Search Results for: environmental/page/46/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)

Law of armed conflict means that anti-detention provision in ECHR may be disapplied re Iraqi detainee

16 September 2014 by Rosalind English

Hassan v. the United Kingdom (application no. 29750/09) ECHR 936 (16 September 2014) – read judgment

This case concerned the capture of an Iraqi national, Tarek Hassan, by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. The complaint was brought by his brother, who claimed that Tarek had been under the control of British forces, and that his dead body was subsequently found bearing marks of torture and execution.  In essence, the case raised issues concerning the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. This was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law, which allows the internment of prisoners of war at times of international conflict.

The Grand Chamber held that although Tarek Hassan had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops until the moment of his release; there had been no violation of Article 5(1), (2), (3) or (4) (right to liberty and security) of the European Convention on Human Rights as concerned his actual capture and detention. The European Convention had to be interpreted in parallel with international instruments which applied in time of war. Four out of the seventeen judges dissented on this point.
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Accused should have been allowed to attend appeal against the grant of her bail

1 April 2010 by Adam Wagner

Allen v. The United Kingdom (Application no. 18837/06), Date of judgment: 30 March 2010

(Read judgment)

The European Court of Human Rights (ECtHR) has ruled that, in the circumstances, it was a breach of the applicant Susan Allen’s rights under article 5(4) of the European Convention on Human Rights (ECHR) for a Deputy District Judge to refuse her permission to attend an appeal against the grant of her bail.

In October 2005 Ms Allen was charged with two offences of conspiracy to supply Class A drugs. She was produced at Liverpool City Magistrates’ Court. Following a contested bail application she was granted bail by the Deputy District Judge, and the prosecution subsequently appealed. Her counsel requested that the judge allow her to be present at the appeal. The judge declined the request, reasoning that the applicant could be given a full report of what had happened from her counsel. Moreover, her attendance would be undesirable as one of the applicant’s co-accused had not been present at the hearing of the appeal against the grant of bail to him, and it would therefore be unfair to treat the applicant more favourably.

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Rights breach council must pay out

7 February 2011 by Adam Wagner

G v E & Ors [2010] EWHC 3385 (Fam) (21 December 2010) – Read judgment

Manchester City Council has been ordered to pay the full legal costs of a 20-year-old man with severe learning disabilities who was unlawfully removed from his long-term foster carer. The council demonstrated a “blatant disregard” for mental health law.

The case has wound an interesting route through the courts, with hearings in the Court of Protection, Court of Appeal, and also a successful application by the Press Association to reveal the identity of the offending local council in the interests of transparency. In August, Siobhain Butterworth wrote that the decision to name and shame the council was a “good” one which “marries the need for transparency in the treatment of vulnerable people with the right to a private life“.

Now, Mr Justice Baker has taken the unusual step of ordering that Manchester City Council pay all of E’s family’s legal costs. The general rule in the Court of Protection is that costs should not be awarded, but as the judge ruled it can be broken in certain circumstances:

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Supreme Court upholds gay discrimination ruling in hotel case

27 November 2013 by Rosalind English

Bull and another (Appellants) v Hall and another (Respondents) [2013] UKSC 73 (27 November 2013) – read judgment

This appeal concerned the law on discrimination. Mr and Mrs Bull, the appellants, own a private hotel in Cornwall. They are committed Christians, who sincerely believe that sexual intercourse outside traditional marriage is sinful. They operate a policy at their hotel, stated on their on-line booking form, that double bedrooms are available only to “heterosexual married couples”.

The following summary is taken from the Supreme Court’s press report. See Marina Wheeler’s post on the ruling by the Court of Appeal in this case. A full analysis of the case will follow shortly.

References in square brackets are to paragraphs in the judgment.

The respondents, Mr Hall and Mr Preddy, are a homosexual couple in a civil partnership. On 4 September 2008 Mr Preddy booked, by telephone, a double room at the appellants’ hotel for the nights of 5 and 6 September. By an oversight, Mrs Bull did not inform him of the appellants’ policy. On arrival at the hotel, Mr Hall and Mr Preddy were informed that they could not stay in a double bedroom. They found this “very hurtful”, protested, and left to find alternative accommodation.
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Do we need a UK Bill of Rights?

