Public Interest Litigation Update:
03rd July 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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The NI Court of Appeal has dismissed a bid, brought by Health Minister Edwin Poots, to overturn an earlier decision of October 2012 in which the High Court had found that the ban on unmarried couples becoming adoptive parents was discriminatory and a breach of human rights. The present decision by the Court of Appeal to reject Minister Poots’ challenge means that unmarried couples, those in civil partnerships, and same sex couples will be able to become adoptive parents in Northern Ireland. The Northern Ireland Human Rights Commission, who originally challenged the ban in 2012, said that the decision brings Northern Irish law into line with the law in the rest of the UK. The Court of Appeal said that preventing someone from being considered to adopt a child because of their relationship status is a discriminatory practice. The court said that ‘the Department has put forward no justification to exclude same sex couples as parties eligible to adopt as a couple’. It also said that no proper explanation was advanced for why same sex partners should be considered ineligible for adoption once they publicly cement their relationship in a civil partnership. A barrister acting for the Department of Health suggested that a further appeal to the UK Supreme Court may be sought.
Court of Appeal Dismisses Health Minister Challenge To Same-Sex Adoption
On 26th June 2013 the Northern Ireland Assembly voted to prevent same-sex marriage from extending to Northern Ireland as in the rest of the UK. The MLAs passed a Legislative Consent Motion, which excluded most of the provisions of the Bill currently going through Westminster to introduce same-sex marriage. In recent months the Assembly has voted twice against private members’ motions on the issue, although these would not have changed the law unlike the vote of June 26th. Same-sex marriage has moved another step closer to becoming law in England and Wales after the legislation finished its committee stage in the House of Lords. A member of Sinn Fein has suggested that the proposed policy could be challenged on human rights or equality grounds in the courts.
MLAs Block Same-Sex Marriage In NI
United States v Windsor 570 US (2013)
US Supreme Court Strikes Down Defence Of Marriage Act
The US Supreme Court has struck down a law that defines marriage as between a man and a woman only. In a vote against the Act, the court said that it denied equal federal protection to same-sex couples. Legally married gay men and women will now be entitled to claim the same federal benefits that are available to opposite-sex couples. These include tax, health and retirement benefits that are generally available to married heterosexual couples. The legal challenge was brought to the Supreme Court by Edith Windsor who, after inheriting the estate of her spouse, Thea Spyer, was taxed over $300,000. This tax would not have been levied if Mrs Windsor had been married to someone of the opposite sex. The court also cleared the way for same-sex marriages to resume in California, though neither of the two rulings means that same-sex marriage will be permitted throughout the United States.
Rights of Offenders
R (on the application of M) v The Parole Board and another  EWHC 1360 (Admin)
Court Lifts Anonymity Order On Life Prisoner
The High Court of England and Wales has decided that the identity of a life prisoner can be revealed, after his anonymity order was lifted. David McGreavy was convicted in 1973 for the murders of three children in Worcester. The anonymity order, imposed in 2009, and which prevented McGreavy from being identified, was lifted after a challenge supported by various media organisations and justice secretary Chris Grayling. The claimant argued that if the anonymity order were removed, his Article 2, 3, 5 and 8 ECHR rights would be threatened. The High Court decided in May 2013 that, although renewed hostility from other prisoners was likely to follow fresh media reporting, there was no real and immediate threat to McGreavy’s life. He is currently segregated in a vulnerable prisoners’ unit and his safety is closely monitored. The challenge to the anonymity order argued that it was legally flawed and wrongfully prevented the public from knowing the full facts of the case.
The NI High Court has ruled that the Department of Justice was wrong in refusing to reconsider its decision not to compensate a wrongly convicted man for miscarriage of justice. Gerard Magee was convicted in 1990 for a number of terrorist offences. In 2000 the Court of Appeal quashed Mr Magee’s convictions after hearing that he had been denied access to a lawyer when initially interviewed. In 2002 the Northern Ireland Office refused to grant compensation to Mr Magee, saying that he had not suffered a miscarriage of justice. Following the UK Supreme Court ruling in 2011 in the McCartney and McDermott case, Mr Magee made a fresh application for compensation. In the Supreme Court case, the court had redefined the test for payments to those wrongly convicted. After Mr Magee’s request for a review of his application on the basis of the McCartney and McDermott decision, the Department of Justice said that they had no power to reconsider his eligibility. In a challenge to this decision, the High Court said that the Department of Justice should exercise their discretion in deciding whether to reconsider Mr Magee’s later application for compensation.
