Search Results for: justice and security bill
18 November 2010 by Adam Wagner
By all accounts, it has been a gloomy year for access to justice. The legal aid budget is to be reduced by £350m and state assistance has effectively disappeared in non-criminal cases. The overall justice budget, which is already low by international standards, is to be cut by a further 23%. But believe it or not, there may be reasons to be cheerful.
In the virtual world, legal blogs are becoming an established voice in the UK legal community and the flourishing blogosphere has given the public a lively, accessible and most importantly free new way of engaging with the law. With legal aid becoming scarcer and Citizens Advice Bureaus losing their funding, free information services such can be the last resort for those who seek legal help without having to pay for a lawyer.
But none of these services would exist without their hidden backbone: BAILII. To that end, when Legal Week published its excellent review of legal blogging last month, the failure to mention BAILII caused a min-revolution from a gaggle of legal bloggers in the comments section.
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7 September 2011 by Adam Wagner
The Justice Secretary Ken Clarke has announced that the ban on broadcasting in courts is to be lifted. Broadcasting will initially be allowed from the Court of Appeal, and the Government will “look to expand” to the Crown Court later. All changes “will be worked out in close consultation with the judiciary“.
Broadcasting in court is currently prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. However, the rules do not apply to the Supreme Court, the UK’s highest court of appeal. Since it launched in October 2009, the court has been filming hearings and making the footage available to broadcasters. And, since May of this year, the court has been streaming the footage live on the Sky News website.
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5 October 2016 by Guest Contributor
Work recently began on a wall in Calais, funded by the UK government, to prevent migrants and asylum seekers from crossing the Channel to Britain. Nearly simultaneously, the government announced that it would increase immigration tribunal fees by over 500%, erecting a different type of barrier—to access to justice. It was claimed that doing so would bring in an estimated £34 million in income annually and preserve the functioning of the tribunals.
The decision to increase fees was made despite the fact that responses to a public consultation conducted by the government overwhelmingly disagreed with the proposals. The suggestion to increase fees in the First-tier Tribunal (the first port of call when a person wants to challenge an immigration or asylum decision by the state) was opposed by 142 of 147 respondents. Introducing fees in the Upper Tribunal (where appeals against decisions in the First-tier Tribunal are heard) was opposed by 106 of 116 respondents, and the introduction of fees for applications for permission to appeal in both Tribunals was opposed by 111 of 119 respondents. In partial concession to critics of the proposal, the government has said it will introduce fee waiver and exemption schemes in certain cases. However, these plans are as yet unspecified and are likely to increase the bureaucratic burden on migrants.
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28 July 2011 by Rosalind English
R v Maxwell [2010] UKSC 48 – read judgment
This case concerned the question of what should happen to a conviction when it turns out that it is based on pre-trial malpractice by the police (this time involving evidence from a “supergrass”), where there is nevertheless other strong evidence of the defendant’s guilt. If the pre-trial irregularity is sufficiently serious materially to affect the trial but not to render the conviction unsafe, should the Court of Appeal retain the power to order a retrial? Or should the conviction should be quashed?
In this case the appellant and his brother were convicted of murder and two robberies at Leeds Crown Court on 27 February 1998. The appellant was sentenced to life imprisonment for murder to be served with concurrent twelve-year terms for the robberies. The main prosecution witness was Karl Chapman, a professional criminal and a supergrass. His evidence was crucial to the arrest and prosecution of the appellant.
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11 October 2012 by Karwan Eskerie
G (Children), Re [2012] EWCA Civ 1233 – read judgment
If you received this article by email, it will have been attributed to Adam Wagner. It is in fact by Karwan Eskerie – apologies
What is happiness? If you thought this most philosophical inquiry was beyond the remit of the judicial system then you should read this case.
