Search Results for: puberty blockers consent/page/46/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)

Liberalising Abortion in NI, Tommy Robinson, and the lawfulness of Child Spies – the Round Up.

15 July 2019 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

In the News:

Credit: The Guardian

The House of Commons has passed amendments which are likely to liberalise the law on abortion and same-sex marriages in Northern Ireland.

The amendments were added to the NI Executive Formation Bill. The first was put forward by Conor McGinn (Labour). It states that if the NI Assembly is not restored by the 21^st October, the government must create secondary legislation to allow same-sex marriage in Northern Ireland. This means there will be no further debate in the House of Commons, because the government will make use of regulations. The second amendment, tabled by Stella Creasy (Labour), has a similar effect. However, both are subject to the condition that the Northern Irish Assembly can legislate to change the law.

Prior to the vote, Ms Creasy said “At this moment in time, if somebody is raped in Northern Ireland and they become pregnant and they seek a termination, they will face a longer prison sentence than their attacker”.

The Conservative leadership contenders were split on the vote. Boris Johnson stated that both subjects were devolved matters, whilst Jeremy Hunt voted for both proposals. Karen Bradley (the Northern Ireland Secretary) and Theresa May (PM) abstained.

Unusually, MPs in the Scottish National Party were given a free vote. The party ordinarily abstains from voting on devolved issues in other countries.
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Warning for bloggers and tweeters as newspapers found guilty of contempt of court

3 March 2011 by Adam Wagner

Attorney General v Associated Newspapers Ltd & Anor [2011] EWHC 418 (Admin) – Read judgment

For the first time  a court in England has convicted two newspapers, the Daily Mail and the Sun, of contempt of court in breach of the Contempt of Court Act 1981, for the publication of a photograph relating to an ongoing criminal trial  on their websites.

The judgment contains an important warning for bloggers, tweeters and journalists who use instant news to report on criminal trials: “instant news requires instant and effective protection for the integrity of a criminal trial“.

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Julian Assange: Bail granted and judge gives permission to tweet

14 December 2010 by Adam Wagner

Julian Assange, the founder and head of Wikileaks, has succeeded in an initial challenge to last week’s refusal to grant bail in his extradition case. And, in an appropriate nod to the internet age, the judge granted two people the right to tweet from the court.

The tweeters (definition: users of Twitter, a social website which allows people to post 140 character messages to people who chose to follow them) are Alexi Mostrous, a Times special correspondent, and Heather Brook, a writer. Mostrous tweeted at 14:30:

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The Weekly Round-up: Rehana Popal, discrimination and deportation

12 November 2018 by Guest Contributor

As the international media has become full of whispers as to just where Asia Bibi might be offered asylum, discrimination has once again been to the forefront of legal bulletins at home. Most notably, the story of Rehana Popal’s treatment at the hands of solicitors who requested that she return her papers after their client demanded a ‘white, male barrister’, has made waves in the news. Whilst this runs entirely against the solicitors’ code of conduct and, indeed, the Equality Act 2010, Ms Popal, the English Bar’s only Afghan-born female barrister, has stated that this has not been the first occasion upon which she has been subjected to such discriminatory treatment.
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Schrems 2 for the UK? CJEU Ruling Threatens Future Adequacy Talks

10 October 2020 by Rafe Jennings

Case C‑623/17

The CJEU ruled on Tuesday that Directive 2002/58/EC (‘the Directive’) precludes national legislation from ordering telecommunication companies to transfer data in a “general and indiscriminate” manner to security agencies, even for purposes of national security. This is following a challenge by Privacy International to UK security agencies over their practices of collecting bulk communications data (BCD). 

The ruling could throw up roadblocks to a post-Brexit “adequacy” agreement over the UKs data protection regime. Adequacy is granted to data protection regimes to confirm that they conform to the data protection standards of GDPR, and thus that companies may move data about EU data subjects outside of the EU to those regimes. Recently, the adequacy rating of the US “Privacy Shield” was invalidated by the Schrems II judgment. This ruling could prove to be an analogous issue for the UK’s adequacy rating at the end of the transition period. 

