Search Results for: environmental/page/37/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
3 December 2019 by Charlotte Gilmartin
R (Hemmati and others) v Secretary of State for the Home Department [2019] UKSC 56
In a significant public law decision, the Supreme Court dismissed the Secretary of State’s appeal and held that the policy governing detention pending removal fails to comply with the Dublin III Regulation as it lacks adequate certainty and predictability.
The respondents were five individuals who had travelled to the UK illegally and made claims of asylum, having entered via at least one other member state of the European Union in which they had already claimed asylum. Relying on the procedure set out in the Dublin III Regulation (Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013) (“Dublin III”), the Secretary of State requested those states to take responsibility for examining the asylum claims. Each such state agreed.
The respondents were then detained pending their removal pursuant to paragraph 16(2) of the Immigration Act 1971. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that in exercising powers of detention, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State.
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1 February 2016 by Guest Contributor
The Young Lawyers’ Committee of the Human Rights Lawyers Association is calling for submission for the 2016 Edition of The Young Human Rights Lawyer Journal. The first edition of the The Young Human Rights Lawyer was published in October 2015 and is available here.
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3 May 2016 by Hannah Lynes
Photo credit: The Guardian
In the news
The families of the 96 people who died at Hillsborough in 1989 have been vindicated at last, following a 27-year long fight for justice. An inquest jury has returned a conclusion of “unlawful killing”, in a damning indictment of South Yorkshire Police. The jury unanimously concluded that the behaviour of football supporters had in no part caused or contributed to the disaster.
Christina Lambert QC acted as lead counsel to the inquests, assisted by a team that included 1COR colleagues Matthew Hill and Paul Reynolds.
Following the conclusion a number of questions still remain, including whether former chief superintendent David Duckenfield, the match commander, will now face fresh charges of manslaughter. A private prosecution ended in 2000 after a jury failed to reach agreement. Joshua Rozenburg observes that the inquest findings are clearly prejudicial – but “juries should be trusted to put prejudicial material out of their minds”.
Legal commentator David Allen Green points out that “without the Human Rights Act and ECHR there would not have been this new Hillsborough inquest”. The effect of Article 2 ECHR (the right to life) has meant it is no longer enough for an inquest to decide the means by which a person died; the circumstances in which the death occurred must also be determined. Barrister Michael Mansfield QC further notes that “one of the unusual features of these inquests has been the way the friends and relatives of the deceased have been accorded a central status” – a requirement of the European Court of Human Rights.
It is the jurisdiction of this same Court that Theresa May has declared the UK should leave, claiming this week that “the ECHR can bind the hands of Parliament, adds nothing to our prosperity…[and] makes us less secure by preventing the deportation of dangerous foreign nationals”. Mark Elliott describes the argument as “legally clumsy and constitutionally naïve”, while David Allen Green suggests human rights are being used “as a token in the game of politics”. He goes on to note that examples of the positive influence of the ECHR, such as the Hillsborough Inquests, will make this more difficult in the future: “even superficial politics can lose their shine”.
In other news:
According to a report in the Telegraph, each year up to 40,000 dying patients are having “do not resuscitate orders” imposed on them without the knowledge of their families. In many cases there is no record of any consultation with the patient. Adam Wagner suggests at RightsInfo that this might be in breach of patients’ human rights.
Figures released by the Ministry of Justice indicate a worsening crisis in the UK prison system. Between 2010 and 2015, the number of sexual assaults recorded has more than doubled from 137 incidents per year to 300. In the same period, the number of deaths in prisons has risen from 198 to 257 per year. Campaigners say that serious overcrowding and staff shortages are largely to blame. The Independent reports.
The Bar Council has warned that plans put forward by the Ministry of Justice to increase fees for those seeking justice through the Immigration and Asylum tribunal system by 500% is yet another step towards putting access to justice beyond the means of those who most need it. Further details can be found here.
The Guardian: According to a new report by charity Transform Justice, legal aid cuts have led to a sharp rise in unrepresented defendants. In one example given to the charity, an unrepresented defendant remained silent during his appearance via video link from a police station. Only after he had been sent to prison did it emerge that he was deaf.
In the courts
The applicant was a Dutch national sentenced to life imprisonment for the murder of a six-year-old girl. The Court found that the lack of any kind of treatment for the mental health condition suffered by the applicant meant that his requests for pardon were in practice incapable of leading to his release, since his risk of re-offending would continue to be assessed as too high. Accordingly, the Court found a violation of Article 3 of the Convention (prohibition of inhuman or degrading treatment).
