The Bussey Law Firm PC & Anor v Page  EWHC 563 (QB) – read judgment
The facts of this case are simple. A defamatory comment was posted on the claimant’s Google maps directional page, implying that he was a “loser” as a lawyer and that his firm lost “80%” of cases brought to them. The defendant claimed that someone must have hacked in to his own Google account to put up the post.
There were jurisdictional complications in that the firm is situated in Colarado but these need not concern us here as Sir David Eady, sitting as a High Court judge, allowed the trial to go ahead in England. The real question was why any third party would have gone to the trouble of hacking into the defendant’s Google account in order to post the offending review; if the objective were merely to hide the hacker’s identity from the claimants, there would be the simpler option of setting up an anonymous Google account. This would in itself render the would-be publisher untraceable, and especially if it were done from a public computer. Continue reading →
Let’s apply some hard history to the 13th century charter governing the obligations flowing between King John and his barons, or at least read the thing (translation here). So says Lord Sumption in a fascinating address to Friends of the British Library on 9 March.
All sides jockey for position at the Magna Carta shrine, but its significance is entirely due to the myth-making tendencies of the seventeenth century politician and judge Edward Coke. Since he plucked the charter quite clean of its historical context, the claims made in its name are extraordinary and downright self-serving:
In his column in the Daily Telegraph, Peter Oborne recently described the European Convention on Human Rights as a “document which entrenches the principles of Magna Carta in international law.” Others have come forward to suggest that the partial abrogation in 2014 of a legal aid system which was first created in 1949 was contrary to Magna Carta. Recently, a Global Law Summit in London, which was essentially an international marketing opportunity for British lawyers, described itself on its website as “grounding the legacy and values of Magna Carta in a firmly 21st Century context.
Sumption is not against liberty of the subject, nor motherhood and apple pie, nor even international marketing opportunities for lawyers, but he does have a problem with “the distortion of history to serve an essentially modern political agenda.” Continue reading →
The news last week was that the Foreign Secretary has proposed a revival of a fourteenth century statute in order to prosecute British jihadists who travel to Iraq or Syria to fight. Cries of foul are coming from the usual quarters, and there’s even a protest that the Strasbourg Court would object, which, given the current controversy surrounding that tribunal, may be a good reason in itself for such a move.
In the current froth over the Convention versus “home grown” human rights, there is much talk of the Magna Carta. So may be of interest to some that in the opinion of one of the greatest legal scholars in history, Edward Coke, the Statute of Treason had a legal importance second only to that of the “Great Charter of the Liberties of England”, piloted by feudal barons to limit King John’s power in 1215.
Politics aside, how would this work? On the face of it, a law which has been on the statute books for centuries, and is found to be applicable to a current state of affairs, is an equum donatum whose dental health should not be examined too closely. Although the last person to be convicted under the 1351 Treason Act – the Nazi propagandist William Joyce (otherwise known as Lord Haw Haw)- was hanged, now any British citizen convicted of the offence could be given a life sentence. Continue reading →
O (R o.t.a) v. Secretary of State for International Development  EWHC 2371 (QB) 14 July 2014 read judgment
One proposal of the Lord Chancellor on reforming judicial review last year was the narrowing of the tests for standing, namely the ability to come to court and complain about some public law unlawfulness: see, e.g. here. The idea of statutory reform of standing was later shelved, but the current case is an interesting example of the Government probing the boundaries of the tests laid down by the courts.
The underlying dispute concerns the funding of international aid to Ethiopia by DFID. Mr O is an Ethiopian citizen who says he was the victim of human rights abuses in the course of a programme to re-settle villagers in new and larger communes – this programme (the Commune Development Programme or CDP) is said to involve forced internal relocation. As a result, O fled to Kenya, leaving his family behind. There is evidence of widespread human rights abuses perpetrated in this process of “villagisation”.
Harb v. HRH Prince Abdul Aziz Bin Fahd Abdul Aziz, Rose J,  EWHC 1807 (Ch), 9 June 2014 – read judgment
Rosalind English posted in January 2014 (here) on Jones v. the United Kingdom ((judgment here), in which the Strasbourg Court decided that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach Article 6(1) of the Convention (access to court). The Court held that a grant of state immunity reflected generally recognised rules of public international law and so there had been no violation.
