Search Results for: prisoner voting/page/19/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.

Ban on ‘ex-gay, post-gay and proud’ bus advert criticised but lawful

23 March 2013 by Alasdair Henderson

Core Issues Trust v. Transport for London 22 March 2013 [2013] EWHC 651 (Admin) – read judgment.

In a judgment which is sure to provoke heated debate, the High Court has today ruled that the banning of an advert which read “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” from appearing on London buses was handled very badly by Transport for London (“TfL”) but was not unlawful or in breach of the human rights of the group behind the advert.

The advert was placed in April 2012 by Anglican Mainstream, a Christian charity, on behalf of Core Issues Trust, another Christian charity which describes its aim as “supporting men and women with homosexual issues who voluntarily seek change in sexual preference and expression” (see website here). It was intended as a response to another advert placed on London buses earlier in 2012 by Stonewall, the gay rights campaign group, which was in support of the proposal to introduce same-sex marriage and read “SOME PEOPLE ARE GAY. GET OVER IT!”

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Hugely important report due imminently… no, not that one

28 November 2012 by Adam Wagner

Remember the Commission on a Bill of Rights? You know, the one set up by the Government in the early days of the Coalition to sort out the Human Rights Act? No, not the Leveson Inquiry; that’s about the media (you may have heard that it is reporting tomorrow). CBOR is the one with the eight lawyers, four selected by each of the Coalition partners, a bit like a legal Brady Bunch.

Some accused the Government of kicking the rights issue into the long grass by assigning it to a commission with a far away reporting date – the end of 2012. It seemed so far away, back in the halcyon summer of 2010. Remember David Cameron and Nick Clegg’ romance in the Rose Garden?

Well, the long grass has now grown and CBOR is due to report in just over a month. As I posted in July, the Commission has consulted the public for a second time. The responses have now been published, categorised into Individual responses, Respondent organisations and bodies and Postcard responses. In case you were wondering about the ‘postcard responses’ these resulted from campaigns organised by the British Institute of Human Rights and the Human Rights Consortium.

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The Use of Live Facial Recognition Technology in Scotland: A New North-South Divide?

25 February 2020 by Euan Lynch

Earlier this month, the Scottish Parliament’s Justice Sub-Committee on Policing published a report which concluded that live facial recognition technology is currently “not fit” for use by Police Scotland. 

Police Scotland had initially planned to introduce live facial recognition technology (“the technology”) in 2026. However, this has now been called into question as a result of the report’s findings – that the technology is extremely inaccurate, discriminatory, and ineffective. Not only that, but it also noted that the technology would be a “radical departure” from Police Scotland’s fundamental principle of policing by consent.  

In light of the above, the Sub-Committee concluded that there would be “no justifiable basis” for Police Scotland to invest in the technology.  

Police Scotland agreed – at least for the time being – and confirmed in the report that they will not introduce the technology at this time. Instead, they will engage in a wider debate with various stakeholders to ensure that the necessary safeguards are in place before introducing it. The Sub-Committee believed that such a debate was essential in order to assess the necessity and accuracy of the technology, as well as the potential impact it could have on people and communities. 

The report is undoubtedly significant as it reaffirms that the current state of the technology is ineffective. It therefore strengthens the argument that we should have a much wider debate about the technology before we ever introduce it onto our streets. This is important not only on a practical level but also from a human rights perspective, especially set against the backdrop of the technology’s controversial use elsewhere.  

National Security trumps disclosure of Litvinenko secret documents, rules High Court

5 December 2013 by Dominic Ruck Keene

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The subtle hand of human rights – and more Aarhus

20 October 2016 by David Hart KC

R (o.t.a. Dowley) v. Secretary of State for Communities and Local Government [2016] EWHC 2618 (Admin) Patterson J, 20 October 2016 – read judgment

This challenge was about a landowner not wishing to let those wishing to develop Sizewell C nuclear power station onto her land to carry out surveys and investigations. But it came down to a disagreement about the terms which such entry might occur. For s.53 Planning Act 2008 enables the Secretary of State to allow such entry, subject to conditions, and with the proviso that the landowner may claim compensation for “damage caused to lands or chattels” (s.53(7)) via a claim to the Upper Tribunal.

The entry in question was not insubstantial; the developer wished to have access to some 75 acres of the 420 acres of the claimant’s estate, for surveys relating for possible spoil storage, roads and builders accommodation if the project was to proceed.