5 August 2011 by Adam Wagner

The UK Bill of Rights Commission has launched a public consultation on whether we need a Bill of Rights.

The consultation document is here and reproduced below. You have until 11 November 2011 to respond and you can do so via email or post.

The document provides a useful and fairly noncontroversial summary of rights protections as they currently exist within the UK constitutional structure. It does not, however, provide any information at all about what a “bill of rights” might entail or how such instruments work in other countries: contrast the far more detailed (and very useful) document produced in 2010 by the Equality and Human Rights Commission.

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Kettling: Can a public interest motive justify a deprivation of liberty or not? – Robert Wastell

2 April 2012 by Guest Contributor

Austin & Others v. The United Kingdom, [2012] ECHR 459, 15th March 2012 – read judgment

The Grand Chamber of the ECtHR recently tackled the question of whether the police tactic of “kettling” (verb, UK, of the police – to contain demonstrators in a confined area) amounted to a deprivation of the liberty of four applicants within the meaning of Article 5(1) of the ECHR.

The facts of this case reveal a clash of perspectives between private and public interests. However, as the applicants argued, the deprivation of liberty cannot be justified by a wider public interest motive. 
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South African police force should not shrink from investigating Zimbabwe torture allegations

14 May 2012 by Rosalind English

South African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions and other governmental units – read judgment 

South Africa’s North Gauteng High Court has just ruled that South African prosecutors and police illegally refused to proceed with an investigation of systematic torture in Zimbabwe.

South Africa, like many countries, has adopted the international crime prosecution Treaty (“the Rome Statute”). This means that under ordinary domestic law  (the ICC Act)  the South African investigative authorities have the power to prosecute anyone who has committed torture, or a crime against humanity anywhere in the world, if the perpetrator is in the country (at any time when investigation is contemplated). Jurisdiction is also vested irrespective of the perpetrator’s whereabouts if the victim is a South African citizen.

Of course this burden of responsibility teems with diplomatic difficulties, but generally it has been discharged with the convenient prosecutions of has-beens like Charles Taylor and  Slobodan Milošević.

As Naomi Roht-Arriaza points out in her fascinating post on the subject, this particular case of South Africa v Zimbabwe illustrates the strain put on governments by the principle of  complementarity under the 1998 Rome Statute, which puts pressure on implicated states to investigate these major crimes on their threshold, too close to home. It should come as no surprise that South African prosecutors are reluctant to investigate allegations of torture committed in Zimbabwe –

One of the critiques of transnational prosecutions based on universal jurisdiction is that they are a new brand of neo-colonialism, with former colonial powers seeking to bring into court disgraced leaders of their former colonies.

Now the tables are turning, and this universal jurisdiction is not being universally welcomed.

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Analysis: Occupy London loses final eviction court challenge

29 February 2012 by Leanne Buckley-Thomson

The Mayor Commonality and Citizens of London – v – Samede, Barda, Ashman, Randle-Jolliffe, Moore and Persons Unknown [2012] EWCA Civ 160 – Read judgment

Members of the Occupy London Movement who have been occupying an area close to St Paul’s Cathedral have had their applications for  permission to appeal the decision of the lower court to evict them refused by the Court of Appeal.  The judgment of Mr Justice Lindbolm was deemed ‘very full and careful’by the Master of the Rolls.  Shortly after midnight yesterday police began evicting occupants at the site.

In January we reported on the High Court battle between the City of London and the Occupy London Movement who had been occupying an area close to St Paul’s Cathedral. Mr Justice Lindbolm’s well-reasoned decision to grant possession, interlocutory and declaratory relief to the Mayor Commonality and Citizens of London meant that the Occupy Movement were to be evicted.

