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Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin) – Read judgment
A recent decision of the High Court, relating to a challenge to planning permission for a power station, could significantly limit access to environmental justice for local community groups.
The Aarhus Convention requires that access to justice and effective remedies be provided to members of the public in environmental matters, and that the procedures be “fair, equitable, timely and not prohibitively expensive.”
Both the UK and the EU are signatories to the Convention; the access to justice provisions are given effect in EU law in the Directive 85/377 EEC, which requires that such access be given to “members of the public concerned” who have a sufficient interest or are maintaining the impairment of a right.
Is anonymity incompatible with the public interest?
In the politically-charged and at times feverish aftermath of the Brexit referendum, Gina Miller became a “magnet for hatred” for exercising her right of access to courts and winning two landmark public law cases against the UK Government. The magnitude and ferocity of abuse directed at Gina Miller made those who followed in her footsteps wary enough to seek anonymity. In Yalland and others v Brexit Secretary, 4 claimants were granted anonymity in relation to a judicial review claim concerning UK participation in the European Economic Area Agreement.
Anonymity in Northern Ireland is not uncommon where some part of a claimant’s deeply personal life or history play a role in the determination of their claim. JR80 for example involved a claimant who had suffered egregious institutional abuse as a child, while JR123 involved a claimant with ancient convictions which disproportionately impacted his life.
In JR181(3)’s application for judicial review, however, anonymity was ordered to continue in the face of a politically-charged atmosphere reminiscent of the worst of the Brexit era.
Laura Profumo brings you the latest human rights happenings.
In the News:
In a critical, though arguably overdue, decision, the Court of Appeal has suspended the fast-track immigration appeals system. The process, under which rejected asylum seekers are detained and given only seven days to appeal, was held “structurally unfair” by the High Court, before being halted altogether by last week’s appeal. The ruling was welcomed by the appellant charity, Detention Action, as meaning “asylum seekers can no longer be detained…simply for claiming asylum”. Previously, the fast-track deadlines could be imposed on any asylum seeker from any country, if the Home Office considered their case could be decided quickly. This marks the third time courts have found the system to be unlawful, yet the suspension will now stay in force until a government appeal is mounted. The decision deals a major blow to a system which is “inefficient, bureaucratic, demeaning and dehumanising”, writes immigration expert Colin Yeo. Whilst there is “no doubt” a replacement fast track will soon be found, in the meantime “let us savour the respite” from such crude expediency.
In other news, the spotlight remains on America, in the euphoric wake of the Supreme Court’s ruling in Obergefell v Hodges. The final paragraph of Justice Kennedy’s judgment, in its stirring clarity, is set to make legal history. Yet not everyone is “enveloped in a warm and fuzzy feeling”, writes UKHRB’s own Jim Duffy. Justice Scalia, the firebrand conservative, “pulled no punches” in his dissent, citing the majority opinion as “egotistic” and a “threat to American democracy”. Scalia’s arrival in London last week further stoked the Obergefell debate. Speaking at a Federalist Society event, Scalia held his colleagues had wrongly used the due process clause to distill a substantive, rather than procedural, right. Defending his position as a constitutional originalist, Scalia maintained the meaning of the Constitution as fixed, rather than the “wonderfully seductive judicial theory” of living constitutions, in which “we can have all sorts of new things, like same sex marriage”. When asked about the proposed Bill of Rights, the Justice’s response was particularly biting: “You can’t do any worse than the situation you’re in now”. Continue reading →
The Lord Chief Justice used a recent lecture to argue that the European Court of Human Rights (ECtHR) is being given too much respect in the UK courts, with its judgments being cited by lawyers and judges with alarming regularity.
