Public Interest Litigation Update:

25th January 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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Freedom of Thought, Conscience and Religion
  • ´╗┐´╗┐Article 9 Religious Rights And Article 14 Prohibition On Discrimination
Case of Eweida and others v The United Kingdom (Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10)
The European Court of Human Rights has ruled on four key cases involving discrimination and religious rights. The case of Eweida and Others v. the United Kingdom (nos. 48420/10, 59842/10, 51671/10 and 36516/10) addresses complaints relating to the visibly wearing of Christian crosses while at work and the refusal to carry out certain duties which were considered to condone homosexuality. The judgment in full can be read at the link above. The hearing is also accessible to watch online here. The background involving religious freedom in the UK as considered by the Strasbourg Court can be found here.

Health
  • Tony Nicklinson Widow To Challenge Laws On Assisted Suicide
As previously covered in the October Update; ‘Man with Locked-in Syndrome Appeals for Right to Assisted Death’, Jane Nicklinson, the widow of Tony Nicklinson who died of pneumonia on 22 August 2012, has been granted leave by the Court of Appeal in England and Wales to continue her late husband’s challenge to the law on murder and assisted suicide. It is claimed that the current law is incompatible with the protection of private life under Article 8 of the European Convention on Human Rights. Jane Nicklinson has also been granted a protective costs order, meaning she will not be liable for the costs of her opponents if she is unsuccessful in the case. To read more on this post click here.
  • Irish Woman Loses Assisted Death Plea
Marie Fleming, 58 and a former university lecturer at University College Dublin, who is terminally-ill with multiple sclerosis, has lost a landmark case against the Irish state for her partner Tom Curran to assist her suicide without being jailed. In 1993 suicide was decriminalised in the Republic of Ireland; however, in 2013 the ban on assisting another person to commit suicide remains in force with a possible jail sentence of up to 14 years.
 
The mother of two adult children challenged the constitutionality of the Criminal Law Suicide Act 1993, alleging it discriminates between able-bodied and disabled people, however despite this submission, three judges in the High Court in Dublin ruled they could not support a third party to bring about the death of another. Read more here.



Mental Health
  • Landmark Victory For Long Stay Patients
The PILS Project has recently supported a successful judicial review in the case JR47, in which the 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 Law Centre’s Mental Health Legal Adviser Catherine Harper stated: 'We hope this judgment gives fresh impetus to progress towards resettlement in the community for those still living in long stay hospitals.' Maureen Piggott, Mencap's Northern Ireland Director, also commented: 'People with a learning disability and their families need this strong advocacy.' The Law Centre’s press release is available here.

 

Education
  • Student Refusing To Wear Tracking Device In School Loses Appeal
A court case in America involving technology tracking pupils’ attendance at school has heard how 112 schools in Texas are considering introducing badges equipped with radio-frequency identification (RFID) chips. Two schools have piloted the programme. Andrea Hernandez, 15, lost a federal court appeal against her school's ID policy when she was suspended for refusing to wear the school’s badge on religious grounds. The badges reveal each student's location on campus, providing the district with information on attendance which is linked to how much funding each school receives. More on this story and related stories

Environment
  • The Giant's Causeway: World Heritage Site And Golf Resort Row
The High Court in Belfast has been told that the Environment Minister Alex Attwood acted "unreasonably and irrationally" in granting planning approval for a £100m golf resort near the Giant's Causeway, which was declared a Unesco World Heritage Site in 1986. In a statement the Department of the Environment said Minister Alex Attwood believes "environmental issues can be reconciled with economic opportunity". The 18-hole golf course and hotel complex was approved in February 2012 and is being opposed by the National Trust which was criticised for its decision to challenge the planning of the resort, which is to be constructed one mile away from the Giant's Causeway stones. Read more here.