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Cheshire West revisited: deprivation of liberty and children

22 November 2024 by Esme Cairns

Introduction

Is the Lockdown Lawful? An overview of the debate

20 April 2020 by Hannah Noyce

Note: This article involves examination of the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government. The movement restrictions themselves are vital to the protection of life in the current crisis and must be adhered to by all persons. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the undeniable imperative to follow that guidance.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were made by the Health Secretary on 26 March 2020. Understandably, given the speed with which the crisis was and still is developing, the Regulations were made using a statutory emergency procedure, meaning that they were not subject to Parliamentary scrutiny. They have yet to be challenged in the courts. In the meantime, a lively and important debate has developed about whether those regulations are lawful.

This post aims to provide an overview of the key contributions thus far, and to provide a starting point for newcomers to the debate. The summaries below are necessarily incomplete, and each of the pieces referred to is well worth reading in full.

Top Gear up before Top Judges

6 March 2013 by Rosalind English

Tesla Motors Ltd and another v British Broadcasting Corporation  [2013] EWCA Civ 152  – read judgment

The Court of Appeal has refused an appeal against the strike out of a libel claim against the BBC in relation to a review of an electric sports car by the “Top Gear” programme. The judge below had been correct in concluding that there was no sufficient prospect of the manufacturer recovering a substantial sum of damages such as to justify continuing the case to trial.

The manufactures of an electric sports car made two of their “Roadsters” available to BBC’s “Top Gear” programme for review.  The show’s tests were designed to push the cars to the limits of their performance in terms of acceleration, straight line speed, cornering and handling. One of the cars was driven by the presenter of the show, Jeremy Clarkson, who was filmed driving it round the test track and commenting on his experience.  
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India and the Rule of Law: In 2021, is India still a Liberal Democracy?

11 March 2021 by Marina Wheeler QC

Thank you all for joining the expert speakers for our webinar considering the question of whether India is still a Liberal Democracy on 11th March 2021 at 4.30 – 5.45pm. A link to the recording is below.

Chair:
Marina Wheeler QC

Expert Panel:
Dr Mukulika Banerjee (London School of Economics and Political Science, LSE)
Dr Shruti Kapila (Corpus Christi College, Cambridge)
Professor Tarunabh Khaitan (Wadham College, Oxford)

There’s no place like home… if you have one

25 August 2011 by Isabel McArdle

There are somewhere in the region on 12 million people worldwide who have no nationality. Being stateless can create enormous problems, from being unable to rely on diplomatic assistance to having no home country with an automatic right to return to. The risk to stateless of people of having their human rights breached to is great. The United Nations has expressed its concern repeatedly, and is encouraging states to sign up to two conventions which provide basic rights to those without a state.

Back in March we considered a case where a man claiming asylum alleged that he was a member of a particular ethnic group which, it was accepted by the parties, is at risk of persecution in Kuwait. His claim failed as the court found him to be Kuwaiti. However, because he had no documents to show he was Kuwaiti, the Kuwaiti authorities would not allow him to enter their state. Hence the Catch-22 situation of many stateless people, where they cannot establish a right to reside in one state but have no other state to return to.

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Article 5 ECHR does not require time limits for detention pending deportation

24 May 2016 by Fraser Simpson

J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 – read judgment.

Photo credit: The Guardian

The European Court of Human Rights has ruled that the general system for detention of individuals prior to deportation in the United Kingdom, which lacks specific maximum time-limits, complies with Article 5, ECHR (Right to liberty and security of the person). However, in the proceedings involving J.N., the authorities had not acted with sufficient “due diligence”, which resulted in a violation of Article 5.

by Fraser Simpson

Background

The applicant, known as J.N., arrived in the UK in early 2003 and unsuccessfully sought asylum soon after. In February 2004 he was convicted of indecent assault and sentenced to 12 months imprisonment. Following his release he was subjected to a number of conditions which he failed to comply with. This led the Secretary of State to issue an order deporting J.N. back to Iran. On 31 March 2005 the applicant was detained pending deportation.

Complications arose when attempts were made to obtain the necessary travel documents from the Iranian Embassy. Eventually, in November 2007, the Embassy agreed to issue the documents if the applicant signed a “disclaimer” consenting to his return. The applicant refused to sign this disclaimer.

