Control orders quashed, compensation claims may follow

AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010) – Read judgment

The Court of Appeal has held that control orders of three men suspected of terrorism revoked by the Government should in fact be quashed altogether. The decision opens the door for the men to claim compensation, and deals another blow to the controversial control order scheme.

This is the latest in a long and tortuous series of court judgments which have chipped away at the controversial control order scheme. This latest decision arises from a 2009 House of Lords (now the Supreme Court) decision that it was a breach of the right to a fair trial under Article 6 (the right to a fair trial) to hold someone under a control order without sufficient information about the allegations against him, even where the case against the “controlee” was based on closed materials, the disclosure of which would compromise the country’s national security (see our summary).

Minimum standards of dignity must be upheld for asylum seekers

R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2010] UKSC 36 – Read judgment

The Supreme Court has ruled that the UK must provide minimum standards to asylum seekers, including the right to work, whether or not their first asylum application has failed. Asylum seekers will now be able to work if they have been waiting for over a year for a decision.

The ruling is the latest in a line of court defeats for the Government on its asylum policy, including the recent High Court ruling that part of the fast-track deportation system is unlawful, as well as the Supreme Court’s rejection of the policy of sending gay asylum seekers back to countries where they may face persecution for their sexuality.

Strong reaction to universal jurisdiction rule change

He can come now

The proposed change to the rules for bringing on who can apply for international war crimes arrest warrants has predictably generated some strong reactions

The changes will make it necessary to get the consent of the Director of Public Prosecutions before an arrest warrant can be granted. The Ministry of Justice say they are changing the rules in order to prevent arrests happening after the presentation of “flimsy” evidence. Those who fear arrest under the current system range from Israeli ministers to the Pope.

Fast track asylum removal system ruled unlawful

Medical Justice, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin) (26 July 2010)  – Read judgment

The High Court has ruled that a fast-track scheme for the removal of failed asylum seekers with little or no notice is unlawful as it does not provide sufficient access to justice.

Permission to appeal has been granted but the decision could put a stop to the policy being implemented for the time being.

The challenge was brought by Medical Justice, a charity which advises asylum seekers, represented by the Public Law Project, a legal charity which aims to improve access to public law remedies (see their press release here). The policy being challenged came into effect in January 2010, and gives individuals who fall into certain specified categories and who have made unsuccessful claims to enter or to remain in the United Kingdom, little or sometimes no notice of their removal directions.

Lord Chief Justice bolsters right to trial by jury

KS v R [2010] EWCA Crim 1756 (23 July 2010) – Read judgment

J, S, M v R [2010] EWCA Crim 1755 – Read judgment

The Lord Chief Justice has emphasised in two Court of Appeal judgments that the jury-less trials must be a last resort and take place only in truly extreme cases. His comments are clearly aimed at putting the breakers on an accelerating trend of requests for jury-less trials in prosecutions of serious crime, following the ground-breaking but controversial ‘Heathrow heist’ trial.

The Criminal Justice Act 2003 limited for the first time the right to trial by jury in the Crown Court, where trials for serious crimes take place. Section 44 provides for the option of judge-only trials if there is a “real and present danger” of jury tampering.

Deprivation of liberty best interests test compatible with human rights law [updated]

G v E and others [2010] EWCA Civ 822 – Read judgment

This post was written with the kind help of Jaime Lindsey

The Court of Appeal has held that a person who lacks mental capacity can be detained if the Court of Protection considers that it is in their best interests, without having to meet additional conditions under Article 5 of the European Convention on Human Rights.

This case was a challenge to the decision of Jonathan Baker J in the Court of Protection and raises issues about the relationship between ECHR Article 5 (right to liberty and security) and the Mental Capacity Act 2005 (MCA). It reinforces the point that it is for the Court to decide what is in an incapacitated patient’s best interests, and that Article 5 imposes no further requirements.

Opening of secret evidence rules not limited to terrorism cases

A (A Child) v The Chief Constable of Dorset Police [2010] EWHC 1748 (Admin) (16 July 2010) – Read judgment

The High Court has ruled that the gist of sensitive evidence in a case involving a child being picked up for being spotted with an “inappropriate adult” must be disclosed in order that the child can bring a claim against the police.

The case is probably the first to follow the significant restriction of the use of secret evidence resulting from the Al Rawi decision (see our previous post), in which the Court of Appeal rejected a request by the Government that evidence in a torture compensation claim be kept secret from the public, and emphasised that the interests of open justice would be seriously compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.

Has the time come for gay marriage in the UK?

The deputy leader of the Liberal Democrats has said that gay couples are likely to gain full rights to marriage under the current Parliament. This would represent a revolution for gay rights, but there is still a long way to go before same-sex couples achieve full rights to marriage as they are arguably entitled to under human rights law.

Simon Hughes MP has told Yoost.com, a question and answer website, that Liberal Democrat MPs would be consulted on the rights of gay couples. He said “I don’t know the answer because we haven’t had the discussion“, but that

I see absolutely no reason why we shouldn’t all be able to support what Nick Clegg said, which is that it would be appropriate in Britain in 2010-11 for there to be the ability to have civil marriage for straight people and gay people equally.

Delay in providing for special educational needs does not breach Convention right to education says Supreme Court

A (Appellant) v Essex County Council & National Autistic Society (Intervener) [2010] UKSC 33

Supreme Court (Lord Phillips, Lady Hale, Lord Brown, Lord Kerr, Lord Clarke) July 14 2010

The right to education under Article 2 Protocol 1 of the Convention was not breached by the delay in catering for the special educational needs of a child. Convention rights must be intepreted pragmatically;  it is not right to equate a failure to provide the educational facilities required by domestic law with a denial of access to education.

This was an appeal against a decision ([2008] EWCA Civ 364, [2008] H.R.L.R. 31) upholding the dismissal by summary judgment of the appellant’s claim that the respondent local authority had breached his right to education under A1P1.

"Hell on earth" Gaza acquittal a miscarriage of justice?

Updated – 6/8/10

Five activists were recently acquitted for causing £180,000 damage to an arms factory after successfully deploying the defence of lawful excuse. But did the judge’s politically coloured summing up of the evidence to the jury render the trial a miscarriage of justice?

Article 6 of the European Convention on Human Rights guarantee a “fair and impartial tribunal”, and it is sometimes claimed in courts that a judge or judicial panel are biased and therefore cannot preside over a fair trial. While not often successful, the complaints are always taken seriously. As any law student knows, justice must not only be done but also be seen to be done.

To this end, judicial impartiality has been much in the news of late. Cherie Booth QC, an observant Christian, was apparently rapped by the Office for Judicial Complaints for reducing a defendant’s sentence on the grounds that he was a “religious man” who knew what he did was wrong. Meanwhile, in a less successful challenge to a judicial decision, Lord Carey failed to convince the Court of Appeal that a judicial panel of special religious expertise was needed in the case of a Christian marriage councilor sacked for refusing to counsel gay couples.