Public Interest Litigation Update:

29th May 2014

 

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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Education Law
  • Significant judgment in favour of integrated education
In the matter of an application by Drumragh Integrated College for judicial review (2014) NIQB
 
On 15th May the High Court delivered its judgment in the judicial review action brought by Drumragh Integrated College.  The case concerned a challenge to the approach taken by the Department of Education (DE) to the school’s development plan to increase pupil numbers.  One of our stakeholders, The Integrated Education Fund (IEF) supported this case.  We are proud of our involvement having provided both legal and financial assistance to allow the case to be brought.
 
The Court clarified the statutory duty to ‘encourage and facilitate integrated education’, enshrined in both Article 64 of the Education Reform (NI) Order 1989 and the Good Friday Agreement. The Court held that integrated education was a standalone concept and plainly envisages education together at the same school. It also held that an integrated school strives to achieve an equal balance in relation to worship, celebration and exposure to both faiths. This is reflected in its constitution, and the Board of Governors must strive in its ethos to achieve this.  The statutory duty in Article 64 applies to education that is integrated throughout and not education that is delivered by a ‘partisan board.’
 
The Court described DE’s ‘Needs Model’, which is the basis for long-term education planning, as ‘inflexible’ and provides an ‘additional difficulty’ impeding the progress of expansion in integrated schools.  This creation of an ‘additional difficulty’ is the opposite of ‘…facilitating and encouraging (integrated education).’ The Court ruled that DE needed to be ‘…alive to its Article 64 duty at all levels, including the strategic one.’
 
This is an extremely important judgment.  We hope to bring you more on this case in the near future.  In the meantime you can read the Court’s press summary here and the Belfast Telegraph coverage here.     
Prison Law This successful judicial review action was brought by another stakeholder, The Committee on the Administration of Justice (CAJ).  We also provided the financial funding to allow this case to be brought.  Delivering its judgment on 15th May, The High Court ruled that the decision to deny CAJ access to hearings on whether to release a prisoner from custody was unlawful.

The Court held that the Northern Ireland Parole Commissioners (PCNI) had misdirected themselves in law in refusing to let CAJ attend hearings as an observer.  The Court stated:
“Even in circumstances where there is an exception to the general principle of open justice, there is still a public interest in proceedings being as transparent and accountable as possible.”

This too is a significant judgment as it will clearly have an impact on the wider policy of PCNI regarding applications to attend Parole Commissioners’ hearings. 

Again we hope to cover this judgment in more detail in the near future. 

For coverage from the BBC click here

Community Care
  • Withdrawal of night-time care breached disabled woman’s human rights
McDonald v The United Kingdom ECHR 141 (2014)

The ECtHR ruled that the removal of night-time case from a retired, disabled ballerina was initially illegal.  However, the judgment grants the government wide discretion in balancing the needs of vulnerable individuals with ‘the economic wellbeing of the state’.  Therefore the ruling could have a significant impact on the level of support local authorities are required to provide.

In November 2008, Ms McDonald’s local council declined to pay for a night-time assistant, proposing instead that she use incontinence pads.  The ECtHR ruled that the UK government had violated Ms McDonald’s human rights, between November 2008 and November 2009, before it carried out its first full assessment of her care plan.  She was awarded €1000 in compensation for breaches of Article 8 of the ECHR, which guarantees respect for family and private life.  This is extremely significant as it is the first time that a breach of Article 8 has been identified by the ECtHR in a case concerning the provision of services or support to a disabled person.

However the Court also held that the council had acted lawfully when it reviewed her care plan in November 2009.  The Court ruled:
‘….there is no doubt that the interference (in her rights) was in accordance with the law (after the care plan was reviewed).  The Court accepts that the interference pursued a legitimate aim, namely the economic wellbeing of the state and the interests of the other care users.’

For further commentary on the significance of this ruling from the Disability Law Service please click here.  Nearly Legal’s commentary is here.
  • Disabled man’s father loses legal challenge over paying for his care.
PH’s application (2014) NIQB 60

In a local case, the issue of having to pay towards care costs was also considered.  On 29th April, the High Court ruled that the Western Health Trust is entitled to charge for respite care provided to a severely disabled man (“PH”). 

The father of the 42-year old, who suffers from a learning disability and manic depression, brought the challenge after the Trust changed its policy from charging nothing to charging £75 per week.  His lawyer questioned the legality of his client’s son being required to pay for respite care out of his benefit income.  His lawyer contended that this breached the government’s obligations under the Chronically Sick and Disabled Persons (NI) Act 1978 and the Human Rights Act.

The Court held that the argument on the alleged interference with PH’s human rights had not been made out.  It highlighted that PH had not been assessed as requiring respite care and, even if the Trust was under a duty to provide it, it would still be obliged to charge under the Personal Social Services (NI) Order 1972.  The Court held therefore that the Trust had acted lawfully in taking PH’s benefit into account when calculating the charge for PH’s respite care.

For coverage from the BBC please click here.
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Legal Aid
  • Court of Appeal overturns fraud trial legal aid ruling
The Operation Cotton appeal – R v Crawley and others (2014) EWCA Crim 1028
On 21st May the Court of Appeal in England and Wales quashed the decision to halt a multimillion pound fraud trial after the defendants argued they could not get a fair trial because of cuts to legal aid. 

