Search Results for: justice and security bill/page/25/www.bailii.org/eu/cases/ECHR/1975/1.html

Cracking intercepts: the war on terror and difficulties with Human Rights

11 December 2014 by Rosalind English

Liberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal [2014] UKIPTrib 13_77-,  5 December 2014 – read judgment

Robert Seabrook QC is on the panel of the IPT and  David Manknell of 1 Crown Office acted as Counsel to the Tribunal  in this case. They have nothing to do with the writing of this post.

This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character.
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Taking stock after Abu Qatada: Assurances, secret detention and evidence in closed proceedings

24 June 2012 by Karwan Eskerie

XX v Secretary of State for the Home Department [2012] EWCA Civ 742 – Read judgment

The Court of Appeal recently issued its judgment in XX v Secretary of State for the Home Department [2012] EWCA Civ 742, an appeal from a decision of the Special Immigration Appeals Commission (“SIAC”) upholding the Secretary of State’s decision to deport an Ethiopian national on grounds of national security.

XX, who had indefinite leave to remain, had been assessed to have attended terrorist training camps and to have regularly associated with terrorists in the UK. SIAC was satisfied on the facts that XX posed a threat to the national security of the UK and determined that the deportation would not breach Articles 3, 5 and 6 of the European Convention on Human Rights. XX appealed on the ground that in finding no incompatibility with the Convention, SIAC had erred in law.

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Coronial investigation of the Police after suicide – Coroner’s decisions on Article 2 and jury overturned

25 July 2025 by Jasper Gold

R (Ferguson) v HM Assistant Coroner for Sefton, Knowlsey and St Helens [2025] EWHC 1901 (Admin) concerned a challenge by the next of kin of Joseph Farley, who died after jumping from the fourteenth floor of a carpark. The Coroner conducting mr Farley’s inquest has determined that Article 2, ECHR, did not apply and that the inquest could be heard without a jury. Mr Ferguson challenged both of these decisions by way of judicial review.

In a thorough and detailed judgment upholding Mr Ferguson’s challenge, Mrs Justice Hill gave a useful restatement of the law on Article 2, as well as a useful illustration of how it applies if difficult and complex fact patterns. The judgment also contains helpful clarification on the different sorts of causation tests that apply to parts of the Coronial process.

Backlog, backlash and beyond: debating the long term future of human rights protection in Europe – Alice Donald

14 April 2014 by Guest Contributor

Around 150 delegates, including representatives of all 47 Council of Europe states and two judges of the European Court of Human Rights, met in Oslo last week. Their mission? To reflect on the protracted process of reforming the European Convention system and imagine what it might look like in 2030.

Non-government organisations and academics (myself included) joined the insiders to engage in ‘blue-skies’ thinking, despite the dense fog that enveloped the hilltop venue.

The end of the beginning

The Strasbourg Court as we know it came into being in 1998 with the entry into force of Protocol 11 to the Convention. Subsequent reform was driven by two closely-linked imperatives: first, to reduce the backlog both of applications and non-executed judgments and secondly, to reinforce the subsidiary role of the Court vis-à-vis national authorities.

As regards the former, notable developments include the steps taken since 2010 under Protocol 14 to increase the efficiency of judicial decision-making; and (more controversially) the introduction of a shorter deadline, narrower admissibility criteria, and stricter conditions for applicants. The post-judgment process of implementation was also reformed to permit more intensive supervision by the Committee of Ministers (the Council of Europe’s executive arm) of urgent, complex or inter-state cases and lighter touch supervision of the rest.
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Schrems 2 for the UK? CJEU Ruling Threatens Future Adequacy Talks

10 October 2020 by Rafe Jennings

Case C‑623/17

The CJEU ruled on Tuesday that Directive 2002/58/EC (‘the Directive’) precludes national legislation from ordering telecommunication companies to transfer data in a “general and indiscriminate” manner to security agencies, even for purposes of national security. This is following a challenge by Privacy International to UK security agencies over their practices of collecting bulk communications data (BCD). 

The ruling could throw up roadblocks to a post-Brexit “adequacy” agreement over the UKs data protection regime. Adequacy is granted to data protection regimes to confirm that they conform to the data protection standards of GDPR, and thus that companies may move data about EU data subjects outside of the EU to those regimes. Recently, the adequacy rating of the US “Privacy Shield” was invalidated by the Schrems II judgment. This ruling could prove to be an analogous issue for the UK’s adequacy rating at the end of the transition period. 