In Re G (Children), the estranged parents of five children disagreed over their education. Both parents belonged to the Chassidic or Chareidi community of ultra orthodox Jews. However, whilst the father wanted the children to attend ultra-orthodox schools which were unisex and where all the children complied with strict Chareidi practices, the mother preferred coeducational ‘Modern Orthodox’ schools where boys did not wear religious clothing and peyos (long hair at the sides), and children came from more liberal homes where for instance, television was taken for granted.
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5 June 2013 by Rosalind English
Hill, R(on the application of) v Institute of Chartered Accountants of England and Wales [2013] EWCA Civ 555 – read judgment
The concept of fairness embodied in the different strands of natural justice have to be seen as flexible and as not requiring the courts to lay down over rigid rules, so that where it had been agreed that a tribunal member could be temporarily absent for part of the hearing, there had been no breach of the rules of natural justice.
The appellant chartered accountant had been found guilty of unprofessional conduct by the respondent Institute. He appealed against the Administrative Court’s refusal of his application for judicial review of the Institute’s decision ([2012] EWHC 1731 (QB)). He maintained that there had been a breach of natural justice in the proceedings because one of the tribunal members had missed a large part of the hearing, and that all proceedings of that tribunal after one of its members left were therefore a nullity, including the decision of the tribunal that the charge was proved. Mr Hill contended in particular that the breach of natural justice that “he who decides must hear” had been so grave that the tribunal had acted without jurisdiction, and acting without jurisdiction could not be consented to, and that any consent had to be from the appellant personally.
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17 February 2016 by Guest Contributor
C-601/15 JN (in French only) offers important insights into the detention of asylum seekers. It also somewhat of a double bill, involving not one but two sets of European Human Rights.
In this post I will set out the facts, give a quick refresher of the relationship between the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (Charter). I will conclude with an overview of the decision itself.
The decision contains a number of important elements, but the one I would like to focus on is the “fit” between the ECHR and the Charter. This manifests itself on two levels. The first is the abstract relationship between the ECHR and the Charter (see Marina Wheeler’s recent post on this: A Charter too Far). This is quite straightforward (see below). The more interesting part is the relation between the different ways the ECHR and the Charter protect from unlawful detention. As shall be seen, the former lists narrow criteria for the lawfulness of detention, whereas the second effectively provides a broad protection against unlawful detention. Reconciling the two was at the heart of JN.
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10 September 2024 by Edward Waldegrave
In The Commissioner for the British Indian Ocean Territory v. The King (on the application of VT and Others), the UK Government has lost the latest round in long-running litigation concerning a group of individuals accommodated in basic facilities on the remote British Indian Ocean Territory (the “BIOT”).
Background
The BIOT is an archipelago consisting of over 50 islands located roughly half way between East Africa and Indonesia. It is a British Overseas Territory and is formally administered from London by a Commissioner, who performs both legislative and executive functions.
Diego Garcia is the largest island in the archipelago. It has no settled population but accommodates a substantial US/UK military facility. The facility employs a transient population of about 4,000.
In 2021 a group of individuals of Tamil ethnicity left India by boat, apparently with the goal of reaching Canada. On 3 October 2021 their vessel encountered difficulties in the Indian Ocean and was escorted by the Royal Navy to Diego Garcia. Following their arrival in the BIOT, the individuals made claims for asylum. These claims remain un-determined, and some 61 individuals (including children) have now been living on Diego Garcia for nearly three years. There they have been housed in what have been described as “hellish” conditions. The majority live in tents in Thunder Cove (referred to as the “Camp”). Initially they were confined to the Camp itself, but as a result of an order made on 21 December 2023 they gained access to a nearby beach. They also have limited access to buildings outside the Camp for the purposes of consultations with lawyers, medical treatment and, for children, education. A few individuals who with medical complaints which could not be addressed on Diego Garcia have been flown to Rwanda for treatment.
In May 2024 eleven individuals were granted “bail” on terms which allowed them (in summary) to leave the Camp and walk along highway DG1, and to access beaches from the road. These arrangements appear to have been uncontroversial. When they were put in place, it was envisaged that the limited freedoms granted to the eleven individuals would be extended to the other migrants on Diego Garcia. In any event, it was also expected that the position of all of the individuals would be finally resolved at a hearing scheduled for July 2024. This substantive hearing has, however, been indefinitely adjourned.
