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UK Human Rights Blog - 1 Crown Office Row
Search Results for: environmental/page/25/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: reference by Counsel General for Wales [2015] UKSC 3, 9 February 2015 – read judgment here
Sounds like a rather abstruse case, but the Supreme Court has had some important things to say about how the courts should approach an argument that Article 1 of Protocol 1 to ECHR (the right to peaceful enjoyment of possessions) is breached by a legislative decision. The clash is always between public benefit and private impairment, and this is a good example.
The Welsh Bill in issue seeks to fix those responsible for compensating asbestos victims (say, employers) with a liability to pay the costs incurred by the Welsh NHS in treating those victims. It also places the liability to make such payments on the insurers of those employers.
In short, the Supreme Court found the Bill to be in breach of A1P1, as well as lying outside the legislative competence of the Welsh Assembly. Let’s see how they got there, and compare the conclusion with the failed A1P1 challenge brought in the AXA case (see [2011] UKSC 46, and my post here) concerning Scottish legislative changes about respiratory disease. Continue reading →
(1)Novartis Pharmaceuticals Uk Ltd (2) Andrew Roy Grantham v (1) Stop Huntingdon Aminal Cruelty (SHAC) by its representative Max Gastone (2) Greg Avery (3) Natasha Avery (4) Heather James [2009] EWHC 2716 (QBD)
Sweeney J 30 October 2009
An injunction against animal rights protesters could not be altered to increase the restriction on their protest without a disproportionate interference with the protesters’ rights under Articles 10 and 11 of the Convention.
Click below for summary and comment by Rosalind English or here to read the full judgment
Johnson’s promise to support the LGBTQ+ community also came after the first meeting of the Ban Conversion Therapy Legal Forum, a group of lawyers, academics, cross-party MPs and campaigners, chaired by Baroness Helena Kennedy. The group released a statement advising the government that the “best way of banning conversion therapy is by using a combination of both civil and criminal remedies” and that the legislation “must be human rights compliant”, prioritising the rights of victims and potential victims. The Forum acknowledged a ban might impact certain other rights including freedom of religion and belief and freedom of expression, but said the harm caused to LGBTQ+ people, which “amounts to degrading and inhuman treatment”, justified a proportionate restriction of those rights.
In other news:
The All-Party Parliamentary Group on Democracy and the Constitution released a report on its independent inquiry into whether the rights to freedom of expression and peaceful assembly were respected in the policing of the Clapham Common vigil for Sarah Everard on 13 March and the “Kill the Bill” protests in Bristol from 26-29 March. The report, published 1 July, found that the Metropolitan Police Service (MPS) and the Avon and Somerset Constabulary (A&SC) “failed to understand the nature of the right to protest and how it must be applied in practice” and that their use of power “exacerbated tensions and increased the risk of violence”. The APPG recommended a new statutory code for the right to protest and policing of protests; removing clauses 55-61 of the Police, Crime, Sentencing and Courts Bill; and a consultation on the creation of an Independent Protest Commission.
“This is, at its heart, a battle of ideas. On one side sit the extremists, with a deliberate strategy to infect public debate, divide our communities and advance their warped worldview,” announced David Cameron last Monday, when the government unveiled their new Counter Extremism Strategy. “On the other side,” he said, “must sit everyone else”.
The question is, how is ‘everyone else who sits on the other side’ to be protected under the proposals? Not without cost, it seems – although laudable in motive, the methods suggested with which to fight this ‘battle of ideas’ run the risk of infringing individuals’ right to freedom of expression. Joshua Rozenberg has called for careful attention to one section of the paper in particular which outlines new proposed powers to “ban extremist organisations”, “restrict harmful activites” and “restrict access to premises that are repeatedly used to support extremism”. The plan to ban extremists from mosques has drawn criticism from the Muslim Council of Britain, the UK’s largest Muslim group, who detected “McCarthyist undertones” in the proposal to compile blacklists. Would restricting access to premises used for extremist purposes restrict extremism itself? As Rozenberg wonders, “What would be the point of closing a hall? It’s not the hall’s fault. People would simply go elsewhere.” Continue reading →
This was an appeal by a doctor against a decision of the medical practitioners’ tribunal that he was guilty of misconduct. He also appealed against the tribunal’s decision to suspend his registration for six months.
