Public Interest Litigation Update:

30th September 2016

 
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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Human Rights Law
  • Leave granted to judicially review law criminalising those who pay for sexual services
The High Court has granted leave for a judicial review against the Department of Justice, concerning the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (NI) 2015.  The legislation allows people to be convicted for paying for sexual services in Northern Ireland.  The legislation was introduced in 2015 by a private member’s bill.

The applicant, who is a sex worker, was granted leave to take the legal challenge on 28th September 2016.  She has alleged that the provisions breach rights to privacy and freedom from discrimination.  It was argued that the current law increases the danger of sex work in Northern Ireland.  The majority of sex workers are women and the legislation could potentially heighten the risk from clients who are using fake names to avoid identification.

The Attorney-General opposed the challenge.  A full hearing date is due to be set in December.

Read news report from the Guardian here.
 

 

·        European Court finds that British Gurka pension scheme is not discriminatory

 
British Gurkha Welfare Society and others v The United Kingdom, Application No. 44818/11

The European Court of Human Rights has ruled that while Gurkha pension entitlements are less than those of other soldiers in the British Army, it made no finding of unlawful discrimination.  The applicants were two former Gurkha soldiers and the British Gurkha Welfare Society (BGWS).

Historically, Gurkhas had a different pension scheme from other soldiers in the British Army due to the lower costs of living in Nepal, where it was assumed that retired Gurkhas would return.  However, in October 2004, the immigration rules were changed.  Gurkha soldiers who retired on or after 1st July 1997 with at least four years’ service could apply to settle in the UK. 

In March 2007, in a further change to the law, the UK government allowed Gurkhas who retired after 1st July 1997 to transfer their pension to the allowance for the British Armed Forces.  The applicants had been adversely affected by the cut-off point.  They alleged that the significantly lower pension entitlement amounted to unjustified differential treatment on grounds of nationality, race and age. 

The European Court ruled that the racial discrimination aspect was inadmissible as this argument had not been pursued at a domestic level.  It then considered whether the discrimination on basis of age and nationality had been unjustified.  The Court found that while there was differential treatment, and while ‘very weighty reasons’ were required to justify differences in treatment on grounds of nationality, the cut-off point was justified.  This was the point at which the Gurkhas’ home base was moved to the UK.  Without this cut-off point, the equalisation of pension arrangements would have increased the government’s costs from £320 million to £1.5 billion.  Also, prior to 1997 soldiers had no ties to the UK and no expectation of settling there.

As to the matter of age discrimination, the Court held that differences in treatment between older and younger Gurkha soldiers was justified on the same grounds as the nationality distinction and no finding of violation could be made.

Read UK Human Rights Blog here.
 
 

·        European Court finds that inability to cross-examine witness does not result in unfairness

 
Simon Price v United Kingdom, Application no. 15602/07

The European Court of Human Rights unanimously decided that proceedings which led to the conviction of the applicant for drug trafficking offences did not infringe Article 6.  This was despite the fact that the applicant was unable to cross-examine a key prosecution witness due to his refusal to attend court.

The facts were that in 2004, a ship entering Rotterdam was found to contain cocaine valued at £35 million.  The applicant, Simon Price, was arrested and charged.  The main issue was whether the applicant had intended to import the drugs to the UK and the key prosecution witness provided evidence that he had.  As the witness would not attend trial by video link, his statements were read out.  The judge gave repeated warnings concerning the evidence provided by the absent witness and the applicant was unanimously convicted by the jury.  The matter was appealed and the Court of Appeal rejected the arguments on fairness.

While a number of issues were brought, the only matter that the Court could adjudicate on was in relation to the inability of the defendant to cross-examine the prosecution witness.  The Court referred to its established principles:

 
1.     Were there good reasons for the witnesses absence from the trial?  The Court was undecided whether all reasonable efforts had been made to secure attendance.
2.     Was the absent witness’ evidence sole or decisive?  It was not.
3.     Did sufficient counterbalancing factors exist?  There was other substantial incriminating evidence.

Therefore, there was found to be no violation of Article 6 of the European Convention on Human Rights.

Read UK Human Rights Blog article here.
 

