Archive

Following the announcement last week of Sir John Dyson as the twelfth Justice of the Supreme Court, we now take a look at Sir John's career. As we reported here, Sir John is the second Justice to be appointed directly to the Supreme Court and his appointment will take effect from 13 April 2010.

Sir John Anthony Dyson was born on 31 July 1943, the son of Richard and Gisella Dyson. He was educated at Leeds Grammar School before attending Wadham College, Oxford, where he was the Open Classics Scholar. Sir John became an honorary fellow of Wadham College in 2001.

Sir John was called to the Bar, Middle Temple, in 1968 as a Harmsworth Law Scholar and he took tenancy at Keating Chambers in 1969. Keating's website notes that Sir John "rapidly established a wide and varied practice". Notably, during his first year of tenancy, Sir John appeared as the junior junior in the House of Lords for the appellant in the seminal conflict of laws case Chaplin v Boys [1969] 2 All ER 1085 (road accident in Malta, appropriate law to govern issue of recoverable damages). Fifteen years later, Sir John had risen up the ranks to represent the appellants as senior counsel in the equally notable House of Lords cases: Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1984] 3 All ER 529 (negligence, duty of care owed pursuant to statutory powers); and Linden Gardens Trust Ltd v Lenasta Sludge Disposals Ltd [1994] 1 AC 85 (better known as St Martins v McAlpine) (prohibitions on assignments of contracts).

[Read More]

 

This is the last week of the Hilary Term.  Neither the Supreme Court nor the Judicial Committee of the Privy Council have any hearings or judgments listed this week.  We expect the hearing list for the Easter term to be announced in the course of this week. Thirteen permission for appeal decisions have been announced for the period 22 February to 5 March 2010 – with permission granted in seven – an unusually high proportion of 54%.   We will look at these in more detail in a separate post.  [read more]

The US public service channel C-Span has featured a recent discussion between Justice Scalia and Justice Breyer on “Original Intent and the Living Constitution”.    The debate was broadcast on BBC Parliament and is currently available on BBC iPlayer.  The issue under debate is a fundamental one: to what extent are judges entitled to shape the law to take into account changes in values or social conditions. [read more]

The full text of Lord Kerr’s J M Kelly Memorial Lecture, given at University College Dublin on 20 November 2009 has now been made available.  We blogged about the lecture when it was given, referring to the summary on the excellent “Human Rights in Ireland Blog“.

Lord Kerr has now revised the text of the Lecture, the full title of which is “The Conversation between Strasbourg and National Courts – Dialogue or Dictation?” [read more]

The decision in R (JS)(Sri Lanka) v Secretary of State ([2010] UKSC 15) is the first of a series of cases before the higher courts to reach the Supreme Court on the issue of exclusion from refugee status under article 1F of the Refugee Convention.  In recent years this provision has come to be applied against an increasing number of individuals claiming refugee protection.  As such the decision represents significant guidance in the area.

The case concerns article 1F(a) of the Convention, which excludes an individual from protection where “there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”. [read more]

Prior to the Supreme Court being established, a seminar was conducted under Chatham House Rules to discuss how it should work.  The notes of the seminar, published here, include the following:

a Law Lord said that in his experience there were two main areas of concern about the House of Lords. One was that the speeches in House of Lords cases were too long, there were too many of them in each case, and they were sometimes difficult to reconcile with each other.

The highly publicised "JFS" case (R (on the application of E) v Office of the Schools Adjudicator (Governing Body of JFS and others, interested parties) (British Humanist Association and another intervening) [2010] 1 All ER 319; [2009] UKSC 15) suggests that not much has changed from the days of the House of Lords.  Five separate majority opinions were given.  None was nominated as the leading judgment.  Readers therefore had to read each one. 

In such cases either the judgments are all consistent with each other, in which case five separate opinions are not necessary, or they are not, in which case the court would not have discharged its duty to clarify the law.  (In the JFS case itself Lady Hale said as a passing remark that the majority judgments were essentially all the same). [read more]

The confirmation of Lord Dyson as the Twelfth Justice of the UK Supreme Court means that Lady Hale will continue to be the Court's sole female judge for the time being. 

As we have previously reported, the UK Supreme Court has received criticism for its lack of diversity (and we will soon be posting an article on judicial diversity in the UK). 

This has made us look to our friends across the pond.  Out of the 9 Justices in the US Supreme Court, two of them are women.  This time last year, Justice Ruth Ginsburg was the only female on the panel (as had been the case since the retirement of Sandra Day O'Connor, the first female Justice in the US Supreme Court, in 2006), but Barack Obama's nomination of Sonia Sotomayor last May (the first nomination by a Democrat president since 1994), and her appointment as a Justice on August 8 2009, nudged the number of women on the panel up to two. [read more]

On appeal from: [2009] EWCA Civ 281.

The issue before the Court was whether there was an entitlement to certain pay supplements as part of pilots’ right to “paid annual leave” under the Aviation Directive. The Supreme Court held unanimously that the appeal raised an issue of general principle, and referred questions to the Court of Justice of the European Union. The Court noted that the legal basis of the relevant Directives was to protect health and safety, and that the present leave arrangements for pilots did not pose a risk. It was not clear whether “paid annual leave” has a closely defined autonomous European meaning or whether individual Member States retain a discretion to define the term.

For judgment, please download: [2010] UKSC 16
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII  
 

The case of A v Essex County Council is an appeal against a decision of the Court Appeal handed down nearly two years ago ([2008] EWCA Civ 364) in a claim brought on behalf of a severely disabled child, anonymised as A, for damages for breach of his human rights.  Field J had given summary judgment for the defendants ([2007] EWHC 1652 (QB)).  The claimant's case is that he was shut out of the state system for 18 or 19 months and that this was inhuman or degrading treatment and an unjustified disruption of his private and family life, as well as to discrimination in the enjoyment of the right under Article 2 of the First Protocol ("A2P1").  The appeal will be heard by Lord Phillips, Baroness Hale, Lord Brown, Lord Kerr and Lord Clarke on 24 and 25 March 2010.  The National Autistic Society have been given permission to intervene. [read more]

A GDL student, Anita Davies, has won this year’s Times Law Awards essay competition on Supreme Court UK: radical change or business as usual? The Times reports that the winners were chosen from nearly 300 entries by a panel from One Essex Court, and a judging panel consisting of Justice Secretary Jack Straw; Lord Phillips of Worth Matravers, the President of the Supreme Court; Lord Grabiner; James Harding, Editor of The Times, and David Cavender, QC, of One Essex Court. Praising Ms Davies’ winning entry, Jack Straw said that it was “an engaging, erudite piece of prose”.

The winning essay, New café, jaunty carpet with Supreme Court attached, can be read here. [read more]

The "Twelfth Man" saga has finally been resolved.  Since Lord Neuberger was appointed as the Master of the Rolls in October last year, the position of the twelfth Supreme Court justice has been vacant.  The appointments process has been slow and punctuated by rumours judicial disagreements, as Frances Gibb has reported here.  First it seemed that Jonathan Sumption QC was a leading candidate but then withdrew his candidature, apparently in the face of opposition from senior judges.  It was reported that the appointments commission produced a shortlist of four names: Lady Justice Arden, and Lord Justices Maurice Kay, Wilson and Dyson.

A short notice today on Number 10's website confirms that with effect from 13 April 2010 (the begining of the Easter court term) Lord Justice (John) Dyson will be appointed to the role with the approval of Her Majesty the Queen.  [read more]

The US Supreme Court has launched its new website. This has a new URL - www.supremecourt.gov - and a number of new features.  These include: recent Court decisions accessible from the homepage, an interactive Court calendar, a new case citation finder and enhanced search and navigation capabilities.  The "Court calendar" and the document search facilities have attracted particular praise from Supreme Court watchers in the US.  For the first time, the website will now be run by the Court itself - its previous site having been run the by Government Printing Office.  [read more]

Facing the Supreme Court this week is the paradox that pre-nuptial contracts are  “at one and the same time both unenforceable and  invalid as being against public policy and matters which the court is prepared to take into account (and possibly decisively)” in the exercise of its jurisdiction under section 25 of the Matrimonial Causes Act 1973.  This is “…anomalous, albeit plainly the present state of the law”. The conundrum presented to the courts by pre-nuptial contracts was thus articulated by Rix LJ in the Court of Appeal decision ([2009] EWCA Civ 649 [64]).

Mr Granatino’s appeal from the unanimous Court of Appeal decision handed down on 3 October 2008 by Thorpe, Rix and Wilson LJJ in Radmacher is to be heard on Monday 22 and Tuesday 23 March.  Such is the importance attributed to the issue that it is to be heard by nine Justices of the Supreme Court - Lord Phillips, Lord Hope, Lord Rodger, Lord Walker, Baroness Hale, Lord Brown, Lord Mance, Lord Collins and Lord Kerr. [read more]

Two cases are due to be heard this week.  It is the penultimate week of the Hilary term and these are the last two cases listed. On Monday and Tuesday a nine strong bench consisting of Lords Phillips, Hope, Rodger, Walker, Lady Hale and Lords Brown, Mance, Collins and Kerr will hear the case of Radmacher (formerly Granatino) v Granatino. The Court of Appeal's decision to uphold a pre-nuptial agreement between Ms Radmacher, of one of Germany's richest women, and her ex-husband Mr Granatino, has been viewed by many commentators as a clear indication that judicial opinion on the enforceability of pre-nuptials has shifted. Under English law a pre-nuptial is not a binding contract as such as under the Matrimonial Causes Act 1973 the court must "have regard to all the circumstances of the case".  The Supreme Court will determine, firstly, whether the Court of Appeal erred in finding that pre-nuptial contracts ought to be given decisive weight, where entered into freely by both parties, in an assessment under section 25 of the Matrimonial Causes Act 1973, and secondly, whether the Court of Appeal decision amounted to impermissible judicial legislation, in contravention of the decision of the Privy Council in MacLeod v MacLeod (Isle of Man) [2008] UKPC 64. Our case preview is here and the case details can be found on the Supreme Court website here. [read more]

It appears that the long running saga of the appointment of the twelfth justice of the Supreme Court might be about to come to an end.   We last blogged about this on 6 February 2010 when we dealt with various "revelations" about the process. Older readers will recall the story of Mr Jonathan Sumption's application and then withdrawal which was the subject of earlier post. It seems that an announcement is now imminent - nearly 6 months after the establishment of the Court..  Frances Gibb has a piece on the Times Law Central Blog yesterday under the headline "New Supreme Court Justice? Any day now ..." in which she says "Law Central understands that any day now the new Supreme Court justice will be announced - and the hot tip is Sir John Dyson". [read more]

On 10 March 2010 the Supreme Court delivered judgment in RTS Flexible Systems Limited v Molkerei Alois Muller Gmbh [2010] UKSC 14. The case, which we previewed here, concerns a problem which frequently arises in business practice: where commercial parties begin carrying out work on the basis of an initial letter of intent, with a full contract to follow, but do not then execute that contract even after the letter of intent has expired, has a binding agreement been reached? 

In this instance the Justices (Lords Phillips, Mance, Collins, Kerr and Clarke, with the last giving the sole judgment of Court) found, unanimously allowing Muller's appeal, that a binding agreement had been reached based on an objective assessment of the parties' intentions. The Court's judgment does not break any new ground, but it does contain a clear restatement of the relevant principles, in particular the fact that (i) the Court will apply the "reasonable honest businessman" test (per Steyn LJ in the Percy Trentham case) to objectively assess whether or not the parties intended to be bound, and (ii) 'subject to contract' clauses can be waived by the parties, if their conduct subsequently shows that they did intend to be bound. The case is also notable for the fact that the Supreme Court, Court of Appeal and High Court all reached different conclusions. The result for the parties has been an expensive legal mess, about which Lord Clarke had this to say: "The different decisions in the courts below and the arguments in this court demonstrate the perils of beginning work without agreeing the precise basis upon which it is to be done. The moral of the story is to agree first and start work later."      [Read More]

On appeal from: [2009] EWCA Civ 364.

Concerned the application for asylum by a former member of the Liberation Tigers of Tamil Eelam. The Court unanimously dismissed the Secretary of State’s appeal. It could not be said of the LTTE that as an organisation was “predominantly terrorist in character” and so the Secretary of State had acted on a wrongful presumption that the respondent was guilty of personal and knowing participation in war crimes. Gurung [2002] UKIAT 04870 (starred) should not be afforded the same standing as it had previously enjoyed - it was unhelpful to attempt to carve out from amongst organisations engaging in terrorism a sub-category of those "whose aims, methods and activities are predominantly terrorist in character", and to suggest membership gives rise to a presumption of criminal complicity. It was preferable to focus on the determining factors in any case, namely the nature of the organisation, whether the organisation was proscribed (and by whom), how the asylum-seeker was recruited, length of time in the organisation, his position, rank and influence, his own knowledge of and involvement in war crimes. The second major criticism of Gurung was its introduction of the idea of a "continuum" in relation to the types of organisations and their policial aims, for war crimes cases.

The Court also considered the true interpretation of Article 1F(a) of the Refugee Convention, and the extent to which complicity in the commission of war crimes and crimes against humanity amount to a basis for the exclusion of an individual from the application of the Refugee Convention.

For judgment, please download: [2010] UKSC 15
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII
 

On 10th March 2010 the Supreme Court handed down a unanimous judgment, delivered by Lord Collins, in Agbaje v Akkinoye-Agbaje ([2010] UKSC 13) the first case under Part III of the Matrimonial and Family Proceedings Act 1984 ever to have been heard by the highest tribunal in the land

The case concerned an application made by a former wife (“the wife”) under the 1984 Act for financial relief in England after a Nigerian divorce. The parties, who both had Nigerian and British citizenship, were married for over 32 years.  Most of their marriage had been spent in Nigeria although their children had been born and educated in England. After the parties separated in 1999 the wife had set up home in England. 

The effect of the Nigerian financial order was to award the wife a life interest in a home, worth about £83,000, in Nigeria and a lump sum of £21,000 to provide maintenance for life.  Her former husband (“the husband”) retained assets worth some £616,000.  The wife obtained leave to proceed with her application under Part III from Munby J (as he then was). [read more]

The World's Supreme Courts were busy during February 2010, and a summary of the cases heard in each of them appears below.

Australia

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010) The High Court heard three related proceedings concerning occupational health and safety.

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2 (3 February 2010) This appeal concerned the validity of a compulsory acquisition for the construction of a railway and, in particular, the power of the Respondent to compulsorily acquire land where not all of the land was required for the railway.

Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3 (10 February 2010) This concerned an appeal by farmers against the replacement of their bore licences with aquifer access licences for the extraction of groundwater on the grounds that the replacement constituted an acquisition of their property on unjust terms contrary to s.51(xxxi) of the Australian Constitution.  [read more]

Our attention has been drawn to an interview with Lord Phillips, carried out by Michael Harris of the Constitution Society and available, in a number of segments on You Tube.  The first segment deals with the formation of the Supreme Court:

There are eight further segments of the interview.  [read more] 

The Supreme Court will hear one full appeal and an application for permission to appeal this week, and one judgment will be handed down.  On Monday, Tuesday and Wednesday the case of R (Smith) v Secretary of State for Defence will be heard in courtroom 1 by a 9 strong bench consisting of Lords Phillips, Hope, Rodger, Walker, Lady Hale and Lords Brown, Mance, Collins and Kerr. The case relates to the death of a British soldier while on active service in Iraq and is likely to be closely followed in the press, as it could have significant implications for those continuing to serve on military operations.  