Court Orders DOJ To Reconsider Damages
R (on the application of) RK v Chief constable of South Yorkshire Police and Disclosure and Banning Service  EWHC 1555 (Admin)
Enhanced Criminal Record Disclosures Found Not Proportionate
The High Court of England and Wales has permitted a challenge against enhanced criminal record check disclosures by the South Yorkshire Police, finding in favour of the applicant. The Chief Constable of South Yorkshire Police decided to issue an enhanced criminal records certificate with reference to allegations of sexual assault of which the claimant teacher had been acquitted. The claimant judicially reviewed the decision and the court ruled that the South Yorkshire Police had not properly exercised proportionality. The police had believed that the claimant had been fortunate to be acquitted and had decided to treat the allegations as correct. The court quashed the police decision to disclose the allegations made against the claimant on his enhanced criminal record check. The court also issued some guidance as to what type of material might be disclosed in EHRCs in future. The guidance can be found in the judgment at paragraphs 86 – 89.
In June 2013 the Northern Ireland Assembly voted to bring in new legislation that will prevent anyone with a serious criminal conviction, for which the person was sentenced to five years or more, from becoming a special political adviser at Stormont. The Special Advisers Bill is now waiting to receive royal assent before becoming law. Before then, the Advocate General will assess the legality of the bill on behalf of the Northern Ireland Office.
SPAD Legislation Passed By Northern Ireland Assembly
Slavery and Human Trafficking
L, HVN, THN, T v R  EWCA Crim 991
Trafficking Victims Win Appeal Against Convictions
The Court of Appeal in England and Wales has quashed the convictions of three Vietnamese children who were trafficked into the UK and forced to work for criminal gangs. After raids on cannabis factories, the children were arrested and convicted of drug related offences. In its judgment the Court of Appeal said that the children were ‘victims of a vile trade in people’ and should not have been prosecuted. Guidance was issued by the Court of Appeal to other courts on how potential trafficking victims should be treated by the criminal justice system. The ruling suggests that in cases where issues of trafficking arise, the court can stop the prosecution if it is thought that the defendant is a trafficking victim and has been exploited into committing the offences. A representative from the Equality and Human Rights Commission has said that the court’s decision will have ‘a significant effect’ on how the criminal justice system treats child victims, and ‘the court has made it clear the relevant authorities must properly investigate these cases before pressing charges, especially where children are involved’. In its decision, the court of Appeal recognised the importance of Article 8 of the EU Trafficking Directive which provides that victims of trafficking have a right not to be prosecuted for their involvement in criminal activity. A representative from Anti-Slavery International has called the judgment a ‘milestone in making sure that victims of trafficking are protected against criminalisation’.
Immigration and Asylum
The Guardian reported in late May 2013 that the European Commission is to bring court action against the United Kingdom for imposing an extra benefits test on people from the EU that British citizens do not have to undergo. The Commission is alleging that nationals from EU countries are therefore unfairly denied welfare benefits, which goes against EU law. There is a standard EU test to determine whether a migrant is eligible for welfare payments while they are resident in the UK, but the UK government applies a further test of its own on top of this. It is argued that thousands of migrants may have been denied access to benefits such as child tax credit and jobseeker’s allowance as a result.
UK Faces Court Challenge Over Migrant Benefits
An Australian activist is to appeal against a decision by the UK Home Office that he must leave the UK. The man, Trenton Oldfield, received a six month jail term in 2012 after disrupting the Oxford v Cambridge boat race in protest against government cuts. Mr Oldfield has lived in the UK for over 10 years, is married to a British woman, and is expecting a child in June 2013. His application for a spousal visa has been refused and he was informed by the Home Office that his ‘continued presence in Britain would not be conducive to the public good’. Mr Oldfield engaged in a peaceful and non-violent protest, was sentenced to less than one year and has no previous convictions.