UK HRB posts
Ex-pats challenge to the EU referendum voting rules – David Hart QC
Extradition in “disarray”? – Amelia Nice
Court of Protection orders continued reporting restrictions after death – Rosalind English
Judge allows paternity test for DNA disease analysis – Rosalind English
The “up for a three way?” case: injunction set aside – Rosalind English
Hannah Lynes
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1 November 2016 by Rosalind English
J (A Minor), Re [2016] EWHC 2430 (Fam) 21 October 2016 – read judgment
These proceedings concerned a care order sought by the local authority in respect of a seven year old boy (J). The judge found that his mother, who had separated from his father within 12 months of J’s birth, had caused her son significant emotional harm by making him live as a girl. The care order sought would allow J to continue to live with his father, in whose care he had flourished.
After the separation J had stayed with his mother. Contact arrangements broke down in 2013, causing the father to apply for a child arrangements order. Contact was consistently opposed by the mother. In 2013 and 2014, various agencies raised concerns with the local authority about the mother’s mental health and the fact that J was presenting as a girl. The mother had claimed that J was “gender variant” and should be allowed to go to school dressed as a girl. Social services were concerned that he was made to wear a pink headband and nail polish. And indeed at a hearing in November 2015, the mother told the court that J was living life entirely as a girl: he dressed like a girl and had been registered with a GP as a girl. She was reported to be considering sending the child to a gender reassignment clinic. As the judge said, when all this was properly analysed it was clear that “flares of concern were being sent from a whole raft of multi disciplinary agencies.
Each was signalling real anxiety in respect of this child’s welfare. Whilst it is, I suppose, conceivable that these referrals were considered individually, it is impossible to draw any inference other than that they were never evaluated collectively.
The local authority, concluded Hayden J, had “consistently failed” to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. It was “striking” that the local authority had moved into wholesale acceptance that J should be regarded as a girl.
Once again, I make no apology for repeating the fact that J was still only 4 years of age.
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31 October 2015 by Jim Duffy
And so, thirteen years after his capture, eight years after the US Government cleared him for release, and seven years after President Obama’s spectacularly broken promise to shut down Guantánamo, Shaker Aamer has left the prison, as innocent as the day he went in.
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13 May 2018 by Martin Downs
Following on from the UK Supreme Court’s special session in Belfast hearing the “Gay Cake” case, the Court now gathers in London to hear oral arguments in the Equal Love litigation whose factual origins are somewhat closer to Parliament Square in more ways than one.
Rebecca Steinfeld and Charles Keidan contend they were unlawfully refused an opportunity to register a Civil Partnership at Chelsea Town Hall on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. This exclusion started to appear somewhat anomalous when the government opened marriage up to same sex couples by way of the Marriage (Same Sex Couples) Act 2013. The effect of this is that same sex couples in England and Wales (and Scotland – but not Northern Ireland) had a choice of marriage and civil partnership but different sex couples only had the former option.
What then is to be the future of the status of Civil Partnership created in 2004 (and covering the whole of the UK)? Most countries, upon enacting, same sex marriage abolished civil partnership schemes or barred new entrants to their schemes (like the Republic of Ireland). A few countries like the Netherlands, where civil partnership regimes are open to different sex couples as well, left couples with a choice of arrangements. Uniquely England, Wales and Scotland have (at present) left in place a situation in which same sex couples can choose between Civil Partnership and marriage but different sex couples only have the latter available to them.
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6 July 2015 by Hannah Lynes
Commissioner of the Police for the Metropolis v DSD and NBV and Alio Koraou v Chief Constable of Manchester [2015] EWCA Civ 646 – read judgment
The Court of Appeal has ruled that the police have a positive duty under Article 3 ECHR to conduct investigations into alleged ill-treatment by private individuals. There is a sliding scale from deliberate torture by State officials to the consequences of negligence by non-State agents. The margin of appreciation enjoyed by the State in terms of complying with the Article 3 procedural duty widens at the bottom of the scale but narrows at the top.
Background
This was an appeal brought by the Metropolitan Police Service (MPS) against the decision of Green J in the High Court that the police force were in breach of the prohibition on inhuman or degrading treatment or punishment under Article 3 ECHR. A summary of the judgment at first instance can be found here.
The claimants were two women, DSD and NBV, who had been victims of rape and sexual assault committed by John Worboys, the “black cab rapist”. Administering sedative drugs and alcohol to his passengers, Worboys was the perpetrator of more than 105 assaults on women between 2002 and 2008.
In a conjoined appeal, the claimant Alio Koraou appealed a finding against him by HHJ Platts. He had been subject to an assault in a bar and part of his ear had been bitten off.
Both of these claims alleged that the failures of which the police were accused constituted violations of a duty to investigate said to be inherent in the right guaranteed by Article 3.
