Public Interest Litigation Update:

27th March 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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Mental Health
  • Landmark Victory For Long Stay Patients
As mentioned in last month’s update, the PILS Project recently supported a successful judicial review in the case JR47. The NI High Court found that the Department of Health, Social Services and Public Safety and Belfast Health and Social Care Trust owed a legal duty to assess and regularly review the community care needs of long stay residents in learning disability hospitals in Northern Ireland. The Law Centre (NI) brought the case on behalf of a patient who had waited more than ten years to move out of a learning disability hospital and into the community. The judgment may be viewed here.
Health
  • Draft Abortion Guidelines Published By NI Health Minister
The Northern Ireland Health Minister Edwin Poots has circulated a 30 page draft document to executive colleagues on long-awaited abortion guidelines.  The draft guidelines propose that two doctors rather than one should make the assessment.  The guidelines are still being considered by ministers and will be consulted on for 16 weeks.  The document, titled 'the limited circumstances for lawful termination in Northern Ireland', includes a recommendation that a consultant psychiatrist should be involved where a mental health assessment is required.  Justice Minister David Ford has called for clarification on some of the guidelines, stating the document could lead to more confusion.  In February, a judicial review in the High Court by the Family Planning Association for Northern Ireland to have guidelines issued on the law on abortion was halted after the department of health promised to publish draft advice within a week.  To read more on this story click here.
 
  • NI Assembly Fails In Bid To Change Abortion Law
An assembly amendment which would have banned abortions being performed by private clinics has failed to win sufficient cross-community support.  The amendment to the Criminal Justice Bill was jointly proposed by two DUP and SDLP MLAs.  However, Sinn Fein, joined by two MLAs from Alliance and the Green Party, blocked the move by putting forward the petition of concern which meant that although a majority of MLAs voted for the amendment, it still did not have sufficient cross-community support.  If passed it would have prevented clinics like Marie Stopes, the first private clinic to offer legal abortions in Northern Ireland, from performing abortions.

Rights of Offenders
  • Judicial Review Challenge On Treatment Of 17-Year-Olds Detained By Police
A judicial review has been brought in England and Wales by charity Just For Kids Law, to legally challenge the practice of treating 17-year-olds detained in police custody as adults.  The challenge involves a 17-year-old boy, who with no criminal record, was detained at a London police station for 12 hours overnight on suspicion of robbery, before being released without charge.  The boy’s family was not told of his whereabouts for a number of hours and he was not offered the help of an appropriate adult.  In the UK the age of majority is 18, however, under the Police and Criminal Evidence Act (PACE) code of practice 17-year-olds are treated as adults and only given the protections afforded to other children at the discretion of the police.  The charity, Just For Kids Law questions the legality of the PACE code of practice and the failure of the government and police to provide adequate support and protection to the 75,000 17-year-olds held in police custody each year.  It is argued that this practice puts the home secretary and the Metropolitan Police in violation of international and domestic law. Read more on the article.
  • Disclosure Of Ill-Treatment Allegations Would Breach Nurse’s Human Rights
In R (on the application of A) v the Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) the High Court of England and Wales considered an application for judicial review and a claim under the Human Rights Act 1998, in respect of the defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate.  In August 2012, the defendant received a request from the Criminal Records Bureau for an enhanced check to be made in respect of the Claimant concerning her proposed employment as a registered nurse.  Kent Police referred the allegations to the Nursing and Midwifery Council, the Claimant’s professional regulatory body.  But the Council’s investigatory body found that there was no case to answer against her and in criminal proceedings the claimant was acquitted after the Crown Prosecution Service offered no evidence against her.  The claimant then sought a judicial review, arguing that the decision to disclose the record of the allegations against her was an unlawful interference with her right to respect for her private life under Article 8 ECHR.  The claimant’s application was upheld.
  • UK Attorney General Legal Action Over Online Pictures Of Released Prisoners
Google, Facebook and Twitter have been ordered by police to remove photographs purporting to be of Jon Venables, who was given a new identity in 2001 following his initial release from prison for the murder of James Bulger.  A court order from the High Court of England and Wales family division is still in force, banning publication of any information that could lead to revelation of the new identities given to Jon Venables and Robert Thompson, who were convicted of abducting and murdering two-year-old James Bulger in Liverpool 20 years ago.
 