The issues for the court to determine are: (1) whether a British soldier on military service in Iraq is subject to UK jurisdiction within the meaning of article 1 of the European Convention on Human Rights ("ECHR") so as to benefit from the rights guaranteed by the Human Rights Act 1998 while operating in Iraq; and (2) whether the inquest into the soldier's death must conform to the procedural obligation implicit in article 2 of ECHR. Our case preview is here and the case details on the Supreme Court website can be found here.  [read more]

To continue our series of profiles of the Justices of the Supreme Court (for previous posts see Lord Rodger here, Lord Kerr here and Lord Hope here), we turn this week to Lord Brown of Eaton-under-Heywood.

On appeal from: [2009] EWCA Civ 26.

The question before the Court was whether the parties entered into a contract following the expiry of a letter of intent, and if so, the terms of the contract. In a unanimous decision, the Supreme Court held that although there was no formal contract, the parties did reach a legally binding agreement and that agreement contained wider terms than the limited ones found by the High Court at a trial of preliminary issues. It was unrealistic to suppose that the parties did not intend to create legal relations. The parties had reached essential agreement on the issues, and it was possible for an agreement ‘subject to contract’ to become legally binding if the parties later agree to waive that condition. The Court held that the parties had agreed to waive the subject to contract provision. Any other conclusion made no commercial sense. 

For judgment, please download: [2010] UKSC 14
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII
 

On appeal from: [2009] EWCA Civ 1.

The Court considered the proper approach for courts to take when considering applications made under the Matrimonial and Family Proceedings Act 1984, Pt III (powers to grant financial relief after a marriage has been dissolved in a foreign country). The Supreme Court unanimously allowed the appeal. The purpose of the Act was the alleviation of the adverse consequences of inadequate financial provision being made by a foreign court where the parties had substantial connections with England. The court should not be deciding whether it would be appropriate for an order to be made by a court in England or Wales as opposed to a foreign court – the whole point of Pt III was to allow for relief where there have already been proceedings in a foreign country. The legislation was not however, a simple “top up” of the foreign award so as to equate with an English award. The amount of financial provision awarded would depend on all the circumstances of the case.

For judgment, please download: [2010] UKSC 13
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII
 

The Telegraph reports that the UKSC has refused Lillian Ladele permission to appeal against the decision in Ladele v Islington LBC [2009] EWCA Civ 1357, and that she may “try to take her case to the European Court of Human Rights, as she believes it shows that the right to religious conscience has been "trampled" by the rights of homosexuals”. [read more]

This case arises out of a long running dispute between local residents and their council over the plan to allow developers to build new homes on Coatham Common in Redcar. The question for the Supreme Court was whether local residents could register the land, which had formerly been used as part of a golf course, as a "town green" under section 15 of the Commons Act 2006.

We have previously set out here the facts of the case, and the decisions below.  The High Court and Court of Appeal had both decided that the residents could not register the land as a town green because they had not "indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years". The key basis for that decision was that in using the land for recreation, they "deferred" to members of the golf club playing golf on the land and, consequently, were not indulging in recreation "as of right".

The Supreme Court (Lords Walker, Hope, Rodger, Brown and Kerr) has now unanimously reversed the Court of Appeal and found in favour of the residents, holding that this "deference" does not prevent the residents indulging in recreation as of right.  Lord Walker gave the leading judgment, but each of the four other Justices added their own opinions, which collectively give important guidance on the system of registration under the Commons Act - in particular making it clear that if landowners wish to avoid their land being re-classified, the onus is on them to resist or restrict residents from using the land for recreational purposes. [Read More]

On Wednesday 3 March 2010 the Supreme Court delivered judgment in W (children) [2010] UKSC 12, one day after hearing argument and just in time for a fact-finding hearing listed this week. The issue for the Court was whether the trial Judge had been wrong to refuse the father’s application for his 14-year-old step-daughter, who had made allegations against him of serious sexual abuse, to be called to give oral evidence. The father’s appeal has been allowed, and the issue remitted to the trial Judge to be dealt with at the start of this week’s hearing.

The issue of children giving evidence in care proceedings, particularly in fact-finding hearings where their evidence may go to the heart of whether or not the threshold criteria are made out, has arisen on a number of occasions in recent years. The question has become more urgent since the courts have been obliged to consider the Convention rights both of the adult accused (to a fair trial) and of the child and other family members (to respect for private and family life.) At the same time it has not escaped the notice of the family courts that children are now giving evidence on a regular basis in criminal proceedings, almost always with the assistance of ‘special measures’ – and sometimes on the very allegations which may fall to be tested again in the parallel care proceedings, where the outcome may often be even more serious both for accuser and accused. [read more]

What has caused the clear split in approach and unprecedented change in the tone of dissent which is seen in the decision in HM Advocate v. Martin and Miller ([2010] UKSC 10)? Clearly all the judges involved are conscientiously attempting to achieve the “right” result.  As Lord Steyn noted in the 2002 Robin Cooke Lecture, “Democracy Through Law” ([2002] EHRLR 723 at 724): 

“Where a tension develops between the views of the majority and individual rights a decision must be made and sometimes a balance has to be struck. The best way of achieving this purpose is for a democracy to delegate to an independent and impartial tribunal this adjudicative function. Only such a judiciary acting with principles of institutional integrity, and aided by a free and courageous legal profession, practising and academic, can carry out this task, notably in the field of fundamental rights and freedoms. Only such a judiciary has democratic legitimacy. The judge owes allegiance to nothing except the constitutional duty of reaching through reasoned debate the best attainable judgments in accordance with justice and law. This is their role in the democratic governance of our countries.   At the root of it is the struggle by fallible judges with imperfect insights for government under law and not under men and women.” [read more]

The Supreme Court will hear one appeal this week.  This is the Scots civil appeal in the ease of Farstad Supply AS v Enviroco Limited will be heard on Tuesday and Wednesday by a bench consisting of  Lords Phillip, Hope, Rodger, Mance and Clarke. The appeal is from a decision of the Inner House in relation to a claim arising out of a charterparty agreement, and the interpretation of s.3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 in relation to contributory negligence.  Our case preview can be found here.  The case details on the Supreme Court website can be found here.

Two judgments have been announced for next Wednesday.  First, in the case of Agbaje v Akinnoye-Agbaje - the first matrimonial finance case to be heard by the Supreme Court, heard on 3-4 November 2009 and the oldest outstanding case.  Our case preview can be found here.  Second, there is the case of RTS Flexible Systems Limited v Molkerei Alois Muller Gmbh & Company KG - a case concerning a letter of intent.  The case was heard on 2 December 2009. Our case preview is here. [read more]

The decision of the UK Supreme Court in HM Advocate v. Martin and Miller  [2010] UKSC 10 is the first case - in the ten years of the devolution settlement to date - in which the top court in the UK has had to determine the validity of Scottish legislation on grounds other than whether or not it is in compliance with Convention rights.     The issue in Martin/Millar is a classic issue of constitutional law properly so called – namely whether or not the Scottish Parliament has remained within its devolved competence in passing section 45 of the Criminal Proceedings etc (Scotland) Act 2007 or whether it has improperly strayed into areas reserved to the UK Parliament and hence acted beyond the powers given to it under the Scotland Act 1998.  The answer - according to three of the five judge bench - is that the Scottish Parliament in this case acted intra vires.   But two of the bench disagree, and say that it acted ultra vires when making this provision.  [read more]

The two-day hearing in this case will begin on Tuesday, 9 March 2010 to consider an appeal from a decision of the Inner House of the Scottish Court of Session in relation to a claim arising out of a charterparty agreement between the parties, and the interpretation of s.3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (the "Act") as it relates to contributory negligence.  The appeal will seek to clarify whether the provision as set out in the charterparty agreement relates to an indemnity clause or an exclusion clause.

Farstad, the owners of an oil rig supply vessel had chartered a vessel, the 'MV Far Service', to Asco.  Enviroco was a contractor appointed to clean the oil tanks in the vessel.  While the oil tanks were being cleaned in Peterhead harbour, a fire broke out resulting in a fatality and causing considerable damage.  The fire was caused when an Enviroco employee inadvertently caused oil to flow into the engine room near hot machinery.  [read more]

On Monday and Tuesday of this week 10 of the 11 justices were sitting when the Court, for the first time, dealt with two appeals simultaneously.  The missing Justice was the President of the Court, Lord Phillips.  He is on a visit to the United States.  The Washington Briefs blog reports that he met with the justices and attended Wednesday’s argument. Chief Justice John G. Roberts Jr. acknowledged Lord Phillips’ presence in the courtroom before the argument began.  Thank you to Lawrence Hurley for drawing this to our attention.

The argument was in the foreign sovereign immunity case of Samantar v. Yousuf.  The Court considered whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act extends to an individual acting in his official capacity on behalf of a foreign state and, if so, whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity. A preview of the case on ScotUS Blog can be found here.  In accordance with the US practice (and that of ScotUS Blog) a lot of information is already available about the hearing.  A transcript can be found here and an analysis of the day's arguments here.  [read more]

On appeal from: [2010] EWCA 57

Considers the principles which should guide the exercise of the Court’s discretion in deciding whether to order a child to attend or give evidence in family proceedings. Held, allowing the appeal; the existing law erects a presumption against a child giving evidence which must be rebutted by anyone seeking to put questions to the child. That could not be reconciled with the approach of the ECtHR. Striking the balance between competing Convention rights in care proceedings may well mean that the child will not be called to give evidence in the great majority of cases, but that is “a result and not a presumption or even a starting point.”

For judgment, please download: [2010] UKSC 12
For a non-PDF version of the judgment, please visit: BAILII
 

On appeal from: [2009] EWCA Civ 3  

The appellant was one of five residents who applied under the Commons Act 2006, s 15 to have Coatham Common in Redcar registered as a town or village green. The issue before the Court was whether the land had been used “as of right” for sports or pastimes for a period of 20 years. The Court unanimously allowed the appeal. In order to be “as of right” use must  not be by force, nor stealth nor permission of the landowner. Just because residents showed civility towards the landowner did not mean they were not asserting a right to take recreation on the disputed land. Although registration might increase the residents’ use of the land, this would not be incompatible with the owner continuing with his previous use.

For judgment, please download: [2010] UKSC 11
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII
 

The appellants appealed against the decision that the increase in the sentencing power of Sheriffs sitting summarily by the amending provisions of the Criminal Proceedings etc (Reform) Act 2007, s 45, was within the Scottish Parliament’s legislative competence.

Appeal dismissed by a 3-2 majority (Lords Rodger and Kerr dissenting). The provision in question was within the legislative competence of the Scottish Parliament. Applying rules laid down in the Scotland Act 1998, s 29 and Sch 4, Pt 1, the majority reasoned that: (1) the purpose of s 45 was to modify Scots criminal law as defined in s 126(5) of the 1998 Act; (2) that the purpose of s 45 was to make the law apply consistently to reserved matters and otherwise; and (3) the rule that s 45 modified was not special to a reserved matter. The minority argued that the rule modified by s 45 was special to a reserved matter.

For judgment, please download: [2010] UKSC 10
For the Court’s press summary, please download: Press Summary
please download: For a non-PDF version of the judgment, please visit: BAILII 
 

It seems likely, following the first meeting of Supreme Court User Group changes will be made in a number of areas. The suggested changes include the provision of more information concerning permissions to appeal, the use of electronic systems to present evidence at trial, the publication of written cases, and the relaxation of the rules on Counsel's dress.  The UKSC Blog has highlighted a number of these issues in the past. 

The Supreme Court User Group's members include solicitors, barristers and representatives of other interested parties such as the Law Society and the Bar Council. The Group's inaugural meeting took place on 22 January, and the minutes have just been published here.  Lady Hale, Jenny Rowe (Chief Executive) and Louise Di Mambro (Registrar) attended for the Court. [read more]

When discussing JUSTICE’s recent report "Devolution and Human Rights" on his Devolution Matters blog, Alan Trench pointed out that Wales had been "left out of the debate (and the JUSTICE paper)”, arguing that this “appears to derive from Wales’s inclusion in the single legal jurisdiction of England and Wales, which disregards the constitutional prerogatives of the National Assembly". (The JUSTICE report itself is covered on the UKSCblog here).

It seems fitting then, that this year’s Lord Callaghan Memorial Lecture, given by Mr Justice Roderick Evans, concentrates on how the administration of justice in Wales has been affected by devolution, and how it might be in the future. [read more]

Before the Supreme Court today and tomorrow is an appeal to a decision of the Scottish Court of Session, Inveresk plc v Tullis Russell Papermakers Limited [2009] CSIH 56 CA55/07. The issue in dispute is whether amounts claimed under two separate but related contracts between the parties – an acquisition agreement and a services agreement – can be set off against each other. As Lord Clarke noted at paragraph 51 of his judgment in the Court of Session, this concept, known as "retention" in Scotland, is similar to the law of set off in England and Wales.

The extent to which set off applies in multi-contract transactions is a common source of controversy. For example, just a few weeks ago Mr Justice Burton in the High Court had to consider whether an arbitrator had jurisdiction to determine set offs arising out of related contracts (see Norscot Rig Management PVT Limited v Essar Oilfields Services Limited [2010] EWHC 195 (Comm). The judgment of the Court of Session in Inveresk focused on analysing the mutuality of the obligations in question, and was heavily influenced by the fact that the parties choose to express them in separate contracts, which did not expressly provide for set off as between them. The Supreme Court's views are eagerly awaited.

In the case of Norris v Government of the United States ([2010] UKSC 9) In the absence of any real guidance from Strasbourg the Supreme Court was called upon to determine the correct approach to Article 8 of the European Convention on Human Rights in extradition cases. Since the enactment of the Extradition Act 2003, the UK extradition courts have applied a hard line to Article 8. In fact, since its enactment in 2004, and notwithstanding a 1500% increase in extradition cases annually, there has only been one successful Article 8 challenge at appellate level (Jansons v Latvia [2009] EWHC 1845 (Admin)).

First, an ‘exceptionality’ threshold test had been applied (R (Bermingham) v Director of the SFO [2007] QB 727). Then, when that was held (in the context of immigration) to be wrong by the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167, the extradition courts appeared to apply a ‘striking and unusual facts’ threshold test instead (Jaso v Central Criminal Court No. 2 Madrid [2008] 1 WLR 2798). [read more]

The Supreme Court has a busy week ahead.  On Monday and Tuesday it will, for the first time, sit in two separate divisions. All of the Justices (with the exception of the President of the Court, Lord Phillips) will be sitting.   The fact that the "Current Sittings" page on the website only lists one case for Monday and Tuesday seems to be an error as both cases are listed on the current version (version 7) of the list of Judicial Sittings for Hilary Term 2010.

This is because a new case has recently been listed at short notice. The case of W (Children) is an urgent child case in which permission was given on 17 February 2010, the first instance hearing having taken place on 30 November 2009.  It will be Lord Walker, Lady Hale and Lords Brown, Mance and Kerr.   Our case preview can be found here and the (incomplete) "Case Details" are here. [read more]

The appeal in Re W (Children) is listed to be heard on Monday 1 and Tuesday 2 March.  It has reached the Supreme Court with great expedition.  The first instance judgment was given on 30 November 2009, the Court of Appeal hearing took place on 21 December 2009 and judgment was given ([2010] EWCA Civ 57) on 9 February 2010.  The Supreme Court gave permission to appeal on 17 February 2010 and have listed it for next week - a total of less than 13 weeks from first instance to Supreme Court hearing.   The urgency of the case arises because it is concerned with the admissibility of evidence in a "fact finding" hearing in public law children's proceedings.  These were originally due to take place on 4 January 2010 but have been postponed.  It appears that they are due to be heard shortly.  [read more]

As the Blog reported at the time, on 16 February 2010, the Court of Appeal (Ward, Dyson and Moses LJJ) released its decision in the joined cases of R on the application of Davies (and another) v The Commissioners for Her Majesty's Revenue & Customs and R on the application of Gaines-Cooper v The Commissioners for Her Majesty's Revenue & Customs [2010] EWCA Civ 83. All the taxpayers were unsuccessful in their challenges to HMRC's decision to treat them as UK resident during the relevant tax years. This article examines the decision and its consequences. [read more]

On appeal from: [2009] EWHC 995 (Admin)
Dismissing Norris' appeal. In an extradition case, the consequences of any interference with ECHR, art 8 rights would have to be exceptionally serious before it could outweigh the public importance of extradition. It was of critical importance in the prevention of disorder and crime that those reasonably suspected of crime were prosecuted and, if found guilty, duly sentenced. Extradition was part of the process for ensuring that this occurred on a basis of international reciprocity. The reality was that only if some quite exceptionally compelling feature was present that interference with family life consequent upon extradition would be disproportionate to the objective that extradition served. This was not such a case.

