Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors  EWCA Civ 895 – Read judgment
The general rule in civil law cases is that the loser pays the winner’s legal costs, even if the case settles before trial. As with all general rules, there are plenty of exceptions, and many relate to public authorities. Two of those exceptions have just been chipped away at by the Court of Appeal.
Two important judgments increasing the likelihood that local authorities will have to pay out costs emerged the usual last-minute glut before the court term ended on Friday. The first concerned costs in the Court of Protection when an authority has unlawfully deprived a person of their liberty. The second was about costs in immigration judicial review claims which had settled following consent orders.
Lady Hale, who delivered the court’s judgment (Photo: Guardian)
R(C) v. Secretary of State for Justice  UKSC 2 – read judgment.
When is it right to keep the names of parties to litigation a secret? That was the difficult question the Supreme Court had to grapple with in this judgment, handed down on Wednesday. The decision to allow a double-murderer to remain anonymous led to outraged headlines in the tabloids. Yet the Court reached the unanimous conclusion that this was the right approach. Why?
C, who had a long history of severe mental illness, was convicted of murdering his ex-girlfriend and her new partner in 1998 and sentenced to life imprisonment with a minimum term of 11 years before parole could be considered. The murder was described by Lady Hale as “a particularly savage killing which must have caused untold suffering to the victims and has continued to cause great grief to their families.” During his sentence C was transferred from prison to a high security psychiatric hospital. Whilst there, in 2012, C’s treating doctors applied for permission to allow him unescorted leave in the community in order to assess how well his treatment was progressing and whether he would be suitable for discharge. The Secretary of State refused to allow this.
Almost a year ago, I and some other legal bloggers wrote about a phenomenon known as the Freemen on the Land movement. I called the post Freemen of the dangerous nonsense, for that is exactly what the movement is, for those desperate enough to sign up to it. Now a Canadian judge has done many judges around the world a huge favour by exploding the movement’s ideas and leaders (or “gurus”) in a carefully referenced and forensic 192-page judgment, which should be read by anyone who has ever taken a passing interest in this issue, and certainly by any judge faced by a litigant attempting the arguments in court.
The Freemen, alongside other groups with similar creeds, believe that if you change your name and deny the jurisdiction of the courts, you will be able to escape debt collectors, council tax and even criminal charges. As this member of the Occupy London movement, “commonly known as dom” wrote in guardian.co.uk (of all places) “if you don’t consent to be that “person”, you step outside the system“.
As you may have guessed, this magical technique never works in the courts, but judges are often flummoxed when faced with the arguments, which are odd and in many ways risible. But what has been lacking is an authoritative, systematic judgment explaining, in detail, why that is. Until now, that is.
Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school. She was kidnapped and murdered and her body was found in September 2002. In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff. When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail. The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story.
In NT1 and NT2 v Google LLC, Mr Justice Warby considered whether Google should be required to ‘de-list’ links in its search results to articles about the spent historic convictions of two businessmen under what is commonly called the ‘right to be forgotten’. He held it was in the case of one claimant, but not the other.
The claimants argued that the Google search results conveyed inaccurate information about their offending. Further, they sought orders requiring details about their offending and their convictions and sentences to be removed from Google Search results, on the basis that such information was out of date; irrelevant; of no public interest; and/or otherwise an illegitimate interference with their rights. They also sought compensation for Google in continuing to return search results disclosing such details, after the claimants’ complaints were made. Google resisted both claims, maintaining that the inclusion of such details in its search results was legitimate.
Mr Justice Warby summarised the issues as “the first question is whether the record needs correcting; the second question is whether the data protection or privacy rights of these claimants extend to having shameful episodes in their personal history eliminated from Google Search; thirdly, there is the question of whether damages should be paid.”
Welsh Ministers v. RWE Npower Renewables Ltd  EWCA Civ 311 read judgment, reversing RWE Npower Renewables v. Welsh Ministers & Swansea Council  EWHC 1778 (Admin) Read judgment
In my previous post on this case, I summarised the judge’s findings as to why this Planning Inspector had gone wrong at the wind farm inquiry. The Inspector turned down the appeal because the positioning of individual turbines might lead to damage to deep deposits of peat found on this site. The judge, Beatson J, thought the inspector had not explained his reasons for his conclusions in sufficiently clear a form. Nor did the Inspector give the wind farm developer an opportunity to deal with his concerns.
So said the judge. But the Court of Appeal disagreed – showing how it is not easy to “call” the merits of these reasons challenges.
Evans, R (o.t.a of) Secretary of State for Communities and Local Government  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.
During the pandemic, the public’s gratitude to the medical profession has been palpable. But rightly, practitioners continue to be regulated, supervised by the Courts. Here we report a clutch of decisions highlighting some common themes: the importance of transparency and maintaining public confidence in the profession; managing conflicts of interest; making and handling findings of dishonesty.
In R (on the application of Young) v General Medical Council  EWHC 534 (Admin), the Administrative Court upheld the decision of a GMC Assistant Registrar (AR) to proceed with charges against the Claimant notwithstanding a previous Assistant Registrar had taken a contrary view.
The events giving rise to the case were tragic. In October 1996 Claire Roberts, age 9, died at the Royal Belfast Hospital for Sick Children two days after admission. Her death wasn’t referred to the Coroner and the certificate failed to record the diagnosis – hyponatraemia, a condition where sodium in the blood falls dangerously low, leading to cerebral oedema.
