Public Interest Litigation Update:

28th April 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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Criminal Law
  • UK High Court rules David Miranda detention lawful.
 Miranda v Secretary of State for the Home Department & Ors [2014] EWHC 255
 
Following up on this case, highlighted in our September Update, the UK High Court has ruled that the 9 hour detention at Heathrow Airport of David Miranda under schedule 7 of the Terrorism Act 2000 was lawful, proportionate and did not breach human rights protections of freedom of expression.
 
Police seized from Mr Miranda computer files which included encrypted material containing highly classified UK intelligence documents.  Mr Miranda argued that this data was to assist the journalistic activity of his partner, Glenn Greenwald, a Guardian journalist at the time.  The judge stated:
 “The claimant was not a journalist; the stolen GCHQ (Government Communications Headquarters) files were not ‘journalistic material’, or if it was, only in the weakest sense.”
 
The Judge added that he had to balance press freedom against national security, and concluded:
“On the facts of this case, the balance is plainly in favour of the latter.”
 
This case has attracted significant interest by legal commentators.  The UK Human Rights Blog has published an article that can be found here.  You can read The Guardian’s article here.
  • Criminal Legal Aid: Cuts, Protests and Fall Outs
The debacle over the Ministry of Justice’s plans to slice £215m out of England and Wales’ annual legal aid budget continues.  Criminal solicitors and probation officers staged a two day walk out on 30th March and 1st April.  The combined demonstration’s aim was to bring the criminal justice system in magistrates and crown courts across England and Wales to a standstill. 

In an interesting twist, barristers did not join their colleagues after the Criminal Bar Association (CBA) and the Bar Council struck a last-minute deal with the government.  The deal means that the government will not make cuts to the advocates graduated fee scheme until at least next summer.  The deal is therefore aimed at helping junior barristers in the short term.  For more information on the deal itself please click here to read CBA Chairman’s statement.

The CBA and the Bar Council have come under criticism from solicitors and their own members over the deal. Individual barrister chambers, including 4 King’s Bench Walk (4KBW) and Garden Court, voiced their opposition to the deal being struck.  Gavin Holme, head of the crime team at 4KBW, wrote on the chamber’s website that the action barristers and solicitors were taking together had been working.  He added:
 “….It is likely that some of you may view this capitulation by the CBA as being the Bar purely looking after its own interests.  I have great sympathy for that view.”

His view however was not shared with the majority of his colleagues as on 9th April criminal barristers voted 2:1 in favour of accepting the deal offered by the government.  It is noteworthy that fewer than half of the Criminal Bar Association’s 4000 members voted in the ballot. 

There is no doubt that there will be further developments on this very live issue in future Updates!  In the meantime, you can read The Guardian’s article focusing on the views of Imran Khan, the lawyer who acted for Stephen Lawrence’s family, entitled ‘I wouldn’t take case with today’s legal aid cuts.’
  • Nigel Evans: Calls for anonymity, review and reimbursement of legal fees
The Conservative MP, and former deputy speaker of the House of Commons, Nigel Evans was acquitted of rape and sexual assault charges on 10th April.  During the five-week trial Mr Evans was accused of abusing his power to attack young House of Commons employees between 2003 and March last year. 

A number of issues have arising as a result of this acquittal and other recent similar cases.  They include:
- Anonymity for people accused of sexual offences
- Prosecution of historic sexual offences cases
- Reimbursement of legal fees
 
Anonymity:
Mr Evans has called for anonymity for people accused of sex offences.  In an interview he said that there needed to be a review of anonymity rules that allowed his seven male accusers to keep their identities secret.

However, an article from the BBC states:
“Downing Street confirmed there were “no plans to change” current arrangements regarding the anonymity of defendants in sexual cases.”

You can read the opinion of Keir Starmer QC, former Director of Public Prosecutions, on this issue here.

Prosecution of historic sexual offences cases:
Mr Evans also criticised the decision by the Crown Prosecution Service (“CPS”) to prosecute him in the first instance.  A number of Conservative MPs have also questioned the CPS’s rationale for prosecuting.  Indeed Lord MacDonald, a former Director of the CPS, warned that the CPS must not “…lose perspective” over high-profile cases involving historic allegations. 

Pressure has been mounting on the CPS following the unsuccessful cases involving sexual assault and rape allegations against public figures, including Bill Roache and Michael Le Vell.  The CPS, which has endured cuts of 27.5% in its budget under the coalition government, has confirmed that it is conducting a review of the recent failed high-profile prosecutions.  Nevertheless, a spokesperson for the CPS has insisted that the post-case review is not a re-examination of the decision to bring charges but an investigation into how proceedings were managed.

Reimbursement of legal fees:
Finally, his latest public comment has centred on his legal fees.  He stated that the CPS should pay his £130,000 legal bill which he claims has used up his life-savings.  Until 2011 acquitted defendants could claim back their legal costs from “central funds” – the taxpayer rather than the CPS. 

