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CF v Security Service and others and Mohamed v Foreign and Commonwealth Office and others [[2013] EWHC 3402 (QB) – read judgment
The High Court has today made the first court ruling on the use of the Justice and Security Act 2013 in a civil claim for damages.
In a ruling on preliminary issues, Irwin J made a declaration that the government can make a closed material application to the court in this case. The Court also ruled on PII. The following summary is based on the Court’s press release.
Factual background
CF and Mohammed Ahmed Mohamed are both British citizens of Somali descent. CF left the United Kingdom in 2009, Mohammed Ahmed Mohamed having left in 2007. They were both detained by the Somaliland Authorities on 14 January 2011. They were then detained until removal to the UK on 14 March 2011. Each claims that they were unlawfully detained, tortured and mistreated during the period of detention in Somaliland. Continue reading →
Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8. Whilst this particular appeal was not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”, McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.
The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start. As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. Nevertheless, as the Court of Appeal points out, “substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.” Continue reading →
While MPs were dreaming of the imminent long summer break and a possible pay hike, in mid-June the Government produced the draft amendments to the Civil Procedure Rules (“CPR”) necessary to bring Part 2 of the Justice and Security Act 2013 (“JSA”) into force. Many – including JUSTICE – consider the Act’s introduction of closed material procedures (“CMP”) into civil proceedings unfair, unnecessary and unjustified.
That one party will present their case unchallenged to the judge in the absence of the other party and their lawyers is inconsistent with the common law tradition of civil justice where proceedings are open, adversarial and equal. This blog has spent many pages dissecting the constitutional implications of the expansion of CMP in the JSA and its controversial passage through both Houses of Parliament.
Perhaps in a bid to avoid similar controversy, the draft Rules were dropped quietly into the libraries at the Houses of Parliament without fanfare. Less than two weeks later and without significant change, the Rules were tabled.
But he will probably best be remembered, certainly by this blog, for an interview he gave following a speech by Home Secretary Theresa May at the Conservative Party Conference. You may remember it. It was about a cat. Which was apparently (but not really) responsible for a court’s failure to deport a man from the UK. Immediately following the speech, Ken Clarke told the Nottingham Post what he thought about May’s comments:
Wagner is one of 14 authors who contributed to a new working publication entitled ‘Justice Wide Open’, produced by the Centre for Law, Justice and Journalism (CLJJ), City University London, following an event on February 29 2012. The individual chapters can be accessed electronically.
The current Government often complains about a “democratic deficit” in the courts. It seems that “unelected judges” are making important decisions on social policy without any kind of democratic mandate, particularly in controversial human rights cases.
I agree that there is a democratic deficit in the courts. But it isn’t about elections. It is about access.
The Government seeks to solve the problem by involving Parliament more in the judicial process, the latest and most striking example being the Home Office’s attempt to codifyArticle 8 ECHR, the right to private and family life, in immigration cases. The Home Office wants fundamentally to alter the role of the courts, hoping that it will “shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules” (see para 39). The argument is that since judges are unaccountable, those who are accountable must be more central in the decisions they make, particularly in sensitive areas such as immigration.
This is attempt to take power away from judges. But why? Continue reading →
Yesterday I spoke at Justice Wide Open, an excellent conference organised by Judith Townend. I mounted my usual open justice hobby horses (to coin a topical phrase) on how to make the justice system more accessible to the public, including a moan about human rights reporting. Someone told me during the break that according to her research, when newspapers put a positive slant on a human rights story, they tend to use the code word “civil liberties”. And, as if to prove the point, on the very same morning the Daily Mail put its considerable weight behind a crucial but until now sub-public-radar “civil liberties” and open justice issue, the Justice and Security Green Paper.
As readers of this blog will be aware, the Government proposes in the Green Paper to introduce “closed material procedures” into civil proceedings. For an explanation of why this amounts to “a departure from the foundational principle of natural justice“, look no further than the Special Advocates’ response to the consultation and my co-editor Angus McCullough QC’s post, A Special Advocate’s comment. But although the proposals have been getting lawyers and The Guardian hot and bothered, the sound of tumbleweed has been the loudest response. Until now, that is.
We didn’t win! But we did lose out to an excellent organisation: Bail for Immigration Detainees, an independent charity which challenges immigration detention in the UK, working with asylum seekers and migrants in removal centres and prisons to secure their release from detention.
The Human Rights Awards have been held each December since 2001 to commemorate Human Rights Day, which is today.
We are delighted to announce that the UK Human Rights Blog by 1 Crown Office Row chambers has been shortlisted for the JUSTICE Human Rights Award 2010.
Also shortlisted are Reprieve and Bail for Immigration Detainees. The Human Rights Awards have been held each December since 2001 to commemorate Human Rights Day. As described by JUSTICE, the awards aim to recognise and encourage individuals and organisations whose work is dedicated to protecting and promoting the rights of others. Last year’s winner was the Gurkhas Justice Campaign. A full list of previous winners can be found here.
Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.
Interestingly, two crucial aspects of open justice have been reinforced as a result of a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.
Three interesting press articles on proposals for a Bill of Rights:
The Northern Irish perspective – Monica McWilliams, chief commissioner for Human Rights in Northern Ireland writes in The Guardian: “The Human Rights Act is central to the constitutional DNA of the UK. It underpins the devolution settlements while simultaneously elucidating the common values of the constituent nations. It also provides a necessary platform from which the sense of autonomy that devolution brings can be further built upon.” (see our post on the subject)
The NGO perspective: Qudsi Rasheed, Legal Officer for JUSTICE, the human rights NGO, writes in The Guardian: “The Conservative party’s approach to this issue has been cloak and dagger. The commission of lawyers set up by David Cameron to consider the bill of rights has been extremely secretive and none of its work has been published. Short of vague and often contradictory statements and political rhetoric by various members of the party, there has been very little in the way of concrete proposals and suggestions.”
The Australian perspective: The Australian Newspaper editorial on why the Australian Prime Minister, Kevin Rudd, was right to reject proposals for an Australian Bill of Rights: “The Rudd government’s decision last week to reject the idea of codifying rights is a recognition that Australia’s robust constitution, its strong parliamentary tradition of lawmaking, its independent judiciary, and its intelligent civic culture are the best protections for citizens. Far from protecting minority rights, statutory codification risked pitting the judiciary against the parliament by, in effect, becoming a third house of parliament.“
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CF v Security Service and others and Mohamed v Foreign and Commonwealth Office and others [[2013] EWHC 3402 (QB) – read judgment
While MPs were dreaming of the imminent long summer break and a possible pay hike, in mid-June the Government produced the 
Updated | As has been widely reported, Ken Clarke has 
The real “democratic deficit” in the courts is about limited public access not “unelected judges“, Adam Wagner 
The current Government often complains about a “
Yesterday I spoke at 
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