The July 2024 Bail Application
In July 2024 a number of the individuals applied for extended bail. Specifically, they sought access to a “nature trail”, and also sought changes to the terms on which their bail could be exercised.
In response to this application (the “July Application”) the Commissioner sought the views of the US authorities responsible for the operation of the military facilities on Diego Garcia. The US authorities provided their views on the July Application a few hours before it was due to be heard (on 23 July 2024). The US position was stark: it opposed any extension of bail on the basis that the proposals posed “operational, security, health and safety risks [to the military facilities on Diego Garcia]… which cannot be mitigated or would be unduly burdensome to mitigate”.
The Commissioner applied for an adjournment of the hearing of the July Application to give him more time to consider the response of the US. This was rejected.
Very shortly after the hearing on 23 July, the Commissioner received letters from (i) the Director General for Africa and the Americas at the Foreign, Commonwealth and Development Office; and (ii) the Minister of State for Europe, North America and the UK Overseas Territories. Both emphasised the respect which should be accorded to the US’ concerns. These letters were provided to the Court.
On 26 July Judge Obi of the Supreme Court of the BIOT granted the July Application, subject to some relatively minor caveats. In particular, she extended bail to all the relevant individuals and permitted access to the Nature Trail.
The Commissioner appealed, and the Court of Appeal of the BIOT heard the appeal on 9 August. It handed down its decision, dismissing the appeal, on 20 August.
The Commissioner’s Grounds of Appeal
The Commissioner appealed against the Judge’s order on four grounds:
- It was procedurally unfair for the Judge to have proceeded with the hearing of the July Application on 23 July (i.e. not to have granted the Commissioner’s application for an adjournment to allow more time to consider the US response).
- The Judge exercised her discretion unreasonably because she failed properly to consider the impact of extending bail on US/UK relations.
- The Judge exercised her discretion unreasonably because she failed to attribute due weight to the assessment by the US authorities of the security implications of extending bail.
- The Judge exercised her discretion unreasonably because the July Order necessarily impacted upon decisions by the Commissioner concerning the allocation of resources.
The Court of Appeal’s Determination
The Court of Appeal dismissed the Commissioner’s appeal on all grounds.
Ground 1: Procedural Unfairness
The Court rejected the Commissioner’s contention that it was procedurally unfair for the Judge to refuse to adjourn the hearing of the July Application for two reasons.
First, the Court agreed with the Respondents that there was nothing “new” in the US’ response to the July Application. In summary it took the view that the US’ position had long been clear, and had amounted to “consistent and unvarying opposition” to any bail arrangements. Its response to the July Application was wholly consistent with this. Accordingly the Judge had been entitled to take the view that it was not necessary for the hearing to be adjourned for the Commissioner to have a fair opportunity to present his case.
Secondly, the Court noted that the Judge permitted oral submissions to be made on the two letters which the Commissioner received just after the hearing of the July Application. That further oral hearing constituted an obvious opportunity for the Commissioner to make any additional submissions on the US’ response to the July Application. The fact that he had not sought to make any such submissions undermined the contention that it had been unfair for the Judge not to adjourn the first hearing.
Ground 2: US/UK Relations
The Commissioner’s next ground of appeal relied on a contention that the Judge had failed to attach due significance to the impact that extending bail would have on US/UK relations.
The Commissioner’s case on this ground seems to have been somewhat confused. It appears to have been uncontroversial that “questions relating to international relations… are not generally justiciable”. However, it was also common ground that international relations considerations could not necessarily “dictate the outcome of the court’s enquiry”. The Commissioner’s argument before the Court of Appeal on this ground (at least in part) was that, because the grant of bail “had the potential to have a profound impact on international relations between the UK and [the US]”, the Judge should have exercised extreme caution before granting the July Application. As the Court of Appeal recognised, however, this was inconsistent with the Commissioner’s acceptance that the impact on the UK’s international relationships was just one factor to be considered in the overall balancing exercise. On that basis, the only question was whether the Judge had in fact properly evaluated the security concerns raised by the US. The Court of Appeal concluded that she had, and that there was no warrant for interfering in the evaluative conclusion which she had reached.
