Search Results for: environmental/page/38/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)

New criminal record disclosure rules take effect

1 December 2020 by Samuel March

On the 28^th November 2020, The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 (“the Order”) came into force, implementing important changes to the criminal records disclosure rules in England and Wales.

The criminal records disclosure regime provides information through Disclosure and Barring Service (DBS) certificates to employers about an individual’s criminal record. That information is then used by employers when considering the suitability of applicants for eligible roles or work.

The Order removes the requirement for automatic disclosure of youth cautions, reprimands and warnings and removes the ‘multiple conviction’ rule, which required the automatic disclosure of all convictions where a person has more than one conviction, regardless of the nature of their offence or sentence.

Kenyan “Mau Mau” claim dismissed: Fair trial not possible because of half century delay

6 August 2018 by Jo Moore

Kimathi & Others v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB) read judgment 

Stewart J has dismissed the first test case in this group litigation, in which over 40,000 Kenyans bring claims for damages against the UK Foreign & Commonwealth Office, alleging abuse during the Kenyan Emergency of the 1950s and early 1960s.

The mammoth hearing lasted 223 days, and the judgment accordingly runs to nearly 500 paragraphs. The decision turns on whether the judge should allow the claim to be heard over 50 years after the primary deadline expired.

In personal injury claims, section 33 of the Limitation Act 1980 provides that in certain circumstances, a claim which would otherwise be out of time (“statute-barred”) can nevertheless be heard. The court has a discretion to disapply the usual three-year time limit where it is equitable. This involves balancing the prejudice to the defendant of facing a late claim against the prejudice the claimant will suffer if the claim is statute-barred.

In this test case, Stewart J determined that it would not be equitable to extend time in the claimant’s favour. The severe effects of the passage of time on the defendant’s ability to defend the claim was a crucial factor, particularly due to the depleted cogency of the evidence available, as were the lack of good reasons for the delay, and the very substantial length of the delay itself. This carefully reasoned judgment will provide detailed guidance for the trial of ‘stale’ claims.
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Richard III on the move again – pitched into the current judicial review debate

23 October 2013 by David Hart KC

The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 18 October 2013 (PCO) read judgment, and on permission, 15 August 2013  read judgment

I posted here on the original judgment giving the Plantagenet Alliance permission to seek judicial review of the Secretary of State’s decision to re-bury Richard III in Leicester. At the time, the judge had made a full Protective Costs Order in favour of the Alliance, so that it would not have to pay costs if it lost. The judge had also ordered what he envisaged to be a short hearing to determine in what sum the Alliance’s costs should be capped. if it won. 

The judge was then somewhat surprised to be faced by a full-blown attempt by MoJ (Chris Grayling) to discharge the PCO, and seek an order for security of costs against the Alliance. The written argument in support was signed by the top barrister doing work for the Government, and the hearing about it took a day (think of the costs of that).

The application was conspicuously unsuccessful, as we shall see, but what was all this about?  Something to do with proposed judicial review changes, I suspect – for reasons which will become evident.

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Happy first birthday!

31 March 2011 by Rosalind English

On 31st March a year ago our blog was launched and to celebrate our entry into a second glorious year we thought we’d take a look at what we’ve done that pleased you most.

As with all internet sites, there are no prizes for guessing why Should people with low IQs be banned from sex? comes out with almost the highest number of hits, and no doubt some of the visitors to that page would have gone away disappointed, but we promise it is a fine piece on a very interesting issue. And the high score achieved by our post Brititsh airways strike and human rights – the union strikes back has less to do with law than travellers’ anxieties about their scheduled flights.

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Wind, peat and reasons: do I know why I lost?

9 July 2011 by David Hart KC

RWE Npower Renewables Ltd v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment

There are two things which public law fairness demands of a judge or a planning inspector before they rule against a party. The first is to make sure that any doubts about a party’s case is put to that party so he can respond. The second is that the judge or inspector explains his reasons for his conclusions in summary form. Unfortunately, in this case, the inspector did neither, and hence the decision was quashed by Beatson J. The judgment, at [37], contains a very good summary of the current cases on the adequacy of reasons in both planning and non-planning contexts. 
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Law Pod UK latest episode: The Environmental Minimum with Dr Stefan Theil

1 March 2023 by Lucy McCann

In episode 180 of Law Pod UK, Lucy McCann speaks to Dr Stefan Theil, the John Thornley Fellow and Director of Studies in Law at Sidney Sussex College, University of Cambridge, about what role the law can play in tackling the climate crisis. Dr Theil discusses the framework and central argument in his recent book ‘Towards the Environmental Minimum’ (Cambridge University Press, 2021). In the episode Dr Theil argues for an incremental human rights-based approach to combat the climate crisis and environmental degradation, and explores the extent to which courts are well placed to adjudicate on environmental issues. The discussion covers the concept of polycentricity, protections offered by domestic constitutions and the value of ascribing rights beyond human beings.

