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The current Government often complains about a “democratic deficit” in the courts. It seems that “unelected judges” are making important decisions on social policy without any kind of democratic mandate, particularly in controversial human rights cases.
I agree that there is a democratic deficit in the courts. But it isn’t about elections. It is about access.
The Government seeks to solve the problem by involving Parliament more in the judicial process, the latest and most striking example being the Home Office’s attempt to codifyArticle 8 ECHR, the right to private and family life, in immigration cases. The Home Office wants fundamentally to alter the role of the courts, hoping that it will “shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules” (see para 39). The argument is that since judges are unaccountable, those who are accountable must be more central in the decisions they make, particularly in sensitive areas such as immigration.
This is attempt to take power away from judges. But why? Continue reading →
We posted last weekon issues of breach of duty in cases involving child protection, and mentioned the MAGA case as an important decision in extending the duty of care to priests in the Catholic church. The lawyers in the case have now written up the judgment.
MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256, Court of Appeal (Lord Neuberger MR, Lord Justice Longmore and Lady Justice Smith) (read judgment)
This appeal was brought with permission from the trial Judge Mr Justice Jack. The claim arose out of sexual abuse suffered by the Claimant whilst a child living in the area of the Church of Christ the King in Coundon, Coventry. This was a Catholic church under the control of the the Trustees of the Birmingham Archdiocese of the Roman Catholic Church. The priests appointed to work at that church in the 1970s included a senior priest father McTernan and a younger priest Father Clonan. The Claimant was seriously and repeatedly sexually assaulted over a number of months by the younger priest known as Father Clonan. The abuse took place after Father Clonan befriended the Claimant, invited him to the church youth club and then to the Presbytery where Father Clonan and other priests including the senior Priest Father McTernan lived.
Welcome back to the UK Human Rights Roundup, your regular (except for August) last night at the human rights Proms. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
In recent news, the government outlines proposals for increased rights for the victims of crime, as well as for the revocation and confiscation of passports for ISIS fighters returning to the UK. In other news, the legality of the EU Charter comes back to haunt Chris Grayling once again.
Five activists were recently acquitted for causing £180,000 damage to an arms factory after successfully deploying the defence of lawful excuse. But did the judge’s politically coloured summing up of the evidence to the jury render the trial a miscarriage of justice?
Article 6 of the European Convention on Human Rights guarantee a “fair and impartial tribunal”, and it is sometimes claimed in courts that a judge or judicial panel are biased and therefore cannot preside over a fair trial. While not often successful, the complaints are always taken seriously. As any law student knows, justice must not only be done but also be seen to be done.
To this end, judicial impartiality has been much in the news of late. Cherie Booth QC, an observant Christian, was apparently rapped by the Office for Judicial Complaints for reducing a defendant’s sentence on the grounds that he was a “religious man” who knew what he did was wrong. Meanwhile, in a less successful challenge to a judicial decision, Lord Carey failed to convince the Court of Appeal that a judicial panel of special religious expertise was needed in the case of a Christian marriage councilor sacked for refusing to counsel gay couples.
In these conjoined appeals the Court of Appeal (Sir Terence Etherton MR, Irwin and Coulson LJJ.) have taken the opportunity to deal with a number of issues relating to the reasonableness and proportionality of costs in PI and Clinical negligence cases and the proper approach to the assessment of those costs.
The case is important because it considers and explains the unique position of ATE insurance premiums in clinical negligence cases. In clinical negligence it is almost always necessary for an ATE insurance policy to be obtained by a Claimant to insure against the risk of incurring a liability to pay for an expert report or reports relating to liability or causation. Specifically, the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (no.2) Regulations SI 2013/739, provide (by way of exception to the general rule in s.46 LASPO 2012) that such premium (insofar as it relates to the risk of incurring liability to pay of expert reports relating to liability or causation in respect of clinical negligence in connection with the proceedings) may be recovered. Brooke LJ had stressed in Rogers v. Merthyr Tydfil County Borough Council [2006] EWCA Civ 1134 the availability of such ATE insurance and the recoverability of the relevant premium, is an important means by which access to justice continues to be provided in clinical negligence cases. It was perhaps therefore unsurprising that the present Court of Appeal began their analysis of the issues in the instant case by saying:
Access to Justice must therefore be the starting point for any debate about the recoverability of ATE insurance premiums in any dispute about costs.
