Public Interest Litigation Update:

18th September 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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Health
  • Texas Execute Death Row Inmate Diagnosed as Mentally Impaired
On Tuesday 7th August, death row inmate Marvin Wilson was executed in Texas, USA, amid controversy relating to his eligibility for execution. The man had been diagnosed as ‘mentally retarded’ and should have been exempt from execution according to a US Supreme Court decision in 2002. Under the principle in Atkins v Virginia, individuals with mental impairments cannot be put to death. However, discretion was given to US states individually to put criteria in place for the decision on which prisoners should live and which should die.
 
In Texas this meant developing a definition of mental impairment which has been criticised heavily for being based upon a fictional literary character. The seven ‘Briseno’ factors used by the state of Texas in determining a prisoner’s intellectual ability includes reference to the character of Lennie from the novel Of Mice and Men, by John Steinbeck. Lawyers acting on behalf of Marvin Wilson had petitioned the Supreme Court for a stay of execution so as to challenge the criteria used by Texas. They argued that he should have been ineligible for the death penalty because of his low IQ. Despite calls for reconsideration by human rights groups and members of the public, the Supreme Court denied the stay and Wilson was executed as scheduled.

  • High Court Decides Only Parliament Can Change the Law to Allow People to Exercise the Right to End Their Own Lives
Nicklinson, R (on the application of) v Ministry Of Justice [2012] EWHC 2381 (Admin) (16 August 2012)

http://www.bbc.co.uk/news/health-19249680

http://www.guardian.co.uk/society/2012/aug/16/locked-in-syndrome-right-die?CMP=twt_fd

Tony Nicklinson, who suffers from ‘locked-in syndrome’ along with another severely disabled man known as ‘Martin’ have been unsuccessful in the High Court battle to be allowed the right to die with medical help. Mr Nicklinson became paralysed seven years ago after a serious stroke and has campaigned to have the right to have assistance in ending his life. Martin, another sufferer of locked-in syndrome sought permission for volunteers to assist him in travelling to the Dignitas clinic in Switzerland.
 
The court held that it was for parliament and not the courts to decide if the law should be changed. The court said that allowing the two men to be assisted with ending their lives would have implications far beyond their individual cases and could lead to a major change in murder laws: “Under our system of government these are matters for parliament to decide, representing society as a whole, after parliamentary scrutiny, and not for the court on the facts of an individual case or cases.”
 
The ruling was welcomed by pro-life campaigners such as Care Not Killing and SPUC Pro-Life. Meanwhile Pro-Euthanasia campaigners from the Secular Medical Forum noted the implications of the decision for those like Nicklinson who wish to end their own suffering.
 
Shortly after the judgment was delivered by the Court, Tony Nicklinson passed away after developing pneumonia.
 
It is not clear if Martin will appeal the decision of the High Court.

  • Families Challenge Decisions of Hospital Trusts Not to Resuscitate Patients
In a separate case, the family of a 55 year old man, who suffered a heart attack and was diagnosed as being in a persistent vegetative state, has taken legal action in the High Court in England and Wales against a Hospital Trust. The man is only referred to by the Court as patient L.
 
The Pennine Acute Hospitals Trust, after carrying out assessments and seeking advice from independent experts, concluded that there is little chance that the patient’s condition will improve. The Trust has also argued that his physical condition will deteriorate, and could cause the patient pain, if he is able to feel anything.  In these circumstances, the Trust had decided that it is not in the best interests of the patient to resuscitate him, if his condition deteriorated.
 
L’s family challenged the decisions of the Trust. The family have argued that L would want to be resuscitated and that such feelings are line with his religious beliefs.
 
There were significant developments shortly before the Court was scheduled to deliver its verdict. Video footage of the patient taken by the family was reviewed by an expert. This video apparently showed L making purposeful responses. The expert was scheduled to give evidence in favour of the Trust. However, after watching the video footage, this expert concluded that L was not in a persistent vegetative state, and it was most likely he was in a minimally conscious state. The case has been adjourned by the High Court to the 01st October 2012.
 
Another case involves decisions made by East Kent Hospitals University NHS Foundation Trust, in relation to a 51 year old patient, who suffers from Down’s syndrome and dementia. It is alleged by the patient’s litigation friend, that in September 2011, a “Do Not Resuscitate” order was made by medical staff without consulting the patient’s family or carers. It would seem that this particular case is at an early stage.


