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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoner voting/page/23/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
The Queen, on the application of (1) RMC and (2) FJ – and – Commissioner of Police of the Metropolis. Read judgment.
Liberal societies tend to view the retention of citizens’ private information by an arm of the state, without individuals’ consent, with suspicion. Last week, the High Court ruled that the automatic retention of photographs taken on arrest – even where the there is no prosecution, or the person is acquitted – for at least six years was an unlawful interference with the right to respect for private life of Article 8 of the ECHR, as enshrined in the Human Rights Act.
The case was brought by two individuals. One, known as RMC, was arrested for assault occasioning actual bodily harm after she was stopped riding a cycle on a footpath. The second, known as FJ, was arrested on suspicion of rape of his second cousin at the age of 12. In both cases, the individuals voluntarily attended the police station, where they were interviewed, fingerprinted and photographed and DNA samples were taken form them, but the CPS decided not to prosecute.
Smith and Others (Appellants) v The Ministry of Defence (Respondent); Ellis and another (FC) (Respondents) v Ministry of Defence (Appellant); Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant) [2013] UKSC 41 – read judgment
The Court has ruled that the negligence claims taken by the families of servicemen injured or killed in Iraq should not be struck out on the ground of combat immunity, and that they were within the UK’s jurisdiction for the purposes of the Convention at the time of their deaths.
The effect of the Court’s decision is that all three sets of claims may proceed to trial. The following summary is based on the Supreme Court’s press report; a full analysis of the judgment will be posted shortly. Continue reading →
Theruling by HHJ Murphy in Blackfriars Crown Court this Monday that a defendant in a criminal trial should not be allowed to wear a niqaab (face veil) whilst giving her evidence has prompted calls for a public debate about the wearing of face veils in public more generally. Adam Wagner has already commented on the case here. A summary and analysis of the decision follows below.
The defendant in this case, D, is a woman who is charged with a single count of witness intimidation. When the judge asked D to remove her veil in order to be formally identified for the court’s purposes at a plea and case management hearing, D refused because she believes she should not reveal her face in the presence of men who are not members of her immediate family. As a result, HHJ Murphy listed a special hearing to consider what orders should be made about the wearing of a niqaab during the rest of the proceedings, describing the issue as ‘the elephant in the court room’ which needed to be dealt with early on.
Abortion in Northern Ireland has had a fraught and frequently distressing history. Until 2019 when the UK Parliament reformed the law, the jurisdiction had the most restrictive approach to abortion in the UK. But even this reform has not reformed the reality, either for those seeking abortion services or information and counselling on such services or for those who work at providers of such services lawfully. I have previously written about the situation as it stood in March 2021, and the reality has changed little since then, with two notable exceptions. In March 2022, the Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) Bill (Northern Ireland) (‘SAZ Bill’) to create buffer zones around lawful abortion providers, in an attempt to criminalise the harassment and intimidation of people who seek or work in such places. On 2 December 2022, tired of the glacial pace and political controversy in commissioning abortion services, the Secretary of State for Northern Ireland moved to commission such services himself. In the interim, the Attorney General for Northern Ireland (‘AGNI’) referred the SAZ Bill to the UK Supreme Court to determine whether it was lawful.
But the SAZ Reference also drew another ECHR issue to the Court’s attention: the assessment of proportionality and reasonable excuse defences in criminal trials involving protests. The main points here were the consideration of the Court’s previous judgment in Ziegler and the judgment of the Divisional Court (England and Wales) in Cuciurean. Unusually for a devolution reference, therefore, the Supreme Court sat as a panel of seven Justices. The SAZ Reference judgment was unanimous and authored by Lord Reed.
Samuel March is a paralegal and is due to start the Bar Professional Training Course later this year.
R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin), Spencer J, 01 March 2019, judgment here
The government’s ‘hostile environment’ policy took a hit in a High Court judgment on Friday. Martin Spencer J declared the “right to rent” scheme, laid out in sections 20-37 of the Immigration Act 2014, incompatible with the European Convention on Human Rights (ECHR). He also declared that a decision by the Secretary of State for the Home Department to roll out the scheme in devolved territories without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.
Background
The case challenged an element of the government’s ‘hostile environment’ immigration policy, which was recently rebranded the “compliant environment” following criticism.
The sections of the Act relevant to this case contained the provisions of the controversial “right to rent” scheme. This required private landlords to check the immigration status of tenants and potential tenants. Knowingly leasing a property to a disqualified person became a criminal offence, punishable by up to 5 years’ imprisonment, an unlimited fine, or both.