The earlier ruling halting the trial was made on 1st May at London’s Southwark Crown Court after the Prime Minister’s brother, Alex Cameron QC, successfully argued that the case could not proceed because controversial Ministry of Justice (MoJ) reforms meant the five defendants could not find suitably competent barristers.  The MoJ has cut legal aid fees for such cases by 30% for both solicitors and barristers.

The ruling highlights the continuing bitter dispute between the legal profession and the MoJ on legal aid cuts.  Announcing the decision of the Court, Judge Sir Brian Leveson, stated:
‘It is of fundamental importance that the MoJ led by the Lord Chancellor and the profession continue to try and resolve the impasse that presently stands in the way of delivery of justice in the most complex of cases: this will require effort by both sides.’

The Crown Court’s decision of 1st May can be found here.

To read the Criminal Bar Association’s response to the judgment click here.

Alternatively The Guardian’s article can be found here.

In a very recent development on the issue of legal aid cuts, the London Criminal Courts Solicitors’ Association (LCCSA) and the Criminal Law Solicitors’ Association (CLSA), issued judicial review proceedings on 27th May challenging the MoJ’s decision to press ahead with the cuts.  The lawyer groups claim that the consultation that preceded the cuts was conducted unlawfully.  For further information please click here.

LGBT Law
  • Stena Line ordered to pay £45,000 to unfairly dismissed victim of homophobic abuse
Martin Shiel v Stena Line Sea Ferries Ltd Case Ref: 434/13IT

Mr Martin Shiel has been awarded compensation of £45,000 against Stena Line, his former employer.  The Northern Ireland Industrial Tribunal found that Mr Shiel was the victim of discrimination and harassment at work on the grounds of his sexual orientation.  The Tribunal also upheld Mr Shiel’s complaint that he had been unfairly dismissed, following an incident involving him and another member of staff who had been taking part in the homophobic abuse. 

The Tribunal stated that ‘..flaws in the investigatory and disciplinary procedure render the dismissal substantively unfair’ and Stena Line had ‘…adopted a far too passive approach to unpleasant banter’.  Stena Line said that it is ‘disappointed’ by the tribunal decision and it has lodged an appeal, scheduled for September.

Dr Michael Wardlow of the Equality Commission said that the Tribunal’s decision ‘..posts a warning to all employers that they must take active steps to ensure that their policies against harassment and discrimination are known, understood and practised by their entire workforce.’

Click here to read coverage from PILA (Public Interest Law Alliance).  The Equality Commission’s coverage can be accessed here.
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Civil Law
  • Disabled woman can continue with suing PSNI over flawed criminal investigation
 C (a person under a disability) v Chief Constable of PSNI (2014)NIQB 63

On 7th May 2014 the High Court ruled that a disabled woman can continue with suing the PSNI claiming damages for negligence and breach of her human rights arising from its flawed investigation of her rape case.

The woman, who suffers from autism and Asperger syndrome, claimed she was raped in June 2007.  A subsequent Police Ombudsman report identified serious failings by the PSNI investigating the claim, including not interviewing her until six months after the incident.  The Ombudsman concluded that the PSNI had not even met the basic principles of investigation. 

The PSNI tried to get her claim struck out on the basis that no duty of care breach had been established.  However, the High Court dismissed the PSNI’s application, stating that a full hearing of the woman’s claim is required.  The Court held that the PSNI had not established that her claim was ‘…unarguably or almost incontestably bad’ which would justify striking it out at this preliminary stage.
  •  Mayor of London to pay compensation for London riots’ damage
Mitsui Sumitomo Insurance Co (Europe) Ltd, Royal and Sun Alliance Insurance plc and others v The Mayor’s Office for Policing and Crime

On 20th May, the Court of Appeal of England and Wales ordered The Mayor’s Office for Policing and Crime (MOPAC) to meet compensation claims of almost £75 million for the destruction of a Sony warehouse during the London riots of August 2011.

The Court of Appeal upheld the earlier decision of the High Court which ruled that insurers, and the owners of uninsured property, were entitled to compensation from the mayor under the Riots (Damages) Act 1886.  The mayor’s office tried to argue that the disturbances were not covered by the Act.    

Therefore the money now owing to insurers will have to come from public funds.

Unfortunately the Court’s judgment is not yet available online.  For commentary from the solicitor, acting for Sony insurers, please click here.
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Extradition
The Divisional Court has dismissed an appeal by Fermin Vila Michelena against an order to extradite him to Spain where he is sought in connection with terrorism offences.

His lawyers argued that, if returned to Spain, he would be denied his right to a fair trial as the evidence against him had been obtained by alleged torture of his co-accused.  They also claimed that he would be prejudiced at his trial or restricted in his personal liberty as it was alleged he was a supporter of Basque independence.

In its judgment, the Court cited the decision of the European Court of Human Rights in the case of Abu Qatada v UKIn this case the ECtHR stated that it was for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. 

The Divisional Court dismissed Vila Michelena’s appeal stating:
‘We do not accept that the appellant has established that if returned to Spain there are substantial grounds for believing that he would be exposed to a real risk of flagrant denial of justice.’
The Court also ruled that there was no risk of him being exposed to torture or similar treatment if returned to Spain.

For coverage by the Belfast Telegraph please click 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 development@pilsni.org to request an application form.
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