Rights of Offenders
  • Life Sentences Legislation And Liberty Rights In Article 5 ECHR
Corey’s (Martin) Application [2012] NICA 57
In this recent judgment delivered in the Northern Ireland Court of Appeal, it was submitted that the decision not to direct the release of the respondent, in reviewing his licence under Article 9(4) of the Life Sentences (Northern Ireland) Order 2001, was incompatible with his rights under Article 5 (4) ECHR in circumstances where the open material in the case consisted mainly of general assertions and the decision to uphold detention was based upon closed material. The court considered the issue of whether the Parole Commissioners applied the test correctly and whether the process undertaken by the Panel was flawed, applying the case of A v UK (2009) 49 EHRR 29. The Court allowed the appeal.
  • Court Of Appeal Dismisses Application Against PPS Decision Not To Prosecute
Wilson’s (Jason) Application [2012] NIQB 102
The judgment delivered by the Northern Ireland Court of Appeal addressed the application for judicial review of a decision by the Public Prosecution Service (PPS) to review and reverse a decision not to prosecute the applicant for an offence of assault occasioning actual bodily harm. The Code for Prosecutors was considered by the court along with complaints of improper political motivation and whether there was sufficient evidence to afford a reasonable prospect of conviction. The Court dismissed the application and concluded: “In view of the frequency of applications seeking to challenge decisions to prosecute, we wish to make it clear… that, save in wholly exceptional circumstances, applications in respect of pending prosecutions that seek to challenge the decision to prosecute should not be made to this court…”
  •  Judges Rule Criminal Records Checks 'Incompatible' With Human Rights
R (on the application of) T -v- Chief Constable of Greater Manchester and others [2013] EWCA Civ 25
The Court of Appeal of England and Wales has ruled that blanket criminal records checks are not compatible with the Human Rights Act as they may interfere with the right to private or family life. The checks require the disclosure of all criminal convictions or cautions, regardless of their relevance to the job or position being applied for. The ruling was made based on the case of a 21-year-old man, who had been forced to reveal he had received warnings from police, in connection with two stolen bikes when he was 11-years-old, after applying for a part-time job at a local football club aged 17 and later for a university course. It has been revealed that a government-backed review into the so-called ‘CRB’ checks last year recommended the introduction of a "filter" to remove old and minor conviction information from the checks. Read more here.
  •  British Woman Facing Death Penalty In Indonesia To Appeal
Lindsay Sandiford was convicted of trying to smuggle 4.8kg of cocaine into Bali and sentenced to death by firing squad. She was accused by the court of damaging the image of Bali and received the sentence despite prosecutors only asking for a 15-year prison term. An appeal request has been lodged with court officials. The British government is to be challenged over its failure to fund legal representation for Sandiford, who it is thought cannot afford legal representation. The Foreign Office said the government does not fund legal representation for British nationals abroad, but Sandiford's case was being raised through diplomatic channels. It has been asserted that, under Indonesian law, Sandiford has at least two further avenues of appeal through the courts and the opportunity to apply for presidential clemency. Read more on this case here.

Travellers' Rights
  • Romani Gypsies Not Entitled To Full Housing Benefit To Cover Private Rent
R, on the application of Knowles and another v Secretary of State for Work and Pensions [2013] EWHC 19 (Admin)
The High Court in England and Wales has rejected a claim that Romani Gypsies occupying caravans on private land were discriminated against by legislation which resulted in them not being able to claim full Housing Benefit to cover their rent. The claimants maintained that the Housing Benefit scheme fails to meet the essential housing needs of Gypsies on private sites, stating the scheme was discriminatory under article 14 ECHR when read with article 1 of the First Protocol 1 (the right to property) and article 8 ECHR (the right to respect for family and private life). They pursued their case based upon a comparison of their situation with the situation of other Gypsies on publicly owned sites. The claim was rejected and the Court concluded these additional costs largely arise out of other services and facilities, which can not be taken into account in the rent assessment, because they fall outside the scheme altogether. Rosalind English of the UK Human Rights Blog has provided a detailed blog on this issue.

Legal Profession
  • Legal Professional Privilege Only For Solicitors And Barristers
R (on the application of Prudential plc and another) (Appellants) v Special Commissioner of Income Tax and another (Respondents) [2013] UKSC 1.
The Law Society of England and Wales has intervened in this Supreme Court case. In this case the Supreme Court ruled that legal professional privilege applies only to solicitors and barristers, when Prudential Plc sought to withhold documents about a marketed tax avoidance scheme on the grounds of privilege. The Supreme Court, in agreement with the Court of Appeal, emphasised that extending legal professional privilege communications to other professionals, such as accountants, was a matter for parliament, not for the courts.

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Other Legal Developments
  • Plans For Judicial Review Reform
The Government’s consultation on ‘Judicial Review: proposals for reform’ ended on 24 January 2013. The focus of this consultation was on tackling the burden that Judicial Review places on public services whilst protecting access to justice and the rule of law. Views on three key areas were welcomed; including reducing time limits in certain cases; removing the right to an oral renewal where a judge refuses permission where there has been a prior judicial process, or where the claim was judged to be totally without merit; and introducing new fees. The consultation paper, which states that 160 Judicial Review applications in 1974 quickly grew to over 11,000 in 2011, can be accessed here along with the UK Human Rights Blog editor Adam Wagner’s account on ‘Quicker, costlier and less appealing: plans for Judicial Review reform revealed’.
  • ‘Holding The State To Account, Public Inquiries And Inquests’
On 8th November a mock trial on the theme of ‘Holding the State to Account, Public Inquiries and Inquests’ was hosted at 1 Crown Office Row, a number of barristers spoke at this event and the podcast of the event is now online, accessible here. The handout at the event can be downloaded here.
  • Law Society Warns ‘Repressive Regimes’ And Secret Courts ‘Unjust’
The Law Society of England and Wales warns extending use of closed material procedures to ordinary civil law cases would see the UK ‘stoop to the level of repressive regimes’. It is though the Justice and Security Bill includes proposals to extending the use of closed material procedures to ordinary civil law cases could fatally undermine the courtroom, ‘which should be an independent and objective forum in which allegations of wrongdoing can be fairly tested, and where the government and others can be transparently held to account’. Concerns are that procedures will weaken fair trial guarantees, the principle of equality of arms affect the UK’s international reputation for fair justice. The president of the Law Society, Lucy Scott-Moncrieff, stated: ‘The government has also failed to address the wider implications of introducing [closed material procedures] on the relationship between lawyer and clients. It will be impossible for lawyers to advise their clients in their best interests if they are not privy to the information being used against them in court and are able to discuss this with those clients. 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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