Public Interest Litigation Update:
25th October 2013
Welcome to the PILS Project's Public Interest Litigation Update. The Update provides you with information on current public interest cases, judgments, news and events.
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The Crown Court in England has ruled that a Muslim woman, a defendant in criminal proceedings, must remove her Niqaab, a full veil, when giving her evidence to the Court and the jury.
Judge rules Muslim woman must remove Niqaab when giving evidence to the Court
The defendant faces criminal allegations of intimidating a witness. Due to her religious beliefs she wears a Niqaab that covers her face except for her eyes. The Judge, His Honour Judge Murphy, asked her to remove the veil, so she could be identified. She refused to comply with the request on religious grounds. The Judge then held a preliminary hearing to decide what orders should be made in relation to the case.
The Judge made clear that his decision on this matter was limited to the specific case in a number of different ways. He considered the balance between the freedom of expression, the importance of ensuring a fair trial for all parties and the effective administration of justice. In light of all these circumstances, the Judge made directions in the following terms:
(1) The defendant must comply with all directions given by the Court to enable her to be properly identified at all stages of the proceedings.
(2) The defendant is free to wear the niqaab during trial, except while giving
(3) The defendant may not give evidence wearing the niqaab.
(4) The defendant may give evidence from behind a screen shielding her from
public view, but not from the view of the judge, the jury, and counsel; or by
means of a live TV link.
(5) Photographs and filming are never permitted in court. But in this case, the judge also ordered that no drawing, sketch or other image of any kind of the defendant while her face is uncovered is to be made in court, or disseminated, or published outside court.
The full text of the judgment can be found here.
This is a matter that has attracted significant attention amongst legal commentators. The UK Human Rights Blog has published articles that can be found here and here, and Joshua Rozenberg has written an article for The Guardian.
Wright v Commissioner of Police for the Metropolis  EWHC 2739
Containment of pro-Palestinian demonstrators by Police was lawful
This case related to a pro-Palestinian demonstration that took place close to a seminar commemorating 60 years of British diplomatic relations with Israel. The Israeli Prime Minister was scheduled to be in attendance at the seminar.
The applicant was one of the demonstrators. The Police decided only to allow the demonstrators to assemble and protest in an enclosed area referred to as a ‘protest pen’. Police encouraged the protestors to enter the pen if they wanted to continue their demonstration. Police threatened to arrest demonstrators if they didn’t enter the pen but it was held that the arrangement to enter the pen was essentially voluntary in nature. The applicant was held in the pen for 75 minutes.
He took legal action against police on the grounds of false imprisonment and assault at common law, and under Articles 5, 10 and 11 of the European Convention.
The Court accepted that the police had apprehended a breach of the peace, and considered that they had reasonable grounds to do so. The Judge decided that the action was both necessary and proportionate, emphasising the fact that the police had opted for temporary containment rather than arrest, and that it was the only practical option to avoid the problems caused by different groups of demonstrators potentially taking action in different areas. Consequently, there was no false imprisonment and no breach of Article 5.
There were no breaches of Articles 10 and 11, as the applicant was not prevented from protesting; he was simply required to do it in a designated area.
For more discussion on the case please see here
R (on the application of R) v Chief Constable  EWHC 2864
It is not a breach of right to private life for Police to take DNA samples from former criminals for the investigation of crime
The applicant had been convicted previously of serious offences. At the time of his arrest, prosecution and conviction, it was not established practice for police to obtain and store DNA samples of offenders. In light of his previous convictions, police asked the applicant to provide a DNA sample. This sample was to be compared to other DNA material held by police in an attempt to make progress in unsolved cases. The applicant refused to provide a sample.
Police then sent a letter to the applicant, warning that he could be arrested if he did not provide such a sample. The applicant took judicial review proceedings, arguing the conduct of police infringed his rights under Article 8 of the Convention.
The Court held that the statistical probability that any one of the samples gathered would produce a match with the crime scene database was not determinative of the issue of proportionality. The Court also held that significant weight ought to be attached to the objective of detecting crime and therefore there was no breach of Article 8.
Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd  EWHC 2582
English High Court quashes decision of a Local Authority to build a luxury golf resort
This case has been referred to as a prime example of the importance of judicial review in holding public bodies to account.