Factual and legal background
The appellant (“A”) is a colorectal and breast surgeon who has been registered since 1990, having qualified in Pakistan. He had been working as a locum consultant surgeon at the North Manchester Hospital NHS Trust between April and October 2020. This was during the Covid-19 Pandemic and included the early stages of lockdown imposed by the Government. A appeared on a number of YouTube videos voicing his doubts about the severity of the COVID-19 pandemic. The gravamen of the allegations agains him was that he had used his position as a doctor to promote his opinions and that his actions were “contrary to widely accepted medical opinion” and had undermined public confidence in the medical profession.
This is what he is said to have alleged on the You Tube platform:
a. the Sars-CoV-2 virus and/or Covid-19 disease do not exist or words to that effect; b. the Covid 19 pandemic was a conspiracy brought by the United Kingdom, Israel and America or words to that effect; c. the Covid-19 pandemic was a multibillion scam which was being manipulated for the benefit of: i. Bill Gates; ii. pharmaceutical companies; iii. the John Hopkins Medical Institute of Massachusetts; iv. the World Health Organisation, or words to that effect; d. the Covid-19 pandemic was being used to impose a new world order or words to that effect; e. the Sars-CoV-2 virus was made as part of a wider global conspiracy or words to that effect.
a. undermined public health, and/or; b. were contrary to widely accepted medical opinion, and/or; c. undermined public confidence in the medical profession.
When criticised about these activities, A undertook to remove the videos, but failed to do so.
Importantly, the GMC and the Tribunal considered that A’s opinions on mask wearing and the discharge of elderly patients from hospital might have been controversial, but that they remained within the domain of freedom of expression for doctors as well as the wider public. (My italics. The jury is still out on mask wearing, and the doctor in this case was rightly free to opine on their efficacy).
The problem was his pronouncements on social media that the virus was a hoax and did not exist, and his promotion of conspiracy theories suggesting that vaccines were in development for the deliberate harm or manipulation of the public
The GMC considered that A was guilty of misconduct and demonstrated impairment of his fitness to practise. It referred to the GMC’s “Good Medical Practice” and its guidance on “Doctors’ use of social media” and concluded that immediate suspension of D’s registration was appropriate.
Before the Tribunal, the GMC argued that A had used his position as a doctor in the UK to promote his opinions.
The gravity of the impact of the coronavirus and Covid-19 on public health was being explained on a daily basis to the public and disseminated to medical professionals. The general public was required to comply with the restrictions and the messages were provided to set out the rationale for the restrictions and the reasons compliance was required. …In the Tribunal’s view they ran counter to the public health messages being disseminated at the time.”
…”In the Tribunal’s view, and in the context of the status of the pandemic at the time, hearing such opinions expressed by an NHS consultant surgeon would, on the balance of probabilities, have the effect of undermining public health. One of the key government messages at the time was that compliance with restrictions [were] required to ‘Protect the NHS’.
The Tribunal considered that an NHS consultant asserting as fact such statements of the kind as set out above undermined important public health messages.
A submitted that (1) the tribunal’s decisions did not meet the Article 10 tests of necessity or proportionality; (2) the GMC’s guidance did not meet the Article 10(2) “prescribed by law” condition; (3) suspension was disproportionate and inappropriate, particularly given the 18-month period of successive interim suspension orders.
Appeal to the High Court
The grounds of appeal focussed primarily on whether the Tribunal’s decisions were consistent with A’s article 10 rights. Ground 1 was that the conclusions on misconduct and impairment were contrary to article 10(1) because they give rise to an interference with article 10 rights that was not “prescribed by law” that, for that reason alone, did not meet the requirements laid down within article 10(2) and is unlawful.
Ground 2 was that, in any event, the conclusions on misconduct and impairment were a disproportionate interference with A’s rights under article 10(1). Grounds 3 and 4 were aspects of Ground 2. The former was that the Tribunal was wrong to conclude that expressing views “outside widely accepted medical opinion” either amounted to misconduct or was capable of providing justification for interference with A’s right to freedom of expression. The latter was that there was no evidence to support a conclusion that what A said damaged the reputation of the medical profession. This too, it was submitted, goes to whether the conclusions of misconduct, impairment, and the penalty imposed could be proportionate interferences with A’s Convention rights. Ground 5 was that the decisions to impose a final order for suspension and to make an immediate order suspending Mr Adil pending any appeal were disproportionate in that each failed to give sufficient weight to mitigating or compensating circumstances.