Reforming or redefining the European Court of Human Rights? – Noreen O’Meara

8 March 2012 by Guest Contributor

This is the second in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Reactions to proposals for reforming the European Court of Human Rights contained the recently leaked Draft Brighton Declaration have been rightly critical.  Concerns have been directed at specific features which could impact on the essential role and function of the Court, inhibit access to the court for victims, and which may prejudice the practical impact of the HRA 1998 and the debate on replacing it with a UK Bill of Rights. 

It is testament to the eagerness with which these reforms are awaited—and the weaknesses which have been detected—that the Open Society Justice Initiative has launched a petition against the direction these proposals are taking.

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Comment: How will the Defamation Bill protect free speech?

20 May 2012 by Rachit Buch

As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the Defamation Bill has been published, is whether the reforms proposed will be the right ones.

The media law blog, Inforrm, published this summary of the Bill, which takes a detailed look at the main clauses. Law blog Jack of Kent also has a libel reform resource page here. Among others, the Bill would make the following major changes:

• Create a test of “serious harm” for statements to be considered defamatory.
• Abolish the common law defences of fair comment, justification and Reynolds privilege, and place them on a statutory footing.
• Create a new statutory privilege for peer-reviewed scientific and academic publications and provide greater protection to online entities.
• Amend the existing law of qualified privilege to include reports of scientific conferences and press conferences.

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ISIL child brides: a big care problem for the Family Court?

27 August 2015 by Rosalind English

London Borough Tower of Hamlets v B [2015] EWHC 2491 (Fam) 21 August 2015 – read judgment 

When a judge waxes lyrical about a child, garlanded with starred GCSEs, their intelligence, their medical school ambitions, you wonder what is coming. It’s the judicial equivalent of those blurred reproductions in the press of murder victims’  graduate portraits. In this case, a sixteen year old girl “B”, the subject of a careful but nevertheless alarming judgment in the Family Division, turned out to be one of the many girls groomed by their family for exodus to Syria; all of whom appear to be:

intelligent young girls, highly motivated academically, each of whom has, to some and greatly varying degrees, been either radicalised or exposed to extreme ideology promulgated by those subscribing to the values of the self-styled Islamic State.

B herself seemed unoppressed by the situation she was in and indeed wrote to the judge in those terms. She and her family refused to give evidence and sat impassively whilst Heydon J gave judgment.

They have betrayed no emotion; they have been impassive and inscrutable as I have faced the challenge of deciding whether their family should be fragmented and their children removed. Their self discipline is striking. They have listened carefully. The mother has taken careful notes. They have revealed nothing in their responses.

These cases differ from the common run of family abuse cases in that these young women, in the judge’s words, have “boundless opportunities, comfortable homes and carers who undoubtedly love them”. But they have been seduced by a belief that travelling to Syria to become what is known as ‘Jihadi brides’ is somehow romantic and honourable both to them and to their families.
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German District Court declares Corona Ordinance Unconstitutional

25 January 2021 by Rosalind English

In a landmark judgment on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021)

Kontaktverbot verstößt gegen Menschenwürde (Verdict: Contact ban violates human dignity)

In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together. The judge’s conclusion was that the Corona Ordinance was unconstitutional and materially objectionable.

This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic (thanks to @HowardSteen4 for alerting me to this judgment, and commentary quoted below).

Scheme for Exceptional Case Funding not providing the required safety net

19 July 2015 by Rosalind English

IS (by the Official Solicitor as Litigation Friend)  v The Director of Legal Aid Casework and Anor [2015] EWHC 1965 (Admin) (15 July 2015) – read judgment

Collins J has ruled that the Legal Aid guidance as to whether to provide exceptional funding in certain cases is so rigid and complicated as to be unlawful.  

Although no declaration has been made in terms, he said that the scheme as operated was “not providing the safety net promised by Ministers and is not in accordance with [the relevant statute] in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached.”

