In re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening) – WLR Daily

Posted April 20th, 2016 in adoption, EC law, jurisdiction, law reports, transfer of proceedings by sally

In re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening) [2016] UKSC 15

‘Two children, who like their parents were Hungarian nationals, were born in England and habitually resident in the United Kingdom, having lived with the same English foster carers for most of their lives, initially with the consent of their parents. The local authority sought a care order under section 31 of the Children Act 1989 and, subsequently, an order for placement of the children with the foster carers with a view to their adoption pursuant to section 21 of the Adoption and Children Act 2002. The mother, who had returned to Hungary and had a third child with the father, opposed the orders and applied under article 15 of Council Regulation (EC) No 2201/2003 for the proceedings to be transferred to Hungary. The Hungarian authorities supported her application, maintaining that only the Hungarian authorities could order the adoption of a Hungarian national minor. They proposed that upon return to Hungary the children would be placed with English speaking foster parents but maintain contact with their parents. The judge directed that both the care and placement order proceedings be transferred in accordance with article 15 on the ground that the Hungarian courts would be better placed to determine the welfare issues. The Court of Appeal decided, inter alia, that the placement order proceedings were outside the scope of article 15 by virtue of article 1(3)(b) of the Regulation and could not, therefore, be transferred to Hungary, but that, since the judge had not erred in ordering the transfer of the care proceedings, the placement order proceedings would be stayed even though they could not be transferred. ‘

WLR Daily, 13th April 2016

Source: www.iclr.co.uk

Auzins v Prosecutor General’s Office of the Republic of Latvia – WLR Daily

Posted April 20th, 2016 in abuse of process, estoppel, law reports, res judicata by sally

Auzins v Prosecutor General’s Office of the Republic of Latvia [2016] EWHC 802 (Admin)

‘The appellant was arrested in Latvia in connection with four offences of theft. He admitted guilt in relation to some of the offences and was released subject to certain conditions. In breach of those conditions he left Latvia and subsequently came to live in England. He was arrested in Scotland pursuant to a European arrest warrant (“EAW”) issued by the Latvian judicial authority, and extradition proceedings followed in the Sheriff Court. He resisted extradition on health grounds. A letter from the Latvian authorities accepted that the medical treatment available within the Latvian prison system for the treatment of the appellant’s medical problems would be insufficient and incompatible with European guidelines. The court concluded that, while there were no bars to extradition under the section 11(1) of the Extradition Act 2003, the appellant’s physical condition was such that it would be oppressive to extradite him. Three years later, a replacement, second, EAW was issued, reflecting the fact that one of the offences for which extradition had originally been sought had become time barred. The appellant was arrested pursuant to the second EAW in England. Updated evidence from the Latvian authorities showed that the position as to the availability of treatment for the appellant’s conditions had improved in the intervening period. Following a contested hearing, the district judge ordered the appellant’s extradition. The appellant challenged that decision on grounds, inter alia, that the district judge should have discharged him because: (i) the issue of his surrender was res judicata or subject to an issue estoppel on account of his discharge in the earlier Scottish proceedings for substantially the same matters; alternatively, (ii) in seeking his surrender the Latvian authorities were abusing the process of the court.’

WLR Daily, 14th April 2016

Source: www.iclr.co.uk

Marussia Communications Ireland Ltd v Manor Grand Prix Racing Ltd and another – WLR Daily

Posted April 20th, 2016 in EC law, law reports, licensing, time limits, trade marks by sally

Marussia Communications Ireland Ltd v Manor Grand Prix Racing Ltd and another [2016] EWHC 809 (Ch)

‘The claimant was the proprietor of a Community registered trade mark for the “Marussia” name and logo, which it licensed to the defendant to use for a certain period. The claimant brought a claim for trade mark infringement, claiming that the defendant had continued to use the trade mark after the licence period had ended and that the use of the “Marussia” name contravened article 9(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. The defendants relied upon five defences, including consent of the claimant within the meaning of Council Regulation 207/2009. On the claimant’s application for summary judgment am issue arose as to whether, if it failed to prove the claimant had given consent, the defendant could none the less rely on English law principles of estoppel to achieve either the same or a similar result.’

WLR Daily, 13th April 2016

Source: www.iclr.co.uk

Regina (Hussain) v Parole Board of England and Wales – WLR Daily

Posted April 20th, 2016 in delay, human rights, law reports, parole, transfer of proceedings by sally

Regina (Hussain) v Parole Board of England and Wales [2016] EWHC 288 (Admin)

