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The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice, G4S and Serco plc, 6 February 2013 – read judgment
The Court of Appeal dismissed this claim by a children’s NGO for an order that the Secretary of State provide information to certain children to the effect that the SoS and his contractors had unlawfully used bodily restraint upon them whilst they were “trainees” in Secure Training Centres. The facts and Foskett J’s judgment under appeal was fully analysed by Rosalind English in her post, so I shall concentrate on the two points of wider interest:
1. is there a duty on the state to tell someone of their legal rights against the state?
2. should domestic human rights case law ever go wider than its Strasbourg equivalent?
Re J (A Child) ([2013] EWHC 2694 (Fam) – read judgment
In this case the President of the Family Division, Sir James Munby, considered an application for a contra mundum injunction by Staffordshire County Council. He emphasised that the only proper purpose of such an injunction was to protect the child and refused to make an order in the wide terms sought by the Council. As a result, he allowed the publication of video footage and photographs of a baby being removed from its parents. Continue reading →
CF v Security Service and others and Mohamed v Foreign and Commonwealth Office and others [[2013] EWHC 3402 (QB) – read judgment
The High Court has today made the first court ruling on the use of the Justice and Security Act 2013 in a civil claim for damages.
In a ruling on preliminary issues, Irwin J made a declaration that the government can make a closed material application to the court in this case. The Court also ruled on PII. The following summary is based on the Court’s press release.
Factual background
CF and Mohammed Ahmed Mohamed are both British citizens of Somali descent. CF left the United Kingdom in 2009, Mohammed Ahmed Mohamed having left in 2007. They were both detained by the Somaliland Authorities on 14 January 2011. They were then detained until removal to the UK on 14 March 2011. Each claims that they were unlawfully detained, tortured and mistreated during the period of detention in Somaliland. Continue reading →
Angus McCullough QC and Jeremy Johnson QC at the JCHR
The overwhelming majority of Special Advocates have responded to the Justice and Security Bill by stating that the case has still not been made by the Government for the introduction of closed material procedures in other types of civil litigation. The full response is available here (PDF).
Fifty Special Advocates have signed the response. This represents an overwhelming consensus of those with substantial experience of the current system of secret hearings.
They accept that the new restriction to national security cases is an improvement, but retain the view expressed in their initial response to the Green Paper consultation, that:
CMPs are inherently unfair and contrary to the common law tradition; that the Government would have to show the most compelling reasons to justify their introduction; that no such reasons have been advanced; and that, in our view, none exists.
R (on the application of Lord Carlile of Berriew QC and others) (Appellants) v Secretary of State for the Home Department (Respondent) [2014] UKSC 60 – read judgment
The exclusion of a dissident Iranian from the UK, on grounds that her presence would have a damaging impact on our interests in relation to Iran, has been upheld by the Supreme Court. (My post on the Court of Appeal’s ruling is here).
At the heart of the case lies the question of institutional competence of the executive to determine the balance between the relative significance of national security and freedom of speech. The exclusion order was imposed and maintained because the Home Office is is concerned with the actual consequences of Mrs Rajavi’s admission, not with the democratic credentials of those responsible for bringing them about. The decision-maker is not required by the Convention or anything else to ignore or downplay real risks to national security where they originate from people acting for motives which are contrary to the values of this country.
The following summary of the facts is partly based on the Court’s press release. References in square brackets are to the paragraphs in the judgment. Continue reading →
The Terms of Reference and the Protocol for the Government’s impending Detainee Inquiry have recently been published. The Protocol makes clear that the Inquiry is to be granted unfettered access to a broad range of information, but the limitations on the publication of that information have prompted criticism from human rights groups.
On 6th July 2010, Prime Minister David Cameron announced to the House of Commons that an independent inquiry would be held into whether or not the UK Government was implicated in or aware of the improper treatment of detainees held by other countries in the aftermath of the September 11th terrorist attacks. On the same day, he wrote to Sir Peter Gibson inviting him to lead the inquiry, and appointed as his fellow panel members Dame Janet Paraskeva and Peter Riddell. Philippa Whipple QC of 1 Crown Office Row has been appointed as counsel to the inquiry – she is not the writer of this post.
