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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.
Farouk Sabeh el Leil v France (29 June 2011) – read judgment
When a diplomatic employee takes action for compensation for unfair dismissal, the host country’s courts cannot simply rule out the possibility of a claim on the basis that the employer has state immunity. This would impair the very essence of his right of access to a court under Article 6 of the Convention.
The applicant, a French national, had been employed as an accountant in the Kuwaiti embassy in Paris since August 1980. He was promoted to head accountant in 1985. In March 2000, the Embassy terminated his contract as part of a cost-cutting exercise. His application to the local employment tribunal was initially successful but ultimately failed before the Paris Court of Appeals which found that the State of Kuwait enjoyed jurisdictional immunity on the basis of which it was not subject to court actions against it in France. Continue reading →
Another brief guide to the admissibility conditions to the Strasbourg Court. This one is on the “six months rule” laid down in paragraph 1 of Article 35.
The Court may only deal with the matter … within a period of six months from the date on which the final decision was taken.
Easy enough to state; the difficulty lies in identifying the “final decision”, in other words the point at which the six months starts to run. Here are the broad guidelines to be identified from the case law (and for this I am indebted to Karen Reid’s excellent and detailed Practitioner’s Guide (Third Edition 2008 Sweet & Maxwell).
1. No waiver
It is worth mentioning at the outset that the six month rule is imposed irrespective of the wishes of the parties or court; the rule cannot be waived (X v France (1982):
The Contracting States cannot, on their own authority, put aside the rule of compliance with the six-months time limit. The deposit bv a State of a declaration made under Article 25[now 35] of the Convention does not affect the running of this delay Continue reading →
In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.
Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.
Belhaj and another v Straw and Others [2013] EWHC 4111 (QB) 20 December 2013 – read judgment
Peter Skelton of 1 Crown Office Row acted for the defendants in this case. He has nothing to do with the writing of this post.
The High Court has struck out claims against British establishment defendants for “unlawful rendition”. The doctrine of immunity attaching to an act of state is total bar to that such claims and is not limited by the gravity of the alleged violation of rights.
Factual background
The first claimant, an opponent of the Gaddafi regime, and his wife, the second claimant, had been apprehended in Bangkok in 2004 whilst trying to travel from Beijing to the UK to claim asylum. They were held in a detention centre in Kuala Lumpur for two weeks and whilst they were there the UK authorities, along with the US, the Malaysians and the Chinese, worked together to secure their extradition to Libya (this was a time when friendly relations were maintained between the UK and the Libyan government). After another journey to Bangkok, where they were detained in a US “black site”, they were flown to Tripoli and transported to Tajoura prison, a detention facility operated by the Libyan intelligence services. The second claimant was released later in 2004, but the first claimant was transferred to another prison and held until 2010. Continue reading →
DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) – read judgment
The police have a duty to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. There had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so called “black cab rapist” amounting to a breach of the of the victims’ rights under Article 3 of the ECHR.
The claimants were among the victims of the so called “black cab rapist” (W), who over a six year period between 2002 and 2008 had committed more than 100 drug and alcohol assisted rapes and sexual assaults on women whom he had been carrying in his cab. Both DSD and NVB complained to the police, who commenced investigations, but failed to bring W to justice until 2009. Under the common law the police do not owe a duty of care in negligence in relation to the investigation of crime: See Hill v Chief Constable of West Yorkshire[1989] AC 53 per Lord Keith at pp. 63A-64A and per Lord Templeman at p. 65C-E; Brooks v Commissioner of Police of the Metropolis[2005] 1 WLR 1495; and Smith v Chief Constable of Sussex[2009] 1 AC 225.
Remember Pearl Harbour? Not the 1941 attack which propelled the USA into World War II, but the awful 2001 film starring Ben Affleck. What really sticks in the mind wasn’t the film itself, but the critical reaction. It is hard to remember a more gleeful spectacle, captured here, than reviewers falling over themselves to see who could produce the most withering response.
No doubt inspired by the Prime Minister’s own World War II analogy (on reflection, something of a hostage to fortune), legal commentators and organisations have also been falling over themselves, if not gleefully, to express their collective displeasure and disbelief at the poor quality of the Government’s proposals to reform Judicial Review.
R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) – Read judgment
The detention of a mentally ill person in an Immigration Removal Centre (IRC) amounted to inhuman and degrading treatment and false imprisonment, and was irrational, the High Court has ruled.
Mr Justice Singh heard a judicial review application by a Nigerian National against decisions to continue to detain him under the UK Borders Act 2007 and the conditions of that detention. From August 2009, HA, an overstaying visitor and asylum seeker, was detained at various IRCs following his release from prison for a drug-related offence which triggered the automatic deportation provisions of the 2007 Act. His behaviour during detention became increasingly disturbed and strange. In January 2010, he was seen by a psychiatrist who recommended HA’s transfer to a mental hospital for assessment and treatment.