One of the most striking appointments to Sir Keir Starmer’s administration has been that of Richard Hermer KC to the office of Attorney General. In that capacity, as the Government’s senior Law Officer, Hermer will attend Cabinet. He is a hugely respected senior barrister, who has never been a member of Parliament having spent his professional life in independent practice with a formidable and distinguished legal career. He is extremely well placed to give the Government independent legal advice of the highest quality, as one would hope for from the AG.
Hermer’s appointment has been widely applauded, giving tangible reassurance of the new Prime Minister’s genuine commitment to the rule of law. These plaudits include the following generous tribute from Lord Wolfson KC, a Conservative peer and former Justice Minster (as well as an eminent and respected barrister himself).
Hermer’s experience at the Bar includes many cases involving closed material procedures – CMPs, the controversial system of “secret justice” about which I have written extensively on this blog, from my perspective a Special Advocate operating within that system. For readers with the stomach for it, the dismal story of their neglect can be charted through these articles.
The new AG therefore knows at first hand the importance, challenges, and frustrations of cases that are subject to CMPs. As Attorney General he is now responsible for the recruitment and formal appointment of Special Advocates, whilst the Secretary of State for Justice has the duty to provide an effective system in which we operate, to minimise the unfairness that is inherent in CMPs.
Together with other Special Advocates I had some positive – but ultimately unproductive – engagement with Hermer’s immediate predecessor as Attorney, Victoria Prentis, and her colleague as Lord Chancellor, Alex Chalk. It was disappointing that between them they failed to implement any concrete steps to address the long-standing issues around CMPs, including since the Ouseley review was published in November 2022. This has driven me, and many other Special Advocate colleagues, to decline to take any new appointments – a hard decision which we have each come to with reluctance.
On 1 July 2024 (a few days before the General Election) almost every individual on the current list of Special Advocates, including in Northern Ireland, wrote to the Attorney General to express our disappointment at the Government’s response to the Ouseley review, published on the last day before the dissolution of Parliament, in continuing failure to address these issues, including proper support for Special Advocates (most urgently in Northern Ireland) and a closed judgment database. The Government did not consult the Special Advocates in formulating its response, despite repeated encouragement to do so. They rejected 4 out of 20 recommendations from the Ouseley report, including a significant one in relation to the attendance of Special Advocates at mediation and other ADR procedures, without which Ouseley indicated there was “potential for unfairness”. The Government’s rejection is on a basis that seems wrong and unjustifiable. Our recent letter to the AG concluded:
“All those of us who had felt driven to decline new appointments remain of that position and will keep that under review. Those of us who had not reached the point of refusing new appointments are also keeping our positions under close review in the light of further developments, including action or inaction by you and the Lord Chancellor (or your successors in Government) following the General Election. Only one of us signing this letter is not planning to keep their position under review, while fully sharing the concerns of all of us that are set out above.“
Our letter should be on the new Attorney’s desk. Facing the new Government are many larger-scale and more intractable problems with the justice system than CMPs. The proper support for these procedures. and the Special Advocates that are components essential to their functioning, should be one of the easiest issues, in both practical and financial terms, for the incoming regime to address without further delay.
I enthusiastically join in the warm congratulations to Hermer and his colleague in Cabinet, Secretary of State for Justice Shabana Mahmood MP, on their appointments. I hope that they will re-visit their predecessors’ (long-delayed) response to the (long-delayed) Ouseley review to ensure that effective action is now taken urgently. I stand ready with other Special Advocates to help them to achieve that.