In a speech about Brexit last week, the Home Secretary shared what she called her “hard-headed analysis”: membership of an unreformed EU makes us safer, but – beware the non-sequitur – we must withdraw from the European Convention on Human Rights, which does not.
It is surely time for some clearer Government thinking about these questions. If politicians could put politics to one side, they might recognise that the Convention and the Strasbourg court are not enemies of our sovereignty, but there are aspects of EU law as applied by the Court of Justice in Luxembourg which are.
The Child Poverty Action Group (Respondent) v Secretary of State for Work and Pensions(Appellant) [2010] UKSC 54 – Read judgment / press release
The Supreme Court has ruled that where benefits are overpaid as a result of a mistaken calculation, the department responsible cannot claim these amounts back via the common law route of restitution; the Secretary of State’s only recourse is via Section 71 of the Social Security Administration Act.
The following summary is taken from the Supreme Court site’s Press Release, with my comment below:
This appeal concerns the question whether, in cases of social security benefit awards mistakenly inflated due to a calculation error, the Secretary of State is entitled to recover sums overpaid under the common law of unjust enrichment or whether section 71 of the Social Security Administration Act 1992 (the “1992 Act”) provides the only route to recovery (nb. the Supreme Court press summary wrongly refers to the Social Security Benefits Act 1992).
Al-Saadoon & Ors v Secretary of State for Defence [2015] EWHC 715 – read judgment
The High Court has ruled that the ECHR applies to situations where Iraqi civilians were shot during security operations conducted by British soldiers. When taken together with the parallel cases being brought against the MOD for breach of its Article 2 obligations towards its own soldiers, it appears increasingly likely that any operation undertaken by the British Army in the future will lead to legal challenges being brought against almost every aspect of its actions pre, during and post any use of military force.
Mr Justice Leggatt was asked to consider the scope of the UK’s duty under the ECHR to investigation allegations of wrongdoing by British Forces in Iraq. The Secretary of State accepted that anyone taken into custody by British Forces did have certain rights under the ECHR, in particular the right to life and the right not to be tortured. However, the one of two key areas of controversy were whether non detainee civilians who were killed outside the period when the UK was an ‘occupying power’ (1 May 2003 – 28 June 2004), were within the jurisdiction of the UK for the purposes of Article 1 of the ECHR. Continue reading →
The Justice and Security Bill, which will allow secret ‘closed material’ hearings to take place in civil trials, has been quietly (almost too quietly) making its way through Parliament. The Bill will allow judges to exclude lawyers, press, the public and even litigants in their own cases from civil hearings which involve national security.
Kafkaesque is a term used in almost every critical article about law ever written. But I have read The Trial (I really have!), and the effect of these proposals is not too far from that.
The key development is that many of the amendments forced through in the House of Lords under the leadership of Lord Pannick have been reversed by the Government. We have a full update coming later on the progress of the Bill, but I thought that in the mean time I would highlight a few up to date resources and developments:
Belhaj and Boudchar v. Director of Public Prosecutions (Foreign Secretary intervening) [2017] EWHC 3056 (Admin) – read judgment here.
The Justice and Security Act 2013 introduced the idea of Closed Material Proceedings (CMP) to civil litigation in a significant way for the first time. This is a procedure (which had previously only used in a small number of specialist tribunals) whereby all or part of a claim can be heard in closed proceedings in order for the court to consider material which, if disclosed publicly, would risk harming national security. These hearings exclude even the claimant, who is represented instead by a Special Advocate who takes instructions and then is unable to speak to his or her client again once they have seen the sensitive material.
This system is obviously far from ideal. Indeed it is a major deviation from the usual (and very important) principle that justice must not only be done, but be seen to be done. It was introduced because the alternative in some cases involving national security matters was no justice at all. But it must be used sparingly. In particular, the 2013 Act allows its use only in civil litigation and not in “proceedings in a criminal cause or matter” (section 6(11)). The question that the Divisional Court had to consider in this case is how wide that exception for criminal matters should be.
Home Office v Tariq [2010] EWCA Civ 462 – Read judgment, Bank Mellat v HM Treasury [2010] EWCA Civ 483 – Read judgment
[Updated 7/5/10]
The Court of Appeal has told the Government three times in 24 hours that it cannot keep evidence secret in civil proceedings. Similar reasoning was applied in three different contexts; the employment tribunal, a case relating to Iranian nuclear proliferation and a claim for damages for foreign torture.