Immigration and Asylum
  • Asylum Claimants Should Not Have to Lie to Avoid Persecution
RT (Zimbabwe) and others (respondents) v Secretary of State for the Home Department [2012] UKSC 38; KM (Zimbabwe) (FC)(Appellant) v Secretary of State for the Home Department [2012] UKSC 38
 
The Supreme Court has confirmed that “nobody should be forced to have or express a political opinion in which she or he does not believe” simply to avoid persecution in their country of nationality.
 
The appeals concerned asylum seekers from Zimbabwe who had their applications for asylum refused because they had no political leanings and were not politically active in Zimbabwe. It is relevant that, in Zimbabwe, people can be persecuted if they are unable to demonstrate positive support for the regime.

In a previous case, HJ (Iran) v Secretary of State for the Home Department [2011] AC 596, it was decided that a gay man should not have to lie about his sexuality in order to avoid persecution, and that he was therefore protected by the Refugee Convention. The question facing the Supreme Court in this case was whether the HJ (Iran) principle extends to people who have no firm political beliefs and who may be obliged to feign certain beliefs to avoid persecution. The court decided that the HJ (Iran) principle does apply to applicants who claim asylum on the grounds of fear of persecution for lack of political belief. The court found that the UN Convention relating to the Status of Refugees and the European Convention of Human Rights protect the right not to hold political beliefs just as much they protect the right to hold and express them.



Criminal Law
  • Twitter Joke Not of ‘Menacing Character’
Paul Chambers v Director of Public Prosecutions [2012] EWHC 2157
 
The High Court has overturned Paul Chambers’ conviction under the Communications Act 2003, s.127 (1) (a) and (3). Paul Chambers was convicted in May 2010 of sending a message of a ‘menacing character’. The 2003 Act prohibits the sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”. During the appeal by Chambers, it was found that the tweet in question did not amount to a message of a menacing character. It is notable that while the Communications Act 2003 predates the launch of Twitter by 4 years, the court confirmed that the Act does apply to Twitter.
 
This case has highlighted the law’s difficulty in distinguishing between different tones used in email, text and tweet messaging. An important point was the issue of whether Chambers’ tweet was merely a joke, or whether it was of a threatening character. This decision was difficult for the judges, who at first dismissed the appeal asserting that any ordinary person reading the tweet would be alarmed. The representatives for Mr Chambers relied on Article 10 of the European convention on human rights which protects freedom of expression. On Friday 27th July 2012, Chambers won his appeal and the Court of Appeal overturned his conviction.

In addition to this case, a number of other cases attracting media attention have revolved around the harassment and abuse of Twitter users, most notably, of those in the public eye. On 31st July 2012 a 17 year old boy was arrested in the course of an investigation into abusive Twitter messages sent to Olympic diver Tom Daley. The boy was issued with a harassment warning and released on bail while police reportedly questioned him about other messages he had allegedly sent.
 
Guardian Law published a quick guide on the legal risks of Twitter in light of the recent media attention given to the social networking site and the lawfulness of tweets. The guide can be found here and lists precautions that any member of the public should take when using Twitter.
  • Stop and Search Powers do not Breach Articles 5 and 8 of ECHR
Canning’s (Marvin) Application and Fox (Bernard) and McNulty’s (Christine) Application [2012] NIQB 49
 
Three applicants have lost their judicial review of police powers to stop and search people under the Justice and Security (NI) Act 2007. The applicants claimed that the powers used by police are incompatible with their human rights under the ECHR Article 5 (right to liberty) and Article 8 (right to private life). The applicants relied on the 2010 case of Gillan and Quinton in which the Strasbourg court found police powers to stop and search under the Terrorism Act 2000 were in violation of Article 8 ECHR.

In this Northern Irish case, the judge ruled that the scenario was distinct from that of Gillan precisely because of the Northern Irish context. The judge explained that “The contextual factors which apply in Northern Ireland are markedly different from those that applied in Gillan” and outlined a number of these contextual factors, including “the ongoing undisputed and manifestly high level of threat to life and security by dissident republicans” and that the police powers “are not used on a random or blanket basis but rather are intelligence led on the basis of threat”.
 
As a result of these and other factors, it was found that there was no violation of Article 8. Additionally, it was found that the Article 5 claim was not engaged in this case as the applicants’ liberty was not deprived; rather their movement was merely restricted for a period. All three applications were therefore dismissed.
  • Couple Jailed for Forced Labour Offences
A husband and wife have been jailed in England for 11 years and 4 years respectively for holding two homeless men in servitude and demanding forced labour. The couple had both denied the charges, but were convicted after trial and sentenced on July 12th 2012.
 
