Liberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal  UKIPTrib 13_77-, 5 December 2014 – read judgment
Robert Seabrook QC is on the panel of the IPT and David Manknell of 1 Crown Office acted as Counsel to the Tribunal in this case. They have nothing to do with the writing of this post.
This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character. Continue reading →
Sims v Dacorum Borough Council  UKSC 63 – read judgment 12 November 2014 and
R (ota ZH and CN) v. LB Newham et al  UKSC 62 – read judgment 12 November 2014
A brace of cases showing the limited role which Article 8 and Article 1 of the 1st Protocol has to play in housing law, so heavily regulated by a combination of statute and contract law. The human right protections conferred, as we shall see, are mainly procedural.
The contract and property issues are well illustrated by the case of Sims. Mr and Mrs Sims had lived in a council property, until Mrs Sims left, she said as a result of her husband’s violence. For her own housing reasons she sought termination of their periodic secure joint tenancy by unilateral notice. Her husband, as the other joint tenant still living in the property, maintained in response to possession proceedings that he was entitled to remain there as a sole tenant; anything else was inconsistent with his Article 8 and A1P1 rights.
Cotton and others, (R on the application of) v Minister for Work and Pensions and others, 15 October 2014  EWHC 3437 (Admin) – read judgment
Whether you call it the “spare room subsidy” or the “bedroom tax”, the removal of this type of housing benefit has been nothing short of controversial. There have been several previous legal challenges to the Regulations, as well as to the benefit cap introduced as part of the same package of welfare changes. The outcome of these cases was not promising for these claimants, in particular the decision of the Court of Appeal in R (MA) v Secretary of State for Work & Pensions  EWCA Civ 13. Another important case is R (SG (previously JS)) v Secretary of State for Work & Pensions  EWCA Civ 156.
Now the High Court has settled one aspect of the matter by ruling that these amendments did not breach the rights of singe parents under Article 8 ECHR who looked after their children under shared care arrangements where they received discretionary housing payments to make up the shortfall. Continue reading →
A NHS Foundation Trust v Ms X (By her litigation friend, the Official Solicitor), 8 October 2014  EWCOP 35 – read judgment
The issues that arose before the Court of Protection in this case encapsulate the difficulties involved in applying legal tools to the organic swamp of human pathology. Everything that one may envisage, for example, in planning a “living will” (or, more precisely, an Advance Decision under the Mental Capacity Act), may have no application at the critical time because the human body – or rather the way it falls apart – does not fit in to neat legal categories. In such a situation it is often the right to autonomy that is most at risk, since what you plan for your own medical and physiological future may not square with what the authorities you decide you were capable of planning. Cobb J’s sensitive and humane judgement in this sad case is a very encouraging sign that courts are beginning to resist the tyrannous claims of Article 2 and the obligation to preserve life at all costs.
Factual and legal background
Ms X, a young woman who lives alone in a private rented bed-sit, has suffered from anorexia nervosa for the last 14 years. She also suffers an alcohol dependence syndrome which has caused chronic and, by the time of this hearing, “end-stage” and irreversible liver disease, cirrhosis; this followed many years of abuse of alcohol. The combination of anorexia nervosa and alcohol dependence syndrome is unusual, and has always been medically acutely difficult to manage. This is a vicious cycle of self destructiveness and treatment, and as Cobb J observed,
The causes of her distress are multi-factorial but include the treatment for her anorexia itself and the removal of her personal autonomy when treated
So damaging had been the previous admissions for compulsory feeding, her doctors regarded it as “clinically inappropriate, counter-productive and increasingly unethical” to cause her to be readmitted; their experience revealed that on each recent admission, she had been more and more unwell (as a result of her anxiety to reverse the weight gained in hospital during the previous visit, combined with renewed alcohol abuse). In fact Ms X had been on an ‘end of life pathway’ twice in recent months and it was said that her physical condition “is now so fragile that her life is in imminent danger.” Continue reading →
Karia, R (on the application of) v Leicester City Council (Sir Stephen Silber, acting as High Court Judge)  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.
Johnson, R (on the application of) the Secretary of State for the Home Department  EWHC 2386 (Admin) 17 July 2014 – read judgment
The proposed deportation to Jamaica of a man convicted of drug smuggling and manslaughter would breach his rights under Article 8 and Article 14 because he had not obtained British citizenship on grounds of illegitimacy, the High Court has ruled.
The claimant challenged his proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence. He submitted that deportation would violate his right to private and family life under Article 8 combined with the prohibition on discrimination under Article 14. The discrimination was said to arise because the claimant did not become a British citizen when he was born in Jamaica as the illegitimate child of a British citizen, whereas he would have been a British citizen if he had been a legitimate child, and a British citizen cannot be deported.
Following his conviction for manslaughter the claimant was sentenced to 9 years’ imprisonment. The length of his sentence meant that he was subject to automatic deportation as a foreign criminal pursuant to Section 32 of the UK Borders Act 2007. On his appeal against the respondent’s notice, the issue of discrimination arose because of the fact that the claimant would not have been a foreign national had his British father been married to his Jamaican mother when he was born (in Jamaica). Continue reading →
MM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor  EWCA Civ 985 (11 July 2014) – read judgment
Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.
Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise. Continue reading →
R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant)  UKSC 38 – read judgment
On appeal from  EWCA Civ 961
The Supreme Court has declined to uphold a right to die a dignified death. However, a glimmer is is to be found in this judgment in that two out of the seven justices who concluded that it was for the United Kingdom to decide whether the current law on assisted suicide was incompatible with the right to privacy and dignity under Article 8, would have granted such a declaration in these proceedings., particularly where the means of death was one that could have been autonomously operated by the disabled appellant, leaving no doubt as to the voluntary and rational nature of his decision.