EU judges oppose accession of EU to ECHR

22 December 2014 by David Hart KC

Opinion of CJEU, 18 December 2014 – read Opinion

Well, here’s a thing. The EU top court in Luxembourg has decided that it is somehow against the EU treaties for it to defer in specific instances to the other European top dog, the ECtHR in Strasbourg.

Accession of the EU to the ECHR has been a very slow-burn process, with the Commission starting things off in 1979 (sic). The breakthrough, or so it appeared at the time, was the entry into force of Article 6 of the Lisbon Treaty of European Union, in December 2009. This (Art.6(2)) makes it a treaty obligation  that the EU

“shall accede to the ECHR”.

Nice and simple then? No, not exactly, when you look at the extremely complex  Draft Agreement on Accession of the European Union to the European Convention on Human Rights, concluded in April 2013- my post here. This seeks to make the adjustments to both the EU and ECHR institutions enabling a non-state organisation such as the EU to sign up to the ECHR.

One of the steps contemplated by the draft Agreement was the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties. And the CJEU’s firm “non” to that question will inevitably set back the process, if not lead to its complete derailment.

The Opinion has already been well analysed by Aidan O’Neill QC here and Steve Peers here, neither in terms flattering of the CJEU. It is of some importance, so here is my penn’orth.

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The Long Shadow of the Troubles

7 July 2015 by Dominic Ruck Keene

Photo: The Guardian

In Finucane’s (Geraldine) Application [2015] NIQB 57 the Northern Ireland High Court  dismissed a challenge to the decision by the British Government to carry out a ‘review’ by Sir Desmond Da Silva rather than a public inquiry into the murder of Belfast solicitor Pat Finucane on 12 February 1989.

Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that

It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.

 

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Judicial Anonymity? Not this time.

17 February 2025 by Anogika Souresh

In Tickle & Anor v The BBC & Ors [2025] EWCA Civ 4, the Court of Appeal considered the High Court’s decision to anonymise the names of several judges who had made decisions in historic care proceedings and private family law proceedings (“the historic proceedings”).

The historic proceedings related to Sara Sharif, who was murdered by her father and stepmother in August 2023. On 18 August 2023, the Local Authority made an application for a wardship in respect of Sara Sharif’s five siblings. On 8 September 2023, the journalists requested disclosure of documents relating to the historic proceedings.

Mr Justice Williams made the following order, which was appealed by the claimant journalists:

… no person may publish any information arising from the disclosure of the documents from these proceedings to the public, or a section of it, which includes: …

g. The name of any third parties referred to in the historic proceedings for the avoidance of doubt including social worker, guardian other named professionals and experts instructed in the proceedings and any Judge who heard the historic proceedings (save for Mr Justice Williams). …

including not repeating such information by reference to the disclosed documents even if it is already in the public domain

[emphasis added]

Notably, when Mr Justice Williams pronounced the Order in court, no party had asked for the names of the three circuit judges who had been involved in the historic proceedings (“the historic judges”) to be anonymised. The judge had heard no submissions on the point. He had not mentioned to the parties that he had in mind to make the order he did [5].

The grounds of appeal were as follows:

i) It was a serious procedural irregularity for the judge not to have given reasons before anonymising the historic judges.

ii) The judge adopted an unfair, biased and inappropriate approach to the journalists and the media generally (including relying on his own erroneous analysis of alleged media irresponsibility), thereby unacceptably encroaching on their rights under article 10 of the European Convention on Human Rights (ECHR). This ground was added by amendment and permission has not yet been granted to allow it to be pursued.

iii) The judge ought to have held that the demands of open justice meant that anonymity for a judge could not be justified within the framework of balancing article 8 and article 10 of the ECHR.

iv) The part of the Order anonymising the historic judges could not be justified in the absence of any specific application or evidential foundation, and was inimical to the proper administration of justice.