The current claim involves a Saudi Prince, and his late father, King Fahd, but its subject matter is very different. Mrs Harb, the claimant, says she married King Fahd secretly in 1969: see the photo of them in happier times. The King agreed to provide for her after their separation, Mrs Harb says, and the Prince was involved in agreeing the details of this. Mrs Harb then brought matrimonial proceedings against the King, whilst alive, which were dismissed on grounds of state immunity. On appeal, the CA (judgment here) decided that these proceedings had come to an end by virtue of the King’s intervening death in 2005.
The present proceedings consisted of a claim for breach of contract in respect of the agreement concluded by the Prince on behalf of his father – said to involve £12m and two large Central London properties. The Prince pleaded state immunity, but this plea was dismissed by Rose J in today’s judgement. Continue reading →
I am delighted to announce that the UK Human Rights Blog in association with Hurst Publishers and Berwin Leighton Paisner are organising a fascinating panel debate, chaired by me, on Wed 21 May 2014. The panel is stellar.
It is a free event but places are strictly limited so you have to register here if you want to secure your place.
‘The Future of Human Rights’ on the occasion of the publication of Failing to Protect: the UN and the Politicisation of Human Rights by Dr Rosa Freedman
Wednesday 21 May 2014
6.30pm for 7.00pm
The Auditorium, Adelaide House, London Bridge, London EC4R 9HA (map)
Hurst Publishers, Berwin Leighton Paisner LLP and the UK Human Rights Blog are delighted to invite you to a panel discussion on ‘The Future of Human Rights’ on the occasion of the publication of Failing to Protect: the UN and the Politicisation of Human Rights by Dr Rosa Freedman.Chair
Adam Wagner – Barrister, 1 Crown Office Row and editor of the UK Human Rights Blog
Philippe Sands – Professor of International Law, University College London
Jane Connors – Chief of Special Procedures Branch of the Office of the High Commissioner for Human Rights
Marc Limon – Executive Director, Universal Rights Group
Professor Fiona de Londras, Durham University
Drinks will be served before and after the debate.
Please let us know if you will be attending the panel discussion by clicking here.
Jones and Others v. the United Kingdom (application nos. 34356/06 and 40528/06) – read judgement
The Strasbourg Court has ruled that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach the Convention. The Court held that a “grant of immunity to the state officials in the present case reflected generally recognised rules of public international law” and that there had been no violation of Article 6 (right of access to court).
The claimants argued that there there was emerging support for a special exception to this immunity in cases concerning civil claims for torture lodged against foreign State officials. But the Court took the view that the bulk of the authority was to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead. The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity. Continue reading →
National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre (485/2012)  ZASCA 168 (27 November 2013) – read judgment.
In what appears to be the first case where the Supreme Court of Appeal (SCA) has had to consider the investigation of crimes committed extraterritorially, the Court has made it clear that the perpetrators of systematic torture – as was alleged in this case – can be held accountable in South Africa regardless of where the offending acts took place.
It had been alleged that Zimbabwean officials had on a widespread scale tortured opponents of the ruling party. The Gauteng high court had ordered the SAPS to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act) into the alleged offences (see my previous post on that ruling). Continue reading →
Janowiec and Others v Russia (Applications nos. 55508/07 and 29520/09) – read judgment
The European Court of Human Rights (ECtHR) has held that it had no competence to examine complaints relating to the adequacy of Russia’s criminal investigation into events that had occurred prior to the adoption of the European Convention on Human Rights (ECHR) in 1950: namely the Katyń Massacre of 1940.
The applicants were relations of 12 victims of the Katyń Massacre. They had been executed by the NKVD together with over 20,000 other former Polish Army officers, government officials, and landowners. A criminal investigation into the deaths ran from 1990 until 2004 when the Chief Military Prosecutor decided to discontinue ‘Criminal Case no. 159’ on the grounds that any alleged suspects were dead.
In late 2007, the Secretary of State for the Home Department made an order depriving Mr Al Jedda, who had been granted British citizenship in 2000, of his citizenship, under the British Nationality Act 1981. Section 40(4) of the Act prohibits the deprivation of nationality where the effect would be to render the person stateless.