 

·        Irish High Court rules: no duty on Facebook to remove defamatory material


Fred Muwema v Facebook Ireland Limited [2016] IEHC519

The High Court of Ireland ordered Facebook to disclose the identity and location of an individual who was operating a page containing defamatory content.  However, it did not grant injunctions requiring Facebook either to remove the posts or to prevent the material in them from being re-posted, given that the defendant could rely on statutory defences.

The case was brought by a Ugandan solicitor against Facebook Ireland Ltd.  He argued that the articles posted were false, scurrilous and defamatory, alleging that he had accepted bribes to the value of USD260,000, that he staged a break-in into his own law firm premises to jeopardise a presidential election and petition, and that he was under constant guard by armed forces. 

Justice Binchy took the view that the application should be refused as it would serve no useful purpose, given the availability of publications repeating the same material elsewhere on the internet.  He stated that, ‘persons whose reputations are seriously damaged by anonymous and untrue internet postings may be left without any legal remedy against the site hosting the publication, even in the most flagrant of cases.’

Read Inforrm article here.

 

·        Temporary absence of legal advice for terror suspects does not violate Article 6


Ibrahim and others v United Kingdom [GC], App nos. 50541/08, 50571/08, 50573/08, and 40351/09

The European Court of Human Rights considered the issue of a temporary delay in providing access to a lawyer during the police questioning of terror suspects, concerning attempted bombings in London in July 2005.  Police interviews were conducted under the Terrorism Act 2000 which allows interviews to take place in the absence of a solicitor and prior to the suspect obtaining legal advice.  The applicants argued that their convictions were unfair because of the admission at trial of the statements they had made at police interview.

On 21st July 2005, four bombs were detonated on the London transport system but failed to explode.  The perpetrators fled the scene and police arrested the first three applicants on suspicion of having detonated the bombs.  The fourth applicant was initially interviewed as a witness but during interview, incriminated himself and he became suspected of assisting one of the bombers after the failed attack.  All four applicants were convicted.

At the time of interview, it was accepted that there had been an exceptionally serious and imminent threat to public safety which justified the temporary delay in permitting the applicants’ access to lawyers.  It found that no undue prejudice had been caused to the applicants’ right to a fair trial by admitting their statements at trial even though they had been made prior to having been given access to legal advice.  (The Court noted that the fourth applicant who had made incriminating statements, had not retracted his statements even after consulting a lawyer).

The Court found that there had been no violation of the rights of any of the applicants under Article 6.  The Terrorism Act struck an appropriate balance between the right to legal advice and the need in exceptional cases to enable the police to obtain information necessary to protect the public.  Further, there was other strong evidence against the men besides the interview statements.  The Court’s primary concern was to evaluate the overall fairness of the proceedings.

Read UK Human Rights blog article here.
 
 

·        European Court finds that UK breaches right to liberty due to six-month delay


V.M. v the United Kingdom, Application No. 49734/12

The European Court of Human Rights found that part of an individual’s detention prior to deportation violated the right to liberty under Article 5 of the ECHR.  The applicant entered the UK illegally in 2003 with her son.  Shortly afterwards she was charged with and pleaded guilty to child cruelty.  She was granted bail after which she absconded for two years.

In 2007 the applicant was arrested for possessing false documentation with intent to commit fraud.  She was sentenced to imprisonment and also convicted of child cruelty.  A psychological report revealed that she suffered from depressive and psychotic symptoms which were being managed through therapy and medication.  Due to the severity of the offences, the judge recommended deportation.  Towards the end of the period of imprisonment, the UK Border Agency decided to deport the applicant.  She remained in detention following completion of her sentence from 8th August 2008 onwards under immigration powers.

She judicially reviewed the lawfulness of the continuing detention, requesting that the deportation decision be reversed or the representations treated as a fresh asylum claim.  The High Court dismissed the applicant’s claims and she appealed to the Court of Appeal.  The Secretary of State conceded that the detention was unlawful from 8th August 2008 until 28th April 2010 due to the failure to consider the policy on immigration detention of mentally-ill people.  The Court of Appeal however found that the applicant would still have been detained even if the policy had been followed.  Permission to appeal to the Supreme Court was refused.

