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R (QSA and others) v Secretary of State for the Home Dept and Secretary of State for Justice [2018] EWHC 407 (Admin) – read judgment
The High Court ruled on 2nd March 2018 that three women forced into prostitution as teenagers will no longer have to disclose related convictions to potential employers.
The claimants challenged the criminal record disclosure scheme which required them to reveal details of multiple decades-old convictions for ‘loitering or soliciting’ for the purposes of prostitution.
The women had been groomed, coerced or forced into sex work, two of them when they were children. They were required to divulge their convictions under the regime of the DBS (Disclosure and Barring Service) governed by Part V of the Police Act 1997. DBS checks (previously CRB checks) are made when an applicant seeks certain paid or voluntary work involving children or vulnerable adults. While the claimants weren’t strictly barred from such jobs, they had to inform would-be employers of their historical convictions. They said this placed them at an unfair disadvantage, caused embarrassment and put them off applying in the first place. They argued that this interference with their private and working lives was unjustified by the scheme’s aims and unlawful. The Court agreed.
The advent of the Human Rights Act 1998, and the incorporation into domestic law of the Article 2 right to life, has transformed coronial investigations and inquests over the last two decades. Lord Bingham’s magisterial creation of the ‘enhanced’ investigation and conclusion in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 (later adopted by Parliament) gave coroners greater responsibility to hold the state to account for deaths. That, in turn, has significantly improved the ways in which all inquests are conducted, not just those where Article 2 is found to be engaged. Inquests are no longer haphazard affairs. They are (ordinarily) carefully planned and structured processes; and their participants, the ‘interested persons’, are far more involved in assisting coroners with the task of identifying the proper scope of their investigations and the lawful ambit of their conclusions.
Article 2, then, has already conquered and occupied the terrain of the coroners’ courts and it is only at the frontiers of its application that legal skirmishes still occur. One such fight is the case of R (Maguire) v HM Senior Coroner for Blackpool & Fylde and another [2023] UKSC 20, which was argued before the Supreme Court on 22nd and 23rd November 2022, and in which judgment was given on 21st June 2023.
The central issue in the case was whether Article 2 required an enhanced inquest into the death of highly vulnerable woman, Jackie Maguire, who had become seriously unwell while in a private residential care home and had later died in hospital. The Supreme Court held unanimously that it did not. More importantly, in doing so, it took the opportunity to provide a detailed and authoritative account of how Article 2 applies to coronial investigations and inquests.
As invidual consumers we are constantly exhorted to separate the goods and substances we want to get rid of into “rubbish” destined for landfill or items for recycling. Clearly we have to pay attention to this to avoid material going into landfill that could be recycled or turned into energy, but not only that; we need to be aware of the cost of goods being manufactured that never see the light of day at all, because by virtue of being mixed by less pristine goods, they count as waste, with all the consequences that entails.
In a recent ruling the CJEU considered the question of retail goods that have been returned by consumers or become redundant in the seller’s product range: Openbaar Ministerie v Tronex BV C-624/17.
The case should raise alarm bells. When we return an item against a refund of the purchase price we do not think we are discarding it. The CJEU ruling turned on the application of Article 3(1) of the Waste Directive 2008/98/EC, which provides that
‘“waste” means any substance or object which the holder discards or intends or is required to discard’.
Individual consumers are clearly not liable under waste legislation for returning goods. But the concept of waste forms the basis of a criminal penalty for possession in EU member states. So once those items reach the retailer the situation changes, because it may or may not become “waste” in their hands.
KW (by her litigation friend) and others v Rochdale Council (Court of Appeal) [2015] EWCA Civ 1054 – read judgment
This was an appeal against a ruling by Mostyn J in the Court of Protection concerning a consent order between an incapacitated woman, the appellant, and the local authority ([2015] EWCOP 13). The judge had held that the 52 year old appellant, who had been severely incapacitated following surgery, had not been subject to deprivation of liberty contrary to Article 5 of the European Convention on Human Rights by her 24 hour care package. In his view, the test for deprivation of liberty in Cheshire West and Chester Council v P [2014] UKSC 19 did not apply. In paragraph 17 of his judgment Mostyn J remarked that it was impossible to see how the protective measures in place for KW could linguistically be characterised as a “deprivation of liberty”. Quoting from JS Mill, he said that the protected person was “merely in a state to require being taken care of by others, [and] must be protected against their own actions as well as external injury”. At para 25, he said that he found that KW was not “in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom”.