Decision
The Court of Appeal rejected submissions made on behalf of the MPS that a positive duty to investigate was not part of domestic law. It held that allegations of ill-treatment of the gravity stipulated by Article 3 gave rise to a duty under that Article to conduct an official investigation. Moreover, this obligation was not limited solely to cases of ill-treatment by State agents, but could arise where crimes were committed by private actors.
The reach and nature of the investigative duty
The Court emphasised that an appreciation of the reach and nature of the investigative duty under Article 3 demanded a broader consideration of the aims of this part of the ECHR. It was important to keep in mind the Article’s overall purpose.
“The idea at the core of the Article is that of safeguarding or protection in all the myriad situations where individuals may be exposed to ill-treatment of the gravity which the Article contemplates” [para. 44].
Reference was made to a sliding scale: from deliberate torture by State officials to the consequences of negligence by non-State agents. The energy required of the State to combat or redress these ills is “no doubt variable, but the same protective principle is always at the root of it” [para. 45].
Further, the margin of appreciation enjoyed by the State as to the means of compliance with Article 3 widens at the bottom of the scale but narrows at the top. At the lower end of the scale where injury happens through the negligence of non-State agents, the State’s provision of a judicial system of civil remedies will often suffice. Serious violent crime by non-State agents is of a different order, lying higher up the scale. Such cases, which included those of the respondent women, generally require a proper criminal investigation by the State.
Were the MPS in breach of their duty?
The Court went on to consider whether the judge had placed the cases in front of him too high on the sliding scale in terms of the degree of rigour required of the police investigation. A contrast between the ECHR and common law negligence was in this regard crucial. Whereas the purpose of English private law is compensation for loss, the strategic aim of the ECHR is to secure minimum standards of human rights protection. This distinction marks important differences in practice.
“The contrast between damages as of right and compensation at the court’s discretion is one. But another, in my judgment, goes to the standard applicable to the ascertainment of breach of the Article 3 investigative duty, as compared with what might constitute breach of a common law duty of care. Because the focus of the human rights claim is not on loss to the individual, but on the maintenance of a proper standard of protection, the court is in principle concerned with the State’s overall approach to the relevant ECHR obligation” [para. 67].
“The enquiry into compliance with the Article 3 duty is first and foremost concerned, not with the effect on the claimant, but with the overall nature of the investigative steps to be taken by the State” [para. 68].
Drawing on the account of Green J, the Court noted the judge’s findings that there were systematic and operational failures in the cases of both claimants. Applying the above legal principles to the facts, the Court held it to be “inescapable” that Green J was right to find a violation of Article 3.
Koraou
In the second of the conjoined appeals, the Court affirmed the approach of HHJ Platts: a finding that there were clear failings in the police investigation would not lead in every case to liability under Article 3.
It had been noted by the judge that this was not the most serious of cases and that the allegations made by the Claimant were of questionable reliability. In his judgment it was not, therefore, a case where it would have been reasonable to require that the investigation left no stone unturned. Account had to be taken of the fact that police resources were limited. Further, this was not a case where the police did nothing.
The Court concluded that HHJ Platts had weighed the proved deficiencies of the investigation, its difficulties as he found them to be, and the gravity of the case. His decision to dismiss the claim could not sensibly be faulted.
Hannah Lynes
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2 February 2016 by David Scott
Mark William Patrick MacLennan v Her Majesty’s Advocate, [2015] HCJAC 128 – Read judgment
The High Court has refused an appeal under Article 6 on the lack of effective cross-examination of child witness, but has provided interesting commentary on how such investigations could be better handled in future to meet Strasbourg standards.
by David Scott
The Facts
The original charge concerned reports made against the appellant, the manager at a nursery in Fort William, from children alleging various forms of sexual contact. After initial allegations, joint investigation interviews (JIIs) were conducted between May and July 2013 with various children from the nursery. The value of some of the interviews was questioned by the High Court, with one described as “leading in the extreme” (paragraph 5), yet none were challenged by the defendant when presented as evidence during his trial.
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18 September 2020 by David Hart KC
For a while, 6 Portuguese citizens, between the ages of 8 and 21, have been on the brink of starting proceedings in the European Court of Human Rights. Now it has happened. On 3 September 2020, they sent their claim to the ECtHR. They have been helped in its preparation by the Global Legal Network, which has helpfully put up here a summary as well as the salient parts of the documents sent to the Court.
The claim is against 33 Council of Europe countries (all the EU 27, plus the UK, Switzerland, Norway, Russia, Turkey and Ukraine) for failing to take sufficient steps to address climate change. The failures alleged include permitting emissions domestically, permitting the export of fossil fuels extracted from their territories, permitting the import of goods containing embedded carbon, and allowing entities domiciled in those countries to contribute to emissions abroad (via fossil fuel extraction elsewhere or its financing).
