Public Interest Litigation Update:
29th July 2016
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Human Rights Law
Da Costa and another v Sargaco  EWCA Civ 764
- Excluding first claimant from court while second gave evidence did not breach human rights
In a matter concerning a road traffic claim, the Court of Appeal ruled that in deciding whether Article 6 of the European Convention on Human Rights (ECHR) has been breached, it is necessary to scrutinise very carefully the proceedings as a whole.
The appellants claimed they had each owned a motorcycle which had been damaged when the first defendant drove his car into both parked vehicles. The insurer (second defendant) alleged that the claim was fraudulent. The first defendant was untraceable. The judge found that the claimants had not proved their case, their accounts were inconsistent and that the claim was indeed fraudulent.
The claimants appealed on a number of grounds, one of which was that the judge had ordered that each claimant be excluded from court while the other gave evidence. In making the order, the judge considered whether this would prevent them from having a fair trial in accordance with Art 6 of the ECHR. She decided it would not. The Court of Appeal thought that the judge had erred by failing to start from the premise that the claimants were entitled to be there throughout. Had she done so, it was difficult to see how she could have justified making an order of this kind. However, Lady Justice Black said that,
‘I do not see the exclusion of the claimant as automatically fatal to the entire trial…the fairness of the hearing depends upon the proceedings as a whole.’
The Court found that the trial was not rendered unfair. The appeal was allowed in relation to the findings of fraud against the claimants. However, the appellants had not proved their case and the matter was dismissed in this respect.
Read UK Human Rights Blog article here.
Secretary of State for the Home Department and MSM (Somalia) and United Nations High Commissioner for Refugees  EWCA Civ 715
- Journalist could not be denied asylum as profession linked to political conviction
The Court of Appeal held that an asylum seeker, who was a journalist, would have been at risk on return to Somalia on the grounds of his actual and imputed political opinion.
The respondent had worked as a journalist for a radio station in Somalia between May 2011 and September 2013. He sought asylum in the UK in October 2013 after claiming he had received death threats from a terrorist group. He applied for refugee status on the basis that he would be persecuted if returned. The Secretary of Stated denied his claim to asylum and the First-tier tribunal agreed. The right to practice his profession did not amount to a fundamental Convention right and the respondent could revert to an alternative career to support himself and avoid persecution.
However, the Upper Tribunal held that the respondent would be persecuted by reason of political opinion, not merely imputed, and that his career in journalism was at least partly driven by political conviction. The Court of Appeal agreed with the findings of the Upper Tribunal. Beatson LJ gave the leading judgment and held that,
‘…the text of the Directive and the Convention contemplates two questions. The first is whether the applicant for refugee status faces a well-rounded fear of persecution. The second is the reason for that persecution...There is a single test for refugee status and…no separate test for those who do not in fact have the protected characteristic but to whom that characteristic is imputed by the actor of persecution.’
Read UK Human Rights Blog article here.
An eleven-year old girl who suffered from a neurological disability had been detained in police custody for a total of 60 hours under mental health laws, but without appropriate procedures being followed.
- IPCC rules that Sussex Police fail in duty towards disabled eleven year-old girl
An investigation was conducted by the Independent Police Complaints Commission (IPCC) which found that the police failed to respond to the child’s needs. They could not justify use of force when restraining and hooding her and failed to ensure the presence of an appropriate adult, as required by mental health laws.
The police must not use excessive force when using methods of restraint, otherwise they risk violating the right to be free from torture or inhuman or degrading treatment, the right to liberty and security and the right to privacy and family life. The IPCC made a number of recommendations to ensure that the police respond appropriately to the needs of a vulnerable child. The recommendations included: training police staff on mental health, on use of correct procedures and by reminding police of their accountability for each occasion on which they use force and the need to record all interactions with detainees.
Read BBC News article here.
Views adopted by the Committee under article 5(4) of the Optional protocol, concerning communication No. 2324/2013
- United Nations Human Rights Committee asks Ireland to amend its abortion laws
In June, the United Nations Human Rights Committee (UNHRC) ruled that Ireland’s abortion laws subject women to ‘discrimination and cruel, inhuman or degrading treatment.’ On the facts of this case, the right to private and family life was also violated.
The UNHRC monitors implementation of the International Covenant on Civil and Political Rights (ICCPR). People in Ireland can make a complaint to the UNHRC where the Irish government has violated their ICCPR rights (no such equivalent exists in the UK). The complainant became pregnant in 2011. She discovered that her foetus had fatal abnormalities and would die in utero or shortly after birth. The complainant could not legally terminate the pregnancy in Ireland and without receiving any information or advice, travelled to Liverpool for an abortion at her own expense. She was not given adequate post-abortion care or offered bereavement counselling upon her return.