The actual case before him concerned a defendant who had in fact been granted legal aid consequent to an earlier decision by the Appeal Court. There were five other claims which raised similar issues in relation to the guidance and in which the individual claimants asserted that there had been a wrongful refusal of Exceptional Case Funding under Section 10(3) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). It was ordered that the six claims should be heard together to deal with the individual circumstances of each claimant and the attack on the guidance. The claims came before the same judge, Collins J, and on 13 June 2014 he granted judicial review in each of the six cases. His decision was appealed to the Court of Appeal by the defendants, but in this case the appeal was discontinued. The cases were reported under the title of R (Gudanaviciene) v. DLAC and Lord Chancellor (read my previous post on the Court of Appeal’s decision).
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“Cold Calling” company fined £75K for breach of privacy

17 April 2015 by Rosalind English

Reactiv Media Limited v The Information Commissioner (Privacy & Electronic Communications Regulations  (2003) [2015] UKFTT 2014_0213 (GRC) (13 April 2015) – read judgment

Although an individual’s right to privacy is usually thought of in the context of state intrusion in one form or another, in reality the real threat of intrusion in a society such as ours comes from unsolicited marketing calls.

What many people may not be aware of is that if an individual has registered with the Telephone Preference Service, these calls are unlawful and the company responsible may be fined. It is therefore worth making a complaint, even if one instinctively feels that taking such a step will invite more intrusion. This case is a nice illustration of privacy being upheld and the rules enforced against an unscrupulous and persistent offender.

TPS is operated on behalf of the direct marketing industry by the Direct Marketing Association (DPA) and subscribers’ rights not to receive such calls may be enforced under Regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003. 
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Analysis | Rabone and the rights to life of voluntary mental health patients – Part 1/2

12 February 2012 by Matthew Hill

Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 – Read judgment  (On appeal from [2010] EWCA Civ 698  and [2009] EWHC 1827 )

At first sight, Article 2 – the ‘right to life’ – seems to be a prohibition on extra-judicial executions and state-sponsored death squads. It does, of course have a role to play in that respect (and one that is not limited to those countries whose signature of the Convention is viewed with scepticism from Western Europe).

But through a combination of logic, inventive legal argument and what can either be characterised as the incremental development of a new area of law, or the expansionist tendencies of Strasbourg judges, the scope of Article 2 has broadened significantly, and can be cited in cases concerning prison administration and coronial procedural law.

In Rabone, the Supreme Court extended the obligations that the Article places on the state and its servants still further, beyond even the existing decisions from Strasbourg. They held that – in the specific circumstances of this tragic case – an NHS Trust had violated the positive duty that it had, under Article 2, to protect a voluntary patient from the risk of suicide.

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Strategic litigation: the noble pursuit of litigation – Polly Botsford

15 April 2014 by Guest Contributor

Though strategic litigation and test cases make essential contributions to the rule of law, there’s concern that they’re being abused. And, as funding comes under attack, there’s a greater need than ever for pro bono lawyers to take on test cases to ensure access to justice and accountability.

Following the fall of communism, the European Roma Rights Centre (ERRC) identified a significant problem with the educational segregation of Roma children in parts of Central and Eastern Europe. Roma children were ending up in what were termed ‘special schools’, supposedly set up for children with intellectual disabilities, and thus segregated from mainstream schooling. In 1998, the ERRC decided to investigate.

To try and bring about reform, it became apparent that the ERRC needed to identify a test case to put before the courts. In order to find the right applicant it interviewed hundreds of Roma families in the region and found 18 Roma children in the Czech Republic to be the test case. The legal angle the ERRC adopted was indirect discrimination: entry tests to mainstream schools were set for all children but they were biased against Roma children because they focused on Czech customs and language. The Roma children often failed and so were subsequently put in the special schools. The centre found that Roma children were twenty-seven times more likely than non-Roma children to be sent to a special school.
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Council’s decision to close elderly care home not unlawful

2 October 2014 by Rosalind English

Karia, R (on the application of) v Leicester City Council (Sir Stephen Silber, acting as High Court Judge)  [2014] EWHC 3105 (Admin) (30 September 2014)- read judgment

In a robust judgment Sir Stephen Silber has asserted that neither the ordinary laws of judicial review, nor the Equality Act nor the Human Rights Act require the courts to micro-manage the decisions of public authorities. Indeed the latter two statutory powers are not designed as a back door into a merits review of a decision that is restricted to the court’s review of the legality of a public sector decision.