The case related to a decision of a Council to provide planning permission for a luxury golf resort in Surrey. Planning was granted despite the recommendation of the local planning authority not to grant permission.
The proposal was to build the golf resort in an area known as Cherkley Estate. The whole area amounts to 375 acres. Significant parts of the area have protected status under a number of different laws (please see here for a breakdown of the legal protection afforded to the area).
The respondents sought to argue that private demand equated to a need for such a resort. This argument was not accepted by the Judge, who noted:
‘The golden thread of public interest is woven through the lexicon of planning law, including into the word “need”. Pure private “demand” is antithetical to public “need”, particularly very exclusive private demand. Once this is understood, the case answers itself. The more exclusive the development, the less public need is demonstrated.’
The Judge also noted that at the time of the Court hearing, Surrey already had 141 golf courses.
The Court held the Council had misinterpreted the meaning of “need” in planning policies applicable to the proposal. Unusually, the judge went as far as to say the decision was perverse – it simply “does not add up.” He also noted that the Council had misapplied applicable landscape policies and failed to give proper consideration to green belt policies.
M (Children)  EWCA Civ 1147
Court of Appeal of England and Wales allow a challenge to a decision refusing to allow contact between a father and his child
In this case, the appellant, M, is a father of 3 children. M has a criminal record. Although the offending was of some vintage, all but one of the convictions related to offences involving violence, including a conviction for grievous bodily harm with intent. Prior to the breakdown of his relationship with the children’s mother, they had witnessed M being verbally and physically aggressive towards their mother. As a result, she left the family home with the children and went to live in a refuge.
At first instance, the Court found that M had minimised his behaviour and blamed the mother who was the victim of his violence. The judge concluded that he had failed to show any lasting benefit from therapy and his behaviour was likely to destabilise the children’s home and security, which was provided by the mother.
On appeal, the Court of Appeal held ‘family ties may only be severed in very exceptional circumstances and everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family.’ An order denying contact could only be lawful within the meaning of Article 8(2) of the Convention if it was necessary in a democratic society for the protection of the right of the mother, and consequently the minor children in her care, to grow up free from harm.
In this case, the Court described the Order made at first instance as ‘draconian’. It also held there had been insufficient examination of whether the risks could be satisfactorily guarded against by careful and professional arrangements for setting up the contact and for close supervision during it.
The appeal was allowed, the order was set aside and the case was remitted to the High Court for re-hearing.
Re B-S (Children)  EWCA Civ 1146
Court of Appeal of England and Wales hold that a non-consensual adoption can breach Article 8 rights of biological parents
This case is one of the most recent judgments to be handed down since the Supreme Court decision of Re B (A Child), which places greater emphasis on appeal and higher courts scrutinising decisions made in cases of non-consensual adoptions at first instance. The Court outlined its concerns that insufficient consideration is being afforded to the convention rights of the parties when decisions are being reached.
The judgment contains criticism of the quality of materials placed before the courts by local authorities and by guardians, but also criticises the decisions reached by the courts themselves. The Court of Appeal placed great emphasis on the fact that non-consensual adoption should only be considered in those cases where no other options or alternatives are available to the court.
The UK Human Rights Blog has raised a number of discussion points regarding the Supreme Court case and decisions made following that judgment being handed down. The blog also raises issues as to how this ruling will sit with the Children and Families Bill currently passing through Parliament. Further discussion on this case can be found here.
F v F  EWHC 2683 (Fam)
Judge orders children to be given the MMR vaccination against their wishes
Two sisters have been ordered by the High Court to be given the MMR vaccination, contrary to the wishes of their mother and the children themselves. The legal action was taken by the father of the 2 children.
The children are aged 15 and 11. The eldest child was given the vaccination as a baby, at the agreement of both parents. Both parents then decided that their eldest daughter would not receive a booster, and their youngest daughter would not receive the inoculation at all. The mother and father of the children then separated.
After the medical evidence linking the MMR vaccination and autism had been discredited, coupled with the recent outbreak of Measles in the Swansea area, the father changed his mind and wanted his children to be inoculated. Another element to the case was that the eldest child was a vegan and objected to the ingredients used in the vaccination.
The Judge held that the vaccinations’ should be given to the children for five reasons. In all the circumstances the court held that the benefits of receiving the vaccinations in preventing contracting illness outweighed the objections that had been raised.
