Regina (Al-Saadoon and others) v Secretary of State for Defence (No 2) – WLR Daily

Regina (Al-Saadoon and others) v Secretary of State for Defence (No 2) [2016] EWHC 773 (Admin)

‘The claimants brought public law claims in the courts of the United Kingdom arising out of the British military involvement in Iraq between 2003 and 2009. The claims involved allegations of ill-treatment and in some cases unlawful killing, of Iraqi civilians by British soldiers. By their claims for judicial review the claimants sought court orders requiring the Secretary of State to investigate alleged human rights violations. Issues arose relating to the UK’s obligations under articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, including (i) the nature and scope of the state’s substantive obligation under article 2 of the Convention in relation to the use of lethal force while seeking to quell riots and uphold law and order during the occupation of Iraq, (ii) when the investigative duty under article 2 arose in such circumstances and (iii) the effect of delay on the investigative duties under articles 2 and 3 where the allegations of breach of the substantive rights were made many years after the incidents in question.’

WLR Daily, 7th April 2016

Source: www.iclr.co.uk

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Regina (Sino) v Secretary of State for the Home Department – WLR Daily

Regina (Sino) v Secretary of State for the Home Department [2016] EWHC 803 (Admin)

‘Claiming that he had been unlawfully detained, the claimant sought, through the route of judicial review, immediate release from detention, determination of the defendant’s liability for his false imprisonment and resolution as to whether, if false imprisonment was established, damages should be compensatory or nominal. The defendant had detained the claimant under immigration powers for periods totalling seven years and two months. The judge held that the claimant had been unlawfully detained between 13 July and 10 December 2013 and was entitled to more than nominal damages for false imprisonment, to be assessed on a compensatory basis. The claimant failed in his public law claim in relation to accommodation, deportation and removal. An issue arose as to costs. The defendant contended, inter alia, that as the claimant had succeeded on only one issue out of four he was entitled to only 25% of his costs.’

WLR Daily, 12th April 2016

Source: www.iclr.co.uk

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You’ve lost that loving Ealing (Sorry) – Nearly Legal

‘Ealing’s allocation policy has already had lawfulness problems, compounded by Ealing’s unlawful refusal to do anything about that unlawfulness. But this judicial review of the policy was on a different basis and confirms a whole fresh ground of unlawfulness.’

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Nearly Legal, 27th April 2016

Source: www.nearlylegal.co.uk

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Regina (Hallam) v Secretary of State for Justice; Regina (Nealon) v Same – WLR Daily

Posted April 20th, 2016 in compensation, judicial review, law reports, miscarriage of justice by sally

Regina (Hallam) v Secretary of State for Justice; Regina (Nealon) v Same [2016] EWCA Civ 355

‘Both claimants were convicted of serious criminal offences and had their initial appeals against conviction dismissed. In the first case the Criminal Cases Review Commission referred the claimant’s conviction for murder to the Court of Appeal (Criminal Division), which quashed it on the basis the safety of the conviction was undermined by the unsatisfactory nature of identification evidence and doubts as to whether the claimant’s alibi had been falsely made. In the second case the commission referred the claimant’s conviction for attempted rape to the Court of Appeal, which quashed it on the basis that the weakness of identification evidence and fresh DNA evidence taken from the victim’s clothing had had a substantial effect on the safety of the conviction. In both cases the Secretary of State refused the claimant compensation, under section 133 of the Criminal Justice Act 1988, as amended, on the basis that he had failed to show beyond reasonable doubt that the claimant had not committed the offence. The claimants’ claims for judicial review of the Secretary of State’s decisions, on the grounds that section 133(1ZA) of the 1988 Act (inserted by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 and providing that there has been a miscarriage of justice in relation to a person convicted of a criminal offence “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence”) was incompatible with article 6.2 of the Convention for the Protection of Human Rights and Fundamental Freedoms in that it infringed the presumption of innocence, were dismissed by the Divisional Court of the Queen’s Bench Division which held that (i) the court was bound by authority of the Supreme Court (and also of the Court of Appeal) to hold that article 6.2 of the Convention was not applicable to compensation decisions made under section 133 of the 1988 Act; and (ii) the statutory scheme under section 133 maintained the presumption of innocence, did not require the applicant for compensation to prove his innocence and that only if the Secretary of State was satisfied that the new fact conclusively showed his innocence was compensation to be paid. The court also refused the claimant in the second case permission to proceed with a claim for judicial review on the basis that the Secretary of State was obliged to carry out a full review of the material before him in a particular case to determine whether the claimant was innocent.’

