Public Interest Litigation Update:

30th November 2012

 

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
  • Court Of Appeal Rules Whole Life Sentences compatible With ECHR
R v David Oakes and others [2012] EWCA Crim 2435

Summary of the judgment: here

The Court of Appeal in London has refused to quash the whole-life term of David Oakes and declined to reduce the 30 year minimum term for Kieran Stapleton. The court ruled that the imposition of whole life sentences passes the human rights test and is compatible with Article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment and punishment. However, the court also granted the appeals of Danilo Restivo and Michael Roberts who had also been sentenced to spend the rest of his lives in prison. Restivo’s tariff was reduced to a minimum term of 40 years instead whilst the sentence of Roberts was reduced to a minimum term of 25 years. The appellants are still subject to life sentences, but can now apply for parole once the minimum term has expired. However, they will not be released until they are no longer considered a threat to the public. The judgement has come as the European Court of Human Rights prepares to hear a similar challenge by three British murderers who have also been committed to whole life sentences.
  • Police Treatment Of 17 Year Old Suspects To Be Challenged In Court
Charity Just for Kids Law is to bring a Judicial Review of police practices when questioning teenagers. The legal challenge against the Home Office and the Metropolitan Police Commissioner involves a 17 year old without a criminal record who was handcuffed and detained in a London police station for 12 hours on suspicion of robbery. The young man was released without charge, and was informed that his mother could not come to the police station to help him, in contrast with 16 year old suspects who are entitled to have an adult present. It is widely recognised that the 1984 Police and Criminal Evidence Act (PACE) effectively treats 17 year olds as adults once they are inside a police station. The executive director of Just for Kids Law has said “Seventeen-year-olds can be held in police stations for up to 24 hours, sometimes without their parents knowing. It's only in police stations now that they are treated like adults. We want an appropriate adult to be there with them”. It is alleged that the Metropolitan police is failing to comply with statutory duty under the Children’s Act 2004 which brings the UN Convention on the Rights of the Child into UK law.
  • NI High Court Rules It Lawful To Keep Criminal DNA Indefinitely
Gaughran’s (Fergus) Application [2012] NIQB 88

The High Court has ruled that it is legal for the police to indefinitely retain DNA samples and fingerprints of convicted offenders in Northern Ireland. This test case attempted to establish that indefinite retention breached privacy rights, when Fergus Gaughran challenged the PSNI’s retention of his fingerprints, a photograph and DNA profiles. The European Court of Human Rights and the UK Supreme Court have both previously ruled that it is unlawful to keep samples of people who are eventually not convicted. However, there is a distinction in that Gaughran’s challenge came after a conviction for what was alleged to be a relatively minor offence. Gaughran therefore claimed that the offence was not of sufficient gravity to justify indefinite retention of the material. In dismissing the challenge, the court stressed the value of using DNA sampling in the fight against crime.
  • NI High Court Finds ‘Access NI’ Interference With Convention Article 8
JR59’s Application [2012] NIQB 66

The applicant has successfully challenged a decision by the Chief Constable of the PSNI in which he decided to issue information to Access NI which deprived the applicant of being able to volunteer with a local football club. Upon applying for the volunteering position as a coach, the applicant was required to undergo a police check and submit this to the club. It was disclosed that the applicant had been arrested in 1997 on allegations of assault and indecency towards a minor in the late 80s. The allegations were uncorroborated and resulted in no prosecution due to insufficient evidence. The applicant successfully argued that the disclosure of this information to the football club was a disproportionate interference with his right to a private and family life under Article 8 of the Convention. The court considered the age and unsupported nature of the allegation as well as the effect that disclosure may have upon the applicant and his family within the local community.