A spokeswoman for the attorney general's office said police had requested that Twitter, Facebook and Google "assist with the removal of material in breach of the terms of the order" and that the process was ongoing.  The pictures claimed to be of Jon Venables were first posted on 14 February 2013.  The Attorney General urged that the images be removed from the internet immediately, pointing out that breaches of the original injunction, by media organisations or individuals, were potentially punishable by a fine and/or prison sentence. The attorney general also said innocent individuals could potentially be wrongly identified as them and placed in danger.  The main story is accessible here.

Environment
  • The Giant's Causeway: World Heritage Site And Golf Resort Case
The National Trust has lost a legal attempt to block construction of a £100m golf resort and hotel near the Giant's Causeway, including an 18-hole golf course, five-star 120-bedroom hotel and 70 golf lodges.  Last year, it was reported that the project could create up to 360 new jobs.  However, the National Trust opposed the development because of its proximity to the Unesco world heritage site, bringing a judicial review after Environment Minister Alex Attwood granted planning permission.  The trust argued that the minister should have consulted Unesco before making his decision as it could affect the Causeway's status as a world heritage site. 
 
The court rejected all grounds of challenge to Mr Attwood's decision. He stated that there were "a multitude of reasons why the National Trust was warranted in bringing this application and I'm minded not to make any order for costs". "My decision to grant permission was finely balanced but I was strong in my opinion that it was the right decision on the planning merits. This has now been endorsed by the courts," he said.  The development is now due to begin on a 365-acre site, to be known as Bushmills Dunes Golf Resort and Spa. More on this story.
  • High Court Judge Intends To Quash Decision To Continue A5 Project
A High Court judge has confirmed he is minded to quash the decision of a new £330 million dual carriageway project over a failure to carry out an appropriate assessment of the impact of the A5 scheme on special areas of conservation around two rivers.  Work on the 85km of dual carriageway which is to form part of a key cross-border business route linking Dublin and the North West, has been put on hold due to the legal challenge by eighteen farmers, business-men and landowners who joined together under the Alternative A5 Alliance grouping.  Lawyers for the alliance claimed it has now become a different project and that no proper environmental impact assessment (EIA) has been carried out.  The judgment found there had been a failure to carry out an appropriate assessment of the Rivers Foyle and Finn Special Areas of Conservation under the Habitas Directive. However, the Department for Regional Development (DRD), which has responsibility for roads, is to be given another chance to argue that the failure should not result in the decision being quashed.

Social Media and the Law
  • Teenage Girl's Father In Facebook Court Challenge
A Northern Ireland man has launched a legal challenge to compel Facebook to stop his daughter using the site or publishing suggestive images.  A lawyer for the girl's father claimed Facebook's open registration system allowed children to log-in and warned that it could put them at risk from paedophiles.  Under Facebook's policy, no-one under 13 is allowed to use the site but the girl from Northern Ireland has reportedly posted suggestive images of herself on it since she was 12.  Lawyers claimed the open registration system was flawed because 13-year-olds cannot enter a contract or legally consent to their data being used.  However, the High Court in Belfast ruled there was no effective way to ensure the 13-year-old did not gain access.  The court found: "The injunction is simply not viable since the plaintiff could conceivably disguise her true identity under millions of guises". The application for an interim injunction was refused.  Read more on this story here.

Freedom of Thought, Conscience and Religion
  • Removal Of Father’s Access Rights Because Of His Religion Was Discriminatory
A father has been awarded more than €15,000 after judges agreed that the Hungarian authorities breached his human rights by removing access to his son.  In a press release of the case of Vojnity v. Hungary, the European Court of Human Rights held, unanimously, that there had been a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.  The applicant was a Hungarian national born in 1948; he belonged to the religious denomination Hit Gyülekezete (Congregation of the Faith).  In 2000, the applicant’s son was placed with his ex-wife following their divorce.  In 2006, the Hungarian courts withdrew custody from the mother and, refusing to give it to the applicant because of his alleged proselytism, placed the boy with his older brother.  In 2008, the Hungarian courts removed the applicant’s access rights altogether, finding that he abused those rights by imposing his religious convictions on his son which had been detrimental to his son’s upbringing.   The European Court of Human Rights found that the Hungarian courts had failed to prove that it was in the child’s best interest to have all ties severed with his father, who had therefore been discriminated against in the exercise of his right to respect for family life.