Ground 3: US Security Assessment
The Commissioner next argued that the Judge had failed, in summary, to accord sufficient respect to the US’ assessment that the grant of the July Application would interfere with security considerations.
Again, the Court dismissed this Ground. It accepted that it was for the relevant US authorities, rather than the Judge, to take a view on whether the grant of the July Application would have adverse security implications. However, this is not what the Judge had done. She had not questioned the US view of the relevant security implications but had, quite properly, taken that into account as a factor to be weighed alongside other relevant considerations. Her overall evaluation was that the July Application should (broadly) be granted. There was no warrant for interfering with that evaluation. In deciding that the Judge had accorded due respect to the US assessment of the security implications, the Court of Appeal seems to have relied in part on the fact that the Judge rejected aspects of the July Application (such as permitting the individuals to access a social club on Diego Garcia) because of the burdens those aspects would give rise to for the Commissioner.
Ground 4: Resource Allocation
Finally, the Commissioner argued that the Judge had strayed into another non-justiciable area because granting the July Application necessarily had implications for the allocation of resources by the Commissioner (in that there would be costs for the Commissioner associated with the extended bail arrangements).
Again, the Court found little difficulty in rejecting this Ground. It concluded that the Judge had not purported “to tell the Commissioner how to spend the funds available to the BIOT”. Rather she had explicitly recognised that this was a matter for the Commissioner. As was pointed out in argument, decisions as to bail conditions regularly have cost implications for the authorities; it would be surprising indeed if judges making such decisions were unlawfully straying into non-justiciable resource allocation territory.
Comment
It has been suggested (in particular by Joshua Rozenberg: see https://rozenberg.substack.com/p/uk-loses-diego-garcia-appeal) that the Commissioner must have recognised that he was likely to lose the appeal to the Court of Appeal, and that the appeal was only pursued in an attempt to show others (such as the US Government) that the UK was exhausting all its options in seeking to prevent bail being extended. On this view, the Court of Appeal’s decision was, from a legal perspective, “obvious”.
It is true that aspects of the Commissioner’s case before the Court of Appeal seem to have been very weak. In particular, it is difficult to see how the Commissioner could reasonably have hoped to succeed on Grounds 1 or 4.
However, the Court of Appeal’s decision does give rise to some points of genuine legal interest. In discussing Ground 2, the Court of Appeal accepted that the conduct of the UK’s foreign relations is non-justiciable in itself, but that the Crown’s foreign policy priorities can be weighed in the balance against other factors in determining a bail application. Presumably the same is true in other contexts. Similarly, in relation to Ground 3, the Court accepted that it is for the executive (in this case, in effect, the US Government) to form a view as to the state’s security interests, but that its view can be weighed among other factors in an appropriate case. This distinction is one which surely merits further academic, legal and political scrutiny. Put briefly, it is difficult to see how judges can on the one hand be expected to “keep out” of foreign policy and national security questions if the executive’s views on such matters are susceptible to being balanced against other factors (such as, in this case, the interests of individuals in being able to move more freely than has hitherto been the case). The Court’s approach to this issue seems to have been largely a result of the Commissioner’s acceptance that foreign policy and national security considerations did not constitute “trump cards” but were merely factors to be weighed in the balance. The Commissioner might have stood a better chance of success, and his case would certainly have been more intellectually coherent, had that concession not been made.
The second point arising from the Court’s judgment which is of significant interest concerns the way in which the parties and the Court all viewed the July Application through the prism of “bail”. As the Court itself recognised, this case falls far from the ordinary context in which bail principles are applied. One might see this case as demonstrating the admirable ability of English legal principles to address novel factual circumstances. Others might regret that such a unique set of facts could only be addressed by an analytical framework developed in very different cases.