Paul Chambers v DPP [2012] EWHC 2157 – Read judgment
The famous ‘Twitter joke’ conviction of Paul Chambers has been overturned on appeal, bringing welcome clarity to what is and what is not an offence of this type. On discovering a week before he was due to take a flight that the airport was closed due to adverse weather conditions, he tweeted that “I am blowing the airport sky high!!” unless the situation was resolved by the time of his flight. He was convicted of sending a message of a “menacing character”, but has had the conviction quashed on appeal, on the basis that, as it was a joke, it was not of a menacing character.
“I had decided to resort to terrorism”
Mr Chambers was intending to fly out of Robin Hood Airport on 15 January 2010 to meet a romantic partner he met on Twitter. On 6 January, via Twitter, he became aware that severe weather was causing problems at the airport, and engaged in a conversation on Twitter where he made the following comments:
“…I was thinking that if it does [close due to adverse weather] then I had
decided to resort to terrorism”
The Court of Appeal unanimously ruled that a nurse’s dismissal for improper proselytising was not unfair and that the hospital trust’s decision was not in contravention of the claimant’s rights as guaranteed by Article 9 of the European Convention on Human Rights.
The claimant, a committed Christian, had been employed as a band 5 nurse by the Trust since 2007. Following a medication error, she had been given a final written warning and transferred to work in a pre-operative assessment role. In this role the claimant was required to go through a pre-operative form with the patients. The form required the claimant to make a simple inquiry into the patient’s religious beliefs; importantly “it did not open the door to further religious discussion.” [7]
In March and April 2016 several complaints were made by
patients about the over-zealous religious preaching of the claimant, with one
patient being told shortly before major bowel surgery that he had a better
chance of survival if he prayed to God.
Following these complaints the matron gave the claimant both oral and written warning that her proselytising was not acceptable. The claimant confirmed that she would not engage in religious discussion unless prompted by the patient.
Two further complaints were made in May and the claimant was
suspended. Whilst suspended a further complaint was made alleging that the
claimant had forced a patient to sing Psalm 23 out loud in what he described as
a “very bizarre” encounter that was “like a Monty Python skit.”
The trust investigated the claims and after a disciplinary hearing the claimant was dismissed for repeated and inappropriate misconduct, including a breach of paragraph 20.7 of the Nursing and Midwifery Council (NMC) code which prohibits nurses from expressing their own personal views in an inappropriate way.
The HM Inspectorate of Prisons has published a report which found that there was an “inadequate provision of interpretation” and “almost no information was available” to migrant people, during their removal to France under the ‘one in, one out’ pilot scheme. Almost all of those removed had arrived recently at the Kent coast and few were able to understand English.
Under the ‘Agreement on the Prevention of Dangeround Journeys’, ratified in August, any asylum seeker who has crossed the Channel unlawfully can be returned back to France. There is also a provision for “reciprocal admittance”, whereby an asylum seeker in France who has a genuine family link to someone in the UK and has not attempted to enter the UK unlawfully, will be allowed to enter the UK.
The report also raised concerns that migrant people did not have proper access to justice prior to their removal to France under the scheme. Although migrant people were signposted to legal firms while detained at Immigration Removal Centres, the report noted that many people’s cases were refused by solicitors and they were unable to access legal advice.
The publication of the report comes as a legal challenge against the removal of 16 migrant people under the ‘one in, one out’ scheme was heard at the High Court on Wednesday. The case centres on whether it was unlawful for the Homes Secretary to withdraw migrant people’s right to have rejected modern slavery claims reconsidered. The claimants also allege that French authorities do not adequately support trafficking victims. The Court heard that 40 per cent of migrant people detained under the scheme have made trafficking claims.
In international news
Last week, pro-democracy media tycoon Jimmy Lai was sentenced to 20 years in prison under Hong Kong’s National Security Law. The 78-year-old Apple Daily founder was found guilty last December of conspiracy to collude with foreign forces and publishing seditious materials. Thibaut Bruttin, the director of Reporters Without Borders, warned that “the court decision underscores the complete collapse of press freedom in Hong Kong”.