The European Court found that the domestic law complied with the European Convention and detention conditions were appropriate.  However, while the authorities acted with due diligence, a lengthy delay between 19th June and 14th December 2009, could not be overlooked given the overall length of detention and the applicant’s deteriorating mental health.  Therefore, there had been a failure on the part of the authorities to conduct the domestic proceedings with due diligence during this six-month period.

Read UK Human Rights blog article here.

 

Historical Inquiries
  • Leave granted to judicially review request for recordings of testimony of NI conflict

A man who had been formerly linked to the IRA was granted leave to judicially review the PSNI and the Public Prosecution Service for issuing an International Letter of Request (ILOR) concerning recordings held at Boston College.
 

The facts were that Anthony McIntyre was one of the main researchers in a major project to compile an oral history of the conflict in Northern Ireland.  A large number of testimonies from people with links to loyalist and republican paramilitary organisations, were provided to Boston College.  These were provided by the individuals concerned on the understanding that their accounts would only be made public after their death.  However, legal challenges resulted in police obtaining transcripts and interview tapes by Dolours Price who had links with the IRA and Winston Rea, with links to loyalist organisations. 
 

The British government has served a subpoena on Boston College seeking copies of Mr McIntyre’s interviews.  The ILOR sets out the alleged offences being investigated.

The High Court granted leave to judicially review the matter and it is anticipated that the full legal hearing will take place in November.
 

Read BBC News article here.
 

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Privacy Law
 

·        High Court rules that doctor’s privacy right should be considered prior to disclosing patient report
 

Dr DB v General Medical Council [2016] EWHC 2331
 

The General Medical Council (GMC) investigated a complaint about a GP made by a patient and found that the doctor’s care had fallen below, but not seriously below the expected standard.  As a result, the GMC decided to take no further action against the GP.  The patient wanted to see a copy of the full report.  His motive was to investigate a possible claim for clinical negligence, arising out of the delayed diagnosis of bladder cancer.  The GP refused to consent to this disclosure. 
 

The GMC reached the decision that it should disclose the report.  It took into account the sensitivity of the patient’s medical records, the independence of the reporting doctor, principles of fairness and transparency, the patient’s legitimate interest, minimal risk to the GP’s reputation and the lack of risk that the GP might misuse the personal data.  The GP brought proceedings to prevent this disclosure.
 

The judge pointed out that the case involved the weighing of fundamental rights and should be subject to anxious scrutiny.  He took the view that the GMC got the balance wrong and the report should not be disclosed.  The judge gave the following guidelines:
 

1.   The exercise involves balancing the privacy rights of data subjects;

2.   The starting point should be against disclosure in the absence of consent.  Express refusal of content is a specific factor to be taken into account.

3.   If the sole or dominant purpose is to obtain a document for the purpose of a claim against the other data subject, that is a weighty factor in favour of refusal as the appropriate procedure is set out under the Court Rules.
 

Read UK Human Rights Blog article here.
 


Family Law
  • Law prohibits cohabitee from claiming bereavement damages under Fatal Accidents Act
Smith v Lancashire Teaching Hospitals NHS Trust [2016] EWHC 2208

The High Court found that while the Fatal Accidents Act 1976 prevented unmarried couples from claiming an entitlement to bereavement damages, the right to privacy and family life under the Convention was not engaged.  The Court indicated that it hoped the outcome of this case would provoke further discussion in Parliament about possible reform of the law.

The claimant lived with her partner for around eleven years when he died as a result of the negligence of the first and second defendants.  She had made a dependency claim which had been extended by amendment to include persons cohabiting for over 2 years.  However, the bereavement damages provisions only apply to spouses and civil partners.  The applicant sought a declaration that the relevant provision should be read in such a way as to allow her compensation; alternatively, she applied for a declaration that the provision was incompatible with the Human Rights Act 1998. 

The Court dismissed her claim.  The compensatory scope of the Fatal Accidents Act was only for those who suffered bereavement due to the tortious actions of another party.  However, there was no justification for a distinction between dependency damages and bereavement damages.  The Court found that Article 8 was not engaged.

‘…[as] the bereavement damages regime does not indicate any disapproval by the state of the way that she and the deceased chose to live, the complaint does not achieve the level of serious impact required to put it within the ambit of Article 8.’

Read UK Human Rights Blog article here.

 

Pro Bono
 
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 caroline@pilsni.org to request an application form.
 
 

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