However, because of cuts brought in by the coalition government under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, someone not eligible for legal aid (anyone whose disposable household income is more than £37,500 a year) has to pay for their own representation, and, even if the defendant is acquitted of all charges, there is now no automatic reimbursement of costs. To recoup anything, such defendants must first apply for legal aid, be rejected, and hire a lawyer privately; yet upon acquittal they can then claim back costs only at legal aid rates.

It has emerged that Mr Evans did not apply for legal aid.  His solicitor, Daniel Burke, told the BBC that Mr Evans initially felt it was not appropriate for him to burden the public purse with his defence costs.  Once the prosecution appointed a senior barrister, Mr Evans decided that he too needed to have a suitable qualified barrister and therefore continued to pay privately.

Clive Coleman, the BBC’s legal correspondent, said:
“In essence, Nigel Evans wasn’t satisfied with the legal representation that the state had to offer.  He made a choice to pay privately for the best lawyer he could find.  It was a choice that left him acquitted but out-of-pocket.”

What is abundantly clear is that Mr Evans now appears to realise, first hand, the potentially devastating and unfair consequences that occur when the government imposes cuts to the legal aid budget.  He told ITV:
 "It's only when you go through these sorts of trauma that you see the first-hand consequences of that, and that people were being "doubly punished by the fact they aren't getting a single penny back".

He also said that he now opposes the cuts to legal aid made by the coalition government.  It will be interesting to see if his views will lead to a rethink on any current or future proposals to cut legal aid.  
Data Protection
  • ECJ declares EU data retention policy invalid
Digital Rights Ireland and Seitlinger and Others Case C-293/12 (Joined C-293/12, C-594/12)
On 8th April the European Court of Justice (“ECJ”) ruled that an EU directive, requiring telecom operators to retain data for two years, is invalid.

The case arose after Digital Rights Ireland, an Irish human rights advocacy group, launched a court action in 2006 against the Irish State that questioned the legality of Irish data-retention legislation requiring phone companies and internet providers to gather data about customer locations, texts, calls and emails, and store that information for up to two years. 
The ECJ ruled that the EU directive interfered in a serious manner with fundamental rights to respect for private life and to the protection of personal data.

Following the ECJ’s judgment, Digital Rights Ireland’s case against the State’s legislation will now be allowed to proceed. 
The ruling has been welcomed by Ireland’s Data Protection Commissioner’s office.  Ultan O’Carroll, from the office, said that there was a ‘balance and proportionality to be stuck’ between rights and law enforcement which ‘I think the commissioner believed was not there before’

However, the ruling could be viewed as a blow to UK’s home secretary, Theresa May, whose plans included a data protection scheme which would collect and store data from UK citizens’ internet and phone use for up to 12 months for later examination.

 Family Law
  • Northern Health Trust’s decision to remove a child from her mother was unlawful
In the matter of an application for judicial review and in the matter of the decisions of the Northern Ireland Health and Social Care Trust for Northern Ireland (2014) NIQB49

The High Court of Northern Ireland has allowed a Judicial Review action by a mother against a decision of the Northern Health and Social Care Trust (“the Trust”) to remove her child and place her into foster care. 
In April 2013 the Trust exercised its powers under Article 52 of the Children (NI) Order 1995 to remove the child (“X”) from her mother’s care placing her with foster carers. 

The Trust was granted an Interim Care Order in respect of X in January 2013 following concerns about her mother’s alcohol abuse.  A care plan was agreed whereby X would stay with her mother provided her mother maintain(ed) sobriety’ and did not have any alcohol in her home.

In April 2013 the Trust became aware that the mother had taken alcohol when X was staying overnight with her father.  The mother admitted this, and that she had taken alcohol on other occasions when X was staying with her father, to the Trust on 24th April 2013.  The Trust deemed this a breach of the care plan and removed X from her mother the following day.
Solicitors for the mother judicially reviewed the Trust’s decision arguing that it was unlawful, unreasonable and in breach of natural justice.

The judge noted that the Trust had recorded that X had been “…thriving in her mother’s care”.  He also commented that while the Trust had discovered that the mother had taken alcohol when X was not in her care, it was difficult to see how this information alone could be sufficient to persuade the Trust that it was necessary to immediately remove the “thriving” child.  In addition, The Trust did not consider the effect that such an abrupt removal would have on X’s welfare.  The Judge held that for these reasons the removal of X was unlawful and was a breach of Article 8 rights. 

Lawyers for the mother claimed the verdict will act as a safeguard for the rights of parents.