The Judgment

The Court of Appeal considered that there were three main issues to determine:

i) Whether the court had jurisdiction to prohibit the publication of the names of judges, and if so how and in what circumstances.

ii) Whether the part of the Order anonymising the historic judges was irregular for lack of submissions, evidence or reasons.

iii) Whether the judge’s comments in his judgment demonstrated inappropriate bias against or unfairness towards the media.

The Court of Appeal considered that the statutory limitations contained in section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989 do not displace the open justice principle or create any separate “shielded justice” environment. They provide a degree of privacy for certain proceedings relating to children according to their terms [45]. Further, section 12 of the Administration of Justice 1960 makes clear that its provisions do not apply to judges hearing the case: “Court orders always name the judge, so, in that way, section 12 of the AJA 1960 expressly excludes anonymity for the judge” [51].

The Court of Appeal notably stated that:

In accepting office, all judges will or should be aware that that is the expectation, because public scrutiny of judges and the justice process is essential to the rule of law [55].

Issue 1: Was there jurisdiction to prohibit the publication of the names of judges?

The Court of Appeal considered whether Mr Justice Williams had jurisdiction to order the anonymity of the historic judges. In resolving this question, the Court of Appeal considered that, notionally, the names of the historic judges had been in the public domain as (a) the name of the judges appeared on public documents and on each of the orders that they made and (b) the names of the judges would have appeared in the public listings as sitting on the days in question at the courts in question.

The Court of Appeal considered the relevant rights under Articles 2, 3, and 8, which apply as much to judges as to any other person. However, there was no evidential basis on which the threshold for the application of Articles 2, 3, or 8 had been reached [64]. There was no need to undertake any balancing exercise between Articles 8 and 10 as there was no evidence about the risks to the historic judges [69].

The Court of Appeal concluded that there was no jurisdictional foundation for making the anonymity order.

The following comment from the Court of Appeal (at [66] will have wider application beyond the facts of this case:

The authorities that I have cited demonstrate that judges are in a special position as regards open justice. The integrity of the justice system depends on the judge sitting in public and being named, even if they sit in private. The justice system cannot otherwise be fully transparent and open to appropriate scrutiny.

Issue 2: Was there irregularity for lack of submissions, evidence or reasons?

The appeal was allowed on this ground, on the basis that the Mr Justice Williams ought to have asked for submissions and evidence prior to making his decision.

In the absence of specific evidence about risks or threats to the ECHR rights of the historic judges, Mr Justice Williams ought not to have taken any steps to anonymise the names of the historic judges.

Issue 3: Was there inappropriate bias against or unfairness towards the media?

The Court of Appeal noted Mr Justice Williams’s language when discussing media reporting as well as his decision to adjourn the journalists’ application for permission to appeal being akin to dismissing the application.

The appeal was also allowed on this ground.

Comment

This decision will have wider application beyond the facts of this case, and beyond family law. The Court of Appeal reiterated the necessity for open justice, and confirmed that transparency requires judges to be named, even if they sit in private.

The Court of Appeal did caveat the decision by clarifying that judges are not obliged to tolerate any form of abuse or threats. The requirements to consider in such cases are:

1. Evidence about the risks to the judges;
2. The court being satisfied that those risks could not be adequately addressed by other security measures;
3. The court concluding that the risks were so grave that they provided a justification for overriding the fundamental principle of open justice.

The historic judges were given 7 days before their names are published, to allow HMCTS to put in place measures to protect them.

Anogika Souresh is a barrister at 1 Crown Office Row, Brighton

Is it within the remit of the NHS to commission and pay for preventative HIV drugs?

15 August 2016 by Paul Reynolds

National Aids Trust v National Health Service Commissioning Board (NHS England)  [2016] EWHC 2005 (Admin) (Local Government Association intervening)

Summary

In this case NHS England argued it lacked the power to commission (and be responsible for paying for) preventative HIV drugs. It said this was solely the responsibility of local authorities and, in so doing, disavowed any responsibility for preventative medicine.

The High Court rejected this. It undertook a purposive interpretation of the legislation and found that NHS England had broad and wide-ranging powers of commissioning, and could commission preventative HIV drugs. NHS England is appealing.

The interest in this case extends beyond Mr Justice Green’s interpretation of the particular provisions. The judge was ready to find that the provisions were to be interpreted purposively, and was then very ready to look to the overall objectives and duties of the NHS as expressed in other parts of the relevant legislation, and in the NHS Constitution and Mandate.