For judgment, please download: [2010] UKSC 9
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII
 

Both in the UK and abroad, the highest courts are often grappling with the proper limits of anti-terrorism legislation. The reactions of governments to adverse rulings in this context can be as interesting as the judgments themselves.

The first case to be heard by our Supreme Court, HM Treasury v Ahmed [2010] UKSC 2 held that secondary legislation permitting the freezing of the assets of some terrorist suspects, was unlawful. However, as Joshua Rozenberg pointed out last week in the Law Society Gazette, the judgment did not result in the suspects having access to their funds. On the government’s application, the Court reconstituted itself to hear argument on whether the effect of its judgment should be delayed. Refusing the application, Lord Phillips stated “this court should not lend itself to a procedure that is designed to obfuscate the effect of its judgment” (HM Treasury v Ahmed (No.2) [2010] UKSC 5). So the government responded by rushing amended emergency legislation through Parliament, retrospectively validating the previously unlawful position and setting up a new legislative framework for the continued freezing of the assets. The suspects will have to challenge the new orders in order to have access to their funds.

It is reminiscent of the response to the judgment in Secretary of State for the Home Department v AF [2009] UKHL 28, last year. In that case, their Lordships delivered a blow to the control order regime. It seemed clear that many control orders, where the ‘controlees’ had been told little or nothing of the allegations against them, would have to end. But lawyers representing those subjected to control orders have subsequently reported that in many instances the government has merely made minor adjustments leaving the controlees in a similar position. New control orders are imposed, on slightly different grounds, but in terms virtually identical to those that they replace, coming into force on the day the previous orders are revoked. The men in question have to restart the tortuous litigation process, to free themselves from the new orders. [read more]

A selection of judgments of the Supreme Courts of Hong Kong and Ireland from November 2009 - January 2010 are summarised below.

Hong Kong

Dynasty Line Ltd v Sukamto Sia and another [2009] HKCFA 101 (26 November 2009) The Court of Final Appeal considered whether money paid into court by Dynasty Line Ltd under an undertaking in damages in support of a Mareva injunction should be retained in court and made available to satisfy outstanding costs orders made in favour of Sukamto Sia.  [read more]

On 24 January, the UKSC Blog posted a ‘review’ of my Study of Parliament Group Paper, “The Changing Constitution: A Case for Judicial Confirmation Hearings?” The paper argued that given that judges were unavoidably being drawn into making decisions on quasi-political issues (following a marked increase in public law claims and the introduction of the Human Rights Act) there should be some move towards a confirmation process for the most senior judicial appointments to address the accountability gap that has developed.

This post will not seek to revisit the arguments raised in that paper, but will instead consider some of the potential hurdles which would have to be overcome if one wished to move towards a system of confirmation hearings (or indeed other methods of increasing political accountability) for appointments to the Supreme Court. [read more]
 

The Supreme Court has a full week in prospect.  Two appeals are listed to be heard. On Monday and Tuesday, 22 and 23 February 2010, a five judge bench (Lords Hope, Rodger, Walker, Collins and Clarke) will hear the appeal in Roberts v Gill.  The Court of Appeal decision was at [2008] EWCA Civ 803 and our case preview is here.  There is a hearing before a five judge Judicial Committee consisting entirely of Supreme Court Justices sitting on the same two days, meaning that 10 Justices will be in court for the first two days of the week (all the serving Justices except Lord Kerr).  

The second appeal of the week is on 24 and 25 February 2010. A five judge bench (Lord Walker, Lady Hale, Lord Brown, Lord Mance and Lord Clarke) will hear the appeal in British Airways v Williams, an appeal in a case concerning pilot's holiday pay from the decision of the Court of Appeal at [2009] EWCA Civ 281.  Our case preview is here. [read more]

On 24 February 2010, this two day hearing will begin. The dispute relates to the level of holiday pay to which Ms Williams and some 2,750 other petitioners who are airline pilots for British Airways plc are entitled.

Currently, the Pilots' service agreements provide that they are remunerated under a salary structure which entitles them to (i) basic pay; (ii) a “flying time” supplement of £10 per flying hour; and (iii) an allowance of £2.73 per hour of time spent away from their base airport (“TAFB”). They are also entitled to holiday and their service agreements provide that the pay they receive for that holiday is fixed at the level of their basic pay.  [read more]

UKIP has been granted leave to appeal to the Supreme Court by an appeal panel comprising Lady Hale, Lord Hope and Lord Brown.

The case concerns the infamous donations to UKIP amounting to approximately £363,000 from party member Alan Brown. The Political Parties, Elections and Referendums Act 2000 ("PPERA") provides that political parties cannot accept donations in excess of £200 from individuals who are not currently registered on an electoral register. Political parties are obliged under PPERA to take all reasonable steps to verify the position of the donor and section 58(2) of PPERA provides that where a political party has accepted an illegal donation, a Magistrates' Court may on the application of the Electoral Commission order the forfeiture by the party of an amount equal to the donation.

Unfortunately for UKIP, Alan Brown was not on an electoral role at the time of making the donations to UKIP and UKIP therefore faced a forfeiture order from the Magistrates' Court.

For the avoidance of doubt, forfeited donations are not returned to the donor but are retained by the Electoral Commission. [Read more]

Mr Robert-Gaines Cooper may be up to £30 million poorer after the Court of Appeal ruled that the HMRC were justified in considering whether he had properly severed his links with the UK when assessing whether he was a UK resident for the purposes of paying tax.

Mr Gaines-Cooper is based in the Seychelles and, on average, has not spent longer than 91 days a year in the UK since 1976.  However, he has a house in Henley-on-Thames (where his second wife and son spent a considerable amount of time living and his collection of paintings, cars and guns are kept), his son was educated in an English school, he is a regular at Ascot, he often spends Christmas in the UK and his will was drawn up under English law.  All of this led HMRC to believe that Mr Gaines-Cooper did not qualify for exemptions from British taxes as a non-resident. [read more]

The International Bar Association has published an article by the freelance legal journalist Ben Rigby concerning the Supreme Court, which may be of interest to readers.  

The article considers the history behind the creation of the Court, the changes that have taken place in comparision to the old judicial House of Lords (including whether the separation of the judiciary from policy making may in fact be to the detriment of justice), and the much-debated question of how the Court might behave going forwards.  A wide range of practitioners and commentators have expressed their views on these issues, including Nicholas Green QC, Jemima Stratford, Dinah Rose QC and UKSC Blog's own Dan Tench. 

The full text can be seen here. 

On appeal from: [2008] EWCA Civ 1228.
Concerned Birmingham City Council's refusal to provide local authority accommodation to three homeless people. The question before the Supreme Court was whether the appellants' ECHR, art 6 rights (to a fair and public hearing) were breached by the process followed by Birmingham City Council pursuant to the Housing Act 1996. The Supreme Court unanimously dismissed the appeal. A decision that a local housing authority takes under the 1996 Act that it has discharged its duty to an applicant is not a determination of the applicant’s “civil rights” for the purposes of art 6(1).

For judgment, please download: [2010] UKSC 8
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

On 22 and 23 February 2010, the Supreme Court (Lords Hope, Rodger, Walker, Collins and Clarke) will hear a case concerning a will, the Court's first since its inception last October. The question for the Court to decide is, what circumstances will a beneficiary under a will be entitled to enforce a cause of action against a third party (which is ordinarily vested in the administrator of the estate)?  

The question arises out of proceedings for professional negligence brought by a beneficiary, Mr Mark Roberts, against the solicitors dealing with the testator's estate. Mr Roberts initially sued the defendants in a personal capacity as beneficiary: he later sought permission to amend and sue in a derivative capacity on behalf of the estate. However, he was refused permission at first instance and in the Court of Appeal, but both Courts adopted different reasoning (largely as a result of the fact that the Civil Procedure Rules do not specify the circumstances in which a derivative claim may be brought by a beneficiary of an estate).  The Supreme Court will now have the opportunity to clarify what the correct circumstances should be, and Mr Roberts will have a third chance to persuade the Courts to extend the ambit (and thus the financial value) of his claim. [Read More]

The debate about the Conservative Party's proposal for a new British Bill of Rights and is likely to be one of the the most legally interesting aspects of the long 2001 election campaign.  We did a feature on this in November 2009 and updated it here.   The debate has, so far, concentrated on the position in England.  However, at the UKSC Blog we are very conscious of the fact that our Supreme Court stands at the apex of the legal system of the whole United Kingdom.

The debate has now been given a proper "United Kingdom" dimension by a new report from JUSTICE entitled "Devolution and Human Rights".  This makes the point that the Human Rights Act and the devolution statutes formed part of a broader constitutional shift in the late 1990s, and that they are now legally and constitutionally intertwined with the result that any move to repeal the Human Rights Act would have serious consequences for the devolved jurisdictions.  The JUSTICE press release is here. 

Alan Trench's thoughtful "Devolution Matters" blog discusses the report here.  He points out that Wales has simply been "left out of the debate (and the JUSTICE paper) – an error that appears to derive from Wales’s inclusion in the single legal jurisdiction of England and Wales, which disregards the constitutional prerogatives of the National Assembly".  [read more]

On 29 January 2010, Lady Justice Arden took part in a "Seminar to mark the official Opening of the Legal Year of the European Court of Human Rights".   Details of the Seminar can be found on the Court of Human Right's website here.  The proceedings at the seminar can be watched here.

The text of Lady Justice Arden's "intervention" is available here.  In it she seeks to “pose some questions about what makes for effective supranational adjudication by the Strasbourg court.”  Arden assures us “we all gain more than we lose by having the Strasbourg Court”. But she identifies ‘a toolkit’ of suggestions for improving the system of supranational adjudication of human rights – (1) more dialogue between national judges and those in Strasbourg as well as between judges of different national courts; (2) more subsidiarity; (3) more temporal limitations; and (4) clearer judgments. She has previously expounded each of these ideas in more detail in her Sir Thomas More lecture, Peaceful or Problematic?  The Relationship Between National Supreme Courts and Supranational Courts in Europe. [read more]

The Supreme Courts of Australia and New Zealand had a busy time in November and December, but no new judgments were handed down in January 2010.  A summary of the highlights from the end of 2009 is below.

Australia

C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47 (10 November 2009) and Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009) These appeals considered the duty of care owed by liquor licensees to, respectively, an intoxicated patron who died in road accident after leaving a hotel, and patrons who were injured when other patrons shot them at a New Year's Eve function. The appeals by the liquor licensees were allowed in both instances.

International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 (12 November 2009) The Court considered the judiciary's powers under section 10 of the Criminal Assets Recovery Act 1990 to grant ex parte restraining orders in respect of some or all of the property of a person suspected of having committed a serious offence. The Court ordered that this section be declared invalid. [read more]

The recent decision of the Supreme Court in the case of In Re Guardian News and Media ([2010] UKSC 1; [2010] 2 WLR 325) has been met with almost universal approbation by the media and legal commentators.  For example, one of the applicants, the freedom of expression NGO "Index on Censorship" said  "This is an important decision. For the very first case heard by the Supreme Court to be held under conditions of anonymity would have been a blow to the concepts of a free press and open justice, which should be at the core of the court’s operations.”.  Similar points were made in the press release of another applicant, Article 19.  However, the position is not quite as clear as many commentators have suggested and there is a danger of an unexamined adherence to "openness" unjustifiably intruding into the private lives of litigants.

The decision in the Guardian News and Media case was on an application, made by a number of media organisations and NGOs, on the first day of the Supreme Court's existence to remove the anonymity orders which had, up to then, been in place. The applicants originally argued that the appellants were required to make a fresh anonymity application before the Court  The appellants’ identities had been protected by anonymity orders in the lower courts, and they were referred to by their initials. The applicants applied to have those orders discharged, to allow them to include the identities of the appellants in their reporting. Before dealing with the main issues in the appeals, the Court, through Lord Rodger, gave a separate, unanimous judgment allowing the press application.  [read more]

At one level the decisions of the UK Supreme Court in HM Advocate v Allison and HM Advocate v McInnes (see the case comment here) can be seen to be resolving specific technical issues which are of little general or constitutional importance other than, of course, to Scottish criminal practitioners (and their clients).

But these cases do also, it is suggested, mark an important constitutional development in that they might be said to consolidate in the UK Supreme Court a general appellate second-tier jurisdiction in Scottish criminal cases in a court situated outside Scotland with non-Scottish judges among its members.   Indeed in McInnes Lord Brown surveyed the parallel English law on the issue which was before the Court and stated:

"This, I apprehend, would be the position in English law (both as to the test to be applied – in England as to whether the conviction under appeal is unsafe – and as to the decision being one for the appeal court itself) and I can see no good reason why it should be any different under Scottish law” [36]

Lord Brown’s remarks indicate that notwithstanding that the Supreme Court was careful in McInnes to emphasize that they were considering and applying only Scots law in the appeal, there will be increasing pressure towards harmonisation of the two criminal justice systems north and south of the border when criminal appeals from Edinburgh come to London. [read more]

In Allison v HM Advocate ([2010] UKSC 6) the UK Supreme Court heard argument upon, and determined the merits of, an appeal from a decision to refuse the appellant’s appeal against conviction made by the Scottish High Court of Justiciary sitting as the criminal appeal court.  The basis for the appeal to London was the appellant’s contention the Crown had failed in its duty of disclose to him and his advisers that one of the Crown witnesses (who had died by the date of the trial) had previous convictions and criminal charges outstanding against him as at the date of his death. The Crown had, at trial, introduced the record of a police interview with this witness into evidence, in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995.  They disclosed the previous convictions and the other outstanding charges only while the appellant’s appeal was pending before the appeal court. The appellant complained that their failure to disclose the witness’ criminal record meant that his legal representatives were unable to prepare and properly conduct his defence at trial and the result was he had not received a fair trial in accordance with the requirements of Article 6 of the European Convention on Human Rights.  [read more]

In this regular feature we take a look at books relevant to the work of the Supreme Court.

Lester, Pannick and Herberg's Human Rights Law and Practice (3rd Edition; Butterworths, 2009) has quickly established itself as a leading practitioner text on human rights - and as Lord Phillips explains in his foreword, it is an "invaluable" aid to practice in the Supreme Court since the number of cases raising human rights issues has increased exponentially since the introduction of HRA 1998.  20 out of the 74 appeals heard by the Judicial Committee of the House of Lords in 2008 concerned human rights.  As we identified in our end-of-term report for Michaelmas, that percentage looks set to increase in the Supreme Court as 6 out of the first 17 judgments related to human rights.  [Read More]

On Monday and Tuesday, a five judge bench will to hear the appeal in ZN (Afghanistan) v Entry Clearance Officer.  The Court originally consisted of Lords Phillips, Rodger, Kerr, Clarke and "Justice 12".  However, due to the protracted appointment process (see our post here), this last justice is not available and Lord Collins is now the fifth member of the Court.  Our case preview can be found here.