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24 September 2018 by Conor Monighan
Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018
Brexit update – Chair: Mr Justice Lewis; Speakers: Professor Alison Young (Sir David Williams Professor of Public Law, University of Cambridge) and Richard Gordon QC
Professor Alison Young
Is it inevitable that domestic law will alter drastically after Brexit? According to Professor Young, it is entirely possible that little change will occur.
First, the CJEU will continue to have an influence on domestic law. This is because section 6(2) of the EU (Withdrawal) Act 2018 states courts/ tribunals ‘may have regard’ to CJEU decisions (including those made after exit day) if they think it appropriate.
Second, the fundamental rights enshrined in the Charter of Fundamental Rights will probably not disappear. Although Section 5(4) of the Act states that the Charter will no longer be part of domestic law, paragraph 106 of the Explanatory Notes says “those underlying rights and principles will also be converted into UK law”. Arguably, this means lawyers will still be able to use case law in which these general principles were referred to. However, a limitation to reliance on fundamental principles is set out by s.3(1) of the Schedule to the Act. This states no court/ tribunal may disapply law because it is incompatible with any of the general principles of EU law.
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2 October 2014 by Guest Contributor
In his speech at yesterday’s Conservative Party conference, the Prime Minister confirmed that the party’s 2015 election manifesto will include a commitment to repeal the Human Rights Act 1998 (HRA) and replace it with a “British Bill of Rights”. Last night, however, The Scotsman newspaper quoted a Scotland Office spokesman as saying that the change would not apply in Scotland. According to the article, the spokesman “confirmed that human rights legislation is devolved to the Scottish Parliament because it was ‘built into the 1998 Scotland Act [and] cannot by removed [by Westminster].’” As reported, this statement is seriously misleading. However, it does highlight genuine difficulties that devolution creates for the implementation of plans to reform human rights law.
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19 February 2018 by Rosalind English
CN and Anor v Pool Borough Council [2017] EWCA Civ 2185, 21 December 2017 – read judgment
Just over six weeks before the Supreme Court ruled that the police owed the public a duty of care in Robinson (see our post here) the Court of Appeal had unanimously rejected the existence of such a duty in the context of social services and vulnerable children. Giving the leading judgment, Irwin LJ said that there were two strong reasons for rejecting the claimants’ case.
[F]irst is the concern, articulated in X v Bedfordshire in relation to social services and in Hill v West Yorkshire in relation to the police, that liability in negligence will complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making. The second is the principle that, in general, there is no liability for the wrongdoing of a third party, even where that wrongdoing is foreseeable. Both of these considerations, in my view, bite on the facts in this case.
In his concurring judgement, Davis LJ observed that “nothing in this case as pleaded requires or justifies it going to a full trial.”
The claimants have sought permission to appeal to the Supreme Court.
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24 August 2015 by Guest Contributor
When a legal challenge to one of the coalition Government’s flagship welfare reforms – an overall cap of £26,000 per year on the amount any family could receive in benefits – was reviewed by the Supreme Court earlier this year, the resulting judgment left many observers scratching their heads. Had the Court declared the cap unlawful or not? The answer seemed to be a mixture of yes and no.
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23 January 2017 by Guest Contributor
R (Woolcock & Bridgend Magistrates Court) v Cardiff Magistrates Court and Bridgend County Council [2017] EWHC 34 (Admin) (judgment awaiting publication)
There is an exceedingly long line of case law, stretching back beyond the days of the community charge (which was of course better known as the Poll Tax). In those cases, the courts have traditionally quashed custodial orders improperly imposed by magistrates for non-payment of council taxes.
Most recently, the legal charity Centre for Criminal Appeals have picked up the reins as part of their work challenging unduly harsh sentencing practices. The case of R(Woolcock & Bridgend Magistrates Court) v Cardiff Magistrates Court and Bridgend County Council, a judicial review claim, is the first of the cases supported by the Centre to reach the High Court, and concerned imprisonment of a woman who had failed to make council tax payments required of her.
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29 December 2014 by Adam Wagner
WordPress.com, the blogging software we use to make the blog, prepared a 2014 annual report. We had almost a million hits and have crashed through the 2,000 post barrier since our launch in 2010. Thanks for reading and here is for a very interesting 2015. Adam Wagner
Here’s an excerpt:
The Louvre Museum has 8.5 million visitors per year. This blog was viewed about 890,000 times in 2014. If it were an exhibit at the Louvre Museum, it would take about 38 days for that many people to see it.
Click here to see the complete report.
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