Public Interest Litigation Update:

27th January 2016


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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Prison Law
  • Scottish Court refuses prisoner’s petition for judicial review
Hands v Scottish Ministers (2016) CSOH 9
The Scottish Court of Sessions has refused permission for a judicial review brought by a convicted murderer against decisions made by the Scottish Prison Service (SPS) about his prison conditions and supervision level.
In August 2014 the SPS had reduced the prisoner’s supervision requirements from medium to low and upgraded him from closed conditions which allowed him to attend a work placement.  During the placement the SPS received evidence suggesting that the prisoner had used a mobile phone contrary to conditions of the placement.  Following a hearing in October 2014 the SPS downgraded him to closed conditions and returned his supervision requirements to medium.
The petitioner argued that the SPS’s decision-making process was unfair and therefore the decisions to return him to closed conditions and increase his supervision were unlawful.  The petitioner relied on a number of complaints about the decision-making procedure including inadequate disclosure of information relating to the decisions and a failure to comply with the relevant prison rules. 
The Court rejected the arguments and ruled that the SPS had satisfied the procedural requirements imposed on them.  It held that the SPS had acted fairly in accordance with the common law duty. 
To read an article from the UK Human Rights Blog, click here.


Criminal Convictions
  • High Court declares criminal record disclosure checks ‘unlawful’.
On 22nd January the High Court ruled that the criminal record disclosure scheme used in England and Wales incompatible with Article 8 of the Human Rights Act, the right to a private and family life.
The case relates to the rule that anyone who has more than one conviction – regardless of the minor nature of the offences, when they were committed and the person’s circumstances at the time – is required to disclose them indefinitely when applying for certain employment. 
The case was brought by two people who argued that they were placed at an unfair disadvantage in employment by convictions for minor criminal offences of some vintage.
One woman was convicted of shoplifting a 99p book in 1999 while suffering from an undiagnosed mental illness.  As she failed to attend court she had two convictions, for which she received a conditional discharge.  She now wishes to work as a teaching assistant.
The other claimant was convicted of two minor thefts in 1981 and 1982 when he was 17 and 18 years old.  He subsequently worked as an accountant and is now a project manager.  This role requires due diligence and criminal records check.
The Judge described the rule as arbitrary and stated:
‘…where the rules are capable of producing such questionable results, on their margins, there ought, it seems to me, to be some machinery for testing the proportionality of the interference, if the scheme is to be in accordance with the law.’
He asked that the Government make submissions to address the failures in the scheme before the Court makes its final order.
Read commentary from Liberty, the human rights organisation representing one of the claimants,

Terrorism Act 2000
  • Stop powers incompatible with Article 10 of ECHR
David Miranda -v- Secretary of State for the Home Department  [2016] EWCA Civ 6
The Court of Appeal of England and Wales has ruled that the stop power contained within Schedule 7 of the Terrorism Act 2000, if used in respect of journalist information or material, is incompatible with Article 10, the right to freedom of expression.  The power allows police to question travellers to determine whether they are terrorists.  They have no right to receive legal advice and may be detained for up to 6 hours. 
The ruling came in the case of David Miranda, who was detained at Heathrow airport in 2013 for carrying files related to information obtained by the US whistleblower, Edward Snowden.  While the Court upheld the lawfulness of his detention, it ruled that the legislation needed altered as it lacked sufficient legal safeguards to avoid the risk that it will be exercised arbitrarily:
It will be a matter for parliament to decide how to provide such a safeguard.  The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny in such a way to protect the confidentiality of the material.’
The Court issued a certificate of incompatibility meaning that the UK law is inconsistent with international human rights obligations. 
Read an article by RightsInfo here.

Employment Law
  • Employers can monitor private internet usage in workplace 
─érbulescu v. Romania (Application no. 61496/08) ECtHR
On 12th January the European Court of Human Rights (ECtHR) ruled that companies have the right to monitor their employees’ online private messages. 
The ECtHR made the ruling in a case involving a Romanian engineer whose employment was terminated for using a professional Yahoo Messanger account to send personal emails to his fiancée and brother. 
The former employee was asked to create a Yahoo Messanger account in order to reply to clients’ queries.  He was dismissed for breach of the company’s internal regulations which specified that computers were not to be used for personal purposes.  The company produced a 45 page transcript of his messages and it was not disputed that some messages contained sensitive personal data.
The ECtHR held that the company had not violated the former employee’s Article 8 right to respect for his private life and correspondence.  It considered that it was not unreasonable for the company to want to verify that their employees were completing their professional tasks during working hours.  The monitoring was held to have been limited in scope and proportionate. 
For commentary from the media blog, Inforrm, click here.  For an article from The Guardian click here.


  • Court orders Syrian children to be reunited with family in Britain
On 20th January the Immigration and Asylum Tribunal of England and Wales ordered that three Syrian youths and an accompanying adult should be allowed to join relatives in Britain while their asylum claims are examined.
The four young refugees fled Syria in September 2015 and arrived at Calais in October.  The Court was told that the males had only spent one night in heated accommodation since arriving at the Calais camp.
The Home Office had rejected the refugees’ applications to join their British relatives under the Dublin Regulation, an EU law that only allows an asylum seeker in Calais to join family in Britain if they had already applied for asylum in France.  France would then have to officially request Britain to take on the application. 
Lawyers successfully argued that because of bureaucratic failings in France and the refugees’ entitlement to a family life under Article 8 of the European Convention of Human Rights, they should immediately be brought to Britain and their asylum applications processed here.
The Court accepted that evidence of a written claim to asylum in France was sufficient to prove that the refugees had initially sought safety there.  It ordered the British government to examine the asylum claims rather than waiting for French government to ask.  
The Court judgment is expected to be issued next week.  The Refugee Council welcomed the decision.  Their press release can be accessed here. 

Local Developments - Judicial Review
  • Permission granted to judicially review PSNI over custody death
On 12th January the High Court granted leave to a mother to judicially review a PSNI decision taken following the death of her son.
David McGowan was arrested and taken to Lisburn police station in May 2014.  He died while being held within the custody suite.  Subsequent to the death, the PSNI made the decision to reinstate the officer who dealt with Mr McGowan in custody. 
Hugh Southey QC, acting for Mrs McGowan, argued that the PSNI’s decision was flawed and involved a failure to consult with the family.  He also argued that resource issues played a role in the decision to reinstate the officer:
If one reinstates the officer essentially because it’s said that the PSNI in simple terms can’t afford not to deploy the officer, one is potentially saying we are going to have to tolerate actions, which, on the face if it, may well have been unlawful.’    
Mr Justice Maguire stressed that any alleged wrongdoing was currently being assessed.  The incident was investigated by the Police Ombudsman and has been referred to the Public Prosecution Service.  However, the Court ruled that there was an arguable case that merited a full judicial review hearing.  The hearing date is still to be listed.
Read an article from the Belfast Telegraph here

Local Developments - Abortion
  •  Attorney General appeals abortion ruling
The office of the Attorney General has lodged an appeal against a High Court decision that the current law on abortion in Northern Ireland is incompatible with human rights. 
In November 2015 the High Court ruled that the right to family and private life is breached by the general prohibition of abortions in cases of fatal foetal abnormalities and pregnancies as a consequence of sexual crimes.
At the time the judgment was delivered the Attorney General vowed to appeal the ruling describing it as ‘profoundly disappointing’.   
The High Court case was taken by the Northern Ireland Human Rights Commission.  A copy of the judgment is available here.
Read an article from The Guardian here.

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