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UK Human Rights Blog - 1 Crown Office Row
Search Results for: environmental/page/35/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
The High Court in Belfast will sit on Monday 9 and 10th November to hear a challenge by a same sex couple now living in Northern Ireland who seek recognition of their English marriage. The current legal dispensation in the Province is that an English same sex marriage is recognised as a civil partnership in Northern Ireland.
The Petition is resisted by the Attorney General and government of Northern Ireland and the (UK) Government Equalities Office (which reports to Nicky Morgan, the Minister for Women and Equalities). It is anticipated that Judgment will be reserved. Continue reading →
Brett Wilson LLP v Person(s) Unknown, Responsible for the Operation of the Website solicitorsfromhell.co.uk, 7 September (Warby J) [2015] EWHC 2628 (QB) – read judgment
This was a claim in libel by a firm of solicitors who acted for another firm which also claimed against the operators of SFHUK, causing the original site to be shut down (Law Society v Rick Kordowski [2011]). In this case the words complained of appeared on a new site, but despite efforts by the present claimants, it was not possible to find out who was operating it. The site alleged various aspects of mismanagement, including incompetence and fraud. It also quoted a client of the claimant firm who alleged overcharging and who refused to pay their fees. (It is worth noting that the site appears to have been taken down since default judgement was given in this case)
I’m delighted to say that I will be giving the keynote address at the UK Constitutional Law Association‘s one-day conference at the University of Manchester on the subject of “Debating the Constitution after the Election”. Topical, eh?
The conference is on Wednesday 24 June. My keynote is entitled: The slow death of the UK Human rights system: Is it just a matter of time or can the UK learn to love human rights? I wrote that before the Election, so perhaps remove “slow”.
Full details and line up here and below. There are two ways to attend the conference:
(1) Be a member of the UKCLA (here’s how) and attend for free by simply e-mailing UKCLACON15@manchester.ac.uk ; OR
(2) Pay the £10 registration fee and register via this EventBrite link.
On 7th September 2015, Judge Robert Spano (of the European Court of Human Rights) spoke at a high-level international conference on “The Role of Parliaments in the Realisation and Protection of the Rule of Law and Human Rights”, organised by Murray Hunt, Legal Adviser to Parliament’s Joint Committee on Human Rights. This was his second public intervention in the United Kingdom since his seminal speech on “Universality or Diversity of Human Rights: Strasbourg in the Age of Subsidiarity” delivered at Oxford in 2014, the first having been covered by UK Human Rights Blog here, and built upon his earlier speeches by elaborating on four post-Brighton Declaration cases in which the Grand Chamber of the European Court of Human Rights (the European Court) applied the principle of subsidiarity to find no violation of human rights, considering that the cases fell within the national margin of appreciation, after having examined evidence demonstrating that the national Parliaments had considered the human rights issues. Taken collectively, the four cases demonstrate that Strasbourg is well and truly in the age of subsidiarity, deferring to the decisions of national Parliaments, provided those Parliaments had considered the human rights implications of legislation. Whether this will satisfy Conservative Party concerns that membership of the European Convention on Human Rights is incompatible with the doctrine of Parliamentary sovereignty will be explored at the end of this post. Continue reading →
In 2015, the Court of Appeal found that the fast-track procedure rules for appeals against the refusal of some types of asylum claim (the FTR) was “structurally unfair, unjust and ultra vires” (R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840; [2015] 1 WLR 5341, known as DA6). The Court of Appeal quashed the FTR because this structural unfairness “created a risk that the applicants would have inadequate time to obtain advice, marshall their evidence and properly present their cases”, which “created an unacceptable risk of unfairness in a significant number of cases”.
Six years later, the question in R (on the application of TN (Vietnam)) v Secretary of State for the Home Department[2021] UKSC 41 was straightforward: where a decision had been taken under the FTR, should it also be quashed, or must the person who was subject to the decision demonstrate that the decision itself was unfair, rather than merely issuing from an unfair system?
The High Court, Court of Appeal and Supreme Court all answered unequivocally that structural unfairness was not enough to quash an individual decision. Unfairness on the facts had to be found, or the decision would stand.