Decisions of the United Nations Human Rights Committee are not directly legally binding in Ireland, but they can perhaps apply political pressure. The UNHRC recommended that Ireland should ‘amend its law on voluntary termination of pregnancy, including if necessary its constitution, to ensure compliance with the [ICCPR], including effective, timely and accessible procedures for pregnancy termination in Ireland.’
Read Rights Info article here and article from Amnesty International here.
O’Neill and Lauchlan v the United Kingdom (Application Nos. 41516/10 and 75702/13)
- 9-year Scottish murder trial was found to have breached human rights
The European Court of Human Rights has ruled that criminal proceedings in the UK ran beyond the reasonable period of time permitted under Article 6 of the ECHR.
The facts were that two male applicants who lived in Scotland, had been accused of the murder of their female flatmate in 2005. However, no prosecution had been brought due to insufficient evidence. By 2008 new evidence was brought to light and the applicants were served with an indictment. The charges were identical to the original petition with the addition of various sexual offences. Despite continued complaints about the delays and other attempts to have the proceedings discontinued, the applicants were unsuccessful in having the charges dropped.
The murder trials took place in 2010 resulting in convictions for murder and sexual offences. The applicants appealed against their convictions and sentences. The appeal Court eventually granted leave to appeal to the Supreme Court in April 2012 and judgment was given in June 2013.
Under the Scotland Act 1998, the Scottish Executive must not act in a manner incompatible with the European Convention on Human Rights. The right to fair trial encompasses a right to fair hearing ‘within a reasonable time.’
When considering whether the length of proceedings can be said to be reasonable, the Court will consider the proceedings as a whole. While no single stage of the proceedings could be considered unreasonable, although the appeal stage lasted around four years, the cumulative length of proceedings was held to be unreasonable and the Court unanimously found a violation of Article 6(1) of the Convention.
Please read UK Human Rights Blog article here.
Social Security Law
Case C-308/14, Action under Art. 258 TGEU for failure to fulfil obligations, 14th June 2016
- ECJ upholds ‘right to reside’ test for UK child benefit and tax credits
The European Court of Justice held that the UK can lawfully impose restrictions on access to child benefit and child tax credits for EU citizens who are economically inactive. The UK contended that economically inactive EU citizens should not become a burden on the State’s welfare system and applied a ‘right to reside’ test.
The European Commission sought to challenge the test relied on by the UK on grounds of direct discrimination because it only applied to foreign nationals. EU law provides that EU citizens have the right to live in the UK for more than three months if they are in work or self-employed or have sufficient resources and health insurance so they are not a burden on the social security system.
The Court restricted the scope of the action to mainly child benefits and child tax credits. It was held that in relation to these benefits, the UK legislation which governed lawful residency conditions was neither discriminatory nor prohibited by European Union law. The Court concluded that the right to reside test was a lawful means to avoid undue burdens on the ‘social assistance system.’
What does this decision mean?
It means that there are now automatic exclusions from family benefits for non-national EU citizens. This could result in excluding a number of workers who cannot provide sufficient evidence that their activities meet nationally imposed definitions of work. This could also lead to child poverty for vulnerable children and may have implications for those who have been working but lose their jobs.
Read press release here and Parliament Magazine article here.
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M, R (on the application of) Human Fertilisation and Embryology Authority  EWCA Civ 611
- Court of Appeal rules that woman may act as surrogate in absence of formalities
The Court of Appeal has ruled that a 60 year old woman may use her daughter’s frozen eggs to give birth to a child. The woman’s daughter was deceased having died of cancer in 2011.
The appellant’s daughter had IVF treatment and in January 2010 had asked her mother to carry and raise her children following her death. However, the required forms had not been completed and it was not clear that ‘effective’ consent had been given for the purposes of the Human Fertilisation and Embryology Authority Act 1990. The Act requires the regulator to provide services only where the owner of the genetic material has provided consent. The fertility regulator (HFEA) had refused its consent to allow the eggs to be exported to a fertility clinic in the USA so that the procedure could be carried out.
It was contended that while the deceased had time from January 2010 until June 2011 to put in place clear instructions and discuss her plans with others, this had not been done; nothing had been written down and the method of fertilisation had not been agreed. However, the Court of Appeal considered that the deceased’s statement to her mother, in which she had clearly expressed her wishes, had been granted insufficient weight.