‘The claimant, an indeterminate sentence prisoner, was referred by the Secretary of State to the Parole Board for consideration of his suitability for transfer to open prison conditions for the remaining three years of his minimum custodial term (in accordance with the relevant National Offender Management Service guidance). The purpose of such a transfer was to enable the claimant to demonstrate during that period, and in those conditions, that he no longer posed a level of risk to the public that warranted further detention and could therefore be considered for release at, or shortly after, the expiry of his fixed tariff in 2017. The Board was obliged under the Parole Board Rules 2011 to consider the claimant’s suitability at an oral hearing within 26 weeks of receiving the referral and, although the case was made ready for listing in September 2014, it was only set down in the following February and subsequently heard in May 2015. The defendant accepted that the listing of oral hearings had been subject to substantial delays at the time due to a lack of resources but contended that the claimant had still been moved to open conditions some two years prior to the expiry of his tariff and therefore he had not lost the opportunity to show his suitability for release at the time of his tariff expiry date. The claimant brought a claim for judicial review, contending that the delay in listing the oral hearing was unlawful under common law and in breach of article 5.4 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as it had delayed his transfer to open prison conditions and consequently deprived him of the opportunity to demonstrate his suitability for release at, or shortly after, the expiry of his tariff.’

WLR Daily, 24th February 2016

Source: www.iclr.co.uk

Regina v Pacurar – WLR Daily

Posted April 20th, 2016 in appeals, law reports, sexual offences, trespass by sally

Regina v Pacurar

‘The defendant was charged with trespass with intent to commit a sexual offence contrary to section 63(1) of the Sexual Offences Act 2003. The prosecution case was that the defendant had entered a family’s home as a trespasser, and had been naked and touching his penis in the presence of family members: further, that while being ejected from the house by the father of the family, he had made an unseemly sexual suggestion. In interview with the police the defendant had denied ever having entered the house. On closure of the prosecution case the defendant submitted that there was no case to answer because the prosecution had not particularised the sexual offence which it was asserted that he had intended to commit. The prosecution submitted that it was sufficient that their case was that the intent relied on was to commit one or more of the offences set out in sections 1 to 3 and 5 to 7 of the Sexual Offences Act 2003. The trial judge rejected the submission of no case to answer and the defendant was convicted. The defendant appealed against conviction on the ground, among others, that the prosecution had been obliged to specify the sexual offence which it was asserted that the defendant had intended to commit.’

WLR Daily, 13th April 2016

Source: www.iclr.co.uk

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

Why do UK media fail to cover the deaths of black people in custody? – The Guardian

Posted April 20th, 2016 in death in custody, media, minorities, news by sally

‘A journalist argues that, unlike in the US, such deaths do not generate a national conversation because mainstream media platforms marginalise diverse voices.’

Full story

The Guardian, 19th April 2016

Source: www.guardian.co.uk

Government has a ‘duty’ to safeguard thousand year old tradition of printing laws on vellum, says minister – Daily Telegraph

Posted April 20th, 2016 in archives, legislation, news, parliament by sally

‘The Government has a “duty” to safeguard the thousand-year-old practice of recording Britain’s laws on vellum, a minister has said as he confirmed his department has found the £80,000 needed to safeguard this “great tradition.”‘

Full story

Daily Telegraph, 20th April 2016

Source: www.telegraph.co.uk

Barristers predict an increase in public access work – Bar Standards Board

Posted April 20th, 2016 in barristers, legal services, news by sally

‘Public access barristers are expecting the volume of work obtained directly from clients to increase over the next few years as a result of the public access scheme which allows consumers to use barristers directly, without needing to instruct a solicitor or other intermediary.’

Full story

Bar Standards Board, 19th April 2016

Source: www.barstandardsboard.org.uk

Early intervention needed to improve effectiveness of confiscation orders, says expert – OUT-LAW.com

‘Earlier intervention and more formal measures of success are needed if confiscation orders are to be successfully used by the UK courts to deprive fraudsters of the proceeds of their crimes.’

Full story

OUT-LAW.com, 20th April 2016

Source: www.out-law.com

Van der Merwe v Goldman and another – WLR Daily

Posted April 20th, 2016 in contracts, law reports, mistake, rescission, setting aside by sally

Van der Merwe v Goldman and another [2016] EWHC 790 (Ch)

‘The claimant and the first defendant were husband and wife and the joint freehold owners of a house, where they lived. On 24 March the claimant and the first defendant executed a transfer of the title to the house to the claimant alone, for no stated consideration. On 27 March the claimant executed a deed of settlement whereby he settled the house on the terms of that deed and appointed himself and the first defendant as trustees of the settlement. The claimant also executed a transfer of the title to the house to himself and the first defendant as the trustees of the settlement. The principal beneficiaries of the settlement were the claimant, the first defendant, their children and remoter issue. Although the transactions were entered into in order to obtain certain tax advantages, in fact, as a consequence of a change in the law, they gave rise to a substantial tax liability. The claimant and first defendant brought a claim for an order setting aside the transfer of 24 March and the settlement and transfer of 27 March. In issue in the proceedings, to which the revenue was joined as a second defendant, was whether the transactions were governed by common law rules for declaring a contract to be void by reason of mistake or the equitable rules for setting aside a gift for mistake.’