Immigration Law
  • Successful challenge over UK government policy on asylum-seeker subsistence payments
Refugee Action, R (On the Application Of) v The Secretary of State for the Home Department [2014] EWHC 1033 (Admin) (09 April 2014)

The judicial review action was taken by a coalition, led by Refugee Action, who described the payments given to asylum seekers, awaiting decisions about whether they can settle in Britain, as “…cripplingly low”.  Currently asylum-seekers receive £36.62 a week, a sum that has not changed since 2011. 

There are estimated to be more than 23,000 asylum-seekers in Britain.  Refugee Action stated:
‘Our research also found that 43% of asylum-seekers miss a meal because they can’t afford to eat while a shocking 88% don’t have enough money to buy clothes’

The Judge held that the Home Secretary’s decision to freeze rates for a third year in a row in 2013-14 amounted to a “…a reduction in real terms from what was regarded in 2007 as the bare minimum level necessary to avoid destitution.”  The Judge also ruled the decision unlawful, adding:
In my judgment, the information used by the Secretary of State (for the Home Office) to set the rate of asylum support was simply insufficient to reach a national decision to freeze rates.” 

The Judge ordered the Home Secretary to reach a new decision by 9th August taking into account the guidance in his judgment.

A spokesperson for the Home Office stated:
“We are disappointed with the judgment.  We are looking at all options, including appeal.”

For further commentary please click here.

Following the judgment Refugee Action is urging people to sign up to an online petition to persuade the Home Office to ‘bring back dignity’ to asylum seekers. For further information click here.
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LGBT Law
  • Same-sex couples in England and Wales tying the knot
The Marriage (Same Sex Couples) Act 2013 came into force in England and Wales last July but it was not until 13th March 2014 that couples were able to register their intention to marry under the Act for the first time.  The first same-sex marriages took place on 29th March 2014.  The Prime Minister hailed the introduction of gay marriages in England and Wales as “historic” and offered his “…best wishes to those about to be (married) on this historic day”.
Scotland has followed suit with same-sex marriages expected to occur this Autumn.  However, the Northern Ireland Assembly has no such plans to introduce similar legislation here to allow same-sex marriage.  This has sparked much debate among the general public and Stormont ministers. 
On 18th February, Lord Wilson, a judge sitting in the Supreme Court, addressed an audience at Queens University.  He queried whether Northern Ireland would, in the long term, be “…able to hold back the tide in favour of same-sex marriages”.  He said that he was in no position to disagree with those who believed for religious reasons that marriage can only be entered into by people of the opposite sex, however, he also stated that marriage “…can be invalid for religious purposes yet valid for secular purposes”.
 A full copy of his speech can be read here.  Furthermore, you can read about the findings of a local survey regarding attitudes to same-sex marriage here.
  • India’s Supreme Court recognises transgender people as third gender
National Legal Services Authority v Union of India and others
India’s Supreme Court has delivered a landmark judgment creating a third gender category that allows transgendered people to identify themselves as such on official documents.  Prior to the judgment, transgendered people in India had to identify themselves as either male or female. 
The Supreme Court ordered the government to include transgendered people in all welfare programmes for the poor, including education and jobs.  Justice KS Radhakrishan, who headed the two-judge Supreme Court bench, stated:
‘Recognition of transgenders as a third gender is not a social or medical issue but  a human rights issue…….The spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender.”
The judgment has been welcomed by activists who say it will give relief to millions of people who face discrimination in India’s conservative society.  According to one estimate, there are about three million transgender people in India.  Campaigners say that transgendered people live on the fringes of society, often in poverty, and earn a living by singing and dancing or by begging and prostitution.
More commentary on the judgment can be read here.
On a less positive note, the same Supreme Court issued a decision in December last year which criminalised gay sex by reversing a landmark 2009 Delhi High Court order which had decriminalised homosexual acts. 
Activists hope however that this ruling on transgendered people will encourage the new parliament (national elections currently taking place) to repeal the anti-homosexuality law.

Immigration Law
  • Developments relating to Romanian and Bulgarian nationals’ ability to travel to the UK via the EU
The lifting of EU restrictions as they relate to Romanian and Bulgarian nationals has been a matter of intense media debate in the UK. It has also been a matter of extensive discussion within political circles, especially within the Conservative Party.

In December 2013 it was revealed that the government was seeking to rush into force additional benefits tests relevant to Romanian and Bulgarian nationals. The government intended to bring such measures into force before the relaxation of rules which was scheduled for 01st January 2014.

It was also announced that the Immigration Bill which would relax the transitional arrangements would not be debated until the New Year.
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LGBT Law
  • Same-sex couples in England and Wales tying the knot
The Marriage (Same Sex Couples) Act 2013 came into force in England and Wales last July but it was not until 13th March 2014 that couples were able to register their intention to marry under the Act for the first time.  The first same-sex marriages took place on 29th March 2014.  The Prime Minister hailed the introduction of gay marriages in England and Wales as “historic” and offered his “…best wishes to those about to be (married) on this historic day”.

