We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoners/page/23/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
I recently came across this judgement by the South African Constitutional Court. As a “Saffa” myself, I rejoice in the case’s title, pairing the name of the penultimate prime minister of the old apartheid South Africa (Botha), and the name (Smuts) of a much earlier Prime Minister of the Union of South Africa from 1919 to 1948.
But this case concerned two ordinary people, an insurance broker and an environmental activist, locking horns over their respective rights to privacy and freedom of expression under the South African Bill of Rights. The Constitutional Court judgment – running into nearly 100 pages in the Butterworths Human Rights Cases – is an interesting example of “salami slicing”, where the court takes apart a protected right and determines which bits of it can be upheld in the circumstances, and which can be set aside. It is also a fascinating insight into how information on social media platforms involves constant “re-publication”, and what that means for privacy and free speech rights. And finally, the judicial reflections on publication of someone’s personal address in the days of WFH show how far we have changed as a society since the pandemic.
The facts can be set out briefly.
Background facts and law
The applicant, Mr Botha, is an insurance broker who resides and conducts business in Gqeberha. He is also the owner of the farm Varsfontein situated in Alicedale in the Eastern Cape Province, a hundred kilometers away from his home.
The first respondent, Mr Smuts, is a wildlife conservationist, farmer, researcher and activist. The second respondent (amicus) is the Landmark Leopard and Predator Project – South Africa, a conservation non-governmental organisation focusing on human wildlife conflict management and leopard and carnivore conservation. It was founded by Mr Smuts who is its executive director.
A member of a group of cyclists who participated in an organised adventure ride that traversed Mr Botha’s farm (legally) encountered a dead baboon and porcupine in cage traps. The animals appeared to him to have been exposed to suffering and distress. Outraged by what he saw, the cyclist photographed the dead animals in the cages with the intention of sharing the photographs with an organisation capable of taking action. He shared them with Mr Smuts on 1 October 2019.
He also sent Mr Smuts a detailed map depicting the location of Mr Botha’s farm on which he indicated the place on the farm where the photographs were taken.
Mr Smuts published a post on the second respondent’s Facebook page which included, amongst others,
(a) a photograph of a baboon trapped in a cage; (b) a photograph of a porcupine trapped in a cage; (c ) a Google search location of Mr Botha’s insurance brokerage address (which turned out also to be Mr Botha’s residential address) and telephone number.
The High Court (Bean LJ and Garnham J) held in R (Gardner) v Secretary of State for Health [2022] EWHC 967 (Admin) that the Government’s March 2020 Discharge Policy and the April 2020 Admissions Guidance were unlawful to the extent that the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.
About 20,000 residents of care homes in England died of COVID-19 during the first wave of the pandemic in 2020. Two of them were Michael Gibson, father of the First Claimant, and Donald Percival Maynard Harris, father of the Second Claimant. Mr Gibson died in a care home in Oxfordshire on 3 April 2020; Mr Harris in a care home in Hampshire on 1 May 2020.
The Issues
The Claimants sought declarations that particular policies of the Defendants (the Health Secretary, NHS England and Public Health England) during the relevant period constituted breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively were unlawful and susceptible to judicial review on common law principles.
Updated | Welcome back to the UK Human Rights Roundup, your regular swirling snow flurry of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
This week, there are criticisms over the delay of inquiries both into the mistreatment of terrorism suspects and the Iraq War. Meanwhile, discussion continues over the relevance of the EU Charter of Fundamental Rights for UK law, and a dying asylum seeker on hunger strike will not be released.
Request for help – religion and law
Courting Faith: Religion as an Extralegal Factor in Judicial Decision Making Barristers sought to participate in PhD Research project exploring the relationship between religion and judicial decision making. If you are interested in taking part, please contact Amanda Springall-Rogers at A.Springall-Rogers@uea.ac.uk
R ((AAA) Syria and Ors) v Secretary of State for the Home Department[2023] UKSC 42
The Government’s flagship policy of removing individual asylum seekers to Rwanda for their claims to be decided under the Rwandan asylum system that was announced on 14th April 2022 has been found to be unlawful by a unanimous Supreme Court.
The Claimants were 10 individual asylum-seekers who entered the UK irregularly in small boats, together with one charity, Asylum Aid. There were also several interveners to the case, including the UN High Commissioner for Refugees (UNHCR) (whose counsel team was led by Angus McCullough KC of 1 Crown Office Row). The Home Secretary (whose counsel included Neil Sheldon KC and Natasha Barnes of 1 Crown Office Row) was the Defendant.