Background facts and law

The claimant, a 101 year old woman of Gujarati descent, challenged the decision to close the care home which she has occupied since 1999. Her grounds of challenge were threefold:

1. that the Council had failed to take account of material issues of fact relating to the present and future levels of demand for residential care one provision

2. that it had reached its decision without due regard to the need under the Equality Act 2010 to avoid unlawful discrimination in the provision of services

3. and it had failed to take into account the impact of the closure on the claimant’s Article 8 rights

She also complained that she had a legitimate expectation of a home for life at Herrick Lodge and that the Council had not considered whether her needs could be met in alternative placements.

Although the judge was at pains to stress that as this was a judicial review application, it was not for him to assess the merits of the Council’s decision, merely its legality. Having done so, he concluded that the Council had not acted irrationally, nor had it  paid due regard to the need to advance equality of opportunity.

It is not for the Court to determine whether proper weight has been given to a factor where as here there has been proper appreciation of the potential impact of the decision on equality issues.

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Unauthorised solitary confinement incompatible with prisoner’s rights

15 October 2015 by Fraser Simpson

Image: Guardian

Shahid v. Scottish Ministers (Scotland), [2015] UKSC 58 – read judgment.

The Supreme Court has held that the continuation of a prisoner’s solitary confinement for safety reasons was not authorised under domestic rules and incompatible with the right to private life under Article 8 of the European Convention on Human Rights (“ECHR”).

by Fraser Simpson

Facts

The appellant, Imran Shahid, was first placed in solitary confinement in October 2005. His confinement was continued following his conviction for the racially motivated murder of a 15-year-old boy. The decision was based on threats made against the appellant. This period of solitary confinement continued until his eventual reintegration into the general prison population in August 2010.

The appellant had originally challenged his continued segregation in both the Outer and Inner Houses of the Court of Session (see this previous post for a discussion of the Inner House’s opinion). The Scottish courts refused his complaints and held that  his prolonged solitary confinement accorded with both domestic law and Articles 3 and 8, ECHR.

The Supreme Court, in a unanimous decision delivered by Lord Reed, held that not only was the continued segregation invalid according to domestic law, but it also amounted to a violation of Article 8.

Compliance with domestic law?

The relevant rules concerning the power to place a prisoner in solitary confinement were, at the relevant time, contained in the Prisons and Young Offenders Institutions (Scotland) Rules 1994 and 2006. Despite the amendment of the Rules during the relevant period, the core provisions relating to the grounds for segregation and the time limits imposed remained the same. The purpose of Shahid’s segregation – to maintain good order and protect him – was not in question. Shahid instead contended that certain time limits contained within the Prison Rules relating to the continuation of a period of segregation had not been complied with. The relevant provision, Rule 94(5), states:

“A prisoner who has been removed from association … shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority … prior to the expiry of the said period of 72 hours.”

Three of the orders made authorising prolongation of Shahid’s segregation were made by the Scottish Ministers after the expiration of this 72-hour limit.

The lower courts considered that such delays did not impact upon the validity of the orders that authorised continued segregation. Importance was placed upon the relatively limited extent to which the orders were late (17, 44 and 47 hours) and the fact that the purpose of the reviews, to ensure that segregation was maintained for only as long as necessary,  was not frustrated by such limited delays.

Lord Reed, adopting an alternative construction of the Prison Rules, held that any order made after the expiration of the 72-hour period was automatically invalid (see paragraphs 15-18 of the judgment). His conclusion that the late orders authorising continued segregation of the appellant were invalid, and that a period of 14 months of segregation therefore had no legal basis, is important in the context of the Article 8 challenge.

Article 8

The Scottish Ministers accepted that the placement of the appellant in solitary confinement was an interference with his right to respect for private life under Article 8. Consequently, it was for them to show that the measure was in accordance with the law, in pursuance of a legitimate aim, and a proportionate interference in light of the pursued aim.