Boat Race Protester Ordered To Leave UK
Right to Life
The High Court of Northern Ireland has heard that 60 new homes will be built on the Girdwood site, a former army base in North Belfast. A legal challenge to the Girdwood regeneration scheme had been launched and was based on allegations that the plan breached equality guidelines. The challenge was withdrawn after the Department of Social Development confirmed its plan to tackle social housing need. A statement was read out by senior counsel on behalf of the Department and Minister Nelson McCausland that clarified and updated the position on the implementation of a Masterplan Conceptual Framework for the Girdwood site. The proposed layout is for 60 units of residential social housing on the Girdwood site. The development will be made up of a mixture of houses, apartments and duplexes. On the basis of these clarifications, the claimant agreed to withdraw her judicial review challenge. Lawyers for the claimant said that the Minister’s statement is a positive and significant step towards addressing the chronic social housing needs in North Belfast.
60 Homes Planned For Girdwood Development
Smith and others (Appellants) v The Ministry of Defence (Respondent); Ellis and another (FC)(Respondents) v Ministry of Defence (Appellant); Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant)  UKSC 41
Soldiers’ Families Can Sue Ministry Of Defence
The UK Supreme Court has decided that families of soldiers injured or killed in Iraq may bring negligence claims against the Ministry of Defence. The challenge was brought by family members of three men killed by roadside bombs while in Snatch Land Rovers and another killed while in a Challenger tank. All the claimants alleged that the Ministry of Defence breached its implied obligation under Article 2 of the European Convention on Human Rights to protect the right to life.
This decision by the court will mean that soldiers going into battle overseas can claim protection under Article 2 of the ECHR and the Human Rights Act. The doctrine of ‘combat immunity’ prevents soldiers from claiming compensation for injuries received in combat, except under official schemes. The Supreme Court said that the practice of combat immunity should be interpreted narrowly and should not extend to cover the planning and preparation for active operations against the enemy. A lawyer from the firm Leigh Day, representing the clients, said the Supreme Court has ruled that ‘the MoD, as employer, must accept that it owes a duty of care to properly equip service personnel who go to war’.
The organisation Justice also intervened in the case. A representative has said: ‘The human rights of UK troops should be protected wherever they serve. The government's case would have had them shoulder the burdens of serving this country, but not protected by its most fundamental safeguards’. Significantly, the families succeeded in establishing that the human rights convention applies to soldiers serving on foreign battlefields. The Ministry of Defence (MoD) had argued that Iraq was outside the jurisdiction of the UK government. But the human rights court has previously ruled that jurisdiction can exist whenever a state exercises authority and control over an individual.
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US Supreme Court Says Human Genes Can Not Be Patented
Association for Molecular Pathology et al v Myriad Genetics et al 569 US (2013)
The US Supreme Court has unanimously decided that DNA, a ‘product of nature’, cannot be patented. According to scientists and civil rights campaigners, this ruling will remove a major barrier to patient care and medical innovation. In making this decision, the court struck down patents held by Myriad Genetics Inc. on two genes linked to a higher risk of breast and ovarian cancer. The court dismissed Myriad’s claims that the DNA it isolated from the human body for its tests were able to be patented. It said that ‘a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated’. However, the court also decided that synthetic genetic material could be patented. Myriad claimed that it had the exclusive right to synthetically create the nucleotide sequence for BRCA in the form of complementary DNA, or cDNA. Because this is an artificial creation, only Myriad’s cDNA are eligible for patent protection. This ruling could have a serious effect on the biotechnology and drug industry as it overturns thirty years of patent awards by the US government.
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 join the register and find out more about opportunities to do pro bono work, please email email@example.com to request an application form.
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Legal Adviser (Immigration) [Secondment cover]
The Law Centre is seeking candidates who are a solicitor or a barrister, with at least one year’s experience of providing legal advice, casework and/or representation in immigration law. This is a temporary post until 31 March 2015 with a possibility of extension for a further temporary period.
Reference number: LA-IMM 04-13, 17.5 hours per week - based in Belfast
For full details and an application form visit:
Salary: £33,661 - £35,430 NJC Points 40 – 42 pro rata
The salary for the position starts at point 40 pro rata
Closing date for applications is Wednesday 10 July 2013 at 12.00 noon
Interviews will be held on Monday 29 July 2013
Potential applicants are welcome to find out more about the post by contacting Fidelma O’Hagan on 028 9024 4401
Law Centre (NI) is striving towards equal opportunities and welcomes applications from all sections of the community. As Protestants and men are currently under-represented in our workforce, we would particularly welcome applications from them. All appointments will be made on merit.
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