Background and Decisions Below
TN had, as the court acknowledged, a complicated procedural history, involving a number of applications for asylum, all of which (of those which had been determined at the time of trial) had been rejected. In hearings in those applications, TN had been represented by counsel. However, successive decisionmakers found TN’s claim not to be credible, and on 22 August 2014, the First-tier Tribunal (FTT) rejected her appeal. It was this rejection, decided as it was by a tribunal following the procedural rules in the FTR, which TN sought to challenge in this case.
One reason TN’s evidence was not believed was that it was inconsistent, giving different dates at different times for her mother’s death, and changing the basis of her application for asylum without explaining fully the reasons for the changes. This raised a question plainly discussed, but in the end not legally consequential, of the approach taken to evidence of trafficking, given that trafficking victims frequently change their stories, partly because they will often not know (in terms) that this is what they are (see paragraphs [22]-[24]).
In a detailed judgment, Ouseley J rejected TN’s application, upholding the Tribunal’s decision. His judgment involved a detailed review of the history of TN’s case, after which he concluded that the Tribunal’s decision was not tainted by the structural unfairness of the FTR.
In the Court of Appeal, Singh LJ gave the leading judgment (with whom Sharp and Peter Jackson LLJ agreed), holding that the “fundamental reason” that the application had to fail was that there was “a conceptual distinction between holding that the procedural rules were ultra vires and the question whether the procedure in an individual appeal decision was unfair”.
The legal lens through which this fundamental conceptual distinction found expression was the principle of jurisdiction. Singh LJ considered two bases on which the FTT could fail to have jurisdiction, rejecting both. First, he held that the ultra vires nature of the FTR did not divest the FTT of jurisdiction in the “pure and narrow sense” of having “the legal authority to decide a question”. The Tribunal’s jurisdiction was not created by the FTR but rather by statute; the FTR was “merely a rule which regulates procedure and form”.
The second basis on which the Tribunal might have lost jurisdiction was in the “post-Anisminic understanding of jurisdiction … that a body has acted in a way which is unlawful, including (for this purpose) in a way which is procedurally unfair”. This too was rejected: the Tribunal had not acted in such a way; even though the FTR had created a structural risk that it might, that risk had not eventuated.
Singh LJ went on to set out four factors which the court should take into account when the fairness of an individual decision made under the FTR was challenged on the basis of unfairness. These were, paraphrasing: (1) a high degree of fairness is required in the context of asylum applications; (2) the FTR created an unacceptable risk of unfairness in a significant number of cases; (3) there is no presumption that the procedure in any one case was fair or unfair and what is necessary is a causal link between the risk of unfairness created by the FTR and what happened in a particular case; and (4) the finality of litigation is important, and as such delay is relevant, as are questions as to what steps were taken, and how quickly, to adduce evidence later relied on.
Bank Mellat v HM Treasury [2015] EWCA Civ 105, 23 October 2015 read judgment
Bank Mellat is an Iranian bank, initially subjected to a 2009 order which prohibited anybody in the UK from dealing with it – until the Supreme Court quashed it: here, and my posts here and here.
The Treasury tried again, by orders made in 2011 and 2012 addressed at all Iranian banks, not just Bank Mellat. The EU has now taken over regulation of these banks.
In the current proceedings, the Bank seeks to set the 2011 and 2012 orders aside. These restrictions are, the Treasury says, addressed at the financing of Iran’s nuclear programme, in which all Iranian banks are complicit. Bank Mellat denies this, and the conundrum in the case is how to make sure that the challenge is fairly tried. Collins J (my post here) thought that the Treasury had not revealed enough about its case, and, in substance, on appeal the CA agreed.
In R (on the application of Gina Miller and Ors) v The Secretary of State for the European Union, the High Court, in a masterly exposition of the principles of constitutional law and statutory interpretation, held that the Secretary of State did not have the power under the Crown’s prerogative to give notice under Article 50 and thereby begin the process under which the United Kingdom will leave the European Union.