Despite being released for one month following review of his detention by the Administrative Court in December 2007, the applicant was once again detained in January 2008. He continued to refuse to sign the disclaimer that was necessary to obtain the travel documents and to effect the deportation. During this second period of detention the authorities considered prosecuting the applicant for failing to comply with the Secretary of State’s request to take specific action to obtain a travel document (under s. 35, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004). But no prosecution was forthcoming. Additionally, J.N. agreed to sign the disclaimer if he was compensated for the periods of detention. However, the UK Border Agency refused to do so.

Domestic Proceedings

J.N.’s refusal to sign the disclaimer continued until late-2009 when J.N.’s solicitors began judicial review proceedings challenging the lawfulness of his detention. In considering the lawfulness of the detention pending deportation, the judge considered the four principles established in R v. Governor of Durham Prison, ex parte Hardial Singh, [1984] WLR 704:

1. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
2. The deportee may only be detained for a period that is reasonable in all the circumstances;
3. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
4. The Secretary of State should act with reasonable diligence and expedition to effect removal.

The judge considered that the authorities responsible for the deportation had acted with a “woeful lack of energy and impetus”. They had failed to change their approach to the situation, they refused to bring a prosecution under the relevant legislation. Further, they had not approached the Iranian authorities to see if they would change their position regarding the need for a disclaimer. The Secretary of State had fallen short of the fourth requirement established in Hardial Singh. Accordingly, the judge found that the applicant’s detention had been unlawful from 14 September 2009 onwards.

The Strasbourg Court

Article 5 protects the right to liberty and security of persons. Restrictions of liberty are permissible if they fall within one of the specific grounds highlighted in Article 5(1). Article 5(1)(f) relates to detention “of a person against whom action is being taken with a view to deportation or extradition”. Any detention in pursuance of this objective must be prescribed by, and comply with, domestic law. Additionally, the domestic law must be “sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness”. To satisfy this “quality of law” requirement, domestic law should include clear provisions on the ordering and extension of detention as well as effective remedies that can be used by the individual to challenge the lawfulness of their detention. These requirements act as safeguards against arbitrary detention.

The applicant complained that the UK system for detention pending deportation did not specify maximum time limits for such detention and that this led to a violation of Article 5(1). Additionally, there was a need for automatic judicial scrutiny of any detention as opposed to requiring the individual to initiate judicial review proceedings themselves. Finally, the applicant submitted that if the UK’s system was said to satisfy the “quality of law” requirement, then the entirety of his detention had been unlawful, and in violation of Article 5, as at no point had there been a realistic prospect of removal (see paras. 59-63).

Lack of time-limits within the UK system (paras. 90-93)

The ECtHR had previously held that Article 5(1)(f) does not impose maximum time limits for detention pending deportation. However, the absence of such time-limits will be a factor in assessing whether domestic law satisfies the “quality of law” requirement. But other protections against arbitrariness, including the ability to review the lawfulness of the detention, are equally important.

The “EU Returns Directive” (see Article 15 here) does set down a maximum time limit of 18 months for detention pending deportation. However, the UK has opted out of this Directive and it is therefore not binding. The ECtHR considered that despite this Directive creating a uniform approach over the majority of Council of Europe States, it could not be considered that such a position was required by Article 5(1)(f) or that this is the only position compatible with such a provision. Additionally, two Council of Europe instruments had addressed detention pending deportation and refrained from imposing time limits (see Twenty Guidelines on Forced Return, 2005 and Parliamentary Assembly Resolution 1707 on the detention of asylum seekers and irregular migrants in Europe, 2010).

The ECtHR held that Article 5(1)(f) does not require states to establish time-limits for detention pending deportation. The UK has sufficient procedures to allow the lawfulness of detention to be tested. Accordingly, the failure of the UK system to establish such limits, in light of the other procedural safeguards against arbitrariness, was not in violation of Article 5(1).