The question of how to determine whether or not the deportation of a foreign national convicted of criminal offending is a disproportionate interference in the family life that they may share with their partner or child has been explored in a series of cases, including the leading decisions of KO (Nigeria) (Appellant) v Secretary of State for the Home Department [2018] UKSC 53 and HA (Iraq) [2020] EWCA Civ 1176 and has been discussed in detail on this blog here, here and here.
The Lord Chief Justice has issued interim guidance on the use of live text-based forms of communication, including Twitter, from court for the purpose of fair and accurate reporting.
For the time being, it will be possible to apply to a judge for permission to turn on one’s mobile phone or computer in order to tweet. Judges must consider whether the application “may interfere with the proper administration of justice“. The most obvious purpose for permitting the use of live, text-based communications “would be to enable the media to produce fair and accurate reports of the proceedings.”
Last autumn I was privileged to spend six weeks in the United States as a scholar on the Pegasus Programme. This gave me the opportunity to learn a great deal about the similarities and contrasts between our legal systems, as well as the latest developments across the Atlantic.
In this piece I will tell you about what I learned about the US Supreme Court — its history, its role and what the Presidency of Donald Trump may mean for its future.
The Supreme Court
The Supreme Court is the highest court in the United States and acts as guarantor and arbiter of the Constitution. It has the power to establish (and extend) the content of constitutional rights and to strike down not only government acts, but also primary legislation incompatible with those rights.
On 29 November 2019 Usman Khan attended a rehabilitation event at Fishmongers’ Hall and stabbed five people, two fatally. On 2 February 2020 Sudesh Amman attacked two passers-by in Streatham High Road with a knife before being shot dead by police. Both men had previously been convicted of terrorism offences. Both men had been automatically released on licence halfway through their custodial sentences.
Following these attacks, on 3 February 2020, the Secretary of State for Justice made a statement to the House of Commons highlighting that in the interests of public protection immediate action needed to be taken to prevent automatic early release halfway through an offender’s sentence without oversight by the Parole Board. He announced that terrorist offenders would now only be considered for release once they had served two-thirds of their sentence and would not be released before the end of the full custodial term without Parole Board approval. This proposal was passed in England and Wales with the enactment of the Terrorist Offenders (Restriction of Early Release) Act 2020. It was extended to Northern Ireland by the Counter Terrorism and Sentencing Act 2021 (“the Act”).
Calderdale Huddersfield NHS Foundation Trust v Sandip Singh Atwal [2018] EWHC 961 (QB) — read judgment
In a landmark case an NHS trust has successfully brought contempt proceedings against a DJ who grossly exaggerated the effect of his injuries in an attempt to claim over £800,000 in damages for clinical negligence. He faces a potential jail sentence.
Background
In June 2008 Sandip Singh Atwal attended the A&E department of Huddersfield Royal Infirmary with injuries to his hands and lip sustained after being attacked with a baseball bat. In 2011 Mr Atwal sued Calderdale and Huddersfield NHS Foundation trust for negligence, alleging a failure to treat his injuries appropriately. The trust admitted liability, offering Mr Atwal £30,000 to settle the case. Mr Atwal did not accept the offer and in 2014 made a claim for £837,109. The claim including substantial sums for future loss of earnings and care, on the basis that he was unable to work and was grossly incapacitated as a result of his injuries.
The trust were suspicious of Mr Atwal’s claimed disabilities, which were out of all proportion to his injuries and were inconsistent with entries in his contemporaneous medical records. In 2015 they commissioned covert video surveillance of Mr Atwal and investigated his social media postings. The footage showed him working as a courier, lifting heavy items without visible signs of discomfort and dancing in a music video for a single he had released. This led the trust to plead fraudulent exaggeration and to seek to strike out the whole of the special damages claim as an abuse of process. In 2016, shortly before the assessment of damages hearing, Mr Atwal accepted the trust’s offer of £30,000. However the whole £30,000 in compensation was swallowed up in paying the trust’s costs. In fact, Mr Atwal owed a further £5,000 to the trust after eight years of litigation.