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Balancing transparency with ‘secrecy’ in the Court of Protection – Lucy Series

7 March 2011 by Guest Contributor

There probably aren’t many people who want to know what ‘goes on’ in the Court of Protection more than me; it’s what I spend much of my time trying to fathom. An outsider would be forgiven for thinking that this branch of Her Majesty’s Court Service doesn’t feel that case law in this tangled and difficult area is anybody’s business but it’s own.

MI5 undercover agent policy held lawful

26 March 2021 by Sapan Maini-Thompson

In Privacy International & Ors v Secretary of State for Foreign And Commonwealth Affairs & Ors [2021] EWCA Civ 330, the Court of Appeal held that the policy which authorises officers of the Security Service (MI5) to run undercover agents who participate in the commission of criminal offences is lawful.

Background and Legal Framework

The appellants’ challenge focused on the alleged participation of undercover MI5 agents in criminality. Particular emphasis was placed upon the infamous killing in 1989 of Northern Irish solicitor, Pat Finucane, who was involved in representing those accused of terrorist activities. Of note, in 2012, the Prime Minister, David Cameron, stated that there was “state collusion” in the murder [17]. This led to a report prepared by Desmond de Silva QC in December 2012, who expressed “significant doubt” that the murder would have occurred without the involvement of “elements of the State”; and suggested that there were “positive actions by employees of the State” to further and facilitate the murder [18].

In this case, the focus of challenge was a policy document issued by the Security Service in March 2011 entitled, “Guidelines on the Use of Agents who participate in Criminality – Official Guidance” (“the Guidance”). This document delineates the Security Service’s procedure for “authorising” the participation in criminal conduct by Covert Human Intelligence Sources. Ultimately, the Court had to determine the legitimacy of this policy by reference to the provisions of the Security Service Act 1989, which was the first piece of legislation to put the activities of the Security Service on a statutory footing. The Service had previously been governed by the Royal Prerogative.

The Investigatory Powers Tribunal (“the Tribunal”) found by a majority for the respondents, but the minority disagreed on the issue of whether the relevant policy amounted to an unlawful de facto power to “dispense” with the criminal law (and therefore also whether it was compliant with the ECHR).

War, power and control: the problem of jurisdiction

14 July 2011 by Alasdair Henderson

The decisions by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda, handed down last Thursday, have generally been hailed as leap forward for human rights protection. We have already provided a summary of the decisions and pointed to some of the commentary here.

However, it is worth considering the core parts of these rulings a little more carefully. Without wishing to put too much of a dampener on the initial excitement from human rights campaigners about the outcome, the Court’s reasoning is perhaps not quite the radical breakthrough it first appeared to be. In fact, as Judge Bonello pointed out in his concurring opinion (which has drawn a lot of attention for his comments about ‘human rights imperialism’), the principles governing jurisdiction under Article 1 of the ECHR are not that much clearer following these decisions.

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More secret justice on the horizon

19 October 2011 by Adam Wagner

The Cabinet Office has released its long awaited (by this blog at least) Justice and Security Green Paper, addressing the difficult question of to what extent the state must reveal secret information in court proceedings. A consultation has been launched on the proposals; responses can be sent via email by Friday 6 January 2012.

The review was announced shortly after the Coalition Government came to power, on the same day that Sir Peter Gibson’s Detainee Inquiry was launched. In summary, the Government has recommended that controversial Closed Material Procedures and Special Advocates are used more frequently, particularly in civil proceedings. The courts have been reluctant to take this step themselves as any expansion of secret procedures will have significant effects on open justice and the right to a fair trial.

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Developments in the oversight of British Troops abroad – the Roundup

5 October 2016 by Thomas Beamont

In the news

The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.

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Lockdown challenge — permission refused

7 July 2020 by Dominic Ruck Keene

The Government will doubtless be relieved.

Mr Justice Lewis has refused permission to bring a judicial review in what is arguably the most comprehensive and wide-reaching challenge brought to date to the legality of the lockdown Regulations and the decision to stop providing education on school premises (save for the children of key workers) in R (Dolan and Ors) v Secretary of State for Health and Social Care and Secretary of State for Education [2020] EWHC 1786 (Admin).