There is further discussion of the case on the UK Human Rights Blog.
Alexander Litvinenko was poisoned in London in November 2006. It was revealed that he died from drinking tea that had been poisoned with Polonium 210. The police investigation into Mr Litvinenko’s death established 2 Russian citizens to be the main suspects. It is understood the UK government is in possession of further information surrounding his death, which could indicate he was poisoned on the orders of the Russian government.
His widow, Marina Litvinenko and the coroner investigating the death have called for a public enquiry in order to establish the full circumstances behind the poisoning. The Home Secretary has refused to hold such an enquiry before the coroner’s inquest takes place. It is the decision not to carry out such an enquiry that is subject to this judicial review.
Mrs Litvinenko had argued that she could not afford to pay the legal costs of all parties if her case was unsuccessful. Mrs Litvinenko has access to assets worth around £50,000, with an estimate of costs for the respondent in the region of £45,000. Her legal team were acting on her behalf pro bono.
The Court held she had greater means than many litigants. She had the financial means to bring the proceedings if she chose to and it would not be reasonable for her to withdraw proceedings on the basis that she did not have a PCO. It was not fair or just to make a PCO, nor was it an exceptional case.
Mrs Litvinenko has said she will continue with the legal challenge and has asked for donations from the public to meet the possible legal fees in the case.
For discussion around the decision not to grant the PCO, please click here.
Hunter v Nurendale Limited t/a Panda Waste  IEHC 430
Irish High Court makes a PCO in an environmental case
The Irish High Court has granted a Protective Costs Order (PCO) to a woman who is trying to stop an apparently unauthorised development of a waste facility near her home.
The case falls under the Aarhus Convention. The Convention states clearly that environmental law cases must not be ‘prohibitively expensive’. The issue of costs might be particularly difficult in the area of environmental law, where individuals or small organisations of modest means want to challenge the actions of public bodies or private developers.
In granting the PCO, the judge noted the following:
- The legal costs were likely to be high;
- The case involved complex areas of law;
- The case had a reasonable prospect of success (the court applied the ECJ’s definition of this term);
- The issues at stake were important for the applicant specifically and for the protection of the environment generally;
- It was assumed that legal aid was not available for a case of this kind.
The Judge also took the opportunity to set down guidelines for future applications for making an application for a PCO. Please see here for further discussion on the case.
A dairy farmer from Lancashire, with support from Greenpeace, has initiated legal proceedings against the practice of fracking in England. Greenpeace claims that landowners have a legal right to veto fracking from taking place underneath their land and property.
There have been long standing concerns about England and Wales becoming the jurisdiction of choice for claimants, seeking to protect their reputations through legal actions in the fields of libel and slander.
Two cases could mark the end of ‘legal tourism’ in the area of defamation law
The first case was initiated by a Serbian tobacco magnate, Stanko Subotic. He claimed that his reputation in England and Wales had been damaged by serious criminal allegations made in Serbian and Montenegrin newspapers. The papers themselves were not circulated in the UK and the claimant could not point to anyone who had read online versions of the articles.
The Court ruled that the case be dismissed as an abuse of process. Subotic failed to establish any damage to his reputation as a result of the publications. The Judge also stated that the case ‘really has nothing to do with his reputation in England and Wales and everything to do with his reputation in the Balkans’.
The second case had been taken by a retired Moscow policeman, Pavel Karpov. Allegations had been made that Karpov was complicit in the torture and murder of Sergei Magnitsky, an anti-corruption whistle-blower, who was killed in prison in 2009.
In this particular case, the Court held that Mr Karpov did not have a prior reputation in England and Wales to defend in the courts of that jurisdiction. The action was struck out on this ground as an abuse of process.
Although these cases might have far reaching implications, consideration will also have to be given to the proposed new Defamation Act.
For further discussions on the potential impact of these cases, please click here.
Another matter engaging the laws of defamation relates to a Parliamentary Select Committee investigation into allegations of corruption amongst certain football administrators.
Defamation, football, and parliamentary privilege
The evidence central to this case was given by the former Chairman of the Football Association (FA), Lord Triesman. He had given evidence to the Culture, Media and Sport Committee in 2011. In the course of that evidence he stated that the head of the Football Federation of Thailand had sought the television rights for a friendly between Thailand and England. In exchange, he offered to vote in support of England’s (ultimately unsuccessful) bid to host the World Cup in 2018. The head of the Thai federation, Dato Worawi Makudi, has constantly denied the allegations.