He therefore ordered that it was in KW’s best interests to reside at the address at which she was residing and to receive a package of care in accordance with her assessed needs. The Court of Appeal upheld her appeal against this ruling, holding that the judge had been bound by Cheshire West and had made a material error of law. Continue reading →
Updated | Manchester City Council (Respondent) v Pinnock (Appellant) [2010] UKSC 45 On appeal from the Court of Appeal [2009] EWCA Civ 852 – Read judgment / press summary
The following is based on the Supreme Court press summary. Our full case comment is to follow.
The Supreme Court has ruled that Article 8 of the European Convention on Human Rights (the right to family life) requires that a court, when asked by a local authority to make an order for possession of a person’s home, must have the power to assess the proportionality of making the order.
The 9-strong court departed from a series of House of Lords (its predecessor’s) decisions in order to follow a strong line of European Court of Human Rights authority (summarised at para 45 of the decision). The judgment was unanimous, and follows the important recent decision of the European court in Kay and Others v United Kingdom (see our post), as well as that in Connors v UKand others. The decision represents a welcome clarification of the rights of council tenants facing eviction, following a long and tortuous line of conflicting decisions from both the UK and European courts.
Chester West and Chester Council v. P (by his Litigation Friend the Official Solicitor) [2011] EWCA Civ 1257 – Read judgment / Lucy Series’ commentary
When assessing whether a patient’s care deprives him or her of their liberty, and thereby entitles them to the procedural protections under Article 5 (4) ECHR, the right to liberty, the Court of Appeal has ruled that the appropriate comparator is an individual with the same disabilities and difficulties who is not in care. The court also provided useful general guidance for deprivation of liberty cases.
P is a 39 year old man with Cerebral Palsy and Down’s Syndrome who lacks the capacity to make decisions about his care and residence arrangements as a result of his physical and learning disabilities.
Zenati v Commissioner of Police of the Metropolis and another [2015] EWCA Civ 80 – read judgment
Matthew Donmall appeared for the Crown Prosecution Service in this case. He had nothing to do with the writing of this post.
In a recent judgment, the Court of Appeal held that where a criminal suspect is remanded in custody, Article 5 of the Convention requires the police to notify the court as soon as possible if there is no longer a reasonable basis for suspecting them. It also held that the police and CPS must aid the court in observing its duty to show ‘special diligence’ in managing a suspect’s detention, by investigating the case conscientiously and by promptly bringing relevant material to the court’s attention. Continue reading →
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:
Evidence about the risks to the judges;
The court being satisfied that those risks could not be adequately addressed by other security measures;
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
This was an appeal against the Administrative Court’s dismissal of the appellant’s claim for judicial review of the secretary of state’s decision to allow him to be added to a list of persons subject to sanctions under UN Security Council Resolution 1617. This Resolution required UN member states to freeze the assets on those named on the Consolidated List of members of Al-Qaida and its associates. The relevant UN committee was asked to add the name of the appellant, an Egyptian national resident in the UK, to the list. The secretary of state placed a hold on the appellant’s designation so the UK could consider whether he met the criteria for designation. The Foreign Secretary subsequently accepted that he did meet the criteria and released the hold, which meant that he was added to the list. Once a designation is made, it lasts until all members of the Security Council can be persuaded that it should be lifted.
The arrest of opposition activist Roman Protasevich and his girlfriend, Sofia Sapega in Minsk last Sunday, following the forced grounding of Ryanair flight FR4978 from Athens to Vilnius has captured headlines this week. Mr Protasevich is a former editor of Nexta, an online dissident group with the most popular Telegram messaging channel in Belarus. Nexta produces online content in a similar style to that of Russian activist Alexei Navalny, uncovering corruption in Europe’s last dictatorship.
Although state-run Belarussian TV initially claimed that the plane had requested the diversion to Minsk, a later transcript was shown in which air traffic controllers told the pilot that there was a bomb on board the plane. A Russian-bought MiG fighter jet escorted the plane to Minsk airport, where Mr Protasevich and Miss Sapega were detained. Belarus is the last country in Europe to impose the death penalty, and the inclusion of Mr Protasevich on a KGB list of terrorist suspects (for which the death penalty applies in Belarus) has sparked fears over his sentencing. However, he has so far only been charged with organising mass unrest for his coverage of the 2020 election (widely known to have been rigged). The Committee to Protect Journalists records the murders of six journalists in Belarus since 1994, when Alexander Lukashenko became dictator. Self-exiled opposition leader Sviatlana Tsikhanouskaya, who entered politics herself after the arrest of her journalist husband, has reported that she believes Mr Protasevich (who suffers from heart disease) may currently be in hospital following heart complications.