An identically constituted court as in the Al-Rawi and others judgment had already held on the same day that evidence in a high-profile torture compensation claim should not be kept entirely secret.
In two further decisions, the same judges held that the Treasury must give sufficient disclosure to allow a bank accused of involvement in Iranian nuclear proliferation to not just deny but refute the allegations (Bank Mellat v HM Treasury), and that the Home Office must provide the “gist” of material it had wanted to keep secret from an employment tribunal (Home Office v Tariq). The court did not, however, go as far as saying that evidence can never be kept secret in cases involving national security.
All three cases revolve around the controversial “closed material procedure“, which allows certain evidence to be kept from the public and sometimes a defendant, and the use of “special advocates” (SA). As the Court of Appeal said in para 1 of the judgment, these procedures, developed as part of the fight against terrorism, represent “exceptions to the fundamental principle of open justice.” We have posted about the issues surrounding the special advocate system in relation to control orders (read post).
The cases higlight the strong line the courts have taken towards open justice since the AF case in 2009, a criminal matter in which the House of Lords (now the Supreme Court) held that it was a breach of the right to a fair trial under Article 6 to hold someone under a control order without sufficient information about the allegations against him even where disclosure would compromise the country’s national security (read our case comment).
Government proposals to increase the number of court hearings held in secret, and in which parties can only see minimal evidence relied upon by the court, have been severely criticised by the “Special Advocates” who play the central role in closed hearings.
The group of 57 barristers, including 19 Queen’s Counsel, argue that despite attempts, for example, to give those subject to “Closed Material Procedures” a summary of the evidence against them, they remain “fundamentally unfair” and
represent a departure from the foundational principle of natural justice that all parties are entitled to see and challenge all the evidence relied upon before the court and to combat that evidence by calling evidence of their own.
The document is a response to the Government’s Consultation (see my and Angus McCullough QC’s previous posts) which have to be sent via email or post by tomorrow,Friday 6 January 2012. I will be collating summaries of responses as I did with the Bill of Rights Commission consultation. If you would like your response to be included, please send it to 1crownofficerow@gmail.com, with the subject “Consultation response”.
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here. You can also find our table of human rights cases here.
by Melinda Padron
In the news last week…
In a short speech to the Lord Mayor’s dinner for HM Judges, Lord Judge LCJ referred to 2011 as a difficult year for the judiciary amid attacks on individual judges and the judiciary as a whole for doing what is appropriate for judges to do: applying the law as they find it to be. The LCJ, however, reminded all that in a moment of crisis, such as the phone hacking scandal, the judiciary has a key role to play because of its recognised independence and impartiality.
The Government has accepted all recommendations made by Lady Justice Hallett, the coroner in the 7/7 inquests (see our previous post for the full recommendations), all of which are aimed at improving the work of the security services and medical emergency services. Whilst within the subject of terrorism, Simon Hetherington wrote a post for Halsbury’s Law Exchange regarding emergency extension of custody limits of suspects in terrorism investigations from 14 to 28 days. In such procedure there is a balancing exercise to be made between the competing interests of an individual’s liberty and national security. Hetherington then considers what happens to this balancing exercise when Parliament is not involved in scrutinising a given case and concludes that the balance tilts in favour of security. See also Adam Wagner’s review of recent developments in terrorism law.
Welcome back to the UK Human Rights Roundup, your regular breakfast cereal variety box of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
Commentators have been criticising a number of assertions that Chris Grayling made about judicial review in the Daily Mail this week. Elsewhere, although Price Competitive Tendering has been scrapped, there are still many concerning proposals, and there has been a secret court rebellion by the Lib Dems.
Human Rights Awards: Liberty has opened nominations for their 2013 Liberty Human Rights Awards – all details here.
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The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice, G4S and Serco plc, 6 February 2013 – read judgment 
Belhaj and Boudchar v. Director of Public Prosecutions (Foreign Secretary intervening) [2017] EWHC 3056 (Admin) – read judgment 
Welcome back to the UK Human Rights Roundup, your regular breakfast cereal variety box of human rights news and views. The full list of links can be found 
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