Cases cited in this episode include:

R (Friends of the Earth Ltd) v Secretary of State for International Trade and ors [2023] EWCA Civ 14

BvR 2656/18 (31 March 2021) Neubauer and others v Germany

Klimatická žaloba ČR v. Czech Republic (2021)

R (Richards) v the Environment Agency [2021] 2501 (Admin).

This decision and the outcome on appeal is considered here.

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to your podcasts. Please remember to rate and review us if you like what you hear.

The Weekly Round-Up: Greek Migrant Boat Tragedy, Italian pushback against Surrogacy, and Downstream Emissions in the Supreme Court

26 June 2023 by Orry Moore

In the news

Further details of the sinking of a Greek fishing boat carrying up to 800 people – including up to 100 children – have come out, placing the Greek authorities under intense scrutiny. The tragedy, which occurred on Wednesday 14^th June, has seen the confirmed deaths of at least 78 people and only 104 confirmed survivors – with no women or children surviving. The Greek authorities have so far claimed that the boat had no issues navigating until close to the time when it began to sink and that the people onboard had refused help from the Greek coastguard. However, marine tracking evidence obtained by the BBC suggests that the overcrowded fishing vessel was not moving for at least seven hours before it capsized. This has raised questions over the actions of the Greek coastguard, prompting the UN to call for an investigation into Greece’s handling of the situation amid claims more action should have been taken earlier to initiate a full-scale rescue attempt. Up to 500 people are still unaccounted for. In slightly more positive news, nine of the people traffickers involved in the disaster have been apprehended by Greek police and pled not guilty in a Kalamata court to trafficking charges.

The Italian prosecutor for Padua, Valeria Sanzari, has demanded the cancellation of 33 birth certificates of children born to lesbian couples dating back to 2017, saying the name of the non-biological mother should be removed. The mother whose name is eliminated will no longer be able to fulfil a series of tasks, including picking up her child from school without the written permission of her partner. If the legally recognised parent dies, the children could be taken from the family home and become a ward of the state. This comes against the backdrop of the election of Meloni’s right-wing government and a debate in Italy’s lower house on a new law that would make it a crime, punishable by up to two years in jail, for couples who go abroad to have a surrogate baby, even in places where it is legal. Critics of the move, such as Italian parliamentarian Alessandro Zan, have called the proposal “cruel [and] inhumane”, saying it will result in children being “orphaned by decree”.

The Erika disaster – why we need an international environmental court

8 April 2012 by David Hart KC

A long saga with a very new twist which should make even the most strident critic of international courts think again.

On 12 December 1999, the Erika sank some 60 nautical miles off the Brittany coast, spilling some 20,000 tonnes of heavy fuel which in due course polluted some 400 km of the French coastline. On 24 May 2012, the Cour de Cassation is due to rule on whether Total is criminally liable for the spill. Previous courts (the Criminal Court of First Instance, and the Court of Appeal in Paris)  had said that it was. But now Advocate-General Boccon-Gibod has recently advised the Cour de Cassation that Total has no criminal liability. The problem, as often with international environmental issues, particularly criminal ones, is the jurisdiction for the offence charged – can, in this instance, the French prosecute this crime, even though someone  can also do so somewhere else?  What better reason for the founding of an international environmental court – a forum where one tribunal can seek to enforce common rules against those responsible for major pollution, wherever the pollution occurs and wherever the parties may be resident.

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Who’s afraid of the big bad wolf?

22 August 2019 by Rosalind English

The Finns are, or so it appears from a recent referral to the European Court of Justice: Case C‑674/17.

Man up, Finns! That is the AG’s advice. The Habitats Directive allows of no derogation from the protection of species obligation that does not come up with a satisfactory alternative. Furthermore it must be shown that any derogation does not worsen the conservation status of that species.

Whatever the CJEU decides, the opinion of AG Saugmandsgaard Øe makes for fascinating reading, going to the heart of the conservation problem. As human populations spread, how to secure the preservation of wild species, particularly carnivores?

What is a continuing nuisance?

30 January 2021 by David Hart KC

Harrison Jalla and others v. (1) Shell International Trading and Shipping Company (2) Shell Nigeria Exploration and Production Company Limited [2021[ EWCA Civ 63 – read judgment

A traditional phrase in the common law, such as “continuing nuisance”, may mean a number of things in different contexts, as we will see clearly from this oil spill case. The claimants argued, unsuccessfully, that the presence of oil from the spill which had come onto their land was a continuing nuisance for as long as it remained there – which, they said, should get them around the limitation problems in their claims.

Leveson goes live

14 November 2011 by Adam Wagner

Updated |Today marks a minor landmark for open justice. For the first time, a public inquiry is being  shown live over the internet.

The Leveson Inquiry into Culture, Practices and Ethics of the Press has taken over Court 73 in the Royal Courts of Justice, so when Counsel to the Inquiry Robert Jay QC begins his cross examination, you could even imagine you are watching a live trial – on that note, watch this space.