Joshua Rozenberg writing the Law Society Gazette suggests that Lord Judge’s lecture was in fact misunderstood by many in the media, who used the speech to “call for the judiciary to give the good old English common law supremacy over that nasty foreign stuff they make in ‘Alsace, France’”
The issue an important one, as it goes to the heart of the debate over whether the Human Rights Act 1998 should be repealed. The original intention of the 1998 Act was to “bring rights home”; in other words, to prevent decisions on matters of great public importance and local sensitivity being decided in Strasbourg rather than the UK. Before the 1998 Act, the only human rights cases which could be cited were from Strasbourg. But the UK courts now have almost ten years of home-grown human rights case law to consider. The effect of the 1998 Act was therefore to diminish the relevance of ECtHR cases, and the Lord Chief Justice was reminding lawyers of this point.
Analysing the speech, it is clear that Lord Judge’s main complaint was that too many lawyers cite ECtHR authorities at inappropriate times, and that modern technology (including, it would seem, overzealous use of copy and paste) has meant that too many European authorities are creeping back into arguments.
Section 2(1) of the Human Rights Act 1998 states that a court determining a human rights question must “take into account” any “relevant” judgment of the ECtHR. However, as the Lord Chief Justice pointed out, unlike decisions of the European Court of Justice, “the decisions of the European Court of Human Rights in Strasbourg do not bind our courts… What I respectfully suggest is that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court.”
Lord Judge also appears to despair of lawyers and even judges’ use of copy and paste. He said:
An interesting event – particularly in the current political context – takes place this Thursday at LSE. Hart Publishing will be marking the launch of a new book, “>Europe’s Justice Deficit?‘, with a debate between Justice Guiliano Amato of the Constitutional Court of Italy and Professor Christian Joerges of the Hertie School of Government. Justice Amato twice served as Prime Minister of Italy.
Together with the book’s co-editors (Dimitry Kochenov, Gráinne de Búrca and Andrew Williams) and authors, Amato and Joerges will consider whether the EU is simply a political and legal order, whether it undermines the pursuit of justice by Member States, and whether scholars and policy-makers have paid sufficient attention to questions of justice in the EU context.
Date and place: Thursday June 4, 2015, London School of Economics and Political Science; 3-6pm, room 32L.G.03 (on the South side of the Lincoln’s Inn Fields). The event will be followed by a reception.
JAMES, WELLS AND LEE v. THE UNITED KINGDOM – 25119/09 57715/09 57877/09 – HEJUD [2012] ECHR 1706 – Read judgment / press release
As Andrew Tickellnoted in his post on Wednesday the European Court of Human Rights this week ruled that the UK violated the Article 5(1) ECHR rights of three prisoners sentenced to indeterminate prison sentences for public protection, where reasonable provision for their rehabilitation was not made.
In April 2005, the Government introduced indeterminate imprisonment for the public protection, or “IPP sentences”, whereby certain prisoners would not have a right to parole. Instead, under section 225 of the Criminal Justice Act 2003, they would remain in prison following expiry of their tariff periods until a Parole Board had decided they were no longer a risk to the public. Prior to an amendment in 2008, an IPP sentence was mandatory where there was a future risk of further offending, and there was an assumption of risk where there was a previous conviction for a violent or sexual offence unless the sentencing judge considered it unreasonable to make such an assumption.
Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) – Read judgment
The Court of Appeal has ruled that secretly obtained documents can no longer copied and then used in divorce proceedings, overturning a rule dating back almost twenty years. The case will have a significant impact for divorcing couples, but has the court left itself open to a Supreme Court reversal on human rights grounds?
The appeal related to the divorce proceedings between Vivian and Elizabeth Imerman, in which Mrs Imerman’s brothers brothers had downloaded documents from Mr Imerman’s office computer in order to prove that he had more assets than he had disclosed to the court. Mr Justice Moylan ruled in the High Court that seven files of documents should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege. Mr Imerman appealed against the decision that he would then have to give the documents back, and Mrs Imerman argued that she should be given more control over the privilege process.
The Court of Appeal yesterday handed down judgment in the case of JIH v News Group Newspapers Ltd ([2011] EWCA Civ 42). In allowing the appeal against the order of Tugendhat J ([2010] EWHC 2818 (QB)) the Court ordered that the claimant’s anonymity should be restored.