Lords Hope, Hale, Brown, Collins and Kerr will be handing down the judgment in Tomlinson v Birmingham City Council on Wednesday 17 February 2010. The case concerns Birmingham City Council's refusal to provide local authority accommodation to three homeless people, although the actual question before the Supreme Court was whether the appellants' Article 6 rights (to a fair and public hearing) were breached by the process followed by Birmingham City Council, pursuant to the Housing Act 1996. [read more]

This is an appeal against a decision of the Court of Appeal (Laws, Rix and Wilson LJJ, [2008] EWCA Civ 1420) dismissing the claimant's appeal against a decision of the Asylum and Immigration Tribunal refusing her application for entry clearance.  The claimants are the wife and children of Israr Naimi ("the Sponsor") who had come to the UK in 1999 and had been granted refugee status and indefinite leave to remain in 2001 and citizenship in 2005.  The claimants' applications were rejected under the immigration rules and under Article 8 of the European Convention on Human Rights.

The application had been refused on the basis that the claimants could not meet the accommodation and maintenance requirements imposed by para.281 and para.297 of HC 395.  The issue was whether she had to satisfy the requirements of these rules or whether the case should be considered under the rules dealing with applications to join relatives in this country who had been granted asylum notably 352A (spouses and civil partners) and 352D (children) of HC 395.  [read more]

Lord Rodger of Earlsferry is the fourth most senior Justice in the UK Supreme Court.  He is also one of two Scottish Justices in the UK Supreme Court (with Lord Hope being the other).

Alan Ferguson Rodger was educated at the Kelvinside Academy in Glasgow, before going on to complete an MA and LLB at Glasgow University.  Lord Rodger then studied at New College, Oxford where he gained an MA (by decree) and D.Phil.  He went on to become Dyke Junior Research Fellow at Balliol College, Oxford in 1969 to 1970, and a Fellow of New College between 1970 and 1972.  [read more]

The Supreme Court has, today, posted a list of decisions concerning permission to appeal on its website. This shows that 88 applications were dealt with between 1 October 2009 and 4 February 2010.  Permission was granted in 24 cases and refused in 61, with one being struck out and 2 withdrawn. This is a "success rate" of just over 28%.

We are pleased that the Court has finally been able to provide this list.  We would, however, make two comments.  First, the list is a "PDF" document  which will, presumably, be updated from time to time (the current version was created on 9 February and updated on 11 February).  This is no substitute for an on line update service - with new decisions being added when they are made.  This is, of course, what the House of Lords Judicial Committee gave us on a daily basis.  [read more] 

The Supreme Courts of Canada and the US have been busy in the last three months, and a summary of some of the cases heard in each of them appears below.  A particular point to note is that during November 2009, three appeals were heard in the US Supreme Court which concerned the competence of defence counsel in sentencing proceedings.  The three appeals had varying outcomes.

Canada

Northrop Grumman Overseas Services Corp. v Canada (Attorney General), 2009 SCC 50 (5 November 2009) The Supreme Court considering the jurisdiction of the Canadian International Trade Tribunal ("CITT") under the Agreement on Internal Trade ("AIT") to hear complaints by international suppliers. In quashing the appeal the Supreme Court held that the CITT's jurisdiction was limited to complaints brought by Canadian suppliers.

Miazga v Kvello Estate, 2009 SCC 51 (6 November 2009) The Supreme Court considered whether the Provincial Crown authority was liable for malicious prosecution regarding sexual assault charges and concluded that there was no evidence to support a finding of malice on the facts of the case. [read more]

On appeal from: [2008] HCJAC 63 and [2008] HCJAC 53 respectively.
Non-disclosure of information relevant to proceedings – the Court unanimously dismisses the appeals in both cases.

In Allison, the live issue was the significance of the Crown’s failure to disclose outstanding charges against an individual, a police interview with whom had been introduced into evidence by the Crown. The Court was not persuaded that, if defence counsel had been able to deploy the individual’s outstanding charges as well as his previous convictions, this would have made any material difference. The Court was satisfied that there was no real possibility that the jury would have come to a different verdict on the charges against the defendant if they had been made aware of the outstanding charges against the individual. There had therefore been no miscarriage of justice.

In McInnes, the crucial issue at a trial for assault was the identification of the persons who participated in the assault. The Crown evidence included the statement of a steward at a nearby hotel who described how he witnessed the defendant assault the victim. However, the Crown did not disclose in advance of the trial that the steward failed to correctly identify the defendant at two separate identity verification parades. The question which the appeal court must ask itself was whether after taking account of all the circumstances of the trial, including the non-disclosure in breach of the defendant’s Convention right, the jury’s verdict should be allowed to stand. The question would be answered in the negative if there was a real possibility at a different outcome. The test to determine whether there had been a fair trial in terms of ECHR, art 6 was the same as that to be applied to determine whether there had been a miscarriage of justice. It was clear from the judgment of the High Court of Justiciary that it applied the correct legal test.

For judgments, please download: [2010] UKSC 6 (Allison) and [2010] UKSC 7 (McInnes)
For the Court’s press summaries, please download: Press Summary (Allison) and Press Summary (McInnes)
For a non-PDF version of the judgments, please visit: BAILII (Allison) and BAILII (McInnes)
 

In this regular feature, we take a look at how stories concerning the Supreme Court have been reported in the media. 

The Supreme Court has frequently been in the press spotlight over the past fortnight.   Whilst the grant of permission in the Joseph v Spiller case (the defamation action concerning the Gillettes pop group) was generally welcomed as an opportunity to widen the fair comment defence to libel claims, there have been strong criticisms levelled of the decision in Ahmed v HM Treasury (No. 2) not to suspend the unfreezing of the assets of terror suspects, and also of the long running saga of the appointment of a twelfth justice.   [Read More]

Out of the crooked timber of Schedule 22, Finance Act 2003, no straight thing was ever made

On 3 February 2010, the Supreme Court released its first decision in a tax case: Grays Timber Products Limited v Her Majesty's Revenue & Customs [2010] UKSC 4.  The decision is of relevance to those who advise on arrangements for directors to own, or benefit from, shares in their companies, and provides welcome clarity for practitioners on the meaning of market value under Part 7 of the Income Tax (Earnings and Pensions) Act 2003 ("ITEPA").  Part 7 ITEPA was amended substantially by Schedule 22, Finance Act 2003 shortly after Royal Assent, and this is the first time that these notoriously complex provisions have been considered judicially.  It seems that their Lordships would not be too disappointed if it is the last time also, Lord Walker expressing the hope that "Parliament may find time to review the complex and obscure provisions".  [Read More]

Today's Guardian features an interview with Lord Bingham, talking about his new book The Rule of Law (published by Allen Lane on 4 February 2010 at £20).  In the interview Lord Bingham makes some interesting comments on the (il)legality of the Iraq war, amongst other things.  A review of the book by occasional UKSC Blog contributor Conor Gearty from the "Observer" can be found here.  We hope to publish a review on the UKSC Blog shortly.  [read more] 

A thick fog continues to surround the mysterious and slow moving appointment process for "Justice 12".  The fog is pierced, from time to time, by "revelations" to legal journalists from mysterious unidentified "sources". We have previously blogged Joshua Rozenberg's piece about the shortlist for the twelfth justice and his earlier explanations for the delays in the appointment process.  We have also written about reports by The Times legal correspondent, Frances Gibb that (unnamed) "senior" judges from the Court of Appeal opposed the appointment of Jonathan Sumption QC to the Supreme Court.  Mr Sumption subsequently withdrew from the competition (see our post here).  

Frances Gibb has now returned to the story with an extraordinary account of the twists and turns of the process, under the headline "Supreme ambition, jealously and outrage", dealing with what she describes as "the judicial bunfight that stopped an outsider from being appointed to the highest court".  Frances Gibb's story is, at first sight, a remarkable one. [read more]

There is only one appeal hearing listed next week. Lords Hope, Rodger, Brown, Kerr and Lady Hale will hear the appeal in R (on the application of SK Zimbabwe) v Secretary of State of the Home Department on 10 and 11 February. The case concerns a Zimbabwean national, SK, who was detained pending deportation (as he was considered a flight risk). SK sought judicial review of his detention on the basis that he was being unlawfully retained by virtue of the Home Department's failure to carry our regular reviews of his detention.  The case is previewed by Samantha Knights of Matrix here.  [read more]

This appeal is due to be heard on 10-11 February 2010 by a five judge bench (Lords Hope and Rodger, Lady Hale and Lords Brown and Kerr).  It will be a landmark decision in the area of unlawful detention and will resolve fundamental issues of importance in the area.  It concerns judicial oversight of executive deprivation of liberty, and the relationship between unlawful detention, the tort of false imprisonment, and the right to compensation under Article 5(5) of the European Convention on Human Rights.  The case details are here.

The central question in the appeal is whether a failure by the executive to conduct regular reviews of the exercise of a discretionary power of indefinite detention, where such reviews are required by published policy and subordinate legislation, renders continued detention unlawful so as to give rise to a claim for damages in false imprisonment. [read more]
 

In November 2009 we blogged the permission application in the case of Joseph v Spiller ([2009] EWCA Civ 1075). The Notice of Appeal raised general issues about the law of fair comment and the applicant's Written Submissions which criticise the approach of the Court of Appeal as creating "a further level of technicality which is not only unnecessary but also significantly inhibits the defence".

We have now heard that the Supreme Court has granted permission to appeal. Permission was granted on 2 February 2010 by Lord Phillips, Lord Rodger and Lord Mance.  A copy of the Order granting permission can be found here. [read more]

On appeal from: [2008] EWCA Civ 1187. Supreme Court refuses to postpone effect of its asset-freezing decision

In a follow-up judgment , the Supreme Court refused to grant HM Treasury any suspension of the quashing of the asset-freezing legislation which it struck down last week in Ahmed and others v HM Treasury [2010] UKSC 2. 
Lord Phillips, the President of the Court, said that the “court should not lend itself to a procedure that is designed to obfuscate the effect of its judgment”.  Lord Hope, the Deputy President, dissented and would have granted the suspension sought.

For judgment, please download: [2010] UKSC 5
 For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

 
 

The Supreme Court website has been updated with a statement explaining that the Justices of the Supreme Court have decided that "it would not be appropriate or indeed feasible" for there to be a comprehensive Register of the Interests of all of the Justices. The statement goes on to say that it would be impossible for the Justices to identify all of interests which might conceivably arise in future cases. Hence any Register of Interests, which the public would inevitably take to be comprehensive, would be misleading.

Former Law Lord Lord Hoffmann yesterday delivered a strong defence of the current state of English libel law as it relates to "foreigners" in his Dame Ann Ebsworth Memorial Lecture at Inner Temple Hall.  A copy of the Lecture can be found here. Lord Hoffmann argued that English libel law does not unduly encourage libel tourism and that the well-publicised complaints in this regard stem from an American tendency "to believe that their way is the only way" and the self-interest of the British press.

In recent years there has been a great deal of critical comment regarding the ability of claimants who are not citizens of or domiciled in England and Wales to sue in the English libel courts and the susceptibility of foreign defendants to libel actions here.   English libel law has variously been described in the press as "the democratic world's most illiberal" and as a blight on our international reputation. Lord Hoffmann, though, strongly disagrees with these criticisms. His view, as explained last night, is that the complaints about so-called libel tourism "come entirely from Americans" ("enthusiastically supported by the media in this country") and are simply "based on a belief that the whole world should share [the USA's] view about how to strike the balance between freedom of expression and the defence of reputation". [read more]

On appeal from: [2009] CSIH 11

Shares in the company had been disposed of by director and sold to third party as whole share capital of company.  A subscription agreement provided for payment to director of higher proceeds of sale than other shareholders. The question before the court was whether the taxation of the proceeds of sale should be regarded as on income under the Income Tax (Earnings and Pensions) Act 2003. The main issue was whether, under the test laid out in s 446X of the 2003 Act, the disposal of the shares had been for a price which exceeded the market value of the shares at the time of the disposal. The Supreme Court dismissed the company's appeal, unanimously, holding that the proceeds were income under the Act, and must be taxed accordingly.

For judgment, please download: [2010] UKSC 4
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

In the spirit of openness and public accountability (and following the update on our 'information wish list'), we’d like to draw readers’ attention to the statistics, corporate information and business plan recently published by the Supreme Court.  These are found on what we suspect is a little visited page on "Corporate Information" on the Court's Website.

The Corporate Information Statistics 2009-10 is not a particularly long document and has no explanatory notes.  Amongst other things, the document outlines the number of permission to appeal applications, permission applications granted and appeals where judgment has yet to be given. It discloses that 56 applications for permission were received last term and that permission was granted in 20 cases.  It also shows that a total of 13 incidental applications were determined - there is, unfortunately, no record of what these were.  The statistics for "appeals listed during next term" are hard to interpret (it is not clear whether they are cumulative or not) and we look forward to more explanation in next terms version [read more]

This appeal, previewed here, was the first to be heard by the new Supreme Court, and was specially chosen for its constitutional significance.  Judgment was given on  27 January 2010 ([2010] UKSC 2). Lord Phillips observed that ‘It is particularly appropriate that these should be the first appeals to be heard in the Supreme Court of the United Kingdom, for they concern the separation of powers.’ [85] 

The appeal concerned the lawfulness of draconian asset-freezing powers adopted by the government, to be used against those suspected of involvement in terrorism. The powers were adopted in order to implement UN Security Council resolutions on terrorist finance. The government passed them by way of Order in Council, without any Parliamentary scrutiny or debate.

In a series of lengthy judgments, the seven-judge Court held that the Orders made were unlawful, for reasons summarised below. Lord Brown dissented in relation to one of the Orders. The judgments amount to an emphatic reassertion of fundamental rights, and the importance of the parliamentary process, in the face of repressive executive action supposedly required by the international fight against terrorism. [read more]

In its first judgment of the year, Application by Guardian News and Media, in HM Treasury v Ahmed ([2010] UKSC 1) the Supreme Court considered the vexed question of anonymity in court hearings.  Giving the unanimous judgment of a 7 judge bench, Lord Rodger began by quoting the “provocative” words of the applicants’ counsel: “your first term docket reads like alphabet soup” [1].  Lord Rodger pointed out that both the last case heard by the House of Lords (BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7) and the first case heard by the Supreme Court (In re appeals by Governing Body of JFS [2009] UKSC 1) involved anonymous parties.

The case concerned a number of individuals who were the subject of “asset freezing orders” made by the Treasury under various statutory instruments.  The asset freezing  orders were declared to be unlawful in the Court’s substantive judgment ([2010] UKSC 2).  The appellants had obtained anonymity orders from the lower courts – with no opposition from the Treasury – and with no detailed consideration by the judges.   At the outset of the hearing – on the first full day of the Supreme Court's operation – a number of media organisations and NGOs applied for the orders to be set aside. The application was adjourned for a full hearing later in the month. [read more]

In September 2009, before the Court opened its doors, we set out our "information wish list" - the information that we wanted the Court to make available to the public in its new spirit of openness and public accessibility. Our list had eight items - based on the best practice of Supreme Courts round the world. Four months later, we return to our list to see what progress has been made. 

The first item was a "Judicial Sittings" list which includes full information about the appeal - the unique cite of the decision appealed against, a brief description of the subject matter of the appeal, the identity of the solicitors acting for the parties.   In a speech in September 2009, Chief Executive Jenny Rowe had said that "when everything is working fully key information from the case management system will be accessible via the website.  Well, the court does provide "Case Details" - although these are not made available for every case which is pending before the Court and sometimes only appear shortly before a hearing. [read more]

There are two appeal hearings listed next week.   On 1 and 2 February a seven judge court (Lord Phillips, Lord Hope, Lord Walker, Lady Hale, Lord Brown, Lord Mance and Lord Collins) will hear the appeal in R (on the application of Sainsbury's) v Wolverhampton City Council. The case concerns the use of compulsory purchase orders to promote the economic, social or environmental well-being of the area.   The case is previewed here and the Court's "case details" are here.  