The Iraq (Chilcott) Inquiry was broadcast live but it was not a public inquiry under the Inquiries Act 2005, as Leveson’s is. The Inquiry’s website has been relaunched and will be hosting the live stream of hearings on this page. My only grumbles about the new website are that the live coverage should be more prominently advertised on the main page.

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Round Up 16/12/19: The Supreme Court moves towards a new President and the small matter of a general election…

18 December 2019 by Thomas Hayes

This week sees Baroness Hale sitting for the final time as President of the Supreme Court. Photo credit: The Guardian.

A brief delay to the publication of this article has helpfully afforded this blogger the opportunity to move beyond the political events of last Thursday and instead focus on much more interesting legal matters (more on those later).

However, it would be remiss not to recognise the consequences of last week’s election, which saw the Prime Minister return newly empowered by a sizeable Conservative majority. At the time of writing, proposals were being made to put the legislation required to withdraw from the European Union back to MPs as early as this Friday.

Sneaking in at page 17 of the Conservative manifesto (one page after a commitment to extend the water rebate in the South West) came the party’s offering on law and order. This included commitments to increase the number of police, enhance the use of “fair and proportionate” stop and search, as well as promote longer sentences and the greater use of electronic tags. The manifesto was however silent on some matters which have drawn attention of late, including court closures, legal aid cuts, and previous suggestions from ministers that the Human Rights Act might be amended to protect soldiers from prosecution for acts performed during their time in service. With such a significant majority however, the Government will be in a position to pursue its chosen agenda with enthusiasm, and so these and other mooted at policies, such as reform of the judicial review process, may not be as fanciful as previously thought.

Moving gratefully on from politics, today saw the first day in the case of XX v Whittington Hospital NHS Trust (appealing [2018] EWCA Civ 2832), which also serves as Baroness Hale’s final case as President of the Supreme Court before her replacement on January 11^thby Lord Reed. The case provides an interesting example of a scenario in which factual matters combined with absent or inadequate law require the court to consider matters of a deeply public policy nature.
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The god of free trade: why Austria cannot stop big lorries from using its motorways

21 January 2012 by David Hart KC

C-28/09, European Commission v. Austria, 21 December 2011 – read judgment 

Many countries in the EU are struggling to comply with its laws about air pollution. The UK is in continuing breach of its nitrogen dioxide emission limit: see my post just before Christmas. But one way a country can try to comply with these laws is by banning or limiting heavy traffic. And that is exactly what Austria did in respect of an important bit of its motorway network; it prohibited lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley. And just before Christmas, it paid the price.

The EU Court told Austria it was infringing EU law, in particular, Articles 28 and 29 of the EC Treaty (now Arts 34 and 35 of TFEU) which are the core provisions protecting free movement of goods. Why, given that it was trying to comply proactively with another requirement of EU law?

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Supreme Court: no excuses, UK must comply with EU air pollution law

30 April 2015 by David Hart KC

R (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs, Supreme Court, 29 April 2015, judgment here

Bit of a history to this one, with 5 hearings so far. The short version is that in May 2013, the UK Supreme Court (here), faced with the UK’s non-compliance with EU Directive 2008/50 (nitrogen dioxide etc in air), decide  to refer various issues to the CJEU in Luxembourg.  In 2014, the CJEU said its piece, (C404-13 and my post here), and its views are now considered by the Supreme Court, hence this second SC judgment.

The UK has been in breach of Article 13 of the Air Quality Directive since 1 January 2010, by not complying with pollution limits in specified areas. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and the lower courts said that, given that admission, it was for the EU Commission, if it wished, to take infraction proceedings.  The Supreme Court’s 2013 judgement disagreed; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning and enforcement of the Directive to the CJEU.

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The Weekly Round-up: Human Rights Act reform, citizenship for Windrush claimants and European parenting rights

20 December 2021 by William Craig Cohen

On Tuesday, the Ministry of Justice published its full consultation (the ‘Consultation’) on Human Rights Act (the ‘Act’) reform. The Consultation criticises the current application of the Act in the UK and sets out the government’s proposals for repealing the Act and replacing it with a UK Bill of Rights. The 123-page Consultation follows the Independent Human Rights Act Review (‘IHRAR’), which reported to the government in late October, and was published on the government website on the same day as the Consultation.

The Consultation runs through the government’s now familiar issues with the Act, putting significant weight on cherry picked human rights cases which it is eager to summarise in its own words. For instance, R (Ellis) v Chief Constable of the Essex Police 7 [2003] EWHC 1321 (Admin), [2003] 2 FLR 566 is cited in the Consultation as an example of the application of the Act going ‘too far’. The Consultation presents the issue in the case, of Essex police publicising photographs of convicted offenders in train stations, as one that should clearly be beyond the remit of the Act. It makes no mention of the children and relatives of the offenders whose interests were balanced with the interests of the public in naming and shaming offenders in the hopes of deterring further crime (in the end, the scheme was permitted to continue).