The major fall-out was over the issue of the extent of compensation. And this, as we shall see, is where human rights came in, albeit in a topsy-turvy way.

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Terror suspects’ families can claim benefits

2 May 2010 by Adam Wagner

M and Others v Her Majesty’s Treasury, Case C‑340/08, 29 April 2010 – Read judgment

The European Court of Justice (ECJ) has ruled that social security benefits cannot be withheld from family members of those suspected of being associated with the Al Qaeda terrorist network.

The Government will probably now have to change the law, although The Times reports that the judgment will only affect less than a dozen people living in Britain.

Summary

The United Nations implemented measures shortly after the 11 September 2001 attacks to freeze all assets of terror suspects. The UK had up to now taken a wide view of these measures, and had frozen not just the benefits of the suspects themselves, but also of their families.

The Treasury’s reasoning had been that money spent by, for example, a suspect’s wife on the running of the family household will be “for the benefit” of him. For example, if she buys food for a communal meal in which he participates, the money will have been spent for his benefit.

The case was referred to the ECJ by the House of Lords (now the Supreme Court) in 2008 (M, R (on the application of) v Her Majesty’s Treasury [2008] UKHL 26). The question of interpretation was whether the words “for the benefit of” in article 2.2 of Council Regulation (EC) No 881/2002 have a wide meaning which covers any application of money from which a listed person derives some benefit, or whether they apply only to cases in which funds or assets are “made available” for his benefit, so that he is in a position to choose how to use them.

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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).

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

Do oat stalks have udders? Consumer confusion in the Supreme Court

12 February 2026 by Rosalind English

Dairy UK Ltd v Oatly AB UKSC 4

The Supreme Court has just come up with a ruling in an attempt to end a dispute over non-cow based milk products. In April 2021, plant-based company Oatly registered the trade mark “POST MILK GENERATION” for use in relation to certain categories of products. The issue on this appeal was the validity of that trade mark in relation to their popular oat-based food and drink products.

Lactose intolerant and vegetarian/vegan consumers, as well as those with an eye on the environment, have flocked to buy their cartons of “milk” in preference to the products of animal dairy farming. The photo accompanying this post is the one we are most familiar with, along with the “Wow no cow” slogan. Their “POST MILK GENERATION” mark, which was accompanied by an image of a stylised milk wave, was opposed by Dairy UK Ltd before the UK Intellectual Property Office (IPO).

Background law and facts

Oatly is a Swedish company whose business involves the manufacture of oat based food and drink products as alternatives to dairy products. The respondent, Dairy UK Ltd, is the trade association for the UK dairy industry.

In November 2021, Dairy applied for a declaration that the registration of Oatly’s trade mark was invalid under the Trade Marks Act 1994. Under s.3(1)(c) of this Act, marks contrary to law or morality cannot be registered. Dairy also argued that Regulation (EU) No.1308/2013 (part of post-Brexit retained EU law) contained such a prohibition.

Oatly appealed successfully to the High Court, which found “POST MILK GENERATION” not a “designation of milk” due to its metaphorical nature. The Court of Appeal reversed this ruling, deeming it a prohibited “designation.” Oatly then appealed to the Supreme Court.

Issues before the Supreme Court
​The Court considered two key questions:

1. Whether “POST MILK GENERATION” constituted a “designation” of milk under Article 78(1), prohibiting trade mark registration for imitation dairy products.
2. If it did so, did it qualify for exemption under Article 78(2)(b) as a term “used to clearly… describe… a characteristic quality of the product,” like composition or production method.

Article 78 states: “Member States… shall ensure that… no designations of milk… are used… in respect of… products not obtained by the milking of animals… [except] where those products are used to clearly… describe… a characteristic quality of the product.” The Court interpreted “designation” broadly and exemptions narrowly.

Decision of the Court
​The Supreme Court unanimously dismissed Oatly’s appeal on 11 February 2026, upholding the prohibition. Lords Hamblen and Burrows delivered the judgment, with Lords Hodge, Briggs and Stephens concurring.
​
​On issue one, “POST MILK GENERATION” was held a “designation” because it evokes “milk” imagery via “milk” and the milky wave device, positioning oat drinks as a successor generation to dairy milk. The Court rejected Oatly’s “metaphorical” argument, noting that trade mark law targets consumer perception, not literal meaning.

On issue two, no exemption applied. The slogan did not, in the Court’s view “clearly describe a characteristic quality” like oat composition or plant-based production. Instead, it aimed to market superiority over milk without factual clarity.