Although the Court stressed that each decision is fact sensitive, this approach seems likely to be followed in most types of privacy injunction cases. This eagerly awaited decision adds to the growing body of case law concerning reporting restrictions where an injunction has been granted to restrain publication of information about a claimant’s private life.
In Sleeper v Commissioner of Police of the Metropolis [2025] EWHC 151 (KB) Mr Justice Sweeting dismissed an appeal against the decision of HHJ Saggerson to dismiss a claim against the Metropolitan Police by a street preacher arrested for displaying anti-Muslim signs.
The claim was both for the tort of false imprisonment (which involved a challenge to the legality of his arrest) and for a remedy breach of his rights under the Human Rights Act 1998 directly, though the latter was time barred and not resurrected on appeal.
Mr Justice Sweeting’s judgment provides insight into how the courts assess the interplay of Articles 9, 10 and 11 of the European Convention of Human Rights (“ECHR”) and domestic criminal law.
Last month the Prime Minister promised business leaders that he would “get a grip” on people forcing unnecessary delays to Government policy by cracking down on the “massive growth industry” of Judicial Review (JR), the means by which individuals and organisations can challenge poor decisions by public authorities in the courts. He even, in a new twist on Goodwin’s Law, compared cutting down on court challenges to beating Hitler.
The consultation document is detailed and is worth reading. It certainly does not reflect the bombast of the Prime Minister’s statement that “We need to forget about crossing every ‘t’ and dotting every ‘i’ – and we need to throw everything we’ve got at winning in this global race“. What is proposed is a fairly significant reform of the Judicial Review system, and nothing as dramatic as winning World War II. There are, however, some problems with the Government’s analysis which I will come to later.
What happens when someone is convicted of a criminal offence and is given a custodial sentence? Sometimes, the individual will serve at least part of their sentence in prison and the remainder on licence. But, what happens after they’ve served the totality of their sentence?
Some convictions can, after a certain period of time, become “spent”. This means that anyone convicted of such offences is treated as never having been convicted of such offences. The Rehabilitation of Offenders (Northern Ireland) Order 1978 calls these people “rehabilitated persons”. However, the 1978 Order contains a large number of exceptions, so that some convictions can never become spent. JR123’s application for judicial review in the Northern Ireland High Court concerned one of these exceptions: sentences longer than 30 months.
Readers of this blog may be familiar with the changes in disclosure duties for criminal convictions which came about as a result of the cases of Gallagher, P, G & W v Home Secretary [2019] UKSC 3 (see Samuel March’s post on this topic). JR123 looks at another aspect of the framework of rehabilitation: the ability to be rehabilitated in law at all.
The facts
JR123 had been convicted of possession of a petrol bomb, arson, burglary and theft in 1980. Having been given multiple custodial sentences, he had been released from custody in 1982 and had served the remainder of his sentences on license. In the years which followed, JR123 had no further involvement with the criminal justice system. However, given the exceptions in the 1978 Order, his convictions could never be spent and thus he could never be rehabilitated. This was problematic on multiple fronts, particularly his employment prospects and personal life. Many things which we take for granted, for example applying for insurance, obtaining a mortgage, renting properties, and so on, become considerably difficult when having to disclose convictions which are almost 40 years old ([14]).
Mr Justice Colton observed of JR123: “He finds the process of repeatedly having to disclose the convictions to be oppressive and shaming” ([6]).
Last week the Queen revealed that the newly-elected government had delayed its promised proposals to repeal the Human Rights Act. If this signals a willingness to listen and reflect, rather than an opportunity to bring potential rebels into line, then so much the better. Let us keep talking.
In this post, I want to talk about the European Court of Human Rights in Strasbourg.