Sir Oliver Cromwell said in 1644 “We study the glory of God, and the honour and liberty of parliament, for which we unanimously fight, without seeking our own interests… I profess I could never satisfy myself on the justness of this war, but from the authority of the parliament to maintain itself in its rights; and in this cause I hope to prove myself an honest man and single-hearted.” I suspect that Cromwell will be reading the judgment delivered today and chuckling (if he ever would do something so frivolous) with pleasure at the sight of the High Court roundly defending the sovereignty of Parliament. Continue reading →
This case has a history: the long running trade mark dispute between Swatch and Apple about the marks ‘I-WATCH’ and ‘I-SWATCH’. I will go back to that in a moment. The dispute in question concerned trade mark applications designating the following signs, covering a wide range of goods including watches and consumer electronic products:
SWATCH ONE MORE THING ONE MORE THING
[Full disclosure: the author of this post was an undergraduate contemporary in the eighties with Iain Purvis QC, the presiding judge in this matter. I have chosen not mischievously to publish this report on 1 April.]
“One more thing” became something of a meme since The well-known Chairman and founder of Apple, Steve Jobs, would reach what would seem to be the end of his keynote address at an industry event chosen for an important announcement, turn as if to leave the stage, and then turn back with the words ‘but there’s one more thing’. In 1998 the first ‘one more thing’ was the return of Apple to profitability. In later years, the ‘one more thing’ would often be a new Apple product. The tradition appears to have lapsed on Steve Jobs’ death in 2011 but was revived by his successor Tim Cook in 2015 for the launch of the Apple Watch.
Schindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 957, Divisional Court 28 April 2016 – read judgment
An interesting, albeit unsuccessful, challenge to the rule which prohibits expatriates who were last registered to vote in the UK more than 15 years ago from voting in the forthcoming referendum on EU membership.
Mr Schindler (now 95) has lived in Italy since 1982, but has remained throughout a UK citizen. So is Ms MacLennan, who has worked in Brussels as an EU lawyer since 1987. Neither has dual nationality. They said that the 15 year rule is an unjustified restriction of the rights of freedom of movement under EU law. They pointed to the fact that if the UK leaves the EU, they would end up without rights of abode in their current countries, and thus they had a particular interest in the outcome of the referendum.
Following our popular interview with James Badenoch QC on the “doctor knows best” rule of evidence in medical negligence cases, we bring you John Whitting QC, healthcare law specialist at 1 Crown Office Row (@JohnWhittingQC). In Episode 64 of Law Pod UK, John talks to Rosalind English about the realities of clinical encounters and considers to what extent patients are willing, or in some circumstances even able – to take on board multiple options for their treatment.
Jermaine Baker was shot dead in December 2015. Image: The Guardian
The Court of Appeal has delivered a judgment in R (Officer W80) v Director General of the Independent Officer for Police Conduct[2020] EWCA Civ 1301 regarding the applicable conduct standard and provisions governing police in cases of use of force.
The Court ruled against the police officer W80, holding that his honest, but mistaken, belief that his life was being threatened could be examined for reasonableness in the context of disciplinary proceedings. Accordingly, the Independent Office for Police Conduct (IOPC) was justified in concluding that it was open to a disciplinary panel to make a finding of misconduct if W80’s belief was found to be unreasonable.
In 2015, W80 shot dead 28-year old Jermaine Baker. He challenged the IOPC’s decision to bring disciplinary proceedings for gross misconduct in using excessive force against him and to direct the Metropolitan Police Commissioner (Commissioner) to give effect to such recommendation after the Commissioner rejected it.
Ofcom make some unlawful regulations in 2015, under which telecom companies have to pay higher fees. The regulations were quashed in 2017. Four telecom companies want restitutionary damages, being the difference between the sums paid under the 2015 regulations and the sums they would have paid under their predecessors, the 2011 regulations.
Big money washing around: the claim was for over £200m.
Ofcom says – no, you are only entitled to the difference between the 2015 payments and the hypothetical fees which we could lawfully have charged had we done our job properly in 2017.
Sounds quite simple, but the answer goes deep into the intersection between public and private law.
The claim, as I have said, was restitutionary.
Ofcom said that the law of restitution is rooted in the private law of obligations. The private law approach (as with any tort claim) is to apply a “but for” test – what would the telecoms have paid but for the unlawfulness? This involves the counterfactual: what lawful fees could Ofcom have imposed?
The telecoms, and the Court of Appeal, disagreed. Ofcom’s argument offended the principles of legality, and parity (the principle that those who pay voluntarily should not be worse off compared to those who refuse to pay and litigate).