Lack of automatic judicial review of immigration detention (paras. 94-96)

The ECtHR refused the applicant’s submissions that Article 5(1)(f) required automatic judicial scrutiny of immigration detention. Article 5(4) provides all individuals who have been detained or had their liberty deprived with a right to take proceedings to examine the lawfulness of the detention. An entitlement to take proceedings, as opposed to automatic review, is all that is required by Article 5.

Was J.N.’s detention in accordance with Article 5? (paras. 102-108)

Finally, the ECtHR considered whether J.N.’s second period of detention, from 14 January 2008 to 14 September 2009 (the date on which the domestic court ruled that the detention had become unlawful) was in compliance with Article 5(1)(f) (for the reasons for restricting the scope of review to this period see paras.48-57)

The ECtHR saw no justification for the domestic courts to have restricted the “unlawful detention” to the period following 14 September 2009. Despite the repeated refusal of J.N. to cooperate, this could not be “be seen as a ‘trump card’ capable of justifying any period of detention” (para. 106). The ECtHR considered that the authorities had shown, to use the language of the domestic court, a “woeful lack of energy and impetus” from mid-2008 onwards. As a result, the detention had not been pursued with “reasonable diligence and expedition” from mid-2008 and therefore was not in accordance with domestic law and the principles established in Hardial Singh.

Accordingly, the detention from mid-2008 to 14 September 2009 was in violation of Article 5(1).

Comment

Despite concerns as to the unlimited nature of detention pending deportation being generally raised by a number of UN and European human rights bodies, as well as specific recommendations for the UK to adopt such limits (see UN Human Rights Committee, HM Chief Inspector of Prisons, and a UK All Party Parliamentary Group), the ECtHR refused to recognise that such limits were required by Article 5.

Undoubtedly the EU Returns Directive has resulted in the majority of Council of Europe states having limits for such detention. But as argued by the Government, recognising that Article 5 imposed such time limits may have “subvert[ed] the democratic process” by imposing time limits modelled on the EU Returns Directive from which the UK had lawfully opted out (para. 66).

During parliamentary scrutiny of the recent Immigration Act 2016 (which received Royal Assent on 12 May 2016) amendments were proposed by the House of Lords to limit immigration detention to 28 days  – it should be noted that this would not have covered J.N.’s situation as it was not applicable in the event that the Secretary of State had made a deportation order – see para. 84 here). However, this amendment was rejected. In the final version of the Immigration Act a duty to arrange consideration of bail is placed upon the Secretary of State for all individuals detained pending deportation (which would cover J.N.) after four months (Sch. 10, para. 11, Immigration Act 2016). This would clearly act as a further, important safeguard against arbitrariness.

Law Pod UK: First Episode in Family Law Series from 1 Crown Office Row Brighton

19 May 2021 by Rosalind English

Clare Ciborowska and Richard Ager join Rosalind English in the first of a series of discussions from the family law team at 1 Crown Office Row in Brighton, highlighting developments and analysing case law from the family courts.

In Episode 144 of Law Pod UK, we focus on the challenges presented to family court judges by the obligation to conduct full fact finding hearings where allegations of domestic abuse are raised. The details of this duty are to be found in Practice Direction 12J FPR2010, but the difficulties have yet to be played out in practice. There are problems with the overlap between criminal and family law, with the lack of legal aid for defendants, and, above all, the difficulties faced by judges tasked with the business of trying to run an in inquisitorial hearing whilst being as supportive as possible to litigants in person.

Clare and Richard talk about the various issues arising out of the practice direction and the case law that preceded and followed PDJ12. Here, as promised, are the citations and references touched upon in the podcast:

Practice Direction 12J Child Arrangements and Contact Orders: Domestic Abuse and Harm

The Children Act 1989

H-N and others (Children) (domestic abuse: fact finding) [2021] EWCA Civ 448 (4 conjoined appeals, 30 March 2021) (President of the Family Division)

F v M 15 [2021] EWFC 4 15 January 2021

The Harm Panel Report: Assessing Risk of harm to Children and Parents in Private Law Children Cases

The Domestic Abuse Bill 2020 , now the Domestic Abuse Bill 2021 (yet to be brought into force)

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