WLR Daily, 11th April 2016

Source: www.iclr.co.uk

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Regina (Harris and another) v Broads Authority – WLR Daily

Posted April 20th, 2016 in environmental protection, judicial review, news, parks by sally

‘The Broads comprised over 300 square kilometres of wetland landscapes in east Norfolk and Suffolk. The Broads Authority (“the authority”) was constituted under the Norfolk and Suffolk Broads Act 1988 and had a general duty to manage the Broads. The authority was also the local planning authority for the area and a harbour and navigation authority. However, the Broads was not a National Park designated under the National Parks and Access to the Countryside Act 1949, nor was the authority a National Park Authority under that statute. In January 2015 the authority passed a resolution by which it decided that the brand “Broads National Park” be adopted for marketing related purposes. The claimant sought judicial review of that decision on the ground, inter alia, that unless it conformed to the “Sandiford principle” it should not hold itself out as a National Park. That principle, set out in para 2.15 of the Report of the National Park Policies Review Committee 1974, stated that the preservation and enhancement of natural beauty should take precedence to the promotion of public enjoyment. An issue arose as to whether a public body which in law was not a National Park, could represent itself (and allow itself to be represented) as a National Park and thereby to enjoy the benefits of National Park status despite the fact that the public body had decided to cease to seek to become a National Park, inter alia, because it did not wish to be subject to the legal duties imposed on National Parks and National Park Authorities.’

Regina (Harris and another) v Broads Authority [2016] EWHC 799 (Admin)

WLR Daily, 12th April 2016

Source: www.iclr.co.uk

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Council wins judicial review over advice given to Greggs under Primary Authority – Local Government Lawyer

Posted April 13th, 2016 in interpretation, judicial review, news by sally

‘A High Court judge has upheld Hull City Council’s judicial review claim over advice given by Newcastle City Council to Greggs under the ‘Primary Authority’ scheme.’

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Local Government Lawyer, 12th April 2016

Source: www.localgovernmentlawyer.co.uk

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Private parts – Nearly Legal

Posted April 12th, 2016 in housing, human rights, judicial review, news by sally

‘Ever since R (Weaver) v London and Quadrant Housing Trust [2010] 1 WLR 363 (our report) there has been an ongoing issue as to whether housing associations (or specific housing associations) were public bodies both for the purposes of the Human Rights Act and public law/judicial review.’

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Nearly Legal, 10th April 2016

Source: www.nearlylegal.co.uk

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Equality claims and health regulators – Availability of JR does not oust jurisdiction of ET – UK Human Rights Blog

‘Michalak v The General Medical Council & Ors [2016] EWCA Civ 172: This important case deals with the remedies available to individuals who claim to have suffered from discrimination, victimization, harassment or detriment in the treatment they have received from a “qualifications body” under s.53 of the Equality Act 2010 viz. any authority or body which can confer a relevant qualification (e.g. the GMC, ACCA etc.). It also clarifies the understanding of the place of judicial review in the context of internal and statutory appeals in cases of alleged discrimination contrary to the Equality Act 2010.’

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UK Human Rights Blog, 11th April 2016

Source: www.ukhumanrightsblog.com

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Junior doctors’ row: Government hit with second legal challenge over contracts – BBC News

‘A second legal challenge has been made over the government’s decision to impose a new contract on junior doctors in England.’

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BBC News, 4th April 2016

Source: www.bbc.co.uk

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General Medical Council v Michalak – WLR Daily

General Medical Council v Michalak [2016] EWCA Civ 172

‘The claimant doctor made a complaint of discrimination against the respondent General Medical Council, alleging that, as a qualifications body, it had subjected her to a detriment in the course of its Fitness to Practise Panel procedure, contrary to section 53(2)(c) of the Equality Act 2010. At a preliminary hearing to determine whether the employment tribunal had jurisdiction under section 120 of the Act, an employment judge held that the claim was not excluded by section 120(7), as the act complained of was not subject “by virtue of an enactment” to “an appeal or proceedings in the nature of an appeal”, since there was no right of appeal under the Medical Act 1983 from a decision of the panel, nor did judicial review provide a means to challenge its decision. The Employment Appeal Tribunal allowed the General Medical Council’s appeal, holding that judicial review proceedings were proceedings “in the nature of an appeal” that arose “by virtue of an enactment”, namely section 31 of the Senior Courts Act 1981, that were available to the claimant, thereby precluding the jurisdiction of the employment tribunal.’

