybrid Bill in Parliament, saying that the process as a whole breached the various EU rules, including the need for Strategic Environmental Assessment under the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Impact Assessment Directive 2011/92/EU.

The Court of Appeal rejected these contentions, as had the judge before them. But Sullivan LJ, a highly experienced planning judge, was far from convinced. He thought that a key question about the SEA Directive ought to be determined by the EU Court (the CJEU) before domestic judges could form a settled view on it.

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Private nuisance – Article 6 and the costs conundrum

23 July 2014 by David Hart KC

Coventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment

Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases.  Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.

Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small”  local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.

Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.

In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).

So each case is about a costs burden, which is capable of causing injustice to one or other party.

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Gay marriage on the way… but not quite yet

10 October 2011 by Adam Wagner

In his Conservative Party Conference speech the Prime Minister David Cameron signalled his strong support for the legalisation of gay marriage. He said:

Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.

We have covered the slow progress towards legalised gay marriage in a number of posts since this blog launched in March 2010: see the links below. Where are we up to now?

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New Judges, Secret Trials and Pulling Out of European Human Rights – The Human Rights Roundup

3 March 2013 by Sam Murrant

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.

This week saw three new appointments to the UK Supreme Court, which has in turn prompted discussion of equality and diversity within the senior judiciary (unsurprisingly, all three of them are white, male and “of a certain age”), as well as Conservative warnings over withdrawal from the European Court of Human Rights.

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Proposed ban on ivory is lawful – including antiques

12 November 2019 by Rosalind English

R (on the application of) Friends of Antique Cultural Treasures Ltd v Department for the Environment, Food and Rural Affairs – read judgment

“We believe that the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products.” (Defra’s statement in consultation in introducing the Ivory Bill)

The Ivory Act 2018, which received Royal Assent in December 2018, proposes to prohibit ivory dealing with very limited exceptions. This includes antique items made with ivory. According to the Government, the Act contains “one of the world’s toughest bans on ivory sales”. No date has yet been fixed for it to become law.

The purpose of the Act is to enhance the protection of African and Asian elephants in the face of ongoing threats to their survival. It does so by prohibiting the sale, as opposed to the retention, of all ivory (that is, anything made out of or containing ivory), subject to a very limited and tightly defined exemptions. These prohibitions are backed by criminal and civil sanctions.

The claimant company represented UK dealers in antique worked ivory such as Chinese fans, walking canes with sculpted ivory tops and furniture with ivory inlay. The appeal of these items is not confined to Sinologist antiquarians. Netsuke, smaller carved ornaments worn as part of Japanese traditional dress, are an example. Even for the non connoisseur, Edmund de Waal’s novel The Hare with the Amber Eyes is a celebration of the significance and aura that these ornaments bestow on their owners, not just for the carving, but for the material of which they are made. Religious, hierarchical, magical, and even medicinal.

COVID-19 and Immigration Detention

30 April 2020 by Suzanne Lambert

At the start of the year, some 1,200 immigrants were being held in immigration detention in the UK. The power to detain immigrants is separate from detention of individuals as part of a criminal sentence. There is a presumption against detention of immigrants and immigration detention, which can only be in accordance with one of the statutory powers (the majority of which are contained in the Immigration Act 1971 and the Immigration and Asylum Act 2002), and is allowed in the interests of maintaining effective immigration control, for example, to effect removal; to establish a person’s identity or the basis of their immigration claim; or where there is reason to believe that the person will fail to comply with any conditions attached to a grant of immigration bail.

In order to be lawful, not only must immigration detention be in accordance with one of the statutory powers, but it must also be in accordance with the limitations implied by the domestic common law and Strasbourg case law (ECHR Article 5), as well as with stated Home Office policy. Under the common law and ECHR Article 5, the statutory powers to detain are to be strictly and narrowly construed, i.e. if detention is not for a statutory purpose (or is no longer for that purpose) it will become unlawful. Additionally, the power to detain is impliedly limited to a period that is reasonably necessary for the statutory purpose to be carried out and must be justified in all the circumstances of the individual case, requiring an assessment of individual factors such as the risk of absconding, the likelihood of imminent removal, and the impact on the detainee.

Following news of the first immigration detainee testing positive for COVID-19, there was concern about the risk of COVID-19 deaths in immigration detention and about the legality of continued detention of immigrants. Detention Action Group has sought to challenge the continued detention of immigrants and the steps taken by the Secretary of State to address the position of persons in immigration detention in light of the COVID-19 pandemic.

An application for urgent interim relief was made by the Detention Action Group in March for the release of some 736 immigrants in detention and was advanced, first in relation to those whose removal is not reasonably imminent as a result of the global pandemic and the consequential travel bans and restrictions around the world, and secondly in relation to vulnerable detainees such as those who are suffering from serious medical conditions or who are aged 70 and over.

A separate application for urgent interim relief was made by Samson Bello, a Nigerian deportee, seeking release from detention on the basis that restrictions to travel to Nigeria meant that his continued detention for the purposes of removal was no longer lawful. Both of these cases are discussed in detail below.

Sir Robert Francis’ Review of Whistleblowing Processes in the NHS – Joanna Glynn QC

16 February 2015 by Guest Contributor

It has long been recognised that enabling healthcare professionals to speak up about concerns at work is a key element of the promotion of patient safety. The Final Report of the Freedom to Speak Up review of whistleblowing processes in the NHS was published on 11 February 2015.

Sir Robert Francis recommends the implementation of twenty “Principles” and “Actions” by organisations which provide NHS healthcare and by professional and systems regulators. These measures are to address “an urgent need for system wide action,” in spite of some positive developments in the handling of whistleblowing processes since the February 2013 report of the public inquiry into the failings at the Mid Staffordshire NHS Foundation Trust.

The Principles and Actions appear under five “overarching themes” which are addressed at chapters 5-9 of the 222 page report, each chapter describing the Principles that should be followed to bring about the change required, and the Actions which follow from each. Annex A to the report is a summary of good practice which cross refers to the Principles.
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