The judge said: "Their complete disdain for the dignity and fundamental rights of fellow human beings is shocking. They were not Good Samaritans seeking to assist their fellow man in his hour of need but violent, cold hearted exploiters of his frailties and ill fortune."
  • State Held Liable for Failing to Prevent Disability Harassment
Dordevic v Croatia (Application no. 41526/10)

The European Court of Human Rights has found that Croatian authorities violated Articles 3, 8 and 13 of the ECHR by failing to act effectively to end the abuse of a disabled man and his mother in Zagreb, Croatia

The man and his mother, both Croatian nationals, had been subjected to abuse and harassment from a group of local children and youths in their neighbourhood. The harassment was primarily based on Mr Dordevic’s disability, the pair’s ethnicity (Serbian) and their marginal social status (both are unemployed).
Despite complaining about the attacks, the man and his mother were not adequately assisted and their case was not taken seriously by a wide range of authorities including the police, the Public Prosecutor, the local school and the Disability Ombudsman.
 
According to Interights, this case presented the Court with an opportunity to establish the extent of the States obligations to prevent disability hate crime. It would seem that there is a positive obligation on the State to ensure action is taken to prevent abuse and harassment of disabled persons by private citizens. A good summary of the case can be found here on the Interights website. Interights acted as advisors to counsel and submitted observations on the merits and admissibility of the case to the Strasbourg Court.



Environment
  • Heathrow Squatters Will Challenge Eviction under Article 8 ECHR
On 18 July 2012 the group ‘Grow Heathrow’ were granted a stay of eviction to appeal under Article 8 of the ECHR, the right to a home and family life. The High Court of England and Wales ruled that the landowner of the property, which is the proposed site for Heathrow’s third runway, should no longer be denied his ownership of the land or his right to the use of it. The squatters, who are opposed to the planned runway construction, argued that their eviction from the property would be against their legal right to a home. The group have lived there since 2012 and have turned the previously derelict site into a community garden.

The judge ruled that the land should be returned to the original owner. However, she also gave the Grow Heathrow group leave to appeal her decision so that the higher courts could determine whether Article 8 applies to landowners in the private sector as well as public bodies. It is thought that the upcoming appeal, which has not yet been lodged by Grow Heathrow, may dramatically alter housing law, making landlords subject to the Human Rights Act right to a home. The result could mean more difficulty evicting tenants, particularly those with families or who are expecting children.
  • Decision Authorising Construction of a New A5 Road by the Regional Development Minister to be Challenged
Following a consideration of the inspector’s report into the A5 Public Inquiry, Regional Development Minister Danny Kennedy MLA announced on 31st July that plans for the Western Transport Corridor would proceed subject to a number of key recommendations. Mr Kennedy also said “I am well aware of the strong local opposition to some elements of the scheme. Every effort has been made to reduce the impact of the road scheme on property and landowners. The rights of those affected are safeguarded and they will receive compensation in accordance with a series of Acts of Parliament, case law and established practice.”
 
The Inspector’s Report and the Department for Regional Development’s Statement can be viewed on the project website. The public inquiry was held following objections from farmers and community groups. There remains strong opposition to the plans for the A5 upgrade.
 
Most recently, the Alternative A5 Alliance has announced it intends to judicially review the decision to approve the scheme. It has not yet been decided when the case will be heard.


LGBT
  • Scotland to Legalise Same Sex Marriage
On 25th July the Scottish Government announced its plans to legalise same-sex marriage, in a move that will place Scotland ahead of the rest of the UK in this area. Deputy First Minister Nicola Sturgeon has said that her administration is “committed to a Scotland that is fair and equal” and it is anticipated the necessary legislation will be passed by 2014.
 
It has been clarified that no religious body will be forced to conduct same-sex marriages, and celebrants may “opt in” to add their names to a register if willing to conduct the ceremonies under the new powers.
 
There remains controversy about the proposed legislation, as Scottish ministers have resisted pressure from the Roman Catholic Church to drop the proposals. The Guardian has reported on the controversies and more information and statistics can be found here and here.
  • Guesthouse Owners Deemed to Have Discriminated Against Gay Couple Granted Leave to Appeal
The Supreme Court has given leave to appeal to a husband and wife who run a guesthouse and were found to have discriminated against a gay couple. Last year, after refusing to allocate a double bedroom to a gay couple in September 2008, Bristol County Court found that the couple had directly discriminated against the gay men and ordered damages of £3,600. The owners of the guesthouse are Christians and say they regard any sex outside marriage as a sin. They argued that their policy consisted of restricting double bedrooms to married couples and denied any direct and indirect discrimination against members of the gay community.
 