WLR Daily, 11th April 2016

Source: www.iclr.co.uk

Loose v Lynn Shell Fish Ltd and others (Le Strange Meakin, Part 20 defendant) (Crown Estate Comrs intervening) – WLR Daily

Posted April 20th, 2016 in Crown, fisheries, law reports, prescription by sally

Loose v Lynn Shell Fish Ltd and others (Le Strange Meakin, Part 20 defendant) (Crown Estate Comrs intervening) [2016] UKSC 14

‘An estate adjoining the foreshore on the east side of the Wash owned a private fishery with an exclusive right to take shellfish over part of the foreshore. In 1970 the estate granted a lease of that exclusive right to the claimant. The claimant brought proceedings against the defendants alleging that they had been fishing for cockles in areas of foreshore which were part of the private fishery of which he was the lessee. The defendants accepted that a private fishery had been established by prescription but disputed its extent. In particular, they contended that it did not extend to large sandbanks which had been detached from the foreshore until the channels separating them had silted up; that such sandbanks were not subject to the doctrine of accretion, properly understood; and that, even if they were, it would not follow that the fishery rights had increased commensurately since that would have required a Crown grant and the power of the Crown to make such a grant had been removed by Magna Carta. The judge, however, held that the terms of the grant presumed as a result of the past prescriptive activities was a grant before 1189 of a fishery extending over the whole of the foreshore as it varied from time to time, and accordingly included the sandbanks; that on that basis, the defendants were liable in damages; and that the most practical of the various alternative lines put forward as the defined seaward boundary of the fishery was the mean low water mark of spring tides, rather than extreme low water as contended for by the claimant. The defendants appealed and the claimant cross-appealed. The Court of Appeal dismissed the defendants’ appeal and held that as conditions changed and more or less of the seabed was exposed at low water, the area of the private fishery would expand or shrink, and held, allowing the claimant’s cross-appeal in part, that the fishery extended in law as far as lowest astronomical tide, which was the lowest point to which the tide fell as a result of normal astronomical forces.’

WLR Daily, 13th April 2016

Source: www.iclr.co.uk

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

Judge concerned at council tax enforcement and Valuation Tribunal appeals uncertainty – Local Government Lawyer

Posted April 20th, 2016 in bankruptcy, council tax, enforcement, news, tribunals, valuation by sally

‘A High Court judge has expressed concern at “the substantial degree of uncertainty that exists” in relation to how the courts, both magistrates and the bankruptcy county court, should deal with the enforcement of domestic council tax liability orders in the context of the availability of the remedy by way of appeal to the Valuation Tribunal.’

Full story

Local Government Lawyer, 19th April 2016

Source: www.localgovernmentlawyer.co.uk

High Court to hear British expats’ Brexit case today – Daily Telegraph

Posted April 20th, 2016 in brexit, domicile, EC law, freedom of movement, news, referendums, time limits by sally

‘British expats living in Europe are today heading to the High Court in the hope of forcing the Government to let millions of them vote in the EU referendum.’

Full story

Daily Telegraph,

Source: www.telegraph.co.uk

Peers change draft legislation on starter homes and sale of high value council houses – OUT-LAW.com

Posted April 20th, 2016 in bills, housing, local government, news, planning, sale of land by sally

‘Changes made to the UK government’s Housing and Planning Bill will confine the sale of starter homes to those aged 23 or over and require a proportion of the discount on their purchase price be repaid if the homes are sold on within 20 years.’

Full story

OUT-LAW.com, 19th April 2016

Source: www.out-law.com

Down the Rabbit Hole of Genetic Testing – UK Human Rights Blog

‘The explosion of genetic testing in the last half century has produced unquantifiable benefits, allowing scientists to understand the constitution of genetic disorders and dramatically improve disease diagnosis, avoidance and treatment. Consider the near-eradication of Tay-Sachs, a fatal neurodegenerative disease, since the introduction of screening in the 1970s; the standardisation of newborn testing; and the introduction of BRCA1 and BRCA2 testing for inherited cancer genes.’

Full story

UK Human Rights Blog, 19th April 2016

Source: www.ukhumanrightsblog.com

The criminal review system is failing innocent prisoners – The Guardian

‘The Criminal Cases Review Commission was supposed to provide a safety net for those wrongly convicted, but it hasn’t shone a light on miscarriages of justice.’

Full story

The Guardian, 19th April 2016

Source: www.guardian.co.uk

Lower-than-expected court fee income contributes to Ministry of Justice funding black hole – Legal Futures

Posted April 20th, 2016 in budgets, courts, fees, Ministry of Justice, news by sally

‘Lower-than-expected court fees from high-value cases and increased demand in the criminal justice system are behind the Ministry of Justice’s (MoJ) request for £427m extra funding over and above its designated department spending limit for 2015-16, it has emerged.’

Full story

Legal Futures, 20th April 2016

Source: www.legalfutures.co.uk

We have a stalking law – so why don’t the police use it? – The Guardian

Posted April 20th, 2016 in harassment, news, police, prosecutions, stalking by sally

‘Lily Allen’s awful experience – being stalked, then failed by the criminal justice system – is sadly all too common.’

Full story

The Guardian, 19th April 2016

Source: www.guardian.co.uk