Following these denials, Parliament held a further enquiry. Lord Triesman appeared before that enquiry. He referred back to his evidence before the select committee, and did not repeat or expand upon the evidence he gave previously.
Makudi initiated defamation proceedings, which were dismissed. The Trial judge held that Lord Triesman was protected by Parliamentary privilege.
However, Makudi has been granted leave to appeal the original decision. One MP has voiced his concern that in the future, witnesses to Parliamentary committees will not be able to speak freely and openly, for fear of being sued.
The dairy farmer, Andrew Pemberton, supplies milk to 3,000 households in Lancashire. He has said that he will lose his livelihood if the local water becomes contaminated as a result of fracking.
Greenpeace is also trying to create a 'legal block' with the intention of creating ‘no-go areas’ for fracking across England. It is anticipated that the legal proceedings will be strenuously contested by firms engaged in such drilling.
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Further legal challenges to the ‘bedroom tax’ in England and Wales
In previous editions of the Update we referred to an unsuccessful legal challenge to the so called ‘bedroom tax’. It would appear that the decision of the High Court has been appealed and will be considered by the Court of Appeal in the near future. In addition to that challenge, a number of other legal actions have been initiated on the same matter.
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CPAG are acting on behalf of two grandparents, Martin and Susan Rutherford. Their grandson suffers from very serious cognitive and physical disabilities. He needs 24 hour care to be delivered by 2 people. Carers are required to stay overnight twice a week. Where the spouse or partner of a Housing Benefit claimant requires care, there is a dispensation. There is no such dispensation in relation to children.
LIBERTY has also initiated a legal challenge to the bedroom tax. This challenge relates to the impact of the law changes on parents who have separated and have joint parental responsibilities.
A further judicial review has been taken regarding the adverse impacts of the changes on victims of domestic violence. The claimant in that case, referred to as A, lives with her son in a 3 bedroom house. In addition to a number of alterations made to the property by police, one of the bedrooms has been converted into a ‘panic space’ as a result of the violence experienced at the hands of a former partner.
A Greek jewellery worker who was HIV positive, was sacked after co-workers voiced their objections to his continued employment. The domestic courts dismissed his complaints on what the ECtHR described as ‘clearly inaccurate information’. This included the contagious nature of the illness and the fact they had failed to explain how the interests of the employer outweighed those of the employee.
Sacked Greek worker who was HIV positive awarded €14,000 by European Court of Human Rights (ECtHR)
The ECtHR held that articles 8 and 14 had been violated and awarded the complainant €14,000.
In previous editions of the Update, we referred to a judicial review brought on behalf of a Christian organisation. The challenge related to a decision by the Mayor of London, Boris Johnson, to refuse to allow London buses to carry adverts that claimed gay people could be ‘cured’. These adverts were modelled on the Stonewall pro-gay advert: ‘Some people are gay. Get over it’.
Decision by London Transport to carry pro-gay adverts on buses threatens to re-activate legal proceedings
The High Court upheld the Mayor’s decision to ban the adverts. However that decision is currently subject to appeal. The appeal itself is scheduled to be heard at the start of December 2013.
It would seem that Transport for London have allowed the Stonewall adverts to be carried across London buses, despite no final resolution having been reached in the original court proceedings. This has prompted a Christian organisation to lodge an urgent judicial review.
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Recent decision on the impact of the new immigration rules on the role of Article 8 in immigration cases
MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192
An area of some controversy has been the interpretation of Article 8 of the Convention in cases where an individual seeks to contest a deportation order. The difficulties in this area have been exacerbated by the Home Office introducing amendments to the immigration rules regarding the interpretation of Article 8.
In this case the applicant originated from Nigeria. He entered the UK illegally and claimed asylum. He then married a UK citizen who had a child from a previous relationship. Not long after the couple were married the applicant was convicted of committing criminal offences. As a result, a deportation order issued. The applicant sought to resist his deportation on article 8 grounds.