Reasoning behind the Court’s decision

Article 78(1) prohibits “designations of milk” (e.g., cream, butter) on non-animal products to protect the dairy sector. There is also a notion about protecting the consumer here, although arguably the consumer is all too aware that this “milk” does not come from a cow, which is why the product is popular in the first place. ​

The regulation’s use of the word “designation” is important. It encompasses evocative phrases, not just exact terms, per ordinary meaning and purpose. In the Court’s view, the “milky device” of Oatly’s TM functioned as an imitation evoking dairy fluidity.​

According to the Court, even though this trade mark could be regarded as referring to a characteristic quality of the products (namely, the characteristic of being milk-free), it was doing so in an oblique and obscure way and was certainly not doing so “clearly” see para [40]. In particular, it did not make clear whether the product is entirely free of milk, or only that the milk content is low [41].

There are exemptions under Article 78(2), but only for terms which “clearly describe” inherent qualities of a product (e.g., “soya-based”) excluding vague or comparative claims. The Supreme Court found that Oatly’s slogan failed as promotional rhetoric, not descriptive elucidation.​

Comment

This is the start of a very long battle of trade marks, food descriptions and labelling requirements. “Meat” and “dairy” products that are not derived from livestock are here to stay. Whilst plant-based claims are easy to dismiss on the basis of their origin, what about “beef”products grown from stem cells in a laboratory, fed by animal serum (so-called “clean meat” because of their drastically reduced carbon footprint?)

Plant based products fall within the Novel Foods Regulation, part of our EU retained law (Regulation (EU) 2015/2283). Because of its proximity to real livestock, cultivated meat is outside the NFR and comes within Regulation (EC) 853/2004 (the legislation that provides specific hygiene rules for food of animal origin). This is because these cell-cultivated products originate from a cell, or cells, taken from animals.

So whilst this decision lies in the way of claims to dairy and meat equivalence for plant-based products, industry lobbying is bound to ratchet up as alternatives to livestock farming gain traction.

Does this judgment stifle innovation? For the moment, perhaps. Oatly will have to rebrand their UK marketing (although for the author of this post, their slogan “Wow no cow” has always been reason to buy the product in full knowledge of its origin). Incidentally, the slogan “Wow No Cow” apparently evaded direct prohibition by avoiding exact dairy terms but fuelled Dairy UK’s opposition to Oatly’s trade marks. “It exemplified Oatly’s irreverent style, turning lawsuits into PR wins”.

Comment from one vegan barrister:

“It really is baffling, this run of appeals was about the phrase “POST MILK GENERATION” being used on oat milk cartons. At least by the time of the SC appeal hearing, both parties agreed that it was NOT the name of the product and that it was not confusing consumers, so the dairy lobby has really spent all this money just to stop Oatly using that phrase on their cartons.”

And another:

“In case anyone was misled into thinking that oats, unlike coconuts, had breasts”
​

Enforcement of environmental law: what is not in the Brexit Bill

20 July 2017 by David Hart KC

I posted recently on the European Union (Withdrawal) Bill and its approach to rolling over EU-derived laws into our domestic law. But a law is only as good as its enforcement makes it, and so we all need to think how this is going to be done post-Brexit. 

NB: there is nothing in the Bill which touches on enforcement; that is for later, if at all.

The issue arises particularly starkly in the environmental field, where there are not so many players with direct legal and commercial interests around (as in, say, equal pay or competition law) to seek consistent enforcement.

A task force within the UK Environmental Law Association (chaired by Professor Richard Macrory and Andrew Bryce, left and right in the pic) has been applying its mind to this enforcement problem, and on 18 July 2017  published a short and powerful report on the issue – Brexit and Environment Law. Its main messages are these.

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One trade freedom we could do without

28 June 2016 by Rosalind English

Supporters of Brexit and campaigners for animal welfare are not natural bedfellows. And indeed my quick poll of the intuitive reaction to Thursday’s vote revealed anxiety about a future race to the bottom in terms of welfare standards as European regulations are unpicked and new trade deals are carved out, whether with individual member states of the EU, the European Union as a whole, or under the surveillance of the WTO. (But here’s a call for action: https://action.ciwf.org.uk/ea-action/action?)ea.client.id=119&ea.campaign.id=53173&ea.tracking.id=98b15a7c&utm_campaign=transport&utm_source=ciwftw&utm_medium=twitter

Which is why it is critical at this moment to remember that the obstacle in the way of this country reviewing its participation in the trade in live animals is one of the pillars of the EU Treaty: free movement of goods. Animals are regarded as goods, and any measure adopted by a member state government interfering with the movement of livestock within the single market and beyond its borders with its trading partners has been prohibited as a “quantitative restriction” on exports. When we are eventually free of this overarching prohibition, no time should be lost in grasping the opportunity to alter our laws in recognition of humane standards in animal husbandry.