Scotland has followed suit with same-sex marriages expected to occur this Autumn.  However, the Northern Ireland Assembly has no such plans to introduce similar legislation here to allow same-sex marriage.  This has sparked much debate among the general public and Stormont ministers. 

On 18th February, Lord Wilson, a judge sitting in the Supreme Court, addressed an audience at Queens University.  He queried whether Northern Ireland would, in the long term, be “…able to hold back the tide in favour of same-sex marriages”.  He said that he was in no position to disagree with those who believed for religious reasons that marriage can only be entered into by people of the opposite sex, however, he also stated that marriage “…can be invalid for religious purposes yet valid for secular purposes”.

 A full copy of his speech can be read here.  Furthermore, you can read about the findings of a local survey regarding attitudes to same-sex marriage here.
  • India’s Supreme Court recognises transgender people as third gender
National Legal Services Authority v Union of India and others
India’s Supreme Court has delivered a landmark judgment creating a third gender category that allows transgendered people to identify themselves as such on official documents.  Prior to the judgment, transgendered people in India had to identify themselves as either male or female. 

The Supreme Court ordered the government to include transgendered people in all welfare programmes for the poor, including education and jobs.  Justice KS Radhakrishan, who headed the two-judge Supreme Court bench, stated:
‘Recognition of transgenders as a third gender is not a social or medical issue but  a human rights issue…….The spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender.”

The judgment has been welcomed by activists who say it will give relief to millions of people who face discrimination in India’s conservative society.  According to one estimate, there are about three million transgender people in India.  Campaigners say that transgendered people live on the fringes of society, often in poverty, and earn a living by singing and dancing or by begging and prostitution.

More commentary on the judgment can be read here.

On a less positive note, the same Supreme Court issued a decision in December last year which criminalised gay sex by reversing a landmark 2009 Delhi High Court order which had decriminalised homosexual acts. 

Activists hope however that this ruling on transgendered people will encourage the new parliament (national elections currently taking place) to repeal the anti-homosexuality law.
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Medical Law
  • Appeals lodged in JR65 case
 In the matter of an application by JR65 for Judicial Review [2013] NIQB 101
You may recall the Judicial Review case concerning Northern Ireland’s lifetime ban on gay men giving blood that was covered in our October 2013 Update. 

The Court held that the Northern Ireland Health Minister’s decision to retain the permanent ban on gay men giving blood was ‘irrational’.  He also ruled that the decision to retain the ban should not have been dealt with at Stormont, insisting it was a reserved matter and the responsibility of UK Health Secretary Jeremy Hunt.

Minister for Health, Mr Edwin Poots is appealing this decision.  Moreover, in a surprising twist, the UK government issued a statement on 7th April stating that they too had begun an appeal of the decision.  A Department of Health spokesperson said:
 “We are appealing against the judgment on the basis of the implications for devolution, not on the issue of men who have sex with men donating blood itself.” 

In 2011 England, Scotland and Wales lifted the lifetime ban on gay men giving blood replacing it with new rules that allow gay men to donate provided that their last sexual contact with another man was more than a year ago.

The decisions by Edwin Poots, and Jeremy Hunt, to appeal have been criticised by some Labour MPs and Assembly members as well as gay rights organisations.  For further commentary click here.

Age Discrimination
  • Calls for age discrimination protection for all
The Chief Commissioner of the Equality Commission, the Commissioner for Children and Young People and the Commission for Older People have spoken together publicly to call for people of all ages to be protected under new age legislation covering the provision of goods, facilities and services.

The three Commissioners gave evidence to the Office of the First Minister and Deputy First Minister (“OFMDFM”) Committee on the 2nd April on discrimination experienced by young and older people because of their age when they try and access health, education or leisure services.  You can access the joint policy documents here.

Speaking before the committee session, Michael Wardlow, Chief Commissioner for the Equality Commission in Northern Ireland commented:
“It is important to ensure that both the youngest and oldest members of our society are covered under this new legislation.  We cannot claim to respect people’s dignity while tolerating discrimination based on their age.”

Claire Keatinge, Commissioner for Older People for Northern Ireland said:
“No-one should be treated unfairly on the basis of their age.  The delay in progressing the anti-age discrimination legislation means that people of all ages will continue to be discriminated against, without protection from the law.”

For further commentary click here
  • Nursing homes remain open but for how long?
Edwin Poots announced on 16th April that eighteen NHS care homes that were earmarked for closure are to remain open while residents want to stay in them.  The announcement has been warmly welcomed by the care homes and their residents.  However, questions remain about the long-term future of these homes as the Minister for Health has not reversed his policy of blocking new admissions.  Click here to read the commentary of Duane Farrell, the Director of Policy at Age NI.  For further information on the calls for clarity over the future admissions policy 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 development@pilsni.org to request an application form.
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