On 10 February, the European Parliament approved the amendments to the ‘safe third country’ concept in the EU Asylum Procedures Regulation and adopted an EU-wide list of “safe countries of origin”, making it easier for member states to reject asylum applications as inadmissible and to forcibly transfer people seeking safety to countries to which they have no connection. The new rules also remove the suspensive effect of appeals in asylum cases, meaning that a person could be removed while waiting for determination of their claim and any judicial review.
On Friday, the High Court ruled that the former home secretary Yvette Cooper had acted unlawfully when banning Palestine Action last year, under the Terrorism Act 2000. The Court concluded that the decision to proscribe Palestine Action was “disproportionate” [138].
The judicial review proceedings were brought by Huda Ammori, Palestine Action’s co-founder.
The Court upheld the claimant’s challenge that the proscription breached the rights of freedom of expression and assembly as guaranteed by Articles 10 and 11 ECHR. The Court found that the offences under the Terroism Act 2000 “comprise a very significant interference with the right to free speech”. For example, a person cannot address a meeting to encourage support for Palestine Action [106]. The Court also concluded that the decision to proscribe Palestine Action had resulted in a “stark” interference with Article 11 rights, since the purpose of proscription is to put measures in place that prevent the organisation from continuing to exist [135].
Additionally, the Court concluded that the Home Secretary failed to properly apply her policy on the use of the discretion to proscribe [89 – 95]. The policy required the Home Secretary to approach the exercise of her discretion comprehensively, taking into account the consequences on Palestine Action members, the characteristics of the organisation, foreign policy and “other factors” [74]. Instead, the Home Secretary presented the “significant disruptive benefits” to “deal with” Palestine Action as a central reason for exercising the discretion to proscribe [89]. The Court clarified that Home Secretary’s policy did not include the expected significant disruptive benefits of proscription as a relevant consideration [90].
According to evidence submitted by the claimant, there have been many arrests since proscription referring to Palestine Action, including more than 2,000 people at protests immediately following the proscription decision [118].
In a statement after the judgement, the Home Secretary, Shabana Mahmood, said the government intends to appeal the decision.
The High Court ruled that Section 12 of the Illegal Migration Act 2023 (IMA) is “likely to have a more muted practical impact” [168]. The Court clarified for the first time that the right to liberty under Article 5 ECHR constrains the effect of IMA on the judicial oversight of immigration detention decisions.
The case stemmed from a claim alleging the unlawful detention of MXV, a Zimbabwean national, who was held under immigration powers for 101 days from 11 March 2024.
Section 12 of the IMA sought to “overturn” the Court’s role as primary decision maker when it comes to assessing limbs (ii) and (iii) of the Hardial Singh principles, which relate to the reasonableness of the period of detention and whether deportation can be effected within such a reasonable period. Instead, Section 12 requires the Court to assess whether the Secretary of State’s decision about the period was a reasonable assessment.
The Court ruled that Parliament had expressly restricted judicial oversight and Section 12 should be followed [166]. However, compliance with Article 5(1)(f) ECHR requires the Court to retain its role as primary decision maker. The Court confirmed that Article 5(1)(f) ECHR “mirrors” the domestic application of the Hardial Singh principles [144] and, where Article 5 is relied upon, the Court remains able, as primary decision maker, to assess the reasonableness of detention.
The court found that the detention of MXV was unlawful in the period from 1 June 2024 to 19 June 2024.
On the UKHRB
Dr Lewis Graham considers the potential far-reaching effects in Hall v HMRC [2026] UKFTT 124 (TC), where the First-Tier Tribunal ruled that it had the jurisdiction to consider public law grounds, despite the tribunal having no inherent public law jurisdiction.
Rosalind English explores the Supreme Court’s recent decision in Dairy UK Ltd v Oatly AB UKSC 4, in which the Court held that Oatly’s registered trade mark “POST MILK GENERATION” cannot lawfully be used in relation to their oat-based food and drink products.
Rosalind English also reviews a letter about animal welfare from The Animal Law Foundation and the League against Cruel Sports, that was presented to the Department of the Environment, Food and Rural Affairs last week.
Seton v. the United Kingdom, Application no. 55287/10, 31 March 2016 – read judgment.