Contempt Proceedings
In November 2016 the trust made an application to bring committal proceedings against Mr Atwal for contempt of court, claiming that he had pursued a fraudulent claim for damages for clinical negligence by grossly exaggerating the continuing effect of his injuries. It alleged two forms of contempt:
Unison (No.2), R (on the application of) v The Lord Chancellor – read judgment [2014] EWHC 4198 (Admin)
The Divisional Court (Lord Justice Elias and Mr Justice Foskett) has dismissed Unison’s second-generation attempt to challenge by judicial review the legality of the Employment Tribunal fees system but gave permission to appeal to the Court of Appeal. The “striking” reduction in claims (79 per cent fewer) presented to Employment Tribunals, Lord Justice Elias accepted, was evidence that the system was “extremely onerous” for people in the position of the hypothetical claimants construed by Unison in their legal argument but “not so burdensome as to render the right illusory” (paragraph 53).
Noting the potential infringement of Article 6 rights, Lord Justice Elias was not convinced that the evidence available to the Court surmounted the high threshold set by the European Union case law on effectiveness (paragraphs 23-51; & 60-64); particularly where hypothetical rather than real examples deprived the Lord Chancellor of an opportunity to redress any alleged deficiencies in the scheme (see paragraphs 62-64). Continue reading →
The Lord Chief Justice has emphasised in two Court of Appeal judgments that the jury-less trials must be a last resort and take place only in truly extreme cases. His comments are clearly aimed at putting the breakers on an accelerating trend of requests for jury-less trials in prosecutions of serious crime, following the ground-breaking but controversial ‘Heathrow heist’ trial.
The Criminal Justice Act 2003 limited for the first time the right to trial by jury in the Crown Court, where trials for serious crimes take place. Section 44 provides for the option of judge-only trials if there is a “real and present danger” of jury tampering.
R (o.t.a Guardian Newspapers) v. City of Westminster Magistrates Court, USA as Interested Party, 3 April 2012, Court of Appeal: read judgment
No, not a case about secret trials, but about the way in which newspapers can get hold of court papers in open oral hearings. And, as we shall see, it led to a ringing endorsement of the principle of open justice from the Court of Appeal, leading to production of the documents to the Guardian.
Bribery allegations against a London solicitor and a former executive of a Halliburton company, and extradition sought by the USA and keenly challenged by the defendants. Some lack of clarity as to why the Serious Fraud Office was not prosecuting the defendants. All in all, a tasty morsel for the Guardian to get its teeth into. It was allowed into the hearing, but then not allowed critical documents provided to the courts, including the written arguments submitted by the USA and the defendants, affidavits supporting the extradition, and various other letters and documents put before the court.
Human rights challenges to deportation and extradition seem to be constantly in the public eye. Gary McKinnon’s battle against extradition has caught the public, as has the now notorious “Pathway Students” terrorist deportation case. An examination of three recent decisions highlights the various ways in which the courts approach the human rights arguments in such cases.
There have been a steady stream of high-profile deportation and extradition decisions in the past few weeks, none more controversial than the “Pathway students” case, where two suspected terrorists were saved from deportation to Pakistan as they were thought to be at risk of torture or death upon their return. The Daily Telegraph reports that the Human Rights Act is being invoked in a growing number of asylum and immigration case, although it does not say whether the number of successful uses of the Act has increased.
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The current Government often complains about a “democratic deficit” in the courts. It seems that “unelected judges” are making important decisions on social policy without any kind of democratic mandate, particularly in controversial human rights cases.
Welcome back to the UK Human Rights Roundup, your regular (except for August) last night at the human rights Proms. The full list of links can be found 
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