On Wednesday and Thursday, 3 and 4 February, a five judge bench (Lord Phillips, Lord Hope, Lord Rodger, Lady Hale and Lord Clarke) will hear the Home Secretary's appeal in the case of R (on the application of JF) v Secretary of State for the Home Department - which concerns the Article 8 rights of sex offenders. The case is previewed here and the case details are here. [read more]

On 27 January the Court (Lords Hope, Saville, Mance, Collins and Lady Hale) handed down judgment in Ofcom v The Information Commissioner ([2010] UKSC 3), the case concerning disclosure of information about mobile phone masts in the UK which has been sought for environmental health reasons. The information sought concerns the location and technical specification of the masts, and following a freedom of information, the Information Commissioner had obtained a disclosure order against the regulator Ofcom.  [read more]

With so much discussion having taken place over the efficacy of removing the UK's highest court from its legislature, it is interesting to note that the issue does not appear to have been finally resolved in the  United States despite its written constitution and a separate court with a long and distinguished history.

The New Yorker magazine has an interesting piece regarding the attendance of the justices from the US Supreme Court at President Obama's State of Union address last night.  [read more]  

In this post, the first of a quarterly feature, we set out a review of the judgments of the UKSC's Michaelmas Term. We will be posting similar reports at the end of each Court term going forwards.  Our aim is to provide a concise summary of the new law made by the Court; but there is a wider purpose, too.  We want to consider what, if any trends, are emerging; and see if we can provide answers to certain key questions which continually surface in the debate about the Court. For example, is it worth the money? Has anything changed? And in the longer term, will the Court act with any greater independence than the House of Lords, and are there any signs emerging that the Court will act in constitutional terms in more radical ways than its predecessor?  [Read More]

This appeal concerns the question as to whether certain provisions of the Sexual Offences Act 2003 (“the 2003 Act”) are incompatible with Article 8 of the European Convention on Human Rights insofar as they imposes on a person convicted of sexual offences and sentenced to imprisonment for a period of 30 months or more the requirement to notify the police of certain information, including his home address (and, if applicable, the place at which he resides), and be placed on the Sex Offenders Register.  Any changes in the information given must be notified within 3 days of the changes occurring.  The changes that need to be notified include where the offender travels within the UK for periods of in excess of 7 days at a time.  The 2003 Act also gave the Secretary of State the power to adopt regulations requiring offenders who leave the UK to give notification to the police before they leave and about their return.  Such regulations were made in 2004.  Importantly for this case, the 2003 Act provides for the notification requirements to be imposed for an indefinite period without the possibility of review.  Likewise, such offenders are placed on the Sex Offenders Register for life without the possibility of review. [read more]

The Indian Supreme Court (known as the Apex Court) has been involved in a dispute about the extent to which The Right to Information Act (the "Act") applies to the office of Chief Justice of India (the "CJI"). 

The Act was passed in June 2005 and came into force in October 2005.  It allows citizens of India to request information from or about public authorities.[read more]

On appeal from: [2009] EWCA Civ 90
Concerned a request that had been made to Ofcom by the Information Manager for Health Protection Scotland (an arm of the NHS) for information about the location, ownership and technical attributes of mobile phone masts to be disclosed in searchable format. The Supreme Court unanimously holds that the appeal raises an issue of general principle and that the answer is not obvious. Members of the Court hold different views on the correct construction of Environmental Information Regulations 2004, and Directive 2003/4/EC which they implement. Consequently, the Supreme Court is under a duty to refer the question in the appeal to the European Court of Justice.

For judgment, please download: [2010] UKSC 3
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII
 

On appeal from: [2008] EWCA Civ 1187
Appeals concern the legality of the Terrorism Order (United Nations Measures) 2006 (‘TO’) and the Al-Qaida and Taliban (United Nations Measures) Order 2006 (‘AQO’) and the asset freezing measures under those orders. The Supreme Court has unanimously held that the TO should be quashed as ultra vires the United Nations Act 1946, s 1(1) (the enabling power). It also held by a majority of six to one (Lord Brown dissenting) that art 3(1)(b) of the AQO must also be quashed as ultra vires. Lord Hope, giving the leading judgment, held that the legislative history of the 1946 Act demonstrated that Parliament did not intend that the Act should be used to introduce coercive measures which interfered with UK citizens’ fundamental rights. The principle of legality required that general or ambiguous statutory words should not be interpreted in a manner that infringed fundamental rights, and s 1(1) of the 1946 Act must be interpreted in this light. Orders made under s 1(1) would therefore only be legitimate when the interference with fundamental rights to which they give rise is no greater than that which the underlying UNSCR required.
The principle criticisms directed against the TO apply equally to the Terrorism Order (United Nations Measures) 2009, and had that Order been before the Court, it would have been quashed.

Lord Phillips said “It is particularly appropriate that these should be the first appeals to be heard in the Supreme Court of the United Kingdom, for they concern the separation of powers.”  He added “nobody should conclude that the result of these appeals constitutes judicial interference with the will of Parliament. On the contrary it upholds the supremacy of Parliament in deciding whether or not measures should be imposed that affect the fundamental rights of those in this country.”

For judgment, please download: [2010] UKSC 2 
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

Application by Guardian News and Media Ltd & Ors
An application by nine media organisations and NGOs to lift the anonymity orders in favour of the appellants in A, K and M v HM Treasury. The Supreme Court unanimously sets aside the anonymity orders in respect of A, K, M and Hay.

Lord Rodger delivered the judgment of the Court.

For judgment, please download: [2010] UKSC 1
For the Court’s press summary, please download: Press Summary
 

This is an appeal against a decision of Ward, Mummery and Sullivan LJJ ([2009] EWCA Civ 835) which the Supreme Court will hear on 1 and 2 February 2010.  Although the proceedings have been brought against the Council, the case is really a dispute between two rival developers, Sainsbury's and Tesco. It is of considerable importance as it concerns the circumstances in which compulsory purchase powers can be used and the factors which local authorities can take into account when justifying the use of such powers. [read more]

Following our posting of earlier today regarding the exclusive from Joshua Rozenberg about what he tells us were the four candidates interviewed for the position of the Twelfth Justice of the Supreme Court, we thought that it would be of interest to our readers if we provided some more information about each of the "candidates".   In doing so we give no representations or warranties as to whether Joshua's list is correct or complete but provide the information on the usual "public service" basis, so that readers can have some idea as to the background and qualifications of the potential candidates.  [read more]

The Chilcot Inquiry will today hear evidence from three legal advisers to the government about issues relating to the legality of the Iraq war: Sir Michael Wood, legal adviser to the FCO; David Brummell, legal secretary to the law officers; and Elizabeth Wilmshurst, deputy legal adviser to the FCO. 

Whilst it’s unlikely that the UK Supreme Court will ever get the opportunity to consider the war’s legality, former members of the senior judiciary have recently offered strong views on this subject. Former Law Lord, Lord Steyn, has said that "in the absence of a second UN resolution authorising invasion, it was illegal". And in November Lord Bingham, the former Lord Chief Justice and Senior Law Lord, stated that, without the blessing of the UN, the Iraq war was "a serious violation of international law and the rule of law".

The recent 551-page report of a Dutch Inquiry, the Davids Commission, has found that war in Iraq had "no basis in international law", in the first ever independent legal assessment of the decision to invade. [Read more]

Fellow legal blogger Joshua Rozenberg reports today that interviews for the position of (twelfth) Justice of the Supreme Court took place on Saturday and that the shortlist was (in, we assume, alphabetical order) Lady Justice Arden, Lord Justice Dyson, Lord Justice Maurice Kay and Lord Justice Wilson.   He offers no information on the results of the interviews, but suggests that Lord Justice Dyson is the favourite.    This is (partially) consistent with his earlier post where the last three names on the list are said to be the shortlisted candidates.

A curious piece of additional evidence has come to our attention.  As we mentioned in an earlier post, the case of ZN (Afghanistan) v Entry Clearance Officer was listed on 15 February 2010 before a panel which was said to include "Justice 12".  This is an appeal against a judgment of Laws, Rix and Wilson LJJ (suggesting that none of them could be on the panel).   [read more]

As Scots all over the world have been preparing to raise a glass to celebrate a national hero, Robert Burns, a report has been published which discusses the possibility of an independent Scotland setting up its own Supreme Court.  The Walker report, which was commissioned by the Justice Secretary in December 2008 following the establishment of the UK Supreme Court, looks at the potential impact of the UK Supreme Court on the Scottish legal system and suggests a number of changes depending on whether Scotland remains devolved or becomes fully independent. [read more]

The debate about the future of the Human Rights Act is gathering pace as the date of the General Election approaches.  The background to the debate has already been discussed on this blog. Despite a News of the World article suggesting that the party had done a "U-Turn" on the pledge to scrap the act, it appears that the Conservative Party remains fully committed to repeal.  Our attention as been drawn to the following exchange on 20th January between David Cameron and a voter on This is Gloucestershire.co.uk

"Mr Cameron, if elected will you withdraw from the Human Rights Act, so that this country can deport people hell bent on trying to change our way of life? John Thompson, Gloucester

Yes we will. We’ve said we’ll scrap the Human Rights Act, which has put our police in the ridiculous position of trying to tackle the most serious crimes without putting the faces of the most wanted criminals on posters, and made it incredibly difficult for the government to deport people who they know to be threat. Instead, what we need is a modern British Bill of Rights which clearly sets out people’s rights and responsibilities, and strengthens our hand in the fight against terrorism and crime".

It is perhaps unnecessary for us to deal with the difficulties with Mr Cameron's analysis in his answer. The point is that the Conservative Party appears to have selected this as the first question to respond to and that it is obviously seen as a vote winner. [read more]

The issue of whether the UK should have judicial confirmation hearings has been debated for a number of years.  The case in favour has been powerfully restated by Alexander Horne in an interesting and thought provoking paper just published by "The Study of Parliament Group".

Entitled "The Changing Constitution: A Case for Judicial Confirmation Hearings?" the paper begins with a historical survey of the increase in the political element in the work of the courts resulting from the growth in judicial review and the operation of the Human Rights Act.   Alexand Horne accepts that the judges are, increasingly, having to adjudicate on political issues.  However, in contrast to a number of commentators from both the left and the right, he suggests that the way to deal with this is not for such issues to be removed from the courts but, rather, "to allow more political involvement in the initial appointment process, to give the judiciary greater legitimacy".   He looks at the well known problems relating to the lack of judicial diversity and the changes brought about by the Constitutional Reform Act 2005. [read more]

On 22 January 2010 Professor Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, published his report on Final Appellate Jurisdiction in the Scottish Legal System.   Initially prompted by the imminent setting up of the UK Supreme Court, the Scottish Minister of Justice, Kenny MacAskill MSP of the Scottish National Party commissioned Professor Walker in December 2008 to look into possible option for reform of the constitutional arrangements which currently allow for appeals to be taken to London from decisions of the courts in Scotland.  

The Scottish Parliament is prohibited - by paragraph 1(2)(a) of Schedule 4 to the Scotland Act 1998  - from modifying, or conferring power on the Scottish Ministers to modify, Articles 4 and 6 of the English Union with Scotland Act 1706 and of the Scottish Union with England 1707, at least so far as these provisions relate to freedom of trade between England and Scotland.   On the principle that that which is not specifically reserved to Westminster is devolved to Edinburgh it would appear, then, to be competent for the Scottish Parliament to modify other provisions of these Acts of Union. [read more]

The Supreme Court will not be sitting next week, after the parties to Gisda Cyf v Barratt have agreed to adjourn their hearing which had been listed for Tuesday and Wednesday.  Gisda Cyf is the employment case concerning when the three month period for bringing an unfair dismissal claim starts to run: when the letter of termination was sent (as Lloyd LJ argued in a dissent in the Court of Appeal), when the letter was received, or when it was read (as the Courts below all held, finding in Miss Barratt's favour).  We do not currently have any information as to whether the case will be re-listed.

Attentions will be turned instead to three eagerly anticipated judgments which, according to the future judgments page of the Supreme Court site, will be handed down on Wednesday; Ofcom v Information Commissioner, and the two judgments in HM Treasury v A. [Read More]

Lord Kerr is, at 61, the youngest Justice of the Supreme Court, and was the last Law Lord to be appointed before the new Supreme Court was created.

Brian Francis Kerr studied at St Colman's College and Queen's University Belfast. He was called to the bar in Northern Ireland in 1970 and in England and Wales in 1974. He was junior counsel to the Attorney General between 1978 and 1983 when he took silk.  He became Senior Counsel to the Attorney General in 1988 which position he held until his appointment to the High Court Bench in March 1993. Lord Kerr was appointed as Lord Chief Justice of Northern Ireland in 2004 and became the Northern Irish Law Lord on Lord Carswell's retirement last year. [read more]

The UK's constitution has always been somewhat of an anomaly to the United States.  We have no written constitution, and the legislature, executive and judiciary have historically been very interlinked: the checks and balances on the power of the political elite that exist in the US are not present (at least not to the same extent) in the UK.  

The Constitutional Reform Act 2005 has gone some way towards addressing the overlap of powers by creating the UK Supreme Court, which sits separately from the other branches of the state.  Notwithstanding this, a lot of people within the UK seem to be of the opinion that in reality, the UK Supreme Court will just continue doing what the House of Lords did for centuries before it. [read more]

Continuing her role as a promoter of the openness and transparency of the Supreme Court, Jenny Rowe, the Chief Executive of the Supreme Court, began 2010 by writing a piece, published in The Metropolitan Corporate Counsel, reflecting on the role and position of the new Supreme Court.  She writes:

We thought that it was time to have an update on the appointment process for the twelfth justice.  As our readers will recall, some time ago applications for this post were invited - with a closing date of 26 October 2009. Since then, there have been no official announcements.   There was much press speculation about the possible candidacy of Mr Jonathan Sumption QC.  However, in December 2009 he announced that he was withdrawing his candidacy - we blogged about this at the time (a post which was the subject of an interesting comment by Charon QC on his blog).  

When the original Supreme Court Hilary Term list was published on 18 December 2009, a mysterious "Justice X" was listed as hearing cases on 15 February and 1 March 2010 - but no word as to his or her identity.   The "Case Details" shows the first case as being heard by "Justice 12" (see ZN (Afghanistan)).   On 27 December, an impatient Joshua Rozenberg posted a piece under the heading "Why the delay?" - concluding that it was likely to be the Government's fault and inviting confidential sources to give him the name.  [read more]

As we approach the second term of the Supreme Court, the lack of criminal cases is noticeable. Last term R v Horncastle [2009] UKSC 14 was the only significant criminal case (although other cases had implications for criminal law) – and there are no criminal cases list for the coming term.    There also appear to be few criminal cases in which permission has being given. The Court of Appeal Criminal Division dealt with 431 appeals against conviction in 2008-2009 but it is possible that none of these will go on to the Supreme Court.  Is this simply a function of a varied Supreme Court list, or is there something more significant in play?

The Court of Appeal’s role in criminal cases is different from in civil matters. In particular, in order for the Supreme Court to consider a criminal case, the Court of Appeal must certify that the case raises a point of law of general public importance. If it does not, the case can go no further. Anecdotally, many senior criminal practitioners claim to have noticed a more stringent approach to certifying a case in this way in recent months. [read more]

The architecture and fitting out of the new Supreme Court building was savaged in an article in The Times on Saturday by Marcus Binney, the President of SAVE Britain's Heritage.