The European Court of Human Rights (“ECtHR”) has held that the use of telephone recordings as evidence in a criminal trial, despite the inability of the accused to challenge the caller, did not violate his rights under Article 6, ECHR. This judgment follows a number of Grand Chamber judgments on similar issues that have altered the ECtHR’s stance on the subject of absent witness evidence.
by Fraser Simpson
Background
The applicant, Mr Seton, was on trial for murder. Prior to the trial, he submitted a defence statement stating that he believed that the murder had been carried out by Mr Pearman. The applicant alleged that he had previously been involved in a drug deal with Mr Pearman and the victim.
Mr Pearman, who was at the time imprisoned for drug dealing, was interviewed by the police but he refused to cooperate and answered “no comment” to all questions. Following these interviews, Mr Pearman phoned his wife and son from the prison and stated that he had never heard of the applicant and had no knowledge of the murder. These calls were recorded – a standard practice that Mr Pearman would have been aware of.
During the applicant’s trial for murder, it was accepted that the primary issue to be determined by the jury was whether the applicant or Mr Pearman had committed the murder. Mr Pearman had refused to attend the trial or make a formal witness statement. Accordingly, the prosecution sought to rely upon these recordings to disprove the applicant’s version of events. The trial judge, in deciding whether the recordings could be admitted as evidence, referred to s.114, Criminal Justice Act 2003 (“CJA 2003″). After considering the relevant considerations – such as the probative value of the evidence, whether it was self-serving, the reliability of the recording, and the prejudice that the applicant would face if it were to be admitted – the judge decided that the recordings could be relied upon during the trial. In summing up, the trial judge outlined the limitations of the telephone recordings and stated that it was up to the jury, in light of these limitations, to decide the relevant weight to be attached to the recordings. The applicant was subsequently convicted by the jury and sentenced to life imprisonment.
The applicant unsuccessfully appealed his conviction to the Court of Appeal (see, Seton v. R., [2010] EWCA Crim 450). The Court of Appeal considered that compelling Mr Pearman to attend the trial, which was an option, would have “been a fruitless exercise”. Mr Pearman could have invoked the protection against self-incrimination and had consistently refused to cooperate so the “prospect of any sensible evidence being given by him was, on a realistic view, nil” (paragraph 22 of Court of Appeal judgment). The Court of Appeal would only interfere with the trial judge’s decision if the decision was “marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made”. The Court of Appeal held that the relevant consideration under s.114(2), CJA 2003 had been covered by the trial judge and there were no other grounds to overturn the conviction.
Further, the Court of Appeal commented on the safety of the conviction. Due to the “overwhelming” evidence against the applicant, including eye-witness accounts, telephone call records between the applicant and the victim and cell site location evidence placing the applicant in the vicinity of the murder, the conviction was deemed to be safe.
The Strasbourg Court
The applicant applied to the European Court of Human Rights and alleged that his right to a fair trial within Article 6(1) and 6(3)(d) had been violated. Article 6(1) includes the right to a fair hearing when facing criminal charges whilst Article 6(3)(d) ensures that the individual has the right:
“to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”
The default position is that witness evidence should be provided during the trial and the accused should have the opportunity to challenge this evidence during this trial. However, the use of witness evidence when the witness does not attend the trial does not automatically result in a violation of Article 6(1) and 6(3)(d). The Grand Chamber has previously set out specific guidance in assessing whether the use of such evidence complies with Article 6. In Al-Khawaja and Tahery v. the United Kingdom (GC), Application nos. 26766/05 and 22228/06, 15 December 2011 (see paragraphs 118-151), the Grand Chamber outlined a general three-part process:
Consider whether good reasons exist for the absence of the witness.
Consider whether the evidence was the “sole or decisive” decisive evidence against the accused.
Assess the existence of sufficient counterbalancing factors and procedural safeguards which allow the reliability of the evidence to be fairly and properly tested.
This process was clarified in Schatschaschwili v. Germany (GC), Application no. 9154/10, 15 December 2015. The Grand Chamber stated that the lack of good reasons for lack of attendance was not sufficient to result in a violation of Article 6, but it was a strong factor to be considered when assessing the overall fairness of the proceedings (paragraph 113). Additionally, the necessary extent of counterbalancing factors depends upon the weight of the evidence provided by the absent witness in the overall context of the proceedings (paragraph 116).