Their first appeal against the County Court decision, which can be viewed here, was dismissed because, with marriage laws in the UK, homosexual couples cannot comply with the restriction. The Supreme Court has now said that it will hear their appeal.
  • Protest Against Blood Donation Ban For Gay Men
On 02nd August a protest was staged against a ban on gay men donating blood. The protesters believe that people should have the right to give blood regardless of their sexual orientation. Several men queued up and offered to give blood but were refused after they ticked a box on an application form which asked them if they had had sexual contact with another man.
 
In the rest of the UK, gay men are permitted to give blood, on condition that they have not had sexual contact for 12 months.
 
The decision by Northern Ireland’s Health Minister Edwin Poots to maintain the lifetime ban has sparked anger and controversy, although a spokeswoman for the Department for Health said that “The minister has not yet made a final decision on this matter… and will consider all the relevant evidence” when making the decision.

Meanwhile the High Court in Belfast has accepted an application for judicial review of the decision of the Health Minister, on the grounds that it was irrational and unlawful. A hearing is listed for December.


Social Security
  • The High Court Allows the Judicial Review of the Work Capability Assessment (WCA)
Two disabled people have been permitted to bring judicial review proceedings against the Secretary of State for Work and Pensions in a challenge to the operation of the WCA. Under the new scheme, interviews are carried out by healthcare professionals to assess disabled people’s entitlement to Employment and Support Allowance (ESA - which has replaced Incapacity Benefit). Existing recipients of Incapacity Benefit are now being assessed for eligibility for ESA.
 
The applicants are challenging the WCA system on the grounds that it discriminates against people with mental health problems. A report by the Guardian can be found here.
 
This application for judicial review will be set against a backdrop of welfare reform and may lead to many disabled people losing access to benefits. There have been concerns and criticisms about the scheme, particularly relating to the accuracy or correctness of the assessments. The claimants are being represented by the Public Law Project which has issued a press release.


Employment Law
  • Unpaid Work Scheme Does not Amount to “Forced Labour”
Reilly & Anor, R (on the application of) v Secretary of State for Work and Pensions [2012] EWHC 2292 (Admin) (06 August 2012)

The high court has ruled that unpaid work schemes for the unemployed on benefits do not amount to “forced labour” or “slavery”.
 
An unemployed graduate taking part in a Government back-to-work scheme has claimed her human rights were breached by the Department for Work and Pensions (DWP). The 23 year old, along with a 40 year old unemployed man claimed that the unpaid work schemes amounted to “slavery” or “forced labour”, violating Article 4 of the European Convention on Human Rights. The high court found that neither scheme breached Article 4.
 
However, the judge ruled that the DWP failed to provide clear information to benefits claimants, giving the false impression that unpaid work schemes were mandatory. The judge also criticised the DWP over the lack of clarity in the letters sent out to warn claimants of a potential loss of benefits if they fail to participate in the schemes without good reason. The court called for improved clarity.

As a result of this ruling, it is now possible that a significant number of jobseekers have had their benefits stripped unlawfully, and they may be entitled to reimbursement. Public Interest Lawyers (PIL), who acted for Reilly and Wilson, said the issuing of flawed warning letters meant that "tens of thousands of people stripped of their benefits must now be entitled to reimbursement by the DWP". PIL added: "Today's decision should mean that many of those subjected to benefit sanctions will be entitled to reimbursement by the Department of Work and Pensions”.
  • Woman Wins Sex Discrimination Case
Colvin v The Driver Vehicle Agency [2012] NIIT 01348_11IT (03 August 2012)
 
A Northern Irish female driving test examiner has won a sex discrimination case against her employer, the DVA. She has been awarded compensation by the industrial tribunal because her employer failed to allow her to go on a training course to be an LGV test examiner.
 
The woman raised the issue with the DVA via an internal complaints procedure in May 2011. The delay in holding the grievance meeting, which did not take place until October 2011, was found by the Tribunal to have been unreasonable. As a result, the award of compensation was increased by 20%. The woman’s case was supported by the Equality Commission.
 
The Tribunal found that she had been treated differently to a male colleague who did not meet the requirements to go on the course, but was still allowed to go. The Tribunal also found that she had been treated less favourably due to her part-time working status. This decision by the Tribunal affirms that women are entitled to completely fair and equal treatment in all aspects of their careers.
  • No Direct Religious Discrimination in the Case of a Muslim Woman Sacked for Wearing a Headscarf
Farrah v Global Luggage Co Ltd ET/2200147/2012

A Muslim woman who claimed she suffered religious discrimination when she lost her job in London has succeeded in her claim of unfair dismissal but lost a claim of direct religious discrimination.
 