The arguments failed before the First Tier Tribunal. However the Upper Tribunal allowed his appeal. It considered the effect of the deportation upon the daughter. Decision makers must treat the best interests of the child as a primary consideration. It also made decisions regarding the rule changes, holding that the new rules did not amount to a ‘complete code’.
The Court of Appeal did not agree with the Upper Tribunal and held that the new rules did amount to a complete code. However the Court of Appeal noted that the Upper Tribunal had considered very carefully all the circumstances of the case. It was a finely balanced decision, but the Tribunal did not consider anything that was irrelevant and did not fail to consider anything that was relevant. Therefore, there was no reason for the court to interfere with the decision of the Upper Tribunal.
Employment Tribunal holds that EU law trumps diplomatic immunity
Benkharbouche v Embassy of the Republic of Sudan (Jurisdictional Points: State Immunity)  UKEAT 0401 12 0410
The Employment Appeals Tribunal (EAT) considered 2 appeals. The appellants both worked as staff in foreign diplomatic missions. Before 2 separate tribunals, their claims were dismissed as state immunity under the State Immunity Act (SIA) was applicable.
The EAT were asked to consider the European Convention of Human Rights. However the Convention and the Human Rights Act could not be applied. In order for the courts to read the SIA as convention compliant, would require the courts to amend the legislation, essentially going further than the courts were able to.
However the court was then asked to consider the EU Charter of Fundamental Rights. This treaty creates rights that have direct effect in the UK. Where there is a conflict between domestic and EU law, EU law takes priority. The tribunal agreed with the arguments made by the applicants. It disapplied the State Immunity Act and allowed the complaints made by both applicants.
Both claimants and respondents have been given permission to appeal. For further reading on the potential far reaching consequences of this case, please click here and here.
Antoniou, R (on the application of) v Central and North West London NHS Foundation Trust & Ors  EWHC 3055
Investigation into death of Jane Antoniou was compliant with Article 2 of the Convention
Jane Antoniou was a campaigner for the rights of those with mental health difficulties. Mrs Antoniou herself was schizophrenic and spent a number of periods in mental health facilities, as a voluntary patient and as a person detained under the Mental Health Act. She was detained in a hospital when she took her own life, on the 23rd October 2010. The claimant in this case was the deceased’s widower.
The claimant was challenging the investigation that had been carried out into his late wife’s death. He contended that the authorities were obliged to hold an immediate and independent investigation into the death before the inquest was to take place. He argued that the initial investigation was not independent and that there were flaws in it. Such flaws included not involving the next-of-kin fully in the investigation.
The Court held that there was no domestic authority supporting the contention that for an investigation to comply with Article 2, that the investigation must be independent. The Court also held that an inquest that satisfies the Middleton principles will generally meet the standards required for an investigation to be Article 2 compliant.
Various organisations have raised concerns on many occasions over how cases involving human rights, whether decided upon by UK courts or Strasbourg, are reported on by the UK media.
European Court of Human Rights speaks out about coverage in the UK media
In an unusual move, Strasbourg has criticised publicly the way the media has covered the work of the court. The registrar – the Court’s senior lawyer – issued a statement to express his concern over the seriously misleading information appearing in articles in such papers as the Daily Mail on the topics of compensation payable to successful claimants and how judges are appointed to the court.
In relation to the issue of compensation, the articles did not make any distinction between payments towards legal costs and compensation itself.
The Registrar also took the opportunity to clarify that judges are elected to the court (not appointed) and refuted the allegation that ‘because they are political appointees many of the court’s judges are not even legal experts.’
The President of the UK Supreme Court, Lord Neuberger, has criticised proposals to introduce further limits on the availability of judicial review.
Lord Neuberger attacks further curbs to judicial review
He recently delivered a speech entitled 'Justice in the age of austerity' at the JUSTICE Tom Sargant annual memorial lecture. In the course of that speech he stated ‘the courts have no more important function than that of protecting citizens from the abuses and excesses of the executive.’ He also expressed his concern that the proposed changes to judicial review would not bring about the monetary savings that were sought.
He referred to the danger that if judicial review was curtailed further, it would lead to meritorious challenges not being pursued. It could also lead to many people representing themselves, which could lead to delays in the courts dealing with cases.
Lord Neuberger also raised concerns over implementing cuts to Legal Aid.