But the majority concluded that this was a matter for Parliament, not for the Courts.
These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (“the Convention”), and whether the code published by the Director of Public Prosecutions (“the DPP”) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Continue reading →
R (On the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) – read judgment
The Supreme Court has unanimously declared that government rules regarding the disclosure of spent convictions are unlawful and incompatible with Article 8 of the Convention.
One of these conjoined appeals involved T, who was prevented from employment involving contact with children when a police caution was disclose in respect of the theft of two bicycles when the respondent was eleven years old (see my previous post on the Court of Appeal judgment in T). In JB, the police issued a caution to a 41 year-old woman in 2001 when she was caught shoplifting (a packet of false fingernails). In 2009 she completed a training course for employment in the care sector. She was required to obtain an “enhanced criminal record certificate” or ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector. Continue reading →
R (on the application of David Tracey, personally and on behalf of the estate of Janet Tracey (deceased)) v Cambridge University Hospital and The Secretary of State for Health with the Resuscitation Council and Others intervening (17 June 2014)  EWCA Civ 822 – read judgment
The Court of Appeal has declared that the failure of a hospital to consult a patient in their decision to insert a Do Not Attempt Cardiopulmonary Resuscitation Notice in her notes was unlawful and in breach of her right to have her physical integrity and autonomy protected under Article 8.
The Resuscitation Council, intervening, made the point that in recent years there has been a reduction of inappropriate and unsuccessful attempts at CPR . Their concern was that a judgment requiring consultation with the patient save in exceptional cases would be likely to reverse that process.
The wife of the appellant, Mrs Tracey, had been diagnosed with lung cancer in February 2011 and given nine months to live. Two weeks after this diagnosis she sustained a serious cervical fracture in a major road accident and was placed on a ventilator in a critical condition. When the medical team reviewed her treatment, a first Do Not Attempt Cardiopulmonary Resuscitation Notice was placed in her notes. However, she was subsequently successfully weaned from the ventilator and her condition appeared to improve. A few days later her condition deteriorated again and a second DNACPR notice was completed. Mrs Tracey died on 7 March. Continue reading →
McDonald v United Kingdom  ECHR 942 (20 May 2014) – read judgment
The Strasbourg Court has ruled that local authorities are within their margin of discretion to balance individuals’ personal interests against the more general interest of the competent public authority in carrying out their social responsibility of provision of care to the community at large.
The applicant, who suffered from an incapacitating stroke in 1999, required assistance with all transfers and mobilisation. Disabled persons have an individual right to certain services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970, and under the 1990 National Health Services and Care Act to require an assessment of needs from their local authority. Continue reading →
The release of confidential patient details to a state medical institution in the course of her negotiations with a hospital over a lawsuit was an unjustified interference with her right to respect for private life under Article 8.
In 1997 the applicant gave birth at a state hospital in Cēsis. Caesarean section was used, with the applicant’s consent, because uterine rupture had occurred during labour. In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant’s consent.
In 2005, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation. Continue reading →
Manchester Ship Canal Developments v Persons Unknown  EWHC 645 (Ch) – read judgment
The High Court has ruled that Convention rights may be engaged in disputes between private landowners and trespassers, thereby making it incumbent on the court under Section 6 of the Human Rights Act to balance the trespassers’ rights under Article 8 against the landowner’s rights under Article 1 Protocol 1.
The claimants, who owned land adjacent to a single track road surrounded by farmland, sought a possession order against the defendant activists who had set up camp close to the road in protest at the drilling program being undertaken by a company to whom the claimants had granted a licence. The protest, which obstructed the road on a number of occasions, was intended to deter the controversial fracking process which the activists feared would ensue. Continue reading →
Shahid v The Scottish Ministers  ScotCS CSIH – 18 – read judgment
Solitary confinement of a dangerous prisoner in accordance with the prison rules was neither unlawful nor in breach of his Convention rights, the Scottish Court of Session has ruled.
The petitioner (as we shall call him to avoid confusion, rather than the more accurate “reclaimer”) was serving a life sentence for what the court described as a “brutal and sadistic” racially motivated murder of a 15 year old white boy in 2006. Apart from a short period during his trial he remained continuously segregated until 13 August 2010, when he was allowed once again to associate with other prisoners (“mainstream”). He claimed that his segregation was contrary to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 and, separately, contrary to Article 3 of the European Convention on Human Rights, which provides protection against torture and cruel and unusual punishments, and Article 8, which protects the right to private life. He sought declarations to that effect and £6,000 by way of damages. Continue reading →
Zoumbas (Appellant) v Secretary of State for the Home Department (Respondent) On appeal from the Inner House of the Court of Session,  CSIH 87  UKSC 74 – read judgment
The Supreme Court has clarified the principles to be applied when considering the welfare of children in deportation cases. The following summary is based on the Supreme Court’s Press Summary.
The appellant (Mr Z) and his wife (Mrs Z) are nationals of the Republic of Congo currently living in Glasgow with their three children, now aged 9, 5 and 2. Mr Z entered the UK illegally in May 2001 using a French passport that did not belong to him. He married Mrs Z in November 2003 after she had entered the previous year using a forged French passport and both their asylum claims had been refused. Their appeals were unsuccessful . In October 2005 Mrs Z and the couple’s daughter (A) were detained and removed to Congo. For the following ten months, Mr Z was treated as an absconder having failed to report to the authorities.
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