This claim was brought by the Joint Council for the Welfare of Immigrants (JCWI) a small charity seeking to ensure that “immigration law and policy are based on sound evidence, promote the rule of law and are underpinned by respect for human rights and human dignity.” They were supported by interventions from Liberty, the Equality and Human Rights Commission and the Residential Landlords Association (RLA).
Ambrose Harris (Procurator Fiscal), HM Advocate v G : HM Advocate v M [2011] UKSC 43 (6 October 2011) – read judgment
Reliance on evidence that emerged from questioning a person without access to a lawyer did not invariably breach the right to a fair trial under Article 6. The principle established by Salduz v Turkey (36391/02) (2009) 49 EHRR 19 did not apply to questioning outside a police station.
The Supreme Court was required to rule on references from the High Court of Justiciary regarding whether the Crown’s reliance on evidence obtained from police questioning prior to an individual having had access to legal advice breached his rights under Article 6. We posted previously on another referred case, Cadder (Peter) v HM Advocate (2010) UKSC 43, where the Court followed the Strasbourg Grand Chamber decision in Salduz that the Crown’s reliance on admissions made by an accused without legal advice had given rise to a breach of his right to a fair trial. The difference here was that the evidence had been obtained by questions put by the police otherwise than by questioning at a police station. The issue to be determined was whether the right of access to a lawyer prior to police questioning, as established in Salduz, applied only to questioning which had taken place when the person had been taken into police custody. Continue reading →
R (on the application of the European Federation for Cosmetic Ingredients) v Secretary of State for Business, Innovation and Skills and the Attorney General, British Union for the Abolition of Vivisection and the European Coalition to End Animal Experiments (intervening) [2014] EWHC 4222 (Admin) 12 December 2014 – read judgment
Conscientious shoppers who check the labelling of shampoos and other cosmetic products for the “not tested on animals” legend may not be aware that there is in place an EU Regulation (“the Cosmetics Regulation”), enforceable by criminal sanctions, prohibiting the placing on the market of any product that has been tested on laboratory animals. Any comfort drawn from this knowledge however may be displaced by the uncertainty concerning the status of cosmetics whose ingredients have been tested on animals in non-EU or “third” countries. (Incidentally the Cruelty Cutter app is designed to enable consumers to test, at the swipe of a smart phone, whether the product they are contemplating purchasing has been tested on animals.)
This case concerned the question of whether, and if so in what circumstances, that Regulation would prohibit the marketing of products which incorporate ingredients which have undergone testing on animals in third countries. It was a claim for judicial review seeking declarations relating to the marketing of cosmetic ingredients which had been thus tested. Continue reading →
Ndiki Mutua and others v the Foreign and Commonwealth Office – read judgment
1 Crown Office Row’s Guy Mansfield QC acted for the Defendant, Henry Witcomb assisted by Maria Roche acted for the Claimants and Elizabeth-Ann Gumbel QC acted for intervener. None of them had anything to do with the writing of this post.
Although any claims regarding alleged acts of torture on Kenyan detainees during the 1950s state of emergency are technically time barred the High Court has allowed three of the claims to go ahead.
This was a trial of a preliminary issue in the Mau Mau detention camps case concerning the matter of limitation of claims for personal injury. In principle, the primary limitation periods in respect of the claims respectively ended in September 1960, 3 March 1962 and on dates in 1963 which are unclear. The period of delay was approximately fifty years in duration, i.e. from between 1960/1963 to the issue of these proceedings on 23 June 2009. The events to be investigated at any trial would extend back to 1952 at least, a period of 60 years or more by the likely date of trial.
R(on the application of Christopher Wilford) v The Financial Services Authority [2013] EWCA Civ 677 – Read judgment
This Court of Appeal judgment further reduces the scope for judicial review of a Decision Notice issued by the Financial Services Authority (“the FSA”, now the Financial Conduct Authority). Indeed it comes close to excluding judicial review of these Notices. This is because there is a statutory mechanism for challenging Decision Notices. This case sheds light on the very limited role of judicial review where there is such a statutory right.
The FSA regulates the financial services industry. Its Regulatory Decisions Committee (“the RDC”) decides whether or not a regulated person has breached the relevant rules and issues Decision Notices.
R (on the Application of the Counsel General for Wales) v Secretary of State for business, Energy and Industrial Strategy [2022] EWCA Civ 118
The Court of Appeal decision handed down on 9th February 2022 is an important case concerning devolved powers.