  • England and Wales High Court Finds Interference of Article 8 Rights In Relation to Disclosure of Criminal Allegations
R (on the application  of  J) v the Chief Constable of Devon and Cornwall [2012] EWHC 2996

The High Court in England and Wales has ruled on the disclosure by police of certain information from a nurse’s enhanced criminal records certificates without allowing her an opportunity to make representations before the information was released. The claimant has been working in the UK as a nurse since 2004. In 2007 and 2011 allegations were made against her of assault of elderly patients at care homes where she worked. This information was added to the claimant’s enhanced criminal records certificates without her knowledge. No further action was taken in the case of either of the allegations. The Royal College of Nursing contended the additions on the claimant’s behalf, arguing that it was disproportionate for the police to disclose the information to all future employers. The claimant however received a letter in 2012 asserting that the police had decided not to amend her enhanced criminal records certificates. She therefore sought to judicially review this decision arguing an interference with her Article 8 right to a private life. One of the significant errors on the behalf of the police was that she had not been given an opportunity to make representations before the inclusion of the allegations on her enhanced criminal records certificates. The court ruled that the disclosures had breached the claimant’s Article 8 rights and that the decisions taken by the police up to and including the decision to persist with disclosure should be quashed.

  • Convicted Offender Launches Legal Challenge To NI Facebook Page
A convicted sex offender is attempting to close down a Facebook page that has been set up to monitor paedophiles in Northern Ireland. The man is also attempting to secure an injunction to prevent his personal details and photograph from appearing on the site. He has claimed the case is urgent as he is at real and immediate risk. He has been granted anonymity in court and is currently on licence after serving a prison sentence for sexual offences. It is anticipated that a hearing will take place in the week beginning 26th November 2012, and is likely to involve arguments around defamation laws and the Human Rights Act, including the Article  3 right to be free from inhumane and degrading treatment.
Pensions
  • NI High Court Rules On Right Of An Unmarried Partner To Access Survivor’s Pension
Brewster’s (Denise) Application [2012] NIQB 85

The High Court has found that a woman who co-habited with her partner for 10 years has a right to access her partner’s pension after his death. The Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC) declined to pay a survivor’s pension to the applicant in the absence of a nomination form that would have named her as her partner’s survivor. The applicant claims that this decision is a breach of her rights under Article 14 read together with Art 1 of the First Protocol ECHR. She alleged that it discriminated against her on the basis of her status as the unmarried partner of the deceased. In 2009 co-habiting partners became eligible for survivor’s pensions on the condition that a nomination form was filled out, naming the person to whom the pension should be paid. Shortly after this development the applicant and her partner became engaged, and very soon after this he passed away unexpectedly.

The fact that he had not nominated the applicant as his cohabiting partner under Regulation 24 of the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 meant that she did not stand to receive the sum of money left behind. The applicant argued that the requirement of a nomination is unlawful and having to complete additional paperwork that married couples do not have to complete is an unnecessary hurdle. Furthermore she alleged that the fact that NILGOSC does not have discretion in circumstances such as those of the applicant’s case is also unlawful. The court concluded that the means of the Regulations seem to be inconsistent with the aim, which is to facilitate entitlement to a pension. The court therefore concluded that there was disproportionality between the means and the aim, and the judicial review was allowed.


Legal Aid
  • NI High Court Orders LSC To Remunerate Legal Work Delegated To A Non-Qualified Employee
Drinan’s (Padraigin) Application [2012] NIQB 76

The High Court has granted the judicial review of a decision by the Northern Ireland Legal Services Commission (LSC) who refused to pay fees for work undertaken by the applicant in an immigration case. Part of the work was done by a solicitor, the applicant, and part of the work was done by legally unqualified staff employed in her office. The LSC scheme provides remuneration ‘intended to cover the work carried out by a solicitor and/or counsel… in AIT Tribunals and Onward Appeals’. The dispute therefore arose when the non-legally-qualified employee of the applicant carried out appearances and representations before the Tribunal. The LSC therefore informed the applicant that no fees would be paid for the work undertaken in this case as a non-qualified member of the applicant’s staff had appeared at the Tribunal. The issue arising in this case is how the legal aid legislation should be applied where a client receives representation in part from a qualified solicitor and in part from a non-legally qualified representative. The question arose whether the applicant was allowed to delegate appearances and representation at the Tribunal to her employee. The court found that the fact that the staff member represented the client, even without the applicant being present, did not mean that she ceased to work under the supervision of a solicitor, and that nothing in Regulation 15 of the Legal Aid (General) Regulations (Northern Ireland) 1965 ‘prevents a solicitor from entrusting the conduct of any part of the case to a person… who is employed in his office’. The LSC was therefore ordered to pay the requested fees to the applicant.