Mr Binney plainly does not like to restoration work undertaken to what was the Middlesex Guildhall.  He starts by saying that in future,"'supreme' should stand for the total emasculation of a historic building’s character, the gratuitous removal of fine fittings designed and made for it, and, in this case, the neutering of the Guildhall’s robust masculinity in favour of a bland, executive lounge look, with the rejection of shiploads of fine craftsmanship in favour of a select number of token artworks". [read more]

The Times today carries an entertaining piece describing how Prince William, on his first official royal tour, has opened the new Supreme Court of New Zealand building in Wellington.  As with its UK counterpart, the SCNZ building, pictured right, has attracted a good deal of controversy - but the Prince was able to avoid any such tricky territory in a speech which was well received down under. [Read More]

The Feminist Judgments Project is a unique, imaginative, collaboration in which a group of feminist academics, activists and legal practitioners are engaged in writing alternative feminist judgments in a series of significant cases in English law. Rather than simply critiquing existing judgments, the participants have embarked on a practical, 'real world' exercise of judgment-writing, subject to the various constraints that bind appellate judges. In this way, the project seeks to demonstrate in a sustained and disciplined way how, with a differently constituted judiciary, judgments could have been written and cases could have been decided differently.  A collection of more than 20 judgments will be published as a book titled Feminist Judgments: From Theory to Practice by Hart Publishing in September 2010. [read more]

The decision in R v Horncastle ([2009] UKSC 14; [2010] 2 WLR 47) was one of the most discussed cases of the Supreme Court’s first term.  Many commentators, including Professor Andrew Choo on this blog, drew attention to the fact that the Court refused to follow a decision of the European Court of Human Rights.  However, perhaps the most interesting feature of the case is not the fact that the Supreme Court declined to follow the decision of the  Fourth Section in Al-Khawaja and Tahery v UK ((2009) 49 EHRR 1) but the extraordinary lengths to which it went to justify and explain this departure.

Section 2 of the Human Rights Act 1998, requires a court to "take into account" any judgment of the Court of Human Rights in determining any question to which such judgment is relevant.    This is clearly not a mandatory requirement: the Supreme Court is not, in any sense, "bound" by decisions of the Court of Human Rights. The Court of Human Rights is not a "Final Court of Appeal" in which decisions of the domestic courts can be challenged and whose determinations it is bound to follow.  As a result, when the Supreme Court is faced with a Court of Human Rights decision with which it does not agree it can decline to follow or apply it.   [read more]

This is the second week of the Court's new term, and as with last week, the Court will be hearing just one appeal.

Lords Hope, Rodger, Walker, Brown and Kerr will sit on Monday, Tuesday morning, and Wednesday 18, 19 and 20 January to  hear the appeal in R (on the application of Lewis) v Redcar and Cleveland Borough Council, previewed here.  The case concerns a village green. The Court's own "case details" can be found here.

No judgments in the Supreme Court or the Judicial Committee of the Privy Council have been announced for next week. [read more]

On Monday we reported that Private Eye had published a piece criticising the procurement process for the Supreme Court's IT system, which alleged that the chosen document management system cost £910,000 - over four times as much as the next competitor. 

Whilst we are yet to hear back from the Ministry of Justice as to whether there is any substance to these comments, it seems Private Eye is not the only observer to have picked up on the matter via Freedom of Information requests: the Law Society Gazette has been conducting its own FoI investigation into the matter, which lead to this article by Rupert White being published on Wednesday. The Gazette's piece casts considerably more light on the controversy, and whilst the numbers involved may be dwarfed by the billions pumped into the NHS IT system, it may make for uncomfortable reading by the Ministry of Justice. [read more]

On 18 January 2010, this two day hearing will begin. The dispute in question relates to whether Redcar and Cleveland Borough Council were wrong to decide that the land known as Coatham Common in Redcar ("the Common") did not constitute a town green under the Commons Act 2006.

In 2005, the appellant and three other local residents made an application for the Common to be registered as a town green under the Commons Registration Act 1965. Section 22(1) of the 1965 Act (as amended) provides that land will be common land"if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right" (emphasis added). [read more]

Lord Hope of Craighead is Deputy President of the UK Supreme Court, second only to Lord Phillips, and is one of two Scottish Justices of the UK Supreme Court.

Born James Arthur David Hope in Edinburgh in 1938, Lord Hope comes from a long line of Edinburgh lawyers. His father practised as a solicitor in Edinburgh.   After attending Edinburgh Academy and Rugby School, Lord Hope undertook his national service obligations as part of the Seaforth Highlanders. He left in 1959 after rising to the rank of lieutenant, and upon his return to the UK studied at Cambridge (St John's College) where he gained a BA in Classics. Lord Hope then went on to complete his LLB at the University of Edinburgh, where he graduated in 1965. [read more]

The ICLR website has put up what appear to the be the final 13 permission decisions from 2009.  These decisions were given on 16, 18, 21 and 22 December 2009.  Permission was granted in 4 cases and refused in 9 others. 

None of the four cases in which permission was given are criminal cases and none involve human rights or "constitutional" issues.  Perhaps the most newsworthy case in which permission was granted is Bocardo SA v Star Energy UK Onshore Ltd [2009] EWCA Civ 579; ([2009] 3 WLR 1010) which concerns the rights to drill for oil under a property owned by the family of Mr Mohammed Al-Fayed in Surrey.  The case was extensively covered at the time of the Court of Appeal decision, see for example, the Independent. and the Property Law Blog. Peter Smith J awarded the claimant 9% of the £6.9 milion earned from the oil field and the same percentage of future income but the Court of Appeal reduced the award to £1,000 for past and future trespass.  [read more]

The Fourth Section of the European Court of Human Rights has today unanimously found against the United Kingdom in the case of Gillan and Quinton v United Kingdom (App No 4158/05), rejecting the approach taken by the House of Lords.

The case concerns sections 44 to 47 of the Terrorism Act 2000, which allow the police to stop and search people without reasonable suspicion that they have committed any offence, if a senior police officer gives an authorisation for a particular area. The test is whether the authorising officer ‘considers it expedient for the prevention of acts of terrorism’.  The applicants were stopped and searched by the police while on their way to a demonstration near an arms fair in London. Mr Gillan was riding a bicycle and carrying a rucksack; Ms Quinton, a journalist, was ordered to stop filming despite showing her press cards. [read more]

Albie Sachs’ trajectory is an extraordinary one.  From advocate at the Cape Bar, to labelled being terrorist and two prolonged periods of detention, to decades in exile in the UK and then Mozambique where he was later seriously injured by a bomb placed in his car by South African security agents, to his return to South Africa in 1990 as a member of the Constitutional Committee and National Executive of the ANC and an integral part of the negotiations which led to South Africa’s emergence as a constitutional democracy, his experience is unique and a full story in itself.  But this return also led to the beginning of a new chapter in his life.  His subsequent path-breaking work from 1994 as a judge on South Africa’s newly established Constitutional Court is viewed from his perspective in a prism which unashamedly fuses the totality of his past personal experience, his relationship with state power, and his very considerable legal expertise.  [read more]

Private Eye alleges in its Christmas edition (the article is sadly unavailable online) that the IT system procured for the Supreme Court was unnecessarily expensive.   The article, which appears to be based on information obtained under the Freedom of Information Act 2000, alleges that consulting firm, Logica, was retained as consultants for the procurement of the IT and ignored smaller providers of suitable IT solutions for the Court, opting for a more  expensive option from Open Text.  The article alleges that this cost a total of £910,000 whereas the smaller providers could have done the job for as little as £200,000.

UKSC Blog does not know whether there is any truth in these allegations.  We would be happy to print any response from Logica of the Ministry of Justice (none was in the article, nor appears on their respective websites).

In this post, we take a look at what is coming up during the Hilary Court term, which starts today.  The name 'Hilary' comes from the feast of St Hilary de Poitiers, which falls on 13 January.  St Hilary, who died in 368, is pictured right.  The name will hopefully signify good omens for the Supreme Court as it embarks on its second term as the nation's highest appellate Court, since 'Hilary' is said to derive from the Greek for happy or cheerful.  There are 14 hearings listed between now and the end of term on 31 March, and judgments are pending in a further 9 cases, so whether the new term is a cheerful one or not, it will certainly be busy.  [Read More]

Former Prime Minister, Tony Blair, has responded to the criticisms made of him, in particular by former Lord Chancellor, Lord Irvine, in the development of the constitutional steps which led to the establishment of the Supreme Court.  The response is in the form of a letter to Lord Goodlad, the Chairman of the House of Lords Constitution Committee, which is looking into the changes which were made. [read more]

The Court's second term starts on Monday 11 January 2010.   The week is a quiet one with no hearings on Monday or Tuesday.  There is just one appeal being heard on Wednesday and Thursday, R (JS Sri Lanka) v  Secretary of State for the Home Department, being heard by a five justice panel, Lords Hope, Rodger, Walker, Brown and Kerr.  The case is previewed here.  Permission to appeal was given by the House of Lords on 15 June 2009. The case was added to the Court's list of "Current Cases" on 12 January.   There are no cases listed for hearing by the Judicial Committee of the Privy Council.

No judgments have been announced for next week - although the announcements at the end of last term were somewhat erratic it seems unlikely that any judgments will be handed down this week.  [read more]

The decision of the Court of Appeal in R (JS)(Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 364 (now reported at [2009] 2 WLR 17) concerned an application for asylum by member of the Liberation Tigers of Tamil Eelam ("LTTE").   The issue was the proper interpretation and application of article 1F(a) of the Refugee Convention which provides that the Convention does not apply to any person with respect to whom there are serious reasons for considering that: "he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes."   The Court of Appeal quashed the Secretary of State's decision that Article 1F(a) applied.  Permission to appeal was given by the House of Lords on 15 June 2009. [read more]

UKSC Blog's statistics department has been hard at work over the vacation and we can now present our short statistical survey of the work of the Court in its first term.  

The Court sat for 33 days out of a possible 45 - that is 11 weeks of 4 sitting days plus an interim hearing on 1 October. It heard 14 substantive appeals and two applications. Lord Hope sat on all but two of these hearings, putting in 29 sitting days.  The figures for the other justices were as follows:  Lord Phillips 16; Lord Saville 1; Lord Rodger 21; Lord Walker 13; Lady Hale 22; Lord Brown 26, Lord Mance 13; Lord Collins 15; Lord Kerr 21 and Lord Clarke 12.  The Lord Chief Justice, Lord Judge, also sat for 2 days.  These figures do not, of course, include days sitting in the Privy Council.

The Court gave 17 judgments, 10 of which were in cases which had been heard by the Judicial Committee of the House of Lords.  In the 6 judgments given in substantive appeals which had been heard by the Supreme Court, the average time between hearing and delivery of judgment was five and a half weeks. [read more]

In our review of two recent decisions from the Supreme Court of Canada, one feature that UKSC Blog noted was that not only is the Chief Justice of Canada (who gave the leading judgments on both cases) a woman but four out of the nine Justices on the Court are female as well.  That puts Canada at the top of the list of leading Supreme Courts round the world in terms of gender equality.  Sadly, the United Kingdom, with currently just one woman on its Supreme Court, languishes at the bottom.  [read more]

As regular readers will know, from time to time, we like to review cases from other Supreme Courts around the world.

Shortly before the Christmas break the Canadian Supreme Court handed down two important decisions in Grant v Torstar and Quan v Cusson of particular interest to us - which established under Canadian law the defence of responsible communication to an action in defamation.  The decisions made signficant reference to decisions from the UK courts but also provides an interesting reflection on the issues arising under the law - from a judicial body at the highest level - ten years after the House of Lords handed down the seminal decision in Reynolds v Times Newspapers [read more].

Very sad news has reached the UKSC blog that international law specialist, Ian Brownlie QC has died in a car accident abroad, on 3 January.

Our thoughts are with his family.

The Supreme Court has now published the schedule of hearing dates for the Hilary Court term, commencing on 11 January 2010.  The Court will hear a total of 14 cases, broken down into the following subject areas: immigration (3), commercial (3), human rights (2), planning (2), employment (2) and family law (2). 

The Blog is now taking a rest over the festive season.  We will return in the week commencing 4 January, when we will be reporting more fully on what can be expected from the new Court term, as well as casting a critical eye back over the judgments of Michaelmas term.

Until then, we would like to thank all of our readers for supporting the UKSC Blog during its first few months of life, and we wish all of you a very happy Christmas and New Year.

Yours

The UKSC Blog Editors

In a flurry of activity at the end of its first term, the Supreme Court has handed down 22 decisions on applications for permission to appeal (PTAs).  According to the ICLR website, 8 of these 22 PTAs were successful, and 14 were unsuccessful.  The success rate of 36% is in line with the 2009 average (which shows a 1 in 3 chance of gaining permission - this compares to a 1 in 100 chance in the USA, as our friends at SCOTUS Blog have pointed out).  The points of law of general public importance raised in the successful applications were wide ranging: from immigation and human rights cases, which have increasingly been the staple diet of the appeal courts in recent years, to housing, criminal and company law cases. 

We set out the full list below. [Read More]

The Supreme Court has refused Vodafone leave to appeal from the Court of Appeal's decision in Vodafone 2 v The Commissioners for Her Majesty's Revenue and Customs [2009] EWCA Civ 446.

The case concerned the UK "controlled foreign company" (or "CFC") rules. Very broadly, these seek to counteract tax avoidance by taxing a UK company on the profits of foreign subsidiaries if certain conditions are satisfied.

In 2006 the European Court of Justice ("ECJ") ruled (in Cadbury Schweppes plc and others v CIR (Case C-196/04)) that the UK CFC rules were contrary to EC law. The ECJ decided that the rules constituted a disproportionate restriction on the freedom of a parent company to establish subsidiaries in other EU Member States. The ECJ held that, for the CFC rules to be lawful, they would need to be limited to "wholly artificial arrangements".   [read more]

The OFT announced today that, as a result of the Supreme Court's ruling in the bank charges litigation at the end of November, it is dropping its investigation into the the fairness of overdraft charges and other banking fees.  The story isn't over, because the OFT is now shifting its focus on addressing the issue via voluntary action and legislation. However, the announcement will be a huge (though not unexpected) disappointment to the OFT, the consumer actions groups who have supported the OFT's investigation, and the tens of thousands of individual customers individually in court cases with banks over fees. See our previous coverage of the bank charges litigation here and here.

There has been a plethora of articles commenting on the recent result in JFS.  In The Guardian, Mark Hill QC, specialist in ecclesiastical law, tells us "What the JFS ruling meant", arguing that "If secularists believe this Supreme Court decision marks the beginning of the end of faith schools they are wrong. The importance of a religious ethos in the education system has been strongly reaffirmed, as has the deference which courts will continue to show to religious organisations acting in good faith."

n the same paper, Jonathan Romain, Chairman of the Accord Coalition, sees things slightly differently and writes that "The JFS ruling is a victory for Jews". He says: "It is a victory for common sense over discrimination. It was always indefensible that a Jewish school should refuse Jewish education to a Jewish child. The ruling is a slap in the face for the Jewish authorities that sought to rebuff the child. It will also serve as a wake-up call to all state-funded faith schools to honour their responsiblities to wider society."  [read more]
 

On 16 December judgment was handed down in the widely reported JFS case. The appeal itself was heard by the Supreme Court sitting as a nine judge court, reflecting the importance of the issues raised by the appeal. The judgments are ordered not by the seniority of the justices delivering them but by publication of those judgments in the majority first, followed by those in the minority. The bulk of this piece is devoted to the principal issue in the case but at the end of this blog post I deal, shortly, with an observation about costs orders and interveners. [read more]

Although in its recent decision in R v Horncastle ([2009] UKSC 14), the Supreme Court indicated that it would not always follow Strasbourg case law, this view was reached only after very careful consideration and analysis of the relevant cases.  The case law of the Court of Human Rights remains highly persuasive and to be followed by the English courts unless there are very good reasons to the contrary.  In this post we will look at the United Kingdom cases dealt with by the Court in the last quarter of 2009.  A number of these involve challenges to House of Lords decisions and issues which seem likely to concern the Supreme Court in the future. 