Human trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.
The International Labour Organisation believes that at any one time at least 40.3 million people around the world are being coerced into a situation of exploitation or made to work against their will, often having been transported across borders. Such exploitation can take many different forms, but the most common include forced prostitution, forced labour or forced marriage.
Estimates vary hugely as to how many victims of trafficking or modern slavery there are in the UK, from 13,000 up to 136,000. What is clear is that it is a significant and constantly evolving problem, and one of the major drivers of organised crime. The UK has taken some very good steps to address the issue. However, two judgments earlier this year, and a news story this month, have drawn attention to the fact that the system put in place to combat human trafficking and modern slavery has some serious flaws in how it works in practice.
R (o.t.a Minton Morrill Solicitors) v. The Lord Chancellor [2017] EWHC 612 (Admin) 24 March 2017, Kerr J – read judgment
This exam-style question arose, in an attempt by solicitors to be paid by the Legal Aid Agency for some work they had done on two applications to Strasbourg. The underlying cases were housing, the first an attempt to stave off possession proceedings, and the second the determination of whether an offer of “bricks and mortar” accommodation to an Irish traveller was one of “suitable accommodation”. Both applications were declared inadmissible by the European Court of Human Rights, and thus could not benefit from that Court’s own legal aid system.
The major question turned on whether the Human Rights Act had “incorporated” the Convention. We all use this as a shorthand, but is it really so?
The legal dispute between Getty Images (and its associated companies) and Stability AI revolves around complex issues of copyright infringement, database rights, trademark infringement, and passing off. The arguments centred on the use of Getty Images’ visual content in the training and operation of Stability AI’s generative AI model, Stable Diffusion. Media firm Mischcon de Reya has acclaimed this as the “one of the most anticipated cases in recent years.” The case has significant implications for intellectual property law as it intersects with the development and deployment of AI technologies in the UK.
Background and Parties The claimants in the case are several related companies under the Getty Images brand. These entities collectively own or have exclusive licenses over millions of high-quality photographic and artistic images referred to as the “Visual Assets” or “Copyright Works.” Stability AI Limited, the defendant, is a UK-based company that developed the Stable Diffusion AI model, which is a deep learning image generation tool that creates images based on text or image prompts, including around 12.3 million visual assets, together with associated captions, from the Getty Images websites, as well as publicly accessible third-party websites.
According to Getty Images Stability AI scraped millions of their copyright-protected images from its websites without authorisation.
The Core Claims Getty Images initially brought a broad claim including allegations of primary and secondary copyright infringement, database right infringement, trademark infringement, and passing off. They argued that: • Stability AI unlawfully used Getty’s copyrighted works without permission to train the AI model. • The AI model outputs sometimes reproduced Getty’s images or bore their trademarks (watermarks), infringing Getty’s rights. • Stability AI’s making of the model weights available for download constituted secondary copyright infringement. (Model weights are the values that determine how inputs are transformed into outputs in a neural network, reflecting the strength and direction of connections between artificial neurons after training. During training, optimisation procedures adjust these weights so the model improves at a task; the final set of weights effectively encodes the model’s learned “knowledge” from data. These “weights” are machine-readable parameters, distinct from source code text; they are large arrays of numbers that operationalise the model’s behaviour rather than human-authored narrative code. • Use of Getty’s trademarked watermarks within generated images constituted trademark infringement.
As the judge observed,
Both sides emphasise the significance of this case to the different industries they represent: the creative industry on one side and the AI industry and innovators on the other. Where the balance should be struck between the interests of these opposing factions is of very real societal importance. Getty Images deny that their claim represents a threat to the AI industry or an attempt to curtail the development and use of AI models such as Stable Diffusion. However, their case remains that if creative industries are exploited by innovators such as Stability without regard to the efforts and intellectual property rights of creators, then such exploitation will pose an existential threat to those creative industries for generations to come.” [para 12]
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The High Court in Belfast will sit on Monday 9 and 10th November to hear a challenge by a same sex couple now living in Northern Ireland who seek recognition of their English marriage. The current legal dispensation in the Province is that an English same sex marriage is recognised as a civil partnership in Northern Ireland.
I’m delighted to say that I will be giving the keynote address at the 
Human trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.
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