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In many criminal cases, before the Magistrates’ Courts and the Crown Courts, a judge can punish those guilty of committing offences through the imposition of fines. Should those fines not be paid within a certain period of time, a person can be ordered to serve time in prison instead of paying the fine.
The use of custody as an alternative to the payment of a fine was called into question earlier in the year. This was following a judicial review which held that the current system did not comply fully with the legislative provisions.
The DOJ has revealed that an alternative system of collecting fines and to reduce the need to use imprisonment for non-payment will not be operational until 2015. Although the majority of money warrants have been recalled from the PSNI, individuals are still being sent to prison in default of payment.
For a comprehensive breakdown of the statistics relating to this area, please see here.
In the matter of an application by JR65 for Judicial Review  NIQB 101
Judicial review against the retention of lifetime blood ban for gay men successful
In a decision that has attracted a high local media profile ,the Minister for Health, Edwin Poots has been told that his decision to retain the permanent ban on gay men donating blood is irrational.
In 2011, the Health Ministers for England, Scotland and Wales decided to allow gay men to donate blood if they had been sexually inactive for a year. The decision was taken following the receipt of reports from the authority responsible for the storage of blood and organs. The reports included reference to improved abilities to detect the presence of diseases in the blood.
The Health Minister in Northern Ireland did not take the same action as his counterparts in other areas of the UK. However, despite this decision of Mr Poots, there were times when due to shortages of blood, donations were sought from the blood banks in Great Britain. When receiving this blood, the Northern Ireland Department of Health did not state that they would not accept donations from gay men who had given blood following the changes to the rules in those jurisdictions.
The High Court in Belfast analysed the reasons for the decisions of the Health Minister. In Court he argued that he had not taken any decision yet. This argument was rejected by the Court.
The Judge noted the contradiction between local donations by gay men and the acceptance of donations from such donors from elsewhere. In these circumstances the court held that the decision taken by Mr Poots was irrational.
The court also considered the importance of the decision locally. The court was referred to the Ministerial Code that applies to the local devolved system of government. The code states that decisions affecting more than one governmental department, or a decision that is of such importance, must be put before the full Executive.
In this instance Mr Poots did not refer this decision to the Executive as a whole. Therefore, the Court held that Mr Poots had breached the Ministerial Code. The decision of the court on the subject of the Ministerial Code has also generated discussion: read here.
It would seem that the decision on retention of the ban might now fall to the UK Health Secretary. Comments made by First Minister Peter Robinson suggest that it is possible consideration is being given to appealing the decision.
The Department of Health has confirmed that it intends to circulate new guidelines on the circumstances when a pregnancy can be terminated in Northern Ireland to the Executive in the next number of weeks.
Health Department reveals new guidelines on abortion are to be sent to the Executive within weeks
The Health Minister accepted the need to issue these guidelines following a judicial review initiated by the Family Planning Association. The guidelines themselves have been subject to public consultation. A number of concerns have been raised by various members of the medical profession.
The publication of guidelines to outline the law in Northern Ireland has continued to be a difficult and sensitive matter. The Court of Appeal directed that such guidelines be published as far back as 2004.
Very recently the media reported on 2 pregnant women whose unborn children suffered from fatal foetal abnormalities. In Northern Ireland it is not legal to terminate a pregnancy due to a foetal abnormality, meaning both women needed to travel to England for a termination. This has led to calls for the Department of Health to review the law as a whole in this field.
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Legal Support Project Pro Bono Conference:
The Legal Support Project is hosting a conference on Friday 8th November 2013 titled “Pro Bono in Practice: International Perspectives”.
Keynote speakers include Colin Gonsalves, Senior Advocate of the Supreme Court of India and Founder Director of the Human Rights Law Network and Balazs Sahin-Toth Counsel, Allen & Overy (Budapest).
The event focuses on pro bono in legal education, pro bono network for the legal professionals and how NGO’s can work with international pro bono network to advance their work.
For further details on the conference and how to register, please click here.
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The PILS Project has a register of legal practitioners who are interested in undertaking pro bono work with the PILS Project. Opportunities range from writing an initial opinion to involvement in a test case, contributing to publications on public interest cases/issues and delivering training and talks to NGOs and legal practitioners. If you would like to join the register and find out more about opportunities to do pro bono work, please email email@example.com to request an application form.
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