Not being a citizen of any state can have profound effects on a person’s ability to live a normal life, including being unable to obtain travel documents and facing difficulty settling and obtaining work, education and healthcare. However, the Secretary of State considered that taking away Mr Al Jedda’s nationality was conducive to the public good.
One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.
The US Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.
How is a Member State of the ECHR supposed to react when the UN Security Council tells it to do one thing and the Convention requires it to do another? That is the interesting and important question which the Grand Chamber of the European Court of Human Rights was presented with, and dodged, in its recent decision in Nada v. Switzerland.
Mr Nada is an 82-year-old Italian-Egyptian financier and businessman, who in November 2001 found himself in the unfortunate position of having his name added to the international list of suspected funders and supporters of al-Qaeda and the Taliban, which is maintained by the Sanctions Committee of the UN Security Council. Mr Nada has consistently denied that he has any connection to al-Qaeda or any other terrorist group, and in 2005 the Swiss Government closed an investigation after finding that the accusations against him were unsubstantiated. However, despite this Mr Nada remained on the list until September 2009. During the intervening 8 years the impact on Mr Nada’s health and his private and family life was severe, so he brought a claim against Switzerland for breach of his Article 8 rights, as well as breaches of Article 13 (right to an effective remedy), Article 3 (right not to be subjected to ill-treatment), Article 5 (right to liberty) and Article 9 (right to freedom of religion).
Almost ten years after the death of Rachel Corrie on 16 March 2003, her case still raises troubling questions. How was a 23-year-old protester killed by an Israeli military bulldozer? Did the driver do it deliberately, as the family have claimed? Were the Israel Defence Forces (IDF) responsible in some other way?
Those questions were all in play in a civil negligence claim brought against the Israeli state by Corrie’s family, who claimed $1 in damages. Having exhausted other avenues, the family were looking for answers, not a pay out. The Haifa District Court examined the issues over 15 days of oral testimony, and two weeks ago Judge Oded Gershon released a 73-page ruling (Hebrew) as well as a detailed summary of the Judgment (English).
I was particularly interested in the judgment as a significant proportion of my work recently has involved public inquiries into allegations against the British Armed Forces over events which happened in Iraq in 2003/4. Unfortunately, the reporting of the ruling has been fairly poor. The Guardian published eight articles and a cartoon about the ruling (by comparison, the appointment of a new Justice Secretary generated four). But despite the sheer volume of commentary, I had no sense from reading the articles that the writers had attended the oral hearings, read the judgment (which is long and in Hebrew) or even consider the court’s English summary. The Guardian’s legal section is very good so it is disappointing that the legal interest of the story was largely ignored.
With this in mind, I thought I would post a summary of the judgment and brief discussion of how an equivalent claim would work in the UK.
Merchant International v Naftogaz International  EWCA Civ 196 – read judgment
The Court of Appeal has ruled that domestic courts may refuse to recognise a judgment of another Convention country on the basis that it failed to respect the fair trial principles in Article 6.
In this case the Ukraine Supreme Court was said to have “flagrantly” disregarded the principle of legal certainty. Whilst the English court should apply a strong presumption that the procedures of other Convention States complied with Article 6, it was not wrong for an English court to consider whether a judgment of a court of a Convention State contravened the Convention. Continue reading →
Updated | The French translation of the draft of the so-called ‘Brighton Declaration’ (the seaside city where state parties to the ECHR will meet in April to discuss reforms of the Court and the Convention) has been leaked after the UK government refusedto circulate the text publicly.
Last week, the draft was presented to the Ministers’ deputies of the Council of Europe. Amongst other, the draft suggests to include the principle of subsidiarity and the margin of appreciation explicitly in the Convention text – I am not sure what that would change to current practice, unless it becomes mandatory for the Court to give a margin of appreciation.
Also, the time to lodge complaints after all domestic remedies have been exhausted would possible be reduced from the current six months to two, three or four months. One of the most controversial aspects is that the Court would be barred from considering cases “identical in substance to a claim that has been considered by a national court”, according to BBC reporting, “”unless the national court “clearly erred” in its interpretation, or raises a serious question affecting the interpretation of the Convention” according to the Open Society Institute. This would carry in it the danger of almost completely taking away any substantive role for the European Court of Human Rights.
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