Lord Reed was quick to point out that his previous conclusion, that the late authorisations had rendered invalid the subsequent segregation, would result in certain periods of the segregation not being “in accordance with the law”. Accordingly, such periods of segregation could not be justified under Article 8(2).

Lord Reed went on to consider that the appropriate prison authorities had not always been independently making the decisions to continue the segregation of the appellant but instead, on some occasions, had been unduly influenced by the decisions and recommendations of a non-statutory advisory body. The need for a statutory decision making power to be exercised by the individual, or body, that has been conferred such a power had not been satisfied (see R v. Deputy Governor of Parkhurst Prison Ex p Hague, [1992] 1 AC 58). Accordingly, there was a failure to satisfy the lawfulness criterion within Article 8(2).

The Supreme Court moved on to consider the proportionality of  Shahid’s continued segregation. The lower courts, in holding that the continued segregation was proportionate, opined that it was the only practicable way of dealing with the threats made against the appellant. The Supreme Court, on the other hand, listed a number of potential alternatives to solitary confinement that could have achieved the aim of protecting the appellant from attacks, including relocating the appellant to another UK prison. Irrespective of such alternatives, the Supreme Court decided that earlier steps could have been taken to promote Shahid’s reintegration. A plan to reintegrate the prisoner had only been developed after four and a half years of almost continuous segregation. Failure to take such steps resulted in the segregation being disproportionate and a violation of Article 8.

However, the Supreme Court considered that the appellant had not suffered any prejudice. If the Article 8 violations had not occurred then there was no evidence to show he would have been returned to the general population sooner.

Additionally, the extent to which his right to respect for his private life under Article 8 had been infringed was limited considering the negative attitudes other prisoners harboured towards him.

Accordingly, the Supreme Court considered that there was no need to make an award for damages despite the appellant seeking £6,000.

Article 3

The appellant also complained that the segregation was incompatible with his right not to be subjected to inhuman or degrading treatment under Article 3, ECHR. The European Court of Human Rights has recognised the potentially damaging effect that continued solitary confinement can have upon the mental and social facilities of an individual (see Ahmad v United Kingdom, (2013) 56 EHRR 1, paragraph 207).

However, the use of such measures for disciplinary, security, or protective reasons does not automatically contravene Article 3. In assessing whether the measure was compatible with Article 3, the Supreme Court considered the conditions and duration of the detention as well as the motivation for such a measure and its impact on the appellant.

The Court concluded that the measure did not attain the minimum level of severity to engage Article 3. The appellant was kept in suitable accommodation and the ability to exercise, receive visitors and associate with other prisoners pointed towards the treatment falling short of the Article 3 threshold. Despite the length of the segregation extending beyond four years, the fact it was imposed in the interests of the appellant’s safety were also of relevance.

Comment

The use of segregation in prisons should always be considered as a serious measure. Indeed, the Council of Europe’s Committee on the Prevention of Torture advises that for punitive purposes any stint should be limited to 14 days (see the CPT’s 21st General Report, (2011), page 40).

The strict interpretation of the 72-hour limitation within the Prison Rules by Lord Reed results in appropriate weight being attributed to the decision to segregate. As Lord Reed pointed out, this allows early consideration of the necessity of the segregation by officials external to the prison. This provides an important procedural safeguard, even at an early stage of segregation.

However, if the 72-hour limit were strictly applied in this instance, there could be negative practical repercussions. When continued segregation was without legal basis, would the prison officials be under a duty to return the appellant to general population even if this would endanger his safety? An analogous situation was raised by the Inner House in support of their interpretation of the Prison Rules (paragraph 24 of the Inner House Judgment). Lord Reed answered these concerns by outlining that the officials would also be subject to a duty under s.6(1) of the Human Rights Act to secure the safety of the prisoner in accordance with Article 2 and 3, ECHR. If there was a serious risk to life then the prisoner could remain in segregation in accordance with domestic law using such protections as justification.

Interestingly, such an argument was not substantively raised on behalf of the Scottish Ministers in order to justify the periods for which there was a lack of authorisation.