Employment
  • Department Of Regional Development Brought Before Fair Employment Tribunal
Lennon v Department for Regional Development 75/11FET

The Fair Employment Tribunal has ruled that a candidate from the chair of NI Water was subjected to religious discrimination by the Department for Regional Development, which was then under the direction of a Sinn Fein minister. The court found that the man lost out on the high-profile public appointment because he was a Protestant, and that the job instead went to the only Catholic on the shortlist, a Sinn Fein appointee on a number of other public bodies. The decision by the Tribunal was a landmark one, meaning for the first time public appointments have become subject to Northern Ireland’s employment laws. The claimant was supported through his case by the Equality Commission. The Commission said it had sought to establish that public appointments ‘including those which involve the exercise of a minister’s discretion, are fully within the protection of anti-discrimination legislation’.
  • Landmark Decision On Equal Pay For Birmingham Women
Birmingham City Council v Abdulla and  others  [2012] UKSC 47

The Supreme Court has decided that some equal pay cases can be brought before the civil courts instead of the employment tribunal. 170 women who have worked for Birmingham City Council did not receive bonuses and launched compensation claims in the high court last year. The city council attempted to have the claims struck out, arguing that they should only be brought  before an employment tribunal. However, the Court of Appeal said last November that the women were eligible to bring their claim before the High Court. Birmingham city council appealed the decision which was dismissed on October 24th this year by the Supreme Court. The court’s ruling effectively extends the time limit for bringing a case to 6 years, which is customary for civil courts, rather than the 6 month time limit of the employment tribunal. Leigh Day & Co. Solicitors report that this is “the biggest change to Equal Pay legislation since it was introduced in 1970, with huge implications for thousands of workers”. This means that it could be possible to launch equal pay claims up to six years after leaving an employer.
  • Man Wins Breach of Contract Claim After Demotion for Making Comments On Facebook
Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)

The man, who was demoted after making a comment on Facebook about gay marriages, has succeeded in his breach of contract action against employers. A Christian, he received a 40% salary cut and lost his managerial position after saying that gay weddings held in a church were ‘equality too far’. London’s High Court heard that the man was ‘polite’ about expressing his views, and that his comments were not visible to the general public and were posted outside of work hours. The court ruled that the breach of contract committed by his employer, the Trafford Housing Trust, was serious and repudiatory.    
  • Strasbourg Finds BNP Member Sacked From Work Had His Rights Violated
Redfearn v United Kingdom (application no. 47335/06), [2012] ECHR 1878

The European Court of Human Rights has ruled that Arthur Redfearn was denied his Article  11 right to freedom of association after he was dismissed for being a member of the British National Party. Redfearn, who previously drove a bus transporting disabled passengers, was dismissed in 2004 by Serco after he was elected as a local councillor for the BNP. The ECHR found that there had been a breach of his rights when he was dismissed after 6 months employment, for allegedly posing a risk to the health and safety of his co-workers and passengers, and for jeopardising the reputation of his employer. The court also heard that no consideration was given to transferring him to a non-customer facing role, as his work had involved daily interaction with customers of Asian descent. UK Human Rights Blog features a report on the decision here.



LGBT
  • Gay Jamaicans to Launch Legal Action Over “Homophobic” Laws
A new landmark case seeks to abolish colonial-era laws that prohibit sex between two men in Jamaica. Sentences for the crime can include up to 10 years imprisonment with hard labour, or death. Two gay Jamaicans have launched the legal challenge which alleges that three clauses of the Offences Against the Person Act 1864 are unconstitutional and promote homophobia throughout the Carribean. The Guardian article, linked above, reports that “The UN's International Covenant on Civil and Political Rights, to which Jamaica is a signatory, protects private adult, consensual sexual activity. J-Flag, a Jamaican LGBT organisation, has also received free pro-bono advice from the UK City law firm Freshfields Bruckhaus Deringer in drawing up their legal challenge”. This challenge, along with two others being supported by Aids-Free World are the first cases being brought  before the Inter-American Commission on Human Rights, which examines States’ compliance with International human rights treaties.
  • ECHR Rules on Gender Reassignment and Validity of Marriage
H v Finland (application no. 37359/09)