R on the application of Save our Surgery Ltd v Joint Committee of Primary Care Trusts (Defendant) and Newcastle Upon Tyne Hospitals NHS Foundation Trust (interested party) [2013] EWHC 439 (Admin) – read judgment
Philip Havers QC, Jeremy Hyam of 1 Crown Office Row represented the claimant in this case, and Marina Wheeler of 1COR acted for the defendant. None have them have anything to do with the writing of this post.
In this latest challenge to the reconfiguration of paediatric heart surgery services., the Administrative Court has held that an NHS plan to end child heart surgery at a number of centres in the UK was flawed for lack of consultation (see Martin Downs’ post on a previous challenge to this consultation).
As Martin predicted, fairness and consultation have proved to be more solid ground from which to launch a missile against the NHS reconfiguration plan. This plan followed the findings of the Public Inquiry into deaths at Bristol Royal Infirmary (the “Kennedy report”) and was meant to address the “fragmented and uncoordinated” nature of this surgery across the country. The inquiry found that up to 35 children had died as a result of sub-standard care during heart surgery. As a result, a specialist panel, the Joint Committee of Primary Care Trusts (JCPCT), was set up to encourage the development of specialisation by reducing the number of centres providing paediatric cardiac services. Continue reading →
One of the possibilities being considered by Lord Justice Leveson as he writes the Report for Part 1 of his Inquiry is whether there should be compulsory regulation of the print media. One, widely discussed possibility is a statutory framework which would require any publisher with turnover or readership above a set threshold to join a “regulatory body”: compulsory regulation for large publishers.
The purpose of such a provision would be to deal with the so-called “Desmond problem” – the anomaly of a system of regulation which does not cover all the large newspaper publishers. But an important freedom of expression question arises: is the compulsory regulation of the print media compatible with Article 10 of the European Convention on Human Rights? This is not a question which has ever been considered by the Court of Human Rights and the answer may not be an entirely straightforward.
This week’s Round-up is brought to you by Alex Wessely.
In the news: Military chiefs have criticised the influence of Human Rights law in a report published this week, arguing that the “need to arrest and detain enemy combatants in a conflict zone should not be expected to comply with peace-time standards”. This follows a series of cases over the years which found the Ministry of Defence liable for human rights violations abroad, culminating in allegations of unlawful killing in the Al-Sweady Inquiry that were judged “wholly without foundation” in December.
Refugees are airlifted out by British forces. Image: The Guardian
On 15 August, the government of Afghanistan collapsed, President Ashraf Ghani fled and shortly afterwards the Taliban took power. Thousands of the 39 million population have been scrambling to flee the future that now awaits Afghanistan. Countries are working to accommodate Afghan refugees — including the UK, which decided to resettle 20,000 refugees.
What is happening in Afghanistan?
The Afghan government’s rapid collapse came two decades after the U.S. invaded Afghanistan to as part of the ‘War on Terror’ to seek to deny Al-Qaeda a safe base for operations in the country following the 9/11 terrorist attacks and the refusal of the Taliban government to extradite Osama bin Laden. The immediate context is the decision in April of this year by President Biden to withdraw the 3,200 troops U.S. and NATO troops by the twentieth anniversary of the 9/11 attacks. Although Afghan security forces were well funded and equipped, in the event they put up little resistance as Taliban militants seized much of the country as soon as the troops began withdrawing. The Taliban regime that was once toppled in 2001 is now back in power. Moreover, the fall of Kabul came much sooner than expected by U.S. intelligence analysts.
O’Connell & anor v the Turf Club [2015] IESC 57 – read judgment
This recent judgment of the Irish Supreme Court addressed the issue of whether the decisions of a sport’s organising body should be amenable to judicial review. This is an issue of some vintage and vexation in this jurisdiction’s legal debate, that provides a useful backdrop against which to ask what exactly it is that makes a decision-making duty or power ‘public’.
In U3 (AP) v Secretary of State for the Home Department[2025] UKSC 19, the Supreme Court has unanimously dismissed an appeal against a decision taken by the Special Immigration Appeals Commission (“SIAC”) relating to deprivation of citizenship and refusal of entry clearance on the basis of national security concerns.
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M and Others v Her Majesty’s Treasury, Case C‑340/08, 29 April 2010 – Read judgment
Another brief guide to the admissibility conditions to the Strasbourg Court. This one is on the “six months rule” laid down in paragraph 1 of Article 35.
In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court 
Remember Pearl Harbour? Not the 1941 attack which propelled the USA into World War II, but the 
R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) – 
One of the possibilities being considered by Lord Justice Leveson as he writes the Report for Part 1 of 
On 19-20 January, the England and Wales High Court (Mrs. Justice Andrews) heard the 
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