United Kingdom cases are dealt with by the Court’s Fourth Section.  In UK cases the President of the Section is the Polish judge, Lech Garlicki.  The UK judge, Sir Nicholas Bratza (who is a Vice-President of the Court) is always a member of the Court when UK cases are dealt with.  The Court will then contain five other judges from the other members of the section: Giovanni Bonello (Malta); Ljiljana Mijović (Bosnia and Herzegovina);  David Thor Björgvinsson  (Iceland); Jan Šikuta (Slovak Republic); Paivi Hirvelä  (Finland); Ledi Bianku  (Albania); Mihai Poalelungi  (Moldova); Nebojsa Vucinic  (Montenegro)[read more]

In the Case Preview for AM (Somalia) & Ors v Entry Clearance Officer I suggested that the appeal ought to prompt general consideration of Article 14. That turns out to have been a wholly erroneous prediction. In fact, the judgment focuses exclusively on the technical question whether the Immigration Rules paragraphs 281, 297 and 317 permit a person seeking entry into the UK to rely on third party financial support to establish that they would not require recourse to public funds. This is a very important issue, which has a potentially profound effect on the ability of applicants to obtain entry clearance, but it is a shame that the discrimination issue was not considered. This was the result of a rare decision by the Court to indicate its conclusion at the close of argument on the question of third-party support, leaving the parties to agree that the discrimination question did not need to be determined. But perhaps JFS has provided enough discrimination for the Justices this week anyway. [read more]

The European Court of Human Rights yesterday gave judgment in the Interbrew case: Financial Times Ltd & Ors v UK (Application no. 821/03). In summary, the ECHR held unanimously that an order requiring various media organisations to disclose original leaked documents which might have led to the revelation of a journalistic source constituted an unjustified interference with Article 10 ECHR (the right to freedom of expression).  You can read the full judgment here.

On 27 November 2001, a journalist at the Financial Times received a copy of a leaked document from an unknown source concerning Interbrew's possible takeover bid for South African Breweries. The FT journalist contacted Interbrew's investment bank advisers, Goldman Sachs, the same day and told them that he intended to publish the leaked document. The article was then published by the FT that evening referring to the leaked document and to the fact that Interbrew had been plotting a bid for SAB. The Times, Reuters, The Guardian and The Independent also received copies of the leaked document and each proceeded to publish articles about the same.  [read more]

The Board of the Privy Council has unanimously decided that a government housing allocation policy favouring married couples and couples with a child in common discriminates without justification against same-sex couples. Such couples are unable to have a child in common, and cannot get married (there is no civil partnership or equivalent in Gibraltar). The decision sets an important limit on the extent to which it is legitimate, under Strasbourg jurisprudence, for states to privilege the status of marriage in the allocation of public benefits. Further consideration of the judgment, delivered by Lady Hale on 14 December 2009, follows a brief recap of the facts and the decisions below. (The Board consisted of Lord Phillips, Lady Hale, Lord Collins, Sir Jonathan Parker and Sir Henry Brooke.)  [Read More]

On appeal from: [2008] EWCA Civ 1082; and [2009] EWCA Civ 634.

The Supreme Court allowed appeals that the requirement in Immigration Rules that those seeking entry would be able to be accommodated and maintained in the UK without recourse to public funds, permitted third party support – and did not preclude maintenance provided by anyone other than the sponsor.

For judgment, please download: [2009] UKSC 16
For a non-PDF version of the judgment, please visit: BAILII

On appeal from: [2009] EWCA Civ 626

A panel of nine Justices of the Supreme Court determined that a criterion in an oversubscription policy of a faith school which gave priority to those regarded as 'Jewish by birth' constituted racial discrimination under the Race Relations Act 1976. The facts were that M, a child, was refused admission to JFS, because he was not regarded as Jewish by the Office of the Chief Rabbi.  He was not regarded as Jewish because, despite his Jewish faith and practice, and despite the fact that his father (E) was Jewish by birth, he was not descended from a woman whom the Chief Rabbi regarded a Jewish. His mother was not born Jewish, but had converted to Judaism before M's birth. However,  the Office of the Chief Rabbi did not recognise the mother's conversion to Judaism as it was not conducted in an Orthodox synagogue. The argument was as to whether the oversubscription criterion constituted direct discrimination on grounds of M's ethnic origin; or indirect discrimination which was not proportionate and so not objectively justified. The Court of Appeal had held that this amounted to direct race discrimination.

The Supreme Court dismissed the appeal by JFS. On the direct discrimination issue, the decision was by a majority of five (Lord Phillips, Lady Hale, and Lords Mance, Kerr and Clarke) to four (Lords Hope, Rodger, Walker and Brown). The majority held that the admissions policy of the state maintained school directly discriminated on racial grounds against child M, and others like him. Lords Hope and Walker in the minority would have dismissed the appeal on the ground that JFS had indirectly discriminated against M as it had failed to demonstrate that its policy was proportionate. Lords Rodger and Brown would have allowed JFS’s appeal in its entirety. The Supreme Court unanimously allowed in part the United Synagogue’s appeal on costs.

For judgment, please download: [2009] UKSC 15
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

A seven-justice Supreme Court has allowed the appeal in the case of S-B (Children) ([2009] UKSC 17), which dealt with the issue of the proper approach to fact-finding where the court is presented with a ‘pool’ of possible perpetrators, one of whom must be responsible for causing injuries or other serious harm to a child. The judgment of the Court was delivered by Lady Hale.

The case concerned injuries to a one-month-old child in 2007, and the future both of that child and of a second child born to the parents a year later and removed at birth. The findings, made in April 2008, were to the effect that both parents remained within the pool of possible perpetrators. However, following a request by the parties for ‘amplification’ of the judgment, the trial judge said that she considered the father to be ‘60% likely’ to have caused the injuries, and the mother ‘40% likely.’ The mother appealed the judge’s refusal nevertheless to exclude her from the pool of possible perpetrators. She was unsuccessful in the Court of Appeal, where Thorpe LJ commented that the judge would have been wiser to decline the invitation to amplify her judgment and to apportion likelihood between the two parents. [read more]

There are a number of oddities about the judgment in the case of S-B (Children) [2009] UKSC 17 handed down today.  First, contrary to the established practice of the Court (and indeed the House of Lords), it appears to have been given without prior announcement.  Secondly, although the judgment is dated 14 December 2009 it was made available on 15 December 2009 and appears to have been finalised on that day.  Thirdly, there is no Press Summary.  Instead, the website has the formal court order.  Although the Press Summaries appear to be little read by the media they are a useful innovation and we hope that this is an isolated omission. 

Fourthly, the "unique citation" for the case is [2009] UKSC 17 however the last judgment given by the Court was R v Horncastle [2009] UKSC 14.  The judgments numbered 15 and 16 have not yet been handed down.  Presumably one of these numbers will be taken by the JFS case - the judgment is due to be given tomorrow (which, in the conventional fashion, was the subject of a public announcement last week).  The numbering suggests that at least one more judgment may be given this term.  We await further news.  [read more]

On appeal from: [2009] EWCA Civ 1048

This was an appeal by a mother who the judge held was ‘40% likely’ to have caused injuries to the child.  She contended that the Court should have held that she did not cause the injuries. The matter was heard by a 7 judge panel on 25 and 26 November 2009.

The Supreme Court unanimously allowed the appeal and directed that there should be a complete rehearing before a different judge. The judgment of the Court was given by Lady Hale.  The Court rejected the contention that the decision of the House of Lords in Re B [2008] UKHL 35 was a "sweeping departure" from the earlier authorities. It was settled law that the test to be applied to the identification of perpetrators was the balance of probabilities (para 34). Secondly, if the judge could not identify the perpetrator to the civil standard it was still important to identify the pool of possibly perpetrators. Thirdly, judges should be cautious about amplifying a judgment in which they have been unable to identify a perpetrator (para 44)

For judgment, please download: [2009] UKSC 17

Lord Hope of Craighead has given his first interview since becoming the Deputy President of the Supreme Court. Speaking to Jean-Yves Gilig, editor of the Solicitors Journal, the interview focuses on how the Supreme Court's judgments are drafted; how that process has begun to evolve from the approach taken in the House of Lords; and why the Court will not be issuing single judgments in the manner of the European Court of Justice. [read more]

The Supreme Court has granted permission to appeal in the case of Manchester City Council v Pinnock [2009] EWCA Civ 852.  The case concerns the evidence that can be taken into account to justify a breach of a demoted tenancy at a review panel, the proper role of the County Court in such a circumstance, and the standard to be applied on a judicial review of a review panel decision (see the Nearly Legal case note, here).  The application for permission was lodged on 7 October 2009.  Garden Court North Chambers has announced that permission was granted by Lord Rodger, Lady Hale and Lord Brown on 9 December 2009.   As with previous permission decisions, the Court itself has made no formal announcement of this decision.  It appears that the Court is considering listing the appeal in April or May 2010. [read more]

The Judicial Committee of the Privy Council gave five judgments today.   We have already posted on the important Gibraltar sexual orientation discrimination case of Nadine Rodriguez [2009] UKPC 52) - which is the only one which also has a press summary.  In addition, judgments were handed down in one appeal from Jamaica and three from Trinidad and Tobago .  

The case of Lowell Lawrence v Financial Services Commission [2009] UKPC 49 was an appeal from the Court of Appeal of Jamaica.  it concerned a penalty notice which the appellant contended was unlawful because it had been issued without him having an opportunity to be heard by an impartial tribunal in response to the allegations on which the notice was based.  It was subsequently discovered that the relevant statutory provisions had not been in force when the notice was issued and the Court had to consider the effect of a statute which sought to validate the actions of the Financial Services Commission.  Giving the judgment of the Board dismissing the appeal, Lord Clarke held that the notice had been validated by the statute and was not entitled to have the notice quashed. [read more]

The appellant applied to be granted a joint tenancy for their government flat, to provide her same sex partner with long term security in the event of her death. The Gibraltar Housing Allocation Committee refused the application on grounds that joint tenancies were only usually approved if the application was made by “a married partner, parent, adult child or common law partner of the tenant” – and then only to common law partners where there was at least one minor child living with them.  The Privy Council unanimously held that there was discriminatory treatment which could not be justified. The difference in treatment was not directly on account of the appellant’s sexual orientation, because there are other unmarried couples who would also be denied a joint tenancy. However, in this case, the criterion is one that this couple, unlike other unmarried couples, would never be able to meet. They will never be able to get married or similar (there is no civil partnership in Gibraltar) or have children in common, and this is a form of indirect discrimination because of their sexual orientation. The discriminatory effect of the policy could not be justified as it was not rationally related to a legitimate aim, nor was it in accordance with the law because it was inaccessible – it was not recorded in any codified form.

For judgment, please download: [2009] UKPC 52
For UKPC press summary, please download: UKPC Press Summary

The quality and range of the coverage of the Supreme Court in the mainstream press continues to surprise us.  Few cases are covered and what coverage there is is often inaccurate and incomplete.  The Court handed down three important decisions last week - in particular R v Horncastle ([2009] UKSC 14) was a case with wide implications for the relationship between English law and that declared by Strasbourg (see our case comment, here).  These decisions produced barely a ripple of interest in the press. 

The only article dealing with the Court this weekend was a piece in the Mail on Sunday complained about the costs the Supreme Court Justices' robes.  It complains that  "Judges in charge of Britain’s controversial new Supreme Court have been provided with robes they will hardly ever wear at a cost of £137,956 to the taxpayer".  We can't help but think that if the Supreme Court justices had turned up at Westminster Abbey without ceremonial robes, the Mail on Sunday would have complained that they were showing disrespect for the ancient institutions of the constitution etc.   The Mail, is unfortunately not alone in regarding the Court as "controversial" simply because it was brought into existence by a Labour government.  [read more]

Next week is the last of the Supreme Court's first term.  It will hear its fourteenth and fifteenth appeals.  A bench consisting of Lords Hope, Rodger, Walker, Brown and Kerr will hear its first two Scots civil appeals, Grays Timber Products v Revenue and Customs (previewed here) and Robertson v Muir (previewed here). Aidan O'Neill QC has explained the remarkable rules governing Scots civil appeals here.

The much anticipated judgment of the nine judge court in R (E) v Governing Body of JFS will be given on 16 December 2009 (although no "hand down date" has been entered on the case details).  Judgment has been expected since Lord Hope told the Solicitors' Journal that the judgment would be delivered before Christmas. Our case preview is here and we have also posted on this case here, here and here  The "hand down bench" will be Lords Phillips, Hope, Rodger and Walker and Lady Hale.  This will be the Court's fourteenth substantive judgment of the term.  It is not clear whether there will be any further hand downs this year. [read more]

The case of Robertson v Muir is a petition is brought under section 459 of the Companies Act 1985 (the predecessor of section 994 of the Companies Act 2006).    The subject matter of the petition is a dispute between shareholders in RM Supplies (Inverkeithing) Limited (“the Company”), which is engaged in the scrap metal business.   The petitioner, Alexander Robertson is a director and shareholder  in the company.   He sought an order from the court permitting him to buy the shareholding of his two fellow directors and shareholders, the brothers George Muir and Thomas Muir junior.   The petitioner claimed that he had been excluded by the Muir brothers from any material management role in the conduct of the company’s business which amounted to unfairly prejudicial conduct.   Various instances of such conduct were averred.    After a hearing on evidence the Lord Ordinary granted the petition noting that he considered that the petitioner’s contribution to the company was immeasurably greater than the Muir brothers as the petitioner was much more involved in the running of the company and had provided more valuable management services.    He considered that it was in the interests of the company, as well as being the fairest course for the petitioner, that he be allowed to purchase the Muir brothers’ shareholding, with appropriate deductions for the company’s  losses caused by the Muir brothers’ unfairly prejudicial conduct.    He pronounced an interlocutor to this effect on 17 February 2009 ([2009] CSOH 23).  No steps were taken by the Muir brothers to reclaim, with or without leave, against that interlocutor of 17 February 2009.  [read more]

The case of Gray's Timber Products Ltd v Revenue and Customs Commissioners is an appeal by the tax-payer to the UK Supreme Court from a decision of an Extra Division (made up by Lord Osborne, Lord Kingarth and Lord Mackay of Drumadoon) of the Inner House of the Court of Session ([2009] CSIH 11), The Division by a majority, dismissed the tax-payer’s appeal against a decision of the Special Commissioner to uphold a decision of the Revenue and Customs Commissioners.

Shares in the company had been disposed of by director and sold to third party as whole share capital of company.    A subscription agreement provided for payment to director of higher proceeds of sale than other shareholders.   The question before the court was whether the taxation of the proceeds of sale should be regarded as on income or insofar as a chargeable gain. [read more]

The decision of the Supreme Court in R v Horncastle [2009] UKSC 14 is potentially of great importance for two reasons.  First, it considers the implications for the contemporary law of hearsay in England and Wales, as encapsulated in the Criminal Justice Act 2003, of Article 6(3)(d) of the European Convention on Human Rights, which guarantees everyone charged with a criminal offence the right “to examine or have examined witnesses against him”.  Secondly, it considers the obligation placed on courts by section 2(1) of the Human Rights Act 1998 to “take into account” jurisprudence of the European Court of Human Rights “so far as, in the opinion of the court ..., it is relevant to the proceedings".  The UKSC was required to resolve an apparent direct conflict between the judgment of the European Court of Human Rights in Al-Khawaja and Tahery v UK (2009) 49 EHRR 1 and the decision of the Court of Appeal from which the appeal was brought, R v Horncastle [2009] EWCA Crim 964. [read more]

On 1 December 2009 the Supreme Court gave judgment in R (Barclay and others) v Secretary of State for Justice and others) [2009] UKSC 9.  The appeal concerned the Seigneur (Lord) and the Seneschal (Steward) on the island of Sark, part of the Bailiwick of Guernsey whose population numbers about 600, Sark was historically, and (formally) still is, the fief of the Seigneur, and the title is hereditary.  The Seneschal, a position created by the Crown in 1675, is Sark’s chief judge.  He is appointed by the Seigneur (with the approval of the Lieutenant Governor).  Both the Seigneur and the Seneschal are ex officio, unelected members of the Chief Pleas, Sark’s legislature. 