The woman was reportedly moved from one store to another because the company was “trying to maintain a trendy image”. Later, the woman was forced to resign after taking an extended lunch break. The Tribunal ruled that the company had "seized on the claimant's admitted misconduct as a pretext for dismissing her" and that the real reason for her forced resignation was that she had worn a headscarf to work.
 
In the tribunal's view, it was the headscarf, and not the claimant's Muslim faith, to which the employer objected. The court may have been able to rule in the woman’s favour if she had brought a claim of indirect rather than direct discrimination. The submission by the National Secular society can be viewed here.

Legal Aid
  • Legal Services Commission (LSC) in England and Wales to Face Judicial Review of Costs Decision
The Legal Services Commission in England and Wales is to face judicial review after its decision to cover only one third of the costs of an expert witness called on behalf of a child. The Law Society will challenge the decision by the LSC.
 
In 2009, the County Court ordered a report from a child and adult psychotherapist, and attached the full costs to the child’s legal aid certificate because neither parent could afford to contribute. The LSC argued that the child and the parents had jointly instructed the expert witness and so should share the costs equally between them. Section 22(4) of the Access to Justice Act prevents courts from placing liability for a joint expert’s fees on those with legal aid if the other parties cannot afford to contribute towards the costs. The Law Society argues that relying on the application of Section 22 (4) could prevent the court from accessing key evidence needed to make a decision on the best interests of the child.
 
This challenge comes amid reforms to the legal aid system from April next year, when it is anticipated that there will be significant reductions to the legal aid support available to the public in England and Wales.


Prisoners' Rights
  • Inquest Finds Police Conduct Contributed to the Death of a Man in Custody
The full verdict can be found here

An inquest jury has found that the Metropolitan Police contributed ‘more than minimally’ to the death of Sean Rigg who was being held in custody. The inquest concluded that unsuitable and unnecessary force was used on Rigg, who was pinned down for eight minutes in a violation of his basic rights. Mr Rigg suffered from paranoid schizophrenia, a condition that should have been known to police.
 
The NHS were  also found to  be partially culpable for failing to ensure that Rigg had taken his medication for 2 months, and for failing  to  conduct a mental health assessment. A review of the inquiry into Sean Rigg’s death was conducted by the IPCC, about which the Guardian reports here.


Freedon of Religious Belief
  • Court rules a young Jewish girl can be baptised against her mother’s wishes
C (A Child), Re [2012] EW Misc 15 (CC) (11 May 2012)

A young girl raised in the Jewish faith wished to follow her divorced father’s pathway into the Christian faith against her mother’s wishes. The girl had been attending church with her father, a recent convert to Christianity, along with her sibling, while visiting on alternate weekends. The girl claimed to have experienced a call to Christianity and wished to convert, however her mother filed for an injunction preventing the baptism or confirmation of either of the children. The question for the court was to decide what was in the best interests of the child: whether he should prohibit baptism until she was older, or allow her to follow her own wishes.
 
The judge was satisfied that the child’s "welfare interests are best served by allowing her to be enrolled in a baptism class and to present herself for baptism into the Christian church as soon as she is ready", although her confirmation should not take place before she is  16, unless the mother agrees. It was found that the girl’s upbringing in a Jewish tradition had “lacked any significant religious teaching”.



Pro Bono News

  • 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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Upcoming Events

A seminar entitled “Getting Involved in Pro Bono Litigation; Opportunities in Northern Ireland”, will take place at the Bar library, Royal Courts of Justice on Wednesday, 17th October 2012, from 1:30 pm to 5:15 pm.
 
The seminar, which is a joint LSP/PILS Project event, is aimed at solicitors and barristers who are interested in pro bono work and will cover a number of issues, including:
 
·    the importance of pro bono work in promoting access to justice and the potential benefits to the legal profession
·    the experience of pro bono work in England and Wales, and the Republic of Ireland
·    opportunities for practitioners to do pro bono work in Northern Ireland

The seminar is free to attend. Places are limited, so if you would like to book your place at the seminar, please contact:

·    Mickey Ghanni, PILS Project via email mickey@pilsni.org or by phone on 028 9044 6201 or:
·    Deborah Hill, Legal Support Project, Law Centre (NI) via email deborah.hill@legalsupportproject.com or by phone on 028 9043 5050

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