Estonia’s president, Kersti Kaljulaid, has reiterated her pleas for the UK to take a tougher stance on money entering the country from corrupt regimes, whereafter it is dissipated through the London financial sector. She first requested the UK make needed changes after the attempted murders of Sergei and Yulia Skripal in 2018 by FSB agents. While the government has stated it will take action, there is not yet any evidence of fresh safeguards to prevent money flowing through the UK system. The UK, which already sanctions Belarus, is now preparing to discuss further sanctions in tandem with EU leaders.
Elvanite Full Circle v. AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC), Coulson J read judgment
The Jackson reforms, which are designed to stop lawyers spending too much of their clients’ or their opponents’ money, are still but young, and therefore not yielding much in the way of decided cases. But there were some pilot schemes which are very similar, and this case about one such scheme (in the Technology & Construction Court) is an interesting, and tough, example of why costs budgets must be taken seriously.
Elvanite claimed that AMEC had given them negligent planning advice about waste management. Coulson J dismissed the claim. AMEC sought and got their costs. But, from the judge’s judgment on costs, it seems unlikely that they will recover more than 50% of their actual costs. Why?
Da Costa and another v. Sargaco [2016] EWCA Civ 764 14 July 2016 read judgment
Two people say they owned motorbikes which they kept outside their house – until, it is said, the bikes were mown down by the defendant’s car, a collision which their witness claimed to have seen. The car’s insurers said that the claim was fraudulent and it was all a conspiracy. The judge agreed it was a fraud, whereas the Court of Appeal disagreed – but still disallowed the claim because, the CA said, the owners had not proved their case.
But the point of general interest arose because the judge decided that each claimant should give evidence in the absence of the other. And the CA said this was wrong. As I shall explain, I disagree. But let’s see where the Article 6 ECHR battle lines lie so you can come to your own view.
The biggest story filling the headlines this week was that Boris Johnson has resigned as leader of the Conservative Party following over 50 resignations from government ministers. Though predominantly a political development, there are potential legal implications to the decision. This is because, until the leadership campaign announces his successor, current policies are stagnated under the ‘lame-duck government’. There is, therefore, doubt over the future of three particularly controversial policies: the Northern Ireland Protocol Bill; the Bill of Rights Bill; and the Rwanda scheme.
The proposed Bill of Rights Bill is Dominic Raab’s effort to replace the Human Rights Act, with the vision to allow the UKSC to take little account of rulings by the ECtHR. While Raab still remains in office, there are question marks over whether the controversial Bill will survive the administrative overhaul that is soon to unfold. See the reference below to the latest episode of Law Pod UK, which discusses the Bill in detail.
Catt v Commissioner of the Police of the Metropolis [2012] EWHC 1471 (Admin) – read judgment
Retention of data on a national database of material relating to a protester’s attendance at demonstrations by a group that had a history of violence, criminality and disorder, did not engage Article 8 of the Human Rights Convention.
The claimant, now aged 87, applied for judicial review of the decision of the defendants to retain data, seeking an order that, as he had not himself been engaged in criminality, any reference to him should be deleted from the allegedly unlawfully retained material.
Background
The data in issue was essentially comprised of records (or reports) made by police officers overtly policing demonstrations of a group known as “Smash EDO”, which carried out a long-running campaign calling for the closure of a US owned arms company carrying on a lawful business in the United Kingdom. Disorder and criminality had been a feature of a number of the protests along with harassment of the company’s staff. The defendant authority had retained data relating to the claimant’s attendance at various political protests on the National Domestic Extremism Database, and maintained by the National Public Order Intelligence Unit. Continue reading →
HM (Iraq) v The secretary of state for the home department [2010] EWCA Civ 1322 – Read judgment
The Court of Appeal has overruled the Asylum and Immigration Tribunal’s decision to deport a 25-year-old Iraqi citizen who had lived in the UK since he was 12 and had recently been sent to prison for drug dealing, on the basis that it did not think carefully enough about his human rights to private and family life.
The decision – which is unusually concise and easy to follow – highlights the careful balancing exercise which an asylum and immigration tribunal must undertake in order to weigh up whether a person’s human rights to private and family life outweigh the public good of sending them back to their home country. In this case, although HM won his appeal, his case must now be reheard – for a third time – by an asylum tribunal.
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Chester West and Chester Council v. P (by his Litigation Friend the Official Solicitor) [2011] EWCA Civ 1257 – 
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