WLR Daily, 23rd March 2016

Source: www.iclr.co.uk

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Regina v Roberts (Mark) and others- WLR Daily

Regina v Roberts (Mark) and others [2016] EWCA Crim 71

‘In each of the 13 applications before the court, the applicants applied for an extension of time in which to apply for leave to appeal against sentences of imprisonment or detention for public protection (“IPP”)), imposed between 2005 and 2008 under the Criminal Justice Act 2003. Before the sentence of IPP was amended by the Criminal Justice and Immigration Act 2008, the court was required to make the assumption that an offender was dangerous if he had been convicted on an earlier occasion of a specified offence, unless it was unreasonable to do so. Where he was found to be dangerous, and over 18, the court was required to pass a sentence of IPP or life imprisonment; the 2003 Act removed all discretion from the court once it was found that the offender was dangerous. All the applicants had either been detained in custody long after the expiry of the minimum term or had been recalled for breach of licence. The applicants submitted (1) that whatever might have been the position at the time the sentences of IPP were passed, the Court of Appeal had power under section 11 of the Criminal Appeal Act 1968 to pass sentences that, in the light of what had happened over the intervening years, now would be the proper sentence; (2) the Court of Appeal should reconsider the assessments made by sentencing judges in the light of R v Lang [2005] EWCA Crim 2864; [2006] 1 WLR 2509, and (3) a time could and had been reached when the length of the imprisonment was so excessive and disproportionate compared to the index criminal offence that it could amount to inhuman treatment under article 3 or arbitrary detention under article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. That was because the detention no longer had any meaningful link to the index offence. A much delayed review of a sentencing decision could therefore be a mechanism the court could employ to avoid a breach of those Convention Rights. As the period now served by each of the applicants was so much longer than any conceivable determinate sentence would have required, the continued detention amounted to preventative detention and was therefore arbitrary. ‘

WLR Daily, 18th March 2016

Source: www.iclr.co.uk

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Regina (Watch Tower Bible & Tract Society of Britain and others) v Charity Commission – WLR Daily

Regina (Watch Tower Bible & Tract Society of Britain and others) v Charity Commission [2016] EWCA Civ 154

‘Following three trials of former members of Jehovah’s Witnesses’s congregations on charges of historic sex abuse the Charity Commission decided to initiate a statutory inquiry relating to a leading Jehovah’s Witness charity’s safeguarding policy regarding vulnerable beneficiaries in particular children, under section 46 of the Charities Act 2011, and to order the charity to produce a wide range of documents, under section 52 of the Act, even though none of those accused was connected with the charity. .The applicants, the charity and its trustees, sought judicial review of those decisions, on the grounds that (i) the commission had acted disproportionately by commencing an inquiry the scope of which was vague and undefined and by interfering with the applicants’ Convention rights, and had thereby breached its duty to act fairly so that the decision was irrational; and (ii) the scope of the production order was disproportionate in that information was sought of a personal and sensitive nature, within the meaning of the Data Protection Act 1998, and was furthermore in breach of the Convention rights of individuals affected. The judge in refusing permission to proceed with the judicial review clain held that the applicants had an effective statutory remedy by appealing to the First-tier Tribunal (General Regulatory Chamber) (Charity) against a decision to initiate an inquiry, and that any complaint relating to the breadth of a production order could be dealt with before that tribunal.’

WLR Daily, 15th March 2016

Source: www.iclr.co.uk

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Family member of EU national awarded £136,000 damages against Home Office – Free Movement

‘A High Court judge has awarded the family member of an EU national a total of £136,048 in damages. The award consists of £76,578 for false imprisonment and £59,470 for breach of EU law. The Home Office is also criticised for having made “inaccurate and misleading” submissions to previous judges on multiple occasions and the damages include not just compensatory damages for lost earnings and distress but also special damages, aggravated damages and exemplary damages.’