Were there good reasons for the non-attendance of Mr Pearman? (paragraphs 61-62)
The ECtHR has previously adopted a robust approach to assessing whether “good reasons” existed for the absence of the witness at the trial. Previously, even in situations where the witness was located in another country (Gabrielyan v. Armenia, Application no. 8088/05, 10 April 2012), or could not be located at all (Lučić v. Croatia, Application no. 5699/11, 27 February 2014), the ECtHR have held that the authorities have failed to satisfy their duty to secure attendance of the witness. In light of this, the ECtHR unsurprisingly concluded that no good reasons existed for Mr Pearman being absent from the trial. The trial court could have compelled Mr Pearman to attend the trial and whilst they could not compel him to give evidence, due to his right to silence, the jury would have at least been able to assess his demeanour when facing cross-examination.
Was the evidence of Mr Pearman the “sole or decisive” evidence? (Paragraphs 63-64)
The ECtHR considered that the recorded telephone calls could not be considered the “sole or decisive” evidence in the criminal trial. The Court of Appeal, in commenting on the safeness of the conviction, had listed the other “overwhelming” evidence against the applicant. However, the evidence had been described as “important” by the trial judge. Accordingly, following the Grand Chamber decision in Schatschaschwili, it was necessary to consider whether sufficient counterbalancing factors existed during the trial.
Did sufficient counterbalancing factors exist? (Paragraphs 65-68)
In the present case, the ECtHR highlighted the detailed legislative scheme intended to ensure that evidence from the absent witness could only be relied upon in limited circumstances. The need to assess the significance of the evidence, its reliability, and the prejudice that the applicant would face as a result of being unable to challenge the witness was an important procedural safeguard intended to uphold respect for the applicant’s rights. Additionally, the instruction of the judge as to the limitations of the evidence was another important counterbalancing factor.
As clarified by the Grand Chamber in Schatschaschwili, the assessment of counterbalancing factors is a relative one – fewer factors will be required if the evidence provided by the absent witness is not especially important. In light of the existence of separate “overwhelming” evidence against the accused, the counterbalancing factors in the present case were considered sufficient.
In conclusion, the ECtHR decided that the criminal proceedings as a whole had been fair. Having following the procedure outlined in Al-Khawaja, the ECtHR concluded that there had been no violation of Article 6.
Comment
This decision of the ECtHR is the consequence of previous Grand Chamber decisions tending to dilute the procedural protections contained within Article 6(3). The right to examine witnesses has slowly been weakened in favour of a more holistic approach that focusses upon the overall fairness of the proceedings instead of potential individual deficiencies.
When considering the three part test in Al-Khawaja, the first step – whether good reasons existed for the non-attendance of the witness – was previously considered determinative. If no good reasons existed, then Article 6 had been violated. Such a stance has even been adopted by the ECtHR following the judgment in Al-Khawaja and only months before the decision in Schatschaschwili (see Karpyuk and Others v. Ukraine, Application nos. 30582/04 and 32152/04, 6 October 2015, paragraph 123). Additionally, if such good reasons did exist but the evidence was the “sole or decisive” evidence in the case, then Article 6 had also been violated (Saïdi v. France, Application no. 14647/89, 20 September 1993, paragraph 44). Now, the position is that these considerations are merely factors that can be balanced away.
But the balancing process places an undue weight upon the existence of other incriminating evidence against the accused. The position appears to be that it is more acceptable to deny the accused the right to cross-examine a witness if the prosecution’s case against him/her is strong. This move towards focussing on the accuracy of the verdict, as opposed to upholding the rights of individuals, is a potentially worrying development. Indeed, the contemporary Strasbourg position appears, in effect, similar to the Court of Appeal’s consideration of the safety of the conviction.
It could be argued that the ECtHR may be surrendering its role as an upholder of fundamental human rights and moving towards that of an international criminal appeal court.
Procedural fairness is a bit like an elephant. It is difficult to define in abstract, but you know a fair procedure when you see one. So Lawton LJ put it in Maxwell v Department of Trade [1974] QB 523, 539
The trouble is it seems that different courts have different ideas of “elephantness”. Since we know that fairness is a necessarily context-sensitive notion, this, in itself, does not seem to give rise to too much difficulty. But practical problems start to arise when, for example, the Court of Justice of the European Union (CJEU) starts to endorse a view of fairness that is binding on the UK courts, but at odds with the approach taken by the UK Supreme Court. Add the facts that a) the UK is required to take into account the case-law of the European Court of Human Rights (ECtHR), which seems to have a different conception of fairness to that of the CJEU and b) the UK courts themselves do not necessarily speak with one voice, there’s a heady mix.