The government’s key concern – judging by the Grayling paper published last October – is that the Strasbourg Court has got too big for its boots and won’t stop telling us what to do. Hence the manifesto commitment to introduce a British Bill of Rights. The Prime Minister’s personal gripe – with some justification – is the Court’s 2005 ruling on prisoner voting: Hirst v UK (No.2) (2005) 42 EHRR 849. Continue reading →
Harrow Community Support Ltd v. Secretary of State for Defence [2012] EWHC 1921 (Admin), Haddon-Cave J, 10 July 2012, read judgment
In 776BC, the Olympics consisted of one day’s running and wrestling. A hundred years later, chariots and single horses arrived, thanks to the influence of Phaidon of Argos (a big shot in seventh-century Greece), and I dare say the civic pride which each participating Greek city-state brought to the Games was already running high. But I don’t suppose either Phaidon or Baron de Coubertin would have predicted the move which triggered this piece of litigation. The MoD decided to site a missile launcher and military personnel on the roof of a Council tower block in Leytonstone during the Olympics. Like all military hardware, it has a nice acronym, GBAD, being a Ground Based Air Defence system.
Anyway, a residents’ association formed by residents of Fred Wigg Tower, 15 storeys and containing 117 flats, decided to challenge the MoD. As their petition put it, “We, the undersigned residents of FWT, Montague Road, Leytonstone E11 3 EP, do not want explosive missile systems placed on the roof of our home”. Nor, I suppose, do any of us, but some of us may want someone else to have missile launchers on their roofs.
Michael Spencer is a pupil barrister at One Crown Office Row.
The fate of Shamima Begum, the British teenager who joined the Islamic State in Syria (ISIS) and has asked to return home, has divided opinion.
Home Secretary Sajid Javid’s
decision to deprive the 19-year-old mother of her citizenship is apparently
popular: a recent poll
found that 78% support the move.
But others have raised concerns about the propriety of using such a draconian power against a British citizen by birth in circumstances where she may be rendered stateless, also leaving the fate of her child uncertain.
From Bethnal Green schoolgirl to
ISIS bride
Ms Begum was born in the UK to
parents of Bangladeshi heritage. She was
one of three 15-year-old schoolgirls from the Bethnal Green Academy who
travelled to Syria via Turkey in 2015 to join ISIS.
The Metropolitan Police
subsequently apologised to the
families for failing to warn them that the schoolgirls were at risk and
suggested that they would not face criminal charges if they returned to the UK.
After arriving in Raqqa, Syria, Ms
Begum married ISIS fighter Yago Riedijk, a Dutch national. She had three children with him, two of whom
died. Her youngest son, Jarrah, was born
in a Syrian refugee camp in February 2019.
The press caught up with Ms Begum just before she gave birth and she has given a series of incendiary interviews. She claimed that she had been “just been a housewife for the entire four years” and that she had not done anything “dangerous” or made propaganda. However, she also said she had “no regrets” about joining ISIS and suggested that the Manchester Arena bombings were justified because of the bombing of civilians in Syria.
R (on the application of Gordon-Jones) v Secretary of State for Justice and Governor of HM Prison Send [2014] EWHC 3997 (Admin) – read judgment
Contrary to what some media reports would have us believe, Prison Service Instruction (“PSI”) 30/2013 did not impose an absolute ban on books in prisons. It did, however, impose severe restrictions on the possession or acquisition of books which a prisoner can treat as his or her own. The High Court has found that those restrictions could not be justified by the limited provision of prison library services and are therefore unlawful.
The Claimant is a prisoner serving an indefinite sentence for the protection of the public at HMP Send. She has a doctorate in English literature and a serious passion for reading. The books she wants to read are often not the sort which are required by fellow prisoners or readily available through the prison library (the Dialogues of Marcus Aurelius and Brewer’s Dictionary of Phrase and Fable, for example, crop up in the judgment) and she therefore relies on having books sent or brought to her by people outside the prison.
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Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin) – Read judgment
JAMES, WELLS AND LEE v. THE UNITED KINGDOM – 25119/09 57715/09 57877/09 – HEJUD [2012] ECHR 1706 – 
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