The European Court of Human Rights has found that there would be no violation of the applicant’s rights by a Finnish law that would invalidate the marriage of a post-operative transsexual if she registered her new gender identity. The applicant was a male-to-female transsexual who had married a woman, prior to gender reassignment. Following this, she changed her first name and renewed her passport and driver’s licence. She also wanted to change her identity number in the population register, but was unable to do so under the Act on Confirmation of the Gender of a Transsexual. This can only be done if the person is not married or in a civil partnership, or if their partner or spouse provides consent. His wife refused to consent, leading the applicant to sue in Finnish courts and later under the Convention. The court found that the applicant complaints under Articles 3 and Article 2 of Protocol 4 were inadmissible, and the complaints under Articles 8, 12 and 14 were not substantiated.


Veteran's Rights
  • Mau Mau Veterans Given Right to Challenge Abuses Suffered At The Hands Of the British Government
Mutua and others v The Foreign and Commonwealth  Office [2012] EWHC 2678 (QB)

Three Kenyans have been granted the right to sue the British government for alleged abuses sustained during the Mau Mau insurgency, over 50 years ago. The Mau Mau uprising was a military conflict that took place in Kenya in the years between 1952 and 1960. The Foreign and Commonwealth Office accepted that abuses had taken place, however, it plans to appeal the High Court decision, resisting the claims for compensation. The FCO stated in its reasoning for the appeal that "The judgment has potentially significant and far-reaching legal implications. The normal time limit for bringing a civil action is three to six years. In this case, that period has been extended to over 50 years despite the fact that the key decision-makers are dead and unable to give their account of what happened. Since this is an important legal issue, we have taken the decision to appeal." It is estimated that another 2,000 Kenyans may come forward to sue the British government. Furthermore, many other men and women across the globe may also consider claims where they had allegedly been imprisoned and mistreated during conflicts at times of gaining independence from British colonial rule.


Health
  • Mother Challenges Hospital’s DNR Order on her Son With Cerebral Palsy
A woman wishes to challenge a doctor’s ‘unilateral’ order not to resuscitate her son who had cerebral palsy and who subsequently died. She claims that staff at the hospital did not consult her on the decision not to resuscitate, and failed to administer his medication properly. Her son did not have the mental capacity to make all his own decisions. His mother’s lawyer maintains that the doctor ‘unilaterally’ decided not to attempt resuscitation if he suffered cardiac or respiratory arrest, and that the man’s mother was not told of any decision that had been made. A second case has been brought before the High Court by the family of a woman who died in Cambridge after a DNR Order was imposed. A full judicial review into the lack of nationwide policy on DNRs is listed to begin in February.
  • ECHR Rules Teenage Girl Should Have Been Given Access To Abortion After Rape
P and S v Poland (application no. 57375/08)
The European Court of Human Rights has found that Poland violated the rights of a young girl who should have been given unhindered access to abortion after being raped. The applicants, a young girl (P) and her mother (S), had attempted to seek a medical abortion after P was raped and became pregnant. A prosecutor issued her a certificate legalising the abortion as the pregnancy had resulted from unlawful sexual intercourse. This gave P the right to abortion under Polish law. Following this, the applicants had been given misleading and contradictory information by three hospitals, and had not been given objective medical counselling, as the Strasbourg court has found. Furthermore, one hospital publicised P’s personal and medical data, she and her mother were harassed by anti-abortion campaigners and members of religious groups as well as doctors. Her relationship with her mother was also targeted as critics claimed she had been coerced into seeking an abortion, and she was removed from her mother’s custody. P eventually obtained a clandestine abortion and did not receive after-care. The Strasbourg court ruled that there had been a breach of the applicants’ human rights under Article 8 of the convention (the right to respect for private and family life), Article 5, subsection 1 (the right to liberty and security) and Article 3 (prohibition of inhuman and degrading treatment). It is thought that this judgment “further clarifies the Court’s stance that reproductive health services that are legal must also be accessible. It also develops important reasoning on the vulnerability of young rape victims as well as their right to personal autonomy in matters of reproductive choice”.

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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Next Update

Finally, we intend to distribute the next edition of the Update on 20th December .
 

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