In December 2022, the Divisional Court (Lewis LJ and Swift J) dismissed the general challenge to the policy, as discussed here. But in June, the Court of Appeal, by a 2-1 majority (Sir Geoffrey Vos MR and Underhill LJ) found that the policy was unlawful, as discussed here.
The Supreme Court (Lord Reed P, Lord Hodge DP, Lord Lloyd-Jones, Lord Briggs and Lord Sales), in a judgment jointly authored by Lord Reed and Lord Lloyd-Jones, has now held unanimously that the policy is unlawful on the basis that there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement (forcible return) to their country of origin if they are removed to Rwanda.
On Thursday 8 September, Queen Elizabeth II, the UK’s longest-serving monarch, died peacefully at Balmoral aged 96. She is succeeded by her son, King Charles III. He described the death of his mother as a ‘moment of great sadness’ for him and his family, and that her loss would be ‘deeply felt’ around the world. Her state funeral this Monday was watched by around 4 billion people worldwide, and more than a million people lined the streets of London to pay tribute.
On Friday 17 September, the measure known as section 28 was extended to five more crown courts, taking the total number to 63. The policy allows complainants of offences including modern slavery to be cross-examined before trial in front of a limited number of people. Although many barristers support the principle of the policy, some have stated there are insufficient resources for the scheme, particularly in the light of the indefinite walkout over legal aid fees. Many advocates refused to do section 28 cases pre-strike given the amount of extra unpaid work required.
The quarter-of-a-billion-pound IT project rolled out by the Ministry of Justice to increase the efficiency of sharing information between courts, lawyers and police has come under criticism. The Common Platform software system has been accused of putting the justice system ‘at risk’. It is reported the system has been resulting in difficulties for lawyers, unlawful detentions, and wrongful arrests. Whistle-blowers have called the system ‘faulty, unsafe and unfinished’.
These appeals – Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs and Dalston Projects Ltd v Secretary of State for Transport – were a test case for the operation of the UK’s sanctions regime introduced in response to Russia’s invasion of Ukraine.
The Supreme Court confirmed that while the court’s task is to assess proportionality for itself, a wide margin of appreciation will be afforded to the executive in judging how best to respond to and restrain Russia’s actions in Ukraine.
The Supreme Court has ruled unanimously that the Scottish parliament does not have the power to pass legislation that would allow for a second referendum on Scottish independence. Such legislation, the Supreme Court found, would touch on ‘reserved matters’, that is, matters affecting the United Kingdom as a whole. The Scottish government unsuccessfully argued that a referendum would be advisory, and as it would not have immediate impact on the existence of the UK, would not touch on reserved matters. Sturgeon, while respecting the ruling, commented that it confirmed that the UK can no longer be pictured as a voluntary partnership and noted that the next general election could serve as a ‘de facto referendum’.
Nurses are preparing to strike for the first time on the 15th and 20th of December. The issues in question include low pay and unsafe staffing levels. The Royal College of Nursing (RCN) has reported that experienced nurses are 20% worse off in real terms than in 2010, due to many pay increases below the rate of inflation, and that 25,000 nursing staff have left the Nursing and Midwifery Council register since last year. If ministers continue to refuse to engage in formal negotiations with the RCN, the strikes will go ahead across England, Wales and Northern Ireland, and are expected to have a severe impact on care.
1 Crown Office Row’s Philippa Whipple QC and Matthew Hill were counsel to the Detainee Inquiry. They are not the writers of this post.
On 6 July 2010, in the first innocent days of the Coalition Government, former appeal judge Sir Peter Gibson was asked by the Prime Minister to enquire into “whether Britain was implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11.” Almost 3 1/2 years later, the Detainee Inquiry has produced a report (it was originally presented to the Government on 27 June 2012 but there have been heavy negotiations about sensitive material in the public version).
The report makes clear at the outset that it “does not, and cannot, make findings as to what happened”. Why so? Because the Inquiry was scrapped before it heard evidence from any witnesses, so it couldn’t test any conclusions reached purely on the basis of documentary evidence. The reason given at the time by Sir Peter was that “it is not practical for the Inquiry to continue for an indefinite period to wait for the conclusion of the police investigations“. The “investigations” are those into claims of collusion by the intelligence services with torture in Libya (see this Q&A for more).
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news:
First, we welcome to the legal blogosphere RightsNI, a new blog relating to human rights issues in Northern Ireland. Human Rights in Ireland wrote a short introduction to the new blog which can be found here.