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Free Movement, 30th March 2016

Source: www.freemovement.org.uk

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Byron Karemba: The Investigatory Powers Bill: Introducing Judicial Authorisation of Surveillance Warrants in the United Kingdom – Putting the ‘Double-Lock’ in Focus (Part I) – UK Constitutional Law Association

‘When the Home Secretary commended the Draft Investigatory Powers Bill for pre-legislative scrutiny in November 2015, she lauded the oversight mechanisms in the Bill as ‘world-leading.’ A seminal feature of this new regime is the creation of a single Investigatory Powers Commissioner (IPCr) who is aided by a set of Judicial Commissioners (JCs) in exercising both ex ante and ex post facto oversight over the use of a range of surveillance measures. The IPCr will replace the existing fragmented (RIPA Part VI) framework of the Intelligence Services Commissioner, the Office of Surveillance Commissioner and the Interception of Communications Commissioner whom hitherto have (largely) conducted ex post facto oversight functions.’

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UK Constitutional Law Association, 22nd March 2016

Source: www.ukconstitutionallaw.org

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Holmcroft: Skilled person not amenable to judicial review – Henderson Chambers

Posted March 22nd, 2016 in banking, financial regulation, fraud, judicial review, negligence, news by sally

‘On 24 February 2016, in R (Holmcroft Properties Limited) -v- KPMG LLP and others, the Divisional Court dismissed Holmcroft’s judicial review challenge to the skilled person’s role in a mis-selling redress scheme. The skilled person, KPMG, had approved Barclays’ rejection of Holmcroft’s claims for consequential losses it claimed to have suffered as a result of the mis-sale. The court found that the skilled person was not amenable to judicial review and that, in any event, it had acted fairly.’

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Henderson Chambers, 3rd March 2016

Source: www.hendersonchambers.co.uk

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MoJ to urgently review legal aid for trafficking victims – Law Society’s Gazette

Posted March 22nd, 2016 in judicial review, legal aid, news, trafficking in human beings by sally

‘The Ministry of Justice will urgently review its provision of legal aid for people bringing claims for compensation against their traffickers, in response to a judicial review of the current scheme.’

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Law Society’s Gazette, 21st March 2016

Source: www.lawgazette.co.uk

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EU referendum: Expats challenge 15-year voting restriction – BBC News

‘Two expats are challenging a decision to bar British citizens who have lived elsewhere in Europe for more than 15 years from voting in the EU referendum.’

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BBC News, 15th March 2016

Source: www.bbc.co.uk

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Regina (Orbital Shopping Park Swindon Ltd) v Swindon Borough Council – WLR Daily

Posted March 7th, 2016 in interpretation, judicial review, law reports, local government, planning by tracey

Regina (Orbital Shopping Park Swindon Ltd) v Swindon Borough Council: [2016] EWHC 448 (Admin)

‘The claimant submitted two separate planning applications to the defendant: one for the installation of a mezzanine floor at its property; and the other for external works to the property, which created no additional floor space. The defendant granted planning permission for both applications, informing the claimant that the mezzanine installation was development liable to a community infrastructure levy (“CIL”). The defendant’s view was that the development proposals fell within the scope of the meaning of development for CIL purposes due to the direct link between the two applications for the mezzanine and external alterations. The defendant, as the relevant CIL collecting authority, subsequently issued a CIL liability notice under regulation 65 of the Community Infrastructure Levy Regulations 2010 in relation to the installation of a mezzanine floor and external alterations at the claimant’s property, and a demand notice under regulation 69 of the 2010 Regulations in respect of the same development. By a judicial review claim the claimant challenged the lawfulness of the defendant’s act in issuing the two notices on the grounds that the mezzanine planning permission fell within the exemption created by regulation 6(1)(c) and that the external planning permission created no floor space and so was not liable to a CIL.’

WLR daily, 3rd March 2016

Source: www.iclr.co.uk

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BMA ignored lawyers’ advice before launching judicial review over new contracts for junior doctors – Daily Telegraph

Posted March 1st, 2016 in contracts, doctors, industrial action, judicial review, news by sally

‘The British Medical Association ignored the advice of its own lawyers before launching a judicial review over new contracts for junior doctors, it has emerged.’

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Daily Telegraph, 29th February 2016

Source: www.telegraph.co.uk

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Challenging Government Decisions a Pain in the Neck – Henderson Chambers

‘On 11 December 2015, Cranston J gave Judgment in Speed Medical Examination Services Limited v Secretary of State for Justice [2015] EWHC 3585 (Admin). Cranston J held that the Defendant’s reforms in respect of the system for obtaining medical reports in whiplash cases was not open to challenge on grounds of irrationality or its purported anticompetitive effects.’

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Henderson Chambers, 3rd February 2016

Source: www.hendersonchambers.co.uk

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