Slavery and Human Trafficking
  • Reported Failure To Tackle Slavery And Human Trafficking In The UK
Ministers, the police and social workers have been accused of a "shocking" failure to prevent the spread of modern slavery in the UK, leading to sexual exploitation, forced labour and the domestic servitude of adults and children from across the world.  A The major study by the Centre for Social Justice, titled ‘It happens here’ sets out more than 80 recommendations, including appointing an independent commissioner and new legislation to protect victims.  An 18-month investigation leading up to the CSJ study collated evidence of exploitation of foreign adults and children as well as British citizens, in factories, fields, construction sites, brothels and houses. It identified more than 1,000 cases, but cautioned that official figures remain "a pale reflection of the true size of the problem". The study calls on parliament to pass new anti-slavery legislation aimed at requiring companies with turnovers above £100m a year to publicly disclose the efforts they are making to ensure that their supply and product chains and business practices are free from modern slavery.
Other Legal Developments
  • Omagh Victims' Families Launch High Court Applications For Cross-Border Inquiry
The families of victims of the Omagh bomb are launching a legal bid to force the British and Irish governments to hold a cross-border inquiry into the tragedy in which 29 men, women and children were killed.  Last summer, copies of a confidential report specially commissioned by the families to review all the various police investigations were handed over to the Republic's justice minister, Alan Shatter, and the then Northern Ireland secretary, Owen Paterson.  The report, carried out by security experts, claims that the RUC, Garda, MI5 and the FBI failed to share important intelligence during the months leading up to the atrocity.  The report also claims email evidence detailing terrorist activity in the Republic that was not shared with the authorities on the northern side of the border.   A Northern Ireland Office spokeswoman said the secretary of state was still considering whether it would be in the public interest to hold an inquiry. To read the article in full click here.
  • Stormont Executive Blocks Free Speech Law
A British law aimed at protecting freedom of expression will not extend to Northern Ireland after the Stormont Executive refused permission for Westminster to extend the reform to Northern Ireland.  The Defamation Bill which is the first reform of Britain’s libel laws since the 19th century, has been going through Westminster since 2010 receiving support from leading authors, scientists, lawyers and journalists.  When asked why it had made that decision, Stormont’s Department of Finance and Personnel (DFP) said that it had “considered” extending one clause in the new Bill to Northern Ireland but the Executive had been unable to come to a decision.  Last October the Scottish Parliament agreed that Westminster extend the law to Scotland, leaving Northern Ireland as the only part of the UK excluded from the Bill. Click here for more information.
  • Legal Aid Cuts Affect Access To Advice And Legal Representation
The full effects of the Legal Aid, Sentencing and Punishment of Offenders Act which slashed £320m out of the annual £2bn legal aid budget as part of the government's austerity programme are beginning to be felt.  According to the government's own assessment, around 600,000 people will lose access to advice and legal representation. Among areas for which it will no longer be available are: divorce, child custody, clinical negligence, welfare, employment, immigration, housing, debt, benefit and education.  Steve Hynes, the director of the Legal Action Group that campaigned against the cuts, said: “Much of the rhetoric from the government is all about high paid lawyers and very complex human rights cases but what they are cutting from legal aid is the straightforward cases that are important to ordinary people. Early advice is being taken out of the system.”  Last week the president of the Supreme Court, Lord Neuberger, the UK's most senior judge, signalled his concern about the effect of the cuts on access to justice, stating: “If you start cutting legal aid you start cutting people off from justice.” Read more on this article.
  • Senior Judge Warns Over Deportation Of Terror Suspects To Torture States
Senior judge Lord Neuberger, president of the UK Supreme Court, has recently commented on deportation of terror suspects to torture states, stating policy would mean Britain will have to withdraw from the United Nations as well as the European Court of Human Rights if it wants to deport terrorist suspects to states that carry out torture.  Lord Neuberger stated the Supreme Court is "not subservient" but works "in a dialogue" with the judges in Strasbourg. Whether the UK's Supreme Court is genuinely supreme is a point of dispute. Lord Neuberger said: "At the moment we are not told by the human rights acts that we have to follow Strasbourg. What is said is that we have to take into account its decisions:  "A case might arise where we might feel that Strasbourg really had gone wrong and our only way to make our point would be not to follow their decision and to hope that Strasbourg might change its mind. In the end we are not subservient. We are in the position where we have a dialogue with Strasbourg." Lord Neuberger also commented on the lack of diversity in the upper reaches of the judiciary, suggesting that appointment panels could be suffering from a "subconscious bias" against women.  Read more here.

Pro Bono
  • PILS Project Seeks Lawyers….
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 find out more about opportunities to do pro bono work please email caoimhe@pilsni.org.

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