The judgement concerns an application for permission to apply for judicial review made by the Counsel General for Wales to seek a declaration in the following terms:
The amendment of Schedule 7B of GoWA by section 54(2) of UKIMA, to add UKIMA to the list of protected enactments, does not amount to a reservation and does not operate so as to prevent the Senedd from legislating on devolved matters in a way that is inconsistent with the mutual recognition principle in UKIMA.
The application was dismissed, and the appellant appealed on the grounds that the Divisional Court was wrong to refuse permission on the grounds of prematurity.
It is undeniable that the Human Rights Act has had a significant impact on the work of the Supreme Court. Just under a quarter (14 of 61) of cases decided during the Court’s 2018-19 term featured a determination on at least one issue relating to the Act or the European Convention on Human Rights. The UK Supreme Court is soon to begin Hilary Term 2020, and whilst the docket of cases it is set to hear this term seems to largely steer clear of controversial human rights issues we can nonetheless be confident that 2020 will feature its usual share of big human rights cases. What follows is a short preview of some of the more interesting and controversial of those cases, all of which the Court is due to hand down at some point this year.
It is well established that, under Article 3 ECHR, the United Kingdom cannot deport an individual to a country where, there is a “real risk” of them being subjected to torture, inhuman or degrading treatment. This has been extended to include situations where the deportee would be placed in circumstances which might occasion a significant deterioration of health, including where they lack access to life-saving treatment.
The question in this case is whether Article 3 prohibits deportation in AM’s situation. He is an HIV-positive individual, whose condition for many years was being managed by anti-retroviral drugs in the UK. If deported to Zimbabwe, he would be very unlikely to have access to the same treatment. Although some medical options would be available to him, they would likely be significantly less effective for the management of his condition.
Previous authorities had restricted the application of Article 3 to ‘deathbed’ cases only, where the deportee would likely die quickly following their removal from the country.
SC (Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr) March 3 2010
The facts of this case are set out in the report of the Court of Appeal judgment below. In the Supreme Court the stepfather continued his submission that there should be no presumption against a child giving evidence, as that gave insufficient weight to the rights of all concerned under the European Convention on Human Rights 1950.
Updated, 1/9/10 | R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment
When faced with conflicting authorities from the European Court of Human Rights and the House of Lords (now the Supreme Court) on the indefinite retention of DNA profiles and fingerprints by the police, the Divisional Court held that they were bound to follow the House of Lords.
This was so despite clear indications from the previous and current governments that the law would be changed to take account of the Strasbourg decision. However, as leave to appeal was granted, the Supreme Court will now have the opportunity to revisit the issue and determine the law in this controversial area.
Kimathi & Others v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB) read judgment
Stewart J has dismissed the first test case in this group litigation, in which over 40,000 Kenyans bring claims for damages against the UK Foreign & Commonwealth Office, alleging abuse during the Kenyan Emergency of the 1950s and early 1960s.
The mammoth hearing lasted 223 days, and the judgment accordingly runs to nearly 500 paragraphs. The decision turns on whether the judge should allow the claim to be heard over 50 years after the primary deadline expired.
In personal injury claims, section 33 of the Limitation Act 1980 provides that in certain circumstances, a claim which would otherwise be out of time (“statute-barred”) can nevertheless be heard. The court has a discretion to disapply the usual three-year time limit where it is equitable. This involves balancing the prejudice to the defendant of facing a late claim against the prejudice the claimant will suffer if the claim is statute-barred.
In this test case, Stewart J determined that it would not be equitable to extend time in the claimant’s favour. The severe effects of the passage of time on the defendant’s ability to defend the claim was a crucial factor, particularly due to the depleted cogency of the evidence available, as were the lack of good reasons for the delay, and the very substantial length of the delay itself. This carefully reasoned judgment will provide detailed guidance for the trial of ‘stale’ claims. Continue reading →
Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener) [2016] EWCA Civ 715 – Read judgment
The Court of Appeal dismissed the Secretary of State’s appeal challenging the Upper Tribunal’s decision that MSM would have been at risk on return to Somalia on the ground of political opinion. Exceptionally, the court went on to consider the modification of conduct issue in relation to imputed political opinion on an obiter basis, which gave rise to interesting analysis.
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The Queen, on the application of (1) RMC and (2) FJ – and – Commissioner of Police of the Metropolis. Read judgment.
The Queen v. D (R) – Ruling available 
R(on the application of Christopher Wilford) v The Financial Services Authority [2013] EWCA Civ 677 – 
Kimathi & Others v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB) 
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