This brief post attempts to survey the area, and to discern the bumps in the road. Smoothing them out is another challenge in itself, and will probably require more than filling in the odd pot-hole. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular airport departure board of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
This week the Conservative Party Conference is likely to generate human rights headlines. Meanwhile, previous controversies still bubble away. Chris Grayling, taking a break from legal aid cuts, offered his opinion on the Europe debate. Meanwhile, others considered the role of transparency, demeanour, religious freedom and niqabs in the courts, and, with the proposed smoking ban in prisons, smokers may have found another reason not to break the law.
R (QSA and others) v Secretary of State for the Home Dept and Secretary of State for Justice [2018] EWHC 407 (Admin) – read judgment
The High Court ruled on 2nd March 2018 that three women forced into prostitution as teenagers will no longer have to disclose related convictions to potential employers.
The claimants challenged the criminal record disclosure scheme which required them to reveal details of multiple decades-old convictions for ‘loitering or soliciting’ for the purposes of prostitution.
The women had been groomed, coerced or forced into sex work, two of them when they were children. They were required to divulge their convictions under the regime of the DBS (Disclosure and Barring Service) governed by Part V of the Police Act 1997. DBS checks (previously CRB checks) are made when an applicant seeks certain paid or voluntary work involving children or vulnerable adults. While the claimants weren’t strictly barred from such jobs, they had to inform would-be employers of their historical convictions. They said this placed them at an unfair disadvantage, caused embarrassment and put them off applying in the first place. They argued that this interference with their private and working lives was unjustified by the scheme’s aims and unlawful. The Court agreed.
Last week’s decision of the United States Supreme Court in Obergefell v Hodges has been lauded across the world as a quantum leap for equality and human rights – “a victory for America”, according to President Obama. The Court held by a 5-4 majority that, pursuant to the 14th Amendment, same-sex couples across the United States have a constitutional right to marry. You can read my colleague Matthew Flinn’s analysis of the ruling here. Continue reading →
Omar & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 1737 (Admin) (26 June 2012) – read judgment
The Divisional Court has ruled that common law principles cannot be used to obtain evidence from the Foreign Secretary for use in a foreign court.
Angus McCullough QC of 1 Crown Office Row appeared as a special advocate in the closed proceedings in this case. He is not the author of this post.
“Norwich Pharmacal” orders are sometimes granted to obtain information from third parties to help the court establish whether unlawful conduct has taken place. A court can in such a case compel the third party to assist the person suffering damage by giving them that information. In the cases of Binyan Mohamad and Shakar Aamer the courts extended the application of these orders to foreign cases. Now it appears that both may have been wrongly decided.
WM Morrison Supermarkets Plc v Various Claimants [2018] EWCA 2339 (22 October 2018) – read judgment
The Court of Appeal has ruled that the supermarket chain was vicariously liable for one of its employees’ unlawful disclosure of personal data belonging to other employees even though this act took place away from the workplace and the was part of a sequence of planned events leading to the commission of this wrongdoing.
The central issue before the Court was whether an employer is liable in damages to those of its current or former employees whose personal and confidential information has been misused by being disclosed on the web by the criminal act of another employee, who had a grudge against the employer, in breach of the Data Protection Act 1998, and in breach of that employee’s obligation of confidence. The Court held that it did; the common law remedy of vicarious liability of an employer for its employee’s misuse of private information and breach of confidence was not expressly or impliedly excluded by the Data Protection Act 1998, notwithstanding that the Act itself excluded an employer’s liability for wrongful processing of personal data by an employee. Continue reading →
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Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: reference by Counsel General for Wales [2015] UKSC 3, 9 February 2015 – read judgment here
Paul Chambers v DPP [2012] EWHC 2157 – 
Welcome back to the UK Human Rights Roundup, your regular airport departure board of human rights news and views. The full list of links can be found 
WM Morrison Supermarkets Plc v Various Claimants [2018] EWCA 2339 (22 October 2018) – 
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