The UK riots
Now back to August’s hot topic. Last week blogger Charon QC quoted Immanuel Kant: “All our knowledge begins with the senses, proceeds then to the understanding, and ends with reason. There is nothing higher than reason.” Recognising the value of reason in the context of the riots, Charon QC posted several links to various articles which reflect on the events in the midst of all the confusion.
Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708 – read judgment
Rosalind English (here) has summarised this unsuccessful appeal against the rejection of the Chagossians’ claims by the Divisional Court, and I have posted on this litigation arising out of the removal and subsequent exclusion of the population from the Chagos Archipelago in the British Indian Ocean Territory: see here, here, here and here. The photograph is from 1971 – the last coconut harvest for the Chagossians.
There were three remaining grounds alleged against the Foreign & Commonwealth Office in this judicial review
(i) its decision in favour of a Marine Protected Area was actuated by an improper motive, namely an intention to prevent Chagossians and their descendants from resettling in the BIOT;
(ii) the consultation paper which preceded the decision failed to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands; and
(iii) it was in breach of the obligations imposed on the United Kingdom under article 4(3) of the Treaty of the European Union.
I want to look at (i), the improper purpose grounds, and (iii) the TEU/TFEU grounds, because in both respects the CA took a different course than the Divisional Court, even though the outcome was the same.
Evans, R (o.t.a of) Secretary of State for Communities and Local Government [2013] EWCA Civ 114 – read judgment
There have been important pronouncements over the years by the Aarhus Compliance Committee (ACC) about whether the UK planning system complies with the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). See my post here for the most important ones, and more are likely to follow shortly (see here). The interest in this domestic planning case is in how the Court of Appeal dealt with those pronouncements, where there is domestic case law going the other way.
Welcome back to the UK Human Rights Roundup, your weekly buffet 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 news this week has been dominated by issues relating to Article 8 and the right to die. First, we had Tony Nicklinson, a man suffering from locked-in syndrome, and then there was the case of E, a woman suffering from anorexia who was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die. In other news, just when you (or rather, I) thought the fat lady had sung for Julian Assange, there was another twist in the tale as he requested asylum at the Ecuadorian embassy.
Laura Profumo delves into the latest human rights happenings.
In the News:
In an “exclusive” last weekend, The Independent revealed that the government is planning to “fast-track” a British Bill of Rights into UK law. The report claimed a 12-week consultation will run from late this year, which will seek to clarify that the UK will not pull out of the ECHR. In an “unusual but not unique” move, a Bill will then proceed straight to the House of Commons, without a preliminary Green or White Paper. With the EU referendum due in 2017, ministers are anxious to extricate the ECHR question from that of EU membership, making the Bill law before the in/out campaigns begin. Yet the Bill’s Parliamentary passage will be far from seamless. A cabinet minister has cautioned that the short timescale is “aspirational”, as the Bill could be “really clogged up in the House of Lords”. The upper chamber, where the Conservatives fail to command a majority, hosts some “seasoned lawyers”, who are fearful of the fallout with Strasbourg. It is understood that Gove will visit Scotland before the consultation is published, to convince the SNP to back the proposal. Yet it is not yet clear whether Gove will visit Northern Ireland and Wales as well, where he must also secure support. If the Bill is to reach the statute books before the MPs’ summer recess, it will need to be propounded in the next Queen’s speech, due in May 2016. Continue reading →
As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
For law students who slept their way through their first latin 101 lessons in ‘ultra vires’, public law and judicial review may have seemed very detached from the realities of everyday life; less relevant to the man on the Clapham Omnibus than the rigours of a good criminal defence or protection from eviction offered by landlord and tenant law.
The Lord Chancellor may be hoping that the public and Parliamentarians are similarly unfocused.
National concern about coronavirus rose further this week, as the tally of UK cases rose to 36. The government has said that it will publish an emergency ‘battle plan’ for tackling the virus, based on existing contingency plans for responding to a pandemic flu outbreak. This will include ministers responsible for coronavirus in each department, as well as a public information campaign run from the Cabinet Office; if the virus spreads further, it could also include banning big events, closing schools, and advising against use of public transport. When questioned yesterday on whether cities will be isolated, as in China, Health Secretary Matt Hancock was emphatic that no tactics are “off the table” in the government’s coronavirus strategy.
The Johnson government is facing major setbacks elsewhere this week.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
1 Crown Office Row’s 
Welcome back to the UK Human Rights Roundup, your weekly buffet of human rights news. The full list of links can be found 
As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
Recent comments