Some Background: veal crates and the port protests in the 1990s

Just at the time when the red carpet was being rolled out for the Human Rights Act, campaigners for the rights of non human animals had their eye on a much more difficult task: persuading the government that shipments of young calves to veal crates across the Channel defeated our hard-won animal welfare laws and were in breach of the EU’s own proclaimed animal protection measures. The practice of rearing veal for the popular white meat involves confining a week old calf in a box for five months until slaughter. The well respected farm animal charity Compassion in World Farming managed to convince the UK courts that they not only had standing but an arguable case that this export trade breached the domestic prohibition on the veal crate system as well as the relevant EU Convention and Recommendation. CIWF contended that the UK government had power under Community law

to restrict the export of veal calves to other Member States where the system described above was likely to be used, contrary to the standards in force in the United Kingdom and the international standards laid down by the Convention to which all the Member States and the Community had agreed to adhere….

the export of calves to face rearing contrary to the Convention is considered to be cruel and immoral by animal welfare organisations and a considerable body of public opinion, supported by authoritative scientific veterinary opinion, in the Member State from which exports occur.

In fact the EU rules merely contained stipulations as to the minimum width of veal crates and the composition of veal calves’ diets.
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Court bans autistic woman from having sex

14 February 2012 by Leanne Buckley-Thomson

A Local Authority v H [2012] EWHC 49 (COP) – Read judgment 

The Court of Protection has ruled that an autistic woman with an IQ of 64 does not have the mental capacity to engage in sexual relations, on the basis that she does not understand the implications and cannot effectively deploy the information she has understood into her decisions.

H is a 29 year old woman with mild learning difficulties and atypical autism. Although there is potential for improvement in her conditions, they are life-long.

She had a history of a very early and very deep degree of sexualisation. H engaged in sexual behaviour with others which she did not always consent to, one man having been convicted in 2003 of her attempted rape, and when she did consent the behaviour was still unconventional and exploitative. She had been on the child protection register and had extensive entries in her adult records with the local authority. In short, she is highly sexualised and vulnerable.

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The Pope’s visit and human rights

16 September 2010 by Adam Wagner

The Pope begins a four-day visit to the UK today, the first official trip by a serving Pope for 28 years. The visit has already been controversial, and it raises some interesting questions from a human rights angle.

The leader of the Catholic church has spoken out recently on UK equality laws, complaining that they would run contrary to “natural law”. His comments were most likely directed at the effect of the new legislation on Catholic adoption agencies, making it more difficult for them to turn down gay couples. This could have been the key issue of the trip, but it has been overshadowed by a more difficult and damaging controversy.

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German court rules child’s religious circumcision can be a criminal offence – Analysis

27 June 2012 by Adam Wagner

Updated | As has been widely reported, a regional German court has ruled that a Muslim boy’s religious circumcision was a crime and that it violated his basic constitutional rights to bodily integrity. This ruling has no direct effect on other European states, but will buoy the campaign against male circumcision.

Thanks to an admirably swift response from the Cologne Regional Court to my request, I have uploaded the appeal decision (the important one), the original decision which was under appeal and the court’s press release. All are in German. I have also uploaded a version of the appeal judgment in English (updated – I have been sent a much better English translation).

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What is a “public authority” for the purposes of environmental information?

17 September 2013 by Rosalind English

Fish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water (Case C-279/12) – read Opinion of AG Cruz Villalon

In this most recent case concerning access by private individuals to environmental information held by public authorities,  the AG grasps the nettlish question of what precisely a public authority is. The issue was a subject of debate because the request for information had  been addressed to private companies which manage a public service relating to the environment.  The question therefore was whether, even though the companies concerned are private, they may be regarded as “public authorities” for the purposes of the Directive governing access to environmental information (Directive 2003/4).

Clearly the definition of the concept of “public authority” is an issue of importance not just in relation to access to information, but across the board, whether involving EU law or the application of the Human Rights Act 1998 and judicial review in domestic law.
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