Edward Waldegrave is a barrsiter at 1 Crown Office Row.
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5 November 2015 by Guest Contributor
Cian C. Murphy & Natasha Simonsen
The Government has published a draft Bill on Investigatory Powers that it hopes to see through Parliament within a year. If it becomes law, the Investigatory Powers Bill will replace much, but not all, of the Regulation of Investigatory Powers Act 2000, as well as the Data Retention and Investigatory Powers Act 2014.
It is the Government’s response to the Edward Snowden revelations, and to three different reports that made almost 200 reform recommendations between them.
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11 March 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The suggestion that a future Conservative government might withdraw from the ECHR and repeal the Human Rights Act dominated this week’s headlines, with much commentary noting that such measures are likely to have only minimal practical effects on our courts. Lord Neuberger also used his first interview as President of the Supreme Court to speak his mind on a number of issues of human rights concerns; and the Justice and Security Bill continues its passage through Parliament.
by Daniel Isenberg
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4 March 2012 by Wessen Jazrawi
Welcome back to your weekly helping of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
The biggest news of the week was the leak of the Draft Brighton declaration, the UK’s proposals for the reform of the European Court of Human Rights. In other news, a spotlight finally began to shine on the Government’s Justice and Security Green Paper, with the Daily Mail suggesting that it might do anything but promote justice and security.
by Wessen Jazrawi
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1 July 2012 by Sam Murrant
Paul Mahoney
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
This week we have some interesting updates and speculation on the latest twist in the tale of Julian Assange, more commentary on the Justice and Security Bill and on David Anderson QC’s report on UK terrorism law. Across the pond, President Obama had a particularly good week in the courts. Finally, the results are in: the UK’s next Strasbourg judge will be Paul Mahoney.
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12 June 2014 by Guest Contributor
Guardian News and Media Ltd -v- AB CD – Read preliminary judgment
The Court of Appeal has published its decision in Guardian News Media v AB and CD. It is not a judgment, the Court says. Judgments – plural – will be given “in due course.” Still, the 24 paragraph decision contains the order and explanation of the order, and gives an indication of some of the reasons that will follow.
Is this a good decision? It is better than it might have been, but there are still deeply worrying problems.
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16 November 2012 by Adam Wagner
You may have heard that the Special Immigration Appeals Commission (SIAC) decided on Tuesday that Abu Qatada, an alleged terrorist who has been detained for the best part of the last seven years awaiting deportation to his native Jordan, cannot be deported. There would be a real risk, ruled SIAC, that he would face a flagrant denial of justice in his ensuing trial.
Jim Duffy has already commented on the case here, but I thought it would be useful to look at some of the commentary which followed the decision. A bit like the latest Israel-Gaza escalation, controversial human rights decisions now elicit an almost instant (and slightly sad) our-camp-versus-theirs reaction. Following a decision each ‘side’ trundles into action, rolling out the clichés without thinking very hard about the principles. The Prime Minister himself somewhat petulantly said he was “fed up” and “We have moved heaven and earth to try to comply with every single dot and comma of every single convention to get him out of this country.”
It is easy to moan about inaccurate coverage (I often do). But in this case, I do think the strong, almost visceral, reaction to the decision is justified. Leaving aside the slightly mad tabloid anti-Europe or effectively anti-justice coverage, it is understandable that people are uneasy and upset about this decision to keep a suspected terrorist within our borders, and then release him. But that doesn’t mean the decision is wrong.
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1 October 2012 by Wessen Jazrawi
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
The European Court of Human Rights has refused the request of Abu Hamza and four others to refer their extradition appeal to its Grand Chamber for another hearing, meaning that their routes of appeal have finally (probably) come to an end. In other news, the Chagos refugees have gone to court over a note to Baroness Amos concerning their resettlement and teachers have been granted anonymity when facing criminal charges.
by Wessen Jazrawi
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