The HFEA will be required to reconsider whether to allow the eggs to be sent to the US fertility clinic, taking into account the matters that they had not considered previously, including the conversation which the deceased had with her mother.
Read news article here and UK Human Rights Blog article here.
Legal Aid Law
- Government’s residence test for legal aid in England and Wales is illegal
R (on the application of Public Law Project) v Lord Chancellor  UKSC 39
The Supreme Court ruled that the government’s draft order which sets out a residence test for civil legal aid funding under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, is ultra vires (outside scope of lawful powers).
The test is that if a person was not lawfully resident in the UK at the time of their legal aid application, or for the last 12 months, they would not be eligible for legal aid. The test was introduced by secondary legislation. For the test to be valid, it would have to come within the scope of the powers created by Parliament.
The test was challenged by the Public Law Project (PLP) on two grounds, (i) the legislation was illegal and (ii) the test was unjustifiably discriminatory. PLP argued that the exclusion of a specific group of people based on a characteristic such as residence status, did not fall within the power. The power concerned limiting the availability of legal aid based on the issue or services involved. The Supreme Court agreed and declared that the draft order was beyond the powers provided. The discrimination issue was not required to be considered.
Read UK Human Rights blog article here.
The applicant brought a case against the PSNI on the basis that he was subjected to 156 searches between 2009 and 2013 under the Justice and Security (NI) Act 2007. He was stopped because of alleged dissident republican links.
- PSNI searched man 156 times under anti-terrorism law
The searches allegedly took place after the introduction of a stop and search code of practice in May 2013. It is alleged that this code does not safeguard the applicant from arbitrary police detentions and unlike England and Wales, it is argued that there is no requirement for the police to set out the background of the person being stopped. The applicant has contested the power to detain him on the basis that it breaches his privacy entitlements under Article 8.
The hearing continues.
You may access article from the Belfast Telegraph here.
In our April Update, we reported that the High Court was hearing a judicial review brought by a former prisoner who was declared unsuitable for his job as a groundskeeper. The High Court has held that it was unlawful to discontinue his employment.
- Former prisoner successfully challenges Access NI checks
The applicant was a former political prisoner who was released after serving eleven and a half years for a murder he committed at the age of 16. He then worked for 18 years as a groundskeeper. Due to a funding change, the organisation required its employees to undergo security checks. As the applicant had a criminal record, the vetting process led to a decision that he was unsuitable to continue in his existing job. He judicially reviewed the decision.
The Court found that the then First Minister Peter Robinson had breached the Ministerial Code in 2007 when he did not continue with guidance on employing former prisoners. The principle of the recruitment guidance was that, ‘any conviction for a conflict related offence that pre-dates the Good Friday Agreement should not be taken into account unless it is materially relevant to the employment being sought.’
The Court held that the former First Minister should have brought his decision to dis-apply the existing policy on the recruitment of persons with conflict related convictions to the Executive Committee.
Read news article here.
CA, RA, RB and RC v News Group Newspapers Ltd (Appeal No. UKEAT/0075/16/RN
- Employment Tribunal can restrict reporting of a case in interests of human rights after claim is withdrawn
An employment tribunal can make a restricted reporting order (RRO) which prevents or restricts disclosure to the public of any aspect of proceedings, where necessary to protect rights under the European Convention on Human Rights (ECHR). An employment tribunal must give full weight to the principle of open justice and to the right of freedom of expression.
The respondents (RA – a celebrity, RB and RC) had employed the applicant (CA) as a hairdresser. He was dismissed and brought claims of unfair dismissal and sex discrimination against them. The respondents applied for privacy orders under the Employment Tribunals Regulations, perhaps due to RA’s celebrity status. These applications were refused and they appealed. At the same time, the News Group Newspapers Ltd (NGN) enquired whether an RRO was in place as they wished to publish an article on the matter. They were advised that an RRO was temporarily in place.
The respondent and applicant to the main proceedings then reached a settlement and the claim was withdrawn. NGN applied for the RRO to be revoked or discharged. The employment tribunal held that:
RA, RB, RC and CA appealed against 1 and 3 above and NGN cross-appealed against 2. The EAT dismissed both appeal and cross-appeal. The case has been appealed to the Court of Appeal.
- An employment tribunal retains the power to revoke or vary an RRO after withdrawal of a claim (otherwise a permanent privacy order would be created where a claim was withdrawn, which the press could not challenge).
- The RRO did not automatically expire upon withdrawal of the claim (withdrawal is an action of a party not the tribunal).
- Upon conducting a balancing exercise of Convention rights, the RRO should be discharged.
Read Inforrm article here.
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