In late 2004, a public inquiry was convened following a documentary about the deaths of three other children from hyponatraemia, which prompted Claire’s parents to contact the hospital. The Claimant – Professor of Medicine at Queen’s University, Belfast – was asked to review Claire’s clinical notes and met with Mr and Mrs Roberts in December 2004. A letter to them followed in January 2005 to which he contributed. In May 2006 he gave evidence at the inquest convened to investigate Claire’s death.
Updated x 2 |Following on from Obiter J’s guest post, when considering the Metropolitan Police Commissioner’s attempt to force a Guardian journalist to disclose her source, it is worth revisiting the seminal case of Shayler, R  UKHL 11. The case, which arose shortly after the Human Rights Act came into force, shows how heavily stacked the law is against those accused of causing to leak state secrets, but may also reveal some limited hope for journalists too.
Although it now appears that the case is being brought under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984, it is still worth examining the powers which the police have under both PACE and the Official Secrets Act.
Simply, according to the House of Lords in Shayler, there is no public interest defence to the charges under sections 1 and 4 and none will be implied by the courts as a result of human rights law. However, section 5 was not considered and may still bear fruit should a prosecution be brought under it.
With the Supreme Court having ruled yesterday that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU will undoubtedly revolve around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the government’s negotiation position. This post puts forward the hypothesis that such debates may become irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable.
In R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5, the Supreme Court rejected the government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50 (see yesterday’s post on this blog which summarised the court’s judgment). Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s decision to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration.
DL v SL  EWHC 2621 (Fam) 27 July 2015 (Mostyn J) – read judgment
This was a simple, if contentious, divorce case in which the judge took the opportunity to make a point about balancing the principle of open judgment – allowing media coverage of cases – against the privacy of the parties involved. Whilst he was ready to acknowledge that publicity ensures not only the probity of the judge but the veracity of the witnesses, and that such publicity served promote understanding and debate about the legal process, in some cases privacy should trump the rights of the press.
There are many cases which are heard publicly, or privately with the media in attendance, but where, by a process of anonymisation, the privacy of the parties, and of their personal and other affairs, is sought to be preserved. This compromise, or balance, between open justice and the privacy of the individual has arisen for two reasons. First, the increased recognition that is given to the interests of children who are caught up in the dispute between the adult parties. And secondly, the rise of the idea that privacy is an independently enforceable right. Continue reading →
Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney  EWCA Civ 844 , 29 June 2017 – read judgment
As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.
The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.
South African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions and other governmental units – read judgment
South Africa’s North Gauteng High Court has just ruled that South African prosecutors and police illegally refused to proceed with an investigation of systematic torture in Zimbabwe.
South Africa, like many countries, has adopted the international crime prosecution Treaty (“the Rome Statute”). This means that under ordinary domestic law (the ICC Act) the South African investigative authorities have the power to prosecute anyone who has committed torture, or a crime against humanity anywhere in the world, if the perpetrator is in the country (at any time when investigation is contemplated). Jurisdiction is also vested irrespective of the perpetrator’s whereabouts if the victim is a South African citizen.
Of course this burden of responsibility teems with diplomatic difficulties, but generally it has been discharged with the convenient prosecutions of has-beens like Charles Taylor and Slobodan Milošević.
As Naomi Roht-Arriaza points out in her fascinating post on the subject, this particular case of South Africa v Zimbabwe illustrates the strain put on governments by the principle of complementarity under the 1998 Rome Statute, which puts pressure on implicated states to investigate these major crimes on their threshold, too close to home. It should come as no surprise that South African prosecutors are reluctant to investigate allegations of torture committed in Zimbabwe –
One of the critiques of transnational prosecutions based on universal jurisdiction is that they are a new brand of neo-colonialism, with former colonial powers seeking to bring into court disgraced leaders of their former colonies.
Now the tables are turning, and this universal jurisdiction is not being universally welcomed.
H & S (Surrogacy Arrangement) EWFC 36, 30 April 2015
M, a fifteen month old girl, was born as the result of artificial or assisted conception and of a highly contested agreement between S (the mother, a Romanian national) and H (the father, of Hungarian extraction) and B (the second applicant and H’s partner who had moved to the UK in 2004). None of these parties are portrayed in the photograph illustrating this post. Read judgment here
H is in a long-term and committed relationship with B and was at the time of conception. H and B contended that they had an agreement with S that she would act as a surrogate and that H and B would co-parent the child but that S would continue to play a role in the child’s life. It was a central part of their evidence that S offered to help them become parents and, following discussions between them, first with H and then involving B, the parties agreed to proceed on the basis that H and B would be the parents to the child and that S would have a subsidiary but active role. On 20 or 22 April 2013 M was conceived by artificial insemination using sperm from H at the applicants’ home. It is agreed by all parties that B was at home when the insemination took place. Continue reading →
The facts of this case can be stated very briefly, since the main (and most interesting) question before the Curt was whether the applicant company constituted a “victim” of a human rights violation under the Convention.
The applicant s a joint-stock company trading in oil. In the past, including at the time of the contested judgment of the Constitutional Court, the state owned 51% of the shares in the applicant company. The remaining shares were owned by private parties. At present all of the shares in the company are owned by the state.
The application before the Court concerned the fairness of proceedings before the Constitutional Court regarding the ownership of shares in the company. The applicant company complained that the proceedings were contrary to its rights under Article 6(1) (fair trial) of the Convention and Article 1 of Protocol No. 1 (peaceful enjoyment of possessions). The complaint was dismissed under Article 34 as being inadmissible (incompatible ratione personae, i.e. the status of the applicant). For the purposes of clarity, here is the relevant text of Article 34:
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. Continue reading →
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