Two of the appellants (the Barclay brothers) owned property on Sark and the third (Dr Slivnik, a Slovenian citizen) lived on the island and wished to stand for election to the Chief Pleas.  They argued that the Reform (Sark) Law, 2008 (“Reform Law”), which heralded some electoral reform whilst permitting the Seigneur and Seneschal to retain their places in the Chief Pleas, was contrary to Article 3 of the First Protocol to the ECHR (“A3P1”), which provides for the right to free elections.  They also argued that the Reform Law was incompatible with A3P1 (alone or in conjunction with Article 14 ECHR) for Dr Slivnik to be prevented from standing for election on the grounds that he was an alien.  Both the High Court (Wyn Williams J, [2008] EWHC 1354 (Admin)) and Court of Appeal (Pill, Jacob and Etherton LJJ) ([2008] EWCA Civ 1319) found against the appellants below, holding that the Reform Law was (so far as relevant for the purposes of the appeal) not in breach of A3P1 (Etherton LJ dissenting in respect of the position of the Seneschal). [read more]

Appeals from Scotland to the House of Lords in civil matters have been vigorously pursued since the 1707 Union and the right of appeal from the Lords of Session has subsequently been described as a “fundamental constitutional right” in Scots law.  Clause 22 of the Claim of Right (Scotland) 1689 provides that:

“That it is the right and privilege of the subjects to protest for remeed of law to the King and Parliament against Sentences pronounced by the lords of Session, providing the same do not stop Execution of these sentences.”

In Mackintosh v Lord Advocate, (1876) 2 App Cas 41, HL(Sc) this provision of pre-Union Scottish Claim of Right (which allowed for an appeal from decisions of judges of the Court of Session to the Scottish Parliament) was said to form the constitutional basis, after the 1707 Union of Parliaments, for the right to appeal from the Court of Session to the post-Union House of Lords, notwithstanding the provisions in the Acts of Union which provide that

“no Causes in Scotland [shall] be cogniscible by the Courts of Chancery Queens-Bench Common-Pleas or any other Court in Westminster-hall; And that the said Courts or any other of the like nature after the Union shall have no power to Cognose Review or Alter the Acts or Sentences of the Judicatures within Scotland or stop the Execution of the same”.  [read more]

We have discussed the press speculation about the application by Jonathan Sumption QC  to become the twelfth justice of the Supreme Court on a number of occasions, see here and here. However, yesterday his Chambers, Brick Court, announced that he had withdraw his candidacy. The announcement reads as follows:

The long dormant ICLR List of Supreme Court Permission Decisions (which we have being linking to on the right hand side since the 1 October) had suddenly sprung into life this week and listed 22 permission decisions.  In 5 of these (23%) permission was given and in 17 (77%) permission was refused. The ICLR records all these decisions as having been given on the same day, 5 November 2009.  Although this seems implausible it is consistent with other information we have received about these permission decisions.  We understand that the ICLR has been promised a further batch of decision before the end of term.  We hope that they will soon be record on the Court's own  website (which would, after all, only be a reversion to the previous position in relation to House of Lords permission decisions). [read more]

The Supreme Court's twelfth judgment concerned an issue (the compatibility of certain aspects of domestic tribunals with Article 6 ECHR) which is becoming very familiar this term: see for example Tomlinson v Birmingham, heard on 23 November and previewed here; and R v Horncastle, in which judgment was also handed down today.  In A v B, a case with strong echoes of the David Shayler affair in 2002, the Supreme Court were asked to consider the jurisdiction of the Investigatory Powers Tribunal (IPT), a secretive tribunal established by Parliament in 2000 to hear proceedings brought against the country's intelligence services.  In particular, the question was whether a human rights claim by a former M15 agent should be heard in the ordinary public courts (by a judicial review process in the High Court); or in secret by the IPT.  On one level, this involved a narrow question of construction of the legislation which created the IPT (the Regulation of Invesigatory Powers Act 2000 (RIPA)); however, the human rights group JUSTICE were granted leave to intervene, instructing Lord Pannick QC, to open up the wider question of whether the IPT procedure is fair and compatible with Article 6 ECHR. 

Lord Brown gave the leading judgment, with which Lords Phillips, Hope, Mance and Clarke were unanimously agreed, dismissing A's appeal and holding that the IPT was the appropriate tribunal to determine A's claim.  Lord Brown based this judgment on the narrow question of interpreting the wording of RIPA; regarding the wider question of unfairness, the Court declined to find the IPT incompatible with Article 6.  The judgment has already been the subject of a critical press release from JUSTICE, and will come as a disappointment to human rights campaigners seeking greater freedom of speach and transparency in areas of national security.  [Read More]

On appeal from: [2009] EWCA Crim 964. 

The appellants complained that their convictions were based "soley or to a decisive extent" on the statements of witnesses admitted pursuant to the Criminal Justice Act 2003, s 116, that they had had no chance to cross-examine. They argued that this infringed their right to a fair trial guaranteed by ECHR, art 6(1), (3).

The Supreme Court unanimously dismissed the appeal. The questions before the Court were whether the statutory regime in relation to the admission of evidence of an absent witness at a criminal trial would result in an unfair trial, and, if not, whether ECtHR case law nonetheless required the court to apply that regime in a manner contrary to the intention of Parliament. There would be rare occasions where the Court had concerns as to whether a decision of the Strasbourg court sufficiently appreciated or accommodated particular aspects of the UK trial process. In such instances, the Supreme Court could decline to follow the Strasbourg decision, giving its reasons. The appellants' trials were fair - notwithstanding Al-Khawaja & Anor v UK (2009) 49 EHRR 1. The common law hearsay rule addressed the aspect of a fair trial covered by art 6(3)(d). Parliament had enacted exceptions to the hearsay rule in a regime that contained safeguards that rendered the 'sole or decisive' rule unnecessary. The Strasbourg Court had introduced the 'sole or decisive' rule without discussion of the principle underlying it or full consideration of whether it was justified to impose it equally on common law and continental jurisdictions. The rule would create severe practical difficulties if applied to English criminal procedure.  

For judgment, please download: [2009] UKSC 14
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

On appeal from: [2008] EWCA Civ 1552.

Welsh Water pursued an appeal to the Supreme Court, seeking to establish that the Water Industry Act 1991, s 106 gave a sewerage undertaker the right to refuse to permit connection to the public sewer at an unsuitable point. By a majority, the Supreme Court dismissed the appeal. The right to discharge into a public sewer pursuant to s 106 was an absolute right that could not be prevented on the ground that the additional discharge would create a nuisance. The right to object to a "mode of connection" in s 106(4) did not extend to the point of connection. More thought might need to be given to the interaction between planning and water regulation systems, to reduce problems caused by the requirement to only give 21 days' notice to a sewerage undertaker before exercising the right under 106. Lady Hale, dissenting, would have allowed the appeal on the construction of s 106(4). She felt that the legislative history led her to conclude that Parliament had not intended to cut down the scope of the local authority's power to control the place and manner of connection in the Public Health Act 1936, while leaving the position in Scotland unchanged.

For judgment, please download: [2009] UKSC 13
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

On appeal from: [2009] EWCA Civ 24.

A, a former member of the security service, wants to publish a book about his work, and sought to challenge the refusal of B, the director of establishments, to release him from his duty of confidentiality as a breach of his ECHR, art 10 rights. B argued that the Regulation of Investigatory Powers Act 2000, s 65(2)(a) provided that the Investigatory Powers Tribunal was “the only appropriate tribunal” in relation to proceedings under the Human Rights Act 1998, s 7(1)(a) brought against the intelligence services. A appealed against the CoA's decision that the IPT had exclusive jurisdiction. Held: unanimously dismissing the appeal, given the statutory language, it was unlikely that Parliament intended to leave it to a complainant whether to bring proceedings in court or before the IPT. There were various provisions in RIPA and the IPT rules which were designed to ensure that even in the most sensitive cases, disputes could be properly determined: none of these provisions would be available in the courts. S 65 of the 2000 Act was not a constitutionally objectionable 'ouster' of the courts' jurisdiction, but an allocation of judicial scrutiny.

For judgment, please download: [2009] UKSC 12
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

In last week’s Privy Council News Round Up we highlighted recent debate on the controversial role of the Caribbean Court of Justice as a replacement for the Judicial Committee of the Privy Council as the final appellate court for Caribbean countries.

We thought readers might be interested to see the discussion of the role of the Privy Council in the House of Lords in October, which can be seen on the BBC’s Democracy Live website and on the House of Lords Hansard pages (col 971). [read more]

The Supreme Court has now resolved the issue of whether the parties’ right, created by Brussels IIa, Art 12.3, to choose to ‘opt in’ to the jurisdiction of an EU Member State that would otherwise not have jurisdiction, can apply in cases concerning children who are habitually resident not only outside the Member State in question but outside the European Union.

The case concerned a nine-year-old boy who had moved to live in Pakistan, with his paternal grandparents, in 2004 when he was aged four. Both his parents continue to live in the UK. Proceedings in 2001-2004 concluded with an order that provided for his contact with his mother up until the time of his move to Pakistan, but not thereafter, apparently on the basis that the parties expected that contact arrangements would be agreed. [read more]

There are four conjoined devolution appeals being heard in the Supreme Court on 8, 9 and 10 December 2009 by a five judge panel, Lords Hope, Rodger, Walker, Brown and Kerr.  Aidan O'Neill's masterly two part case preview can be found here and here.  The case of A v Essex County Council (details here) which was originally listed for 8 December has been re-listed for 24 March 2010.  The case of Highland Crusader Offshore v Deutsche Bank was originally listed for 9 December but has been taken out of the Court's latest version of its list. However, on the case details the hearing date remains 9 December.  Something somewhere has gone wrong.  

Three judgments are listed for 9 December 2009 before that now familiar entity the "hand down bench" - Lords Phillips, Brown and Clarke: R (A) v B, R v Horncastle and Barratt Homes v Dwr Cymru.  The Horncastle case is the most anticipated human rights judgment so far - involving a potential direct conflict between London and Strasbourg.  We will feature a case comment from Professor Andrew Choo of Matrix and the University of Warwick. [read more]

In Part I, posted yesterday, I discussed the historical and constitutional background to these four appeals.  This Part deals with the particular issues raised in each of the appeals.

Allison (Appellant) v Her Majesty’s Advocate (Respondent):   In Allison v HM Advocate, 2009 SLT 550 the criminal appeal court refused leave to appeal to the Privy Council (now the UK Supreme Court) against their refusal of the appellant’s appeal against conviction. It appeared that at no time prior to their decision, or thereafter, had any notice of intention to raise a devolution issue been raised in terms of paragraph 40.2 of Schedule 2 to the Act of Adjournal (Criminal Procedure Rules) 1996.  In seeking leave to appeal to the Privy Council/UKSC counsel for the appellant contended that the non-existence of any document formulating a devolution issue for the determination of the court was of no importance (having regard to the Privy Council decision in McDonald v HM Advocate [2008] UKPC 16 and that, in any event, since during the course of the appeal hearing the criminal appeal court had ruled that the fact that a deceased witness had criminal cases outstanding against him was of no significance in the preparation of the accused’s defence, the appeal court had determined a devolution issue in the respect that this was inconsistent with the Crown duties of disclosure as determined by the Judicial Committee of the Privy Council in Holland v HM Advocate, 2005 SC (PC) 3. [read more]

One of the many benefits of producing this blog has been to alert the Editorial team to the existence of a number of legal blogs - some of which we had followed only occasionally, others of which are new discoveries.   We are pleased to see that some of these blogs have started picking up our posts and we have tried to draw attention to postings relevant to the UKSC.  We have links in the box on the right hand side of the page to some (but not all) of the blogs that we look at regularly and are of relevance to the UKSC. There are a number of other legal blogs which we have found consistently useful and interesting (in no particular order). 

The Irish rights blog Cearta.ie is consistently thoughtful on a wide range of topics (and with the impressive Human Rights in Ireland provides a human rights legal resource unmatched in the UK).  We refer in particular to the recent series of posts on defamation and freedom of speech issues. [read more]

These four cases are all appeals from decisions of the High Court of Justiciary sitting as the Criminal Appeal Court (the “Scottish criminal appeals court”).  The appeals would formerly have been heard by the Judicial Committee of the Privy Council, exercising its devolution jurisdiction conferred under the Scotland Act 1998. This appellate jurisdiction has been transferred from the Privy Council to the UK Supreme Court by the Constitutional Reform Act 2005.  The very existence of the possibility of appeal to London from decisions of the Scottish criminal appeal court has become something of a thorny constitutional issue of late, at least in Scotland.  Clear tensions have been exposed between the judges of the criminal appeal court and the (Scottish judges) of the UK Supreme Court on this issue. Aspects of some of these four appeals highlight these tensions.  But a little history is needed to explain how these difficulties have arisen. [read more]

Lord Neuberger of Abbotsbury, in his eighth speech in only 3 months in his new post as Master of the Rolls, gave an entertaining and thought provoking lecture last night concerning the new Supreme Court.  Tackling his theme of "Is the House of Lords losing part of itself" with real gusto, he showed that, whatever his well publicised views on the decision making process behind the new Court, a Supreme Court with a clear separation of power to the executive is in his view a positive step forwards. 

However, he was also quick to warn of the "Law of Unintended Consequences": what ever the good intentions were behind the Court, there is a good chance that the invisible hand of fate may produce something markedly different to what was intended.  Armed with a quasi constitution, in the form of the European Convention on Human Rights, and ever increasing volumes of judicial review, it is possible that the Supreme Court will become "a first taste of a constitutional Court" along the lines of the American model.  [Read More]

The judgment in Secretary of State for EFRA v Meier [2009] UKSC 11 is one of three handed down this week. The judgment was given nearly 6 months after the case was heard in the House of Lords - a period of delay which is often thought to indicate a strong difference of view amongst the justices. If so it is one which has now been resolved, with only differences of nuance appearing in what is now a unanimous court.

The decision resolves an important but narrow issue that has troubled the traveller community since the judgment in Secretary of State for the Environment v Drury [2004] EWCA Civ 200; [2004]1 WLR 1906), namely whether a possession order made against trespassing travellers can extend to land they have not yet occupied. While the case does not raise human rights issues, it can be read in the context of the debate over the role of Article 8 rights in possession proceedings (see Doherty v Birmingham City Council [2008] UKHL 57), a subject recently addressed in a lecture by Lord Neuberger.

The traveller appellants in Meier set up camp in Hethfelton Woods in Dorset in 2007 (pictured above). These woods were managed by the Forestry Commission and owned by the Secretary of State, who issued possession proceedings against the travellers claiming possession and an injunction over an area that encompassed other woods in addition to Hethfelton. [read more]

The role of the Judicial Committee of the Privy Council in the Caribbean continues to be controversial. The Jamaica Observer  reports that the Government is closer to a decision on whether to replace the UK-based Privy Council with the controversial Caribbean Court of Justice (CCJ) as the nation's final court of appeal. It appears that both Government and opposition now back the move. Currently the appellate jurisdiction of the four-year-old CCJ is limited to Barbados and Guyana, while Jamaica has acceded to its trade provisions for purposes of resolving possible trade disputes.

Some of the motivation for this change can be found in the observations of the Minister for National Security, Dwight Nelson, on the death penalty. The 1998 Pratt and Morgan ruling by the Privy Council that those held on death row for five years or more must have their death sentences commuted fuelled the move towards the CCJ.  To "loud applause", Mr Nelson told a crime forum:

"There were about six people on death row up to recently and because five of them pass the five-year limit, their sentences have been commuted to life. Only one person now below the five-year limit that is eligible to hang [and] believe you me, I am dying to hang one of them . . ."

We make no comment. [read more]

In a keynote address delivered to the Social Housing Law Association Annual Conference 2009, th