Monckton tenant, Jeremy McBride has recently published a book entitled “Human rights and criminal procedure – The case law of the European Court of Human Rights”

The book is intended to assist judges, lawyers and prosecutors to take account of the many requirements of the European Convention on Human Rights – both explicit and implicit – for the criminal process when interpreting and applying Codes of Criminal Procedure and comparable or related legislation.

It does so through extracts from key rulings of the European Court of Human Rights and the former European Commission of Human Rights dealing with complaints about violations of Convention rights and freedoms in the course of the investigation, prosecution and trial of alleged offences, as well as in the course of appellate and various other proceedings linked to the criminal process.

The extracts are significant not only because the mere text of the Convention is insufficient to indicate the scope of what is entailed by it but also because the circumstances of the cases selected give a sense of how to apply the requirements in concrete situations.

For more information, and to purchase a copy of the book, please click here.

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Jeremy McBride

The issue in this case is whether it could be proper and lawful for a court to order that a “closed material” procedure be adopted in a civil claim for damages.   Such a procedure would involve the use of Special Advocates who could receive material which was not seen by the claimants themselves.

The issue arises in the present claim, which has been brought against organs of the State by seven former detainees, who have been held by foreign states at various locations including in each case the United States’ detention facility at Guantanamo Bay.

Such “closed material procedures” have operated in SIAC and in relation to Control Orders (amongst other matters) but could it be lawful and proper for a court to order that a closed material procedure be adopted in a civil claim for damages?

Mr Justice Silber considered that it can be lawful and proper for a court to order that a closed material procedure as defined in the preliminary issue can be adopted in a civil claim for damages.

The criticisms of the claimants and the Interveners that the closed material procedure introduces a new and previously unheard of level of secrecy into the present claims for damages such that they should never be adopted were not upheld.

Daniel Beard acted with others  for the government.

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Daniel Beard QC

In a virtually unprecedented urgent decision, the Information Commissioner has upheld a complaint by the Campaign for Clean Air in London (CCAL) regarding the government’s refusal to release full details of a meeting with the Mayor of London on air quality matters in January 2009.

CCAL’s request for the briefing papers and communications under the Environmental Information Regulations 2004 was made in the belief that the requested information may call into question statements made by the government to the European Commission in relation to an application for a time extension for the UK to comply with legal standards on dangerous airborne particles (PM10) under European Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe.

While complaints to the Information Commissioner can take up to a year or more to be determined, CCAL argued in this case that there was a pressing need for urgency and – applying a new “triage” prioritisation procedure – the Information Commissioner issued a decision in less than a month, upholding CCAL’s complaint and requiring the Department for the Environment, Food and Rural Affairs to release the information.

It is the first time a case has been prioritised by the Information Commissioner under the “triage” procedure, and provides a helpful precedent for other requesters frustrated by the well-publicised delays in the FOIA regime.

CCAL is advised on a pro bono basis by Gerry Facenna and Laura Elizabeth John.

Simon Birkett, founder of CCAL, said:

“The Campaign for Clean Air in London would never have succeeded on all counts in challenging the government’s refusal to release crucial information about air quality meetings without decisive advice from Gerry and Laura.  By identifying the key issues and making a strong case for an urgent response from the ICO, they have broken new ground.”

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Gerry Facenna
Laura Elizabeth John

The ECJ upheld RCI’s claim that it should not pay UK VAT in connection with RCI’s scheme for swapping time-share accommodation.  The case centred on the interpretation of Article 9 of the Sixth Directive concerning supplies in connection with property.  HMRC considered that: (i) UK VAT was applicable to the enrolment and subscription fees (pursuant to Art. 9(1)); and further, (ii) that, where the holiday home which the member acquired the right to use was situated within the EU, UK VAT also had to be paid on exchange fees.

The ECJ rejected the United Kingdom’s submission that RCI’s activities were analogous to those of a travel agency.  When using RCI’s service to effect an exchange, the member was paying not for the supply of a holiday, but for the service provided by RCI that facilitated the exchange of the member’s existing usage rights relating to a particular property.  It followed that the property with which RCI’s services were connected was the property in which the timeshare owner’s timeshare was held.

It is only the second time the ECJ has ever looked at the place of supply of transactions connected with property.

Melanie Hall QC represented RCI

Raymond Hill represented the UK government.

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Melanie Hall QC
Raymond Hill

It was with great sadness that Chambers recorded the death of Rupert Anderson QC on 30 July 2009.

Rupert, who was called to the Bar in 1981 and took silk in 2003 was a well liked member of Chambers and a phenomenally gifted barrister.  He will be greatly missed.

There will be a memorial service on 5 November 2009, Temple Church, 5.45pm.  Followed by a reception at Inner Temple Hall.  Please attend to bear witness.

On the 30October 2009 Mr Justice Tugendhat gave judgement in Accentuate Ltd -v- Assigra Inc, a case concerning the relationship between EU law and the law of arbitration.

The judge held that English courts must give effect to mandatory provisions of EU law, notwithstanding any expression to the contrary on the part of the contracting parties, including the situation where the contract had provided for a foreign place of arbitration and a foreign law and the arbitration had not given effect to a mandatory provision of EU law.

Philip Moser acted for the appellant.

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Philip Moser QC

The European Court of Justice this morning published Advocate General Kokott’s opinion in Case C-406/08 Uniplex -v- UK. The case was referred to the ECJ by the High Court and concerns some very important issues in the law of Public Procurement, notably the question of the time from which limitation periods may start to run.

Kassie Smith appeared on behalf of the UK Government.

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Kassie Smith QC

The Court of Appeal (Rix LJ, Lloyd LJ, Sir David Keene) dismissed an appeal against the decision of the Administrative Court refusing Judicial Review of various decisions of the Home Secretary concerning the application of Article 49 EC (the freedom to provide services).

The decision under appeal (R(Lee Ling Low, Rising Sun Catering, Hot Hot Grill and Bar Ltd and others) v Secretary of State for the Home Department [2009] 2 C.M.L.R. 22 was the lead case among 23 Judicial Review applications. A further 650 cases had been dealt with in the same manner by the Home Secretary.

The appeal concerned a scheme in which an Irish company entered into an agreement to supply catering services to a UK restaurant company. The services were to be provided by third country nationals who were illegally present in the UK and had no right to reside in Ireland. An application was made on behalf of the Irish company, UK company and the third country nationals in this and hundreds of other cases, seeking confirmation of the workers’ status as “posted workers” of the Irish company under Article 49 EC and the principle of derivative rights.

The Court of Appeal considered a series of decisions relating to posted workers and Article 49 in the European Court of Justice, the best known of which is Case C-43/93, Vander Elst, [1994] ECR I-3803, together with ECJ case law decided in other contexts. The Appellants argued that the logic of the existing case law should be extended to cover the facts of the present case, with the effect that the UK should grant temporary rights to reside in the UK to the third country nationals, in order to render the Irish company’s freedom to provide services in the UK effective. The Court of Appeal refused the Appellants’ request to make a reference to the ECJ. Reasons for the judgment will be given at a later date. If you wish to be notified when this judgment is available, please send an e-mail to one of the clerks.

Ian Rogers appeared for the Home Secretary

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Ian Rogers

An application by Barclays Bank plc for a review under section 179 of the Enterprise Act 2002 of certain findings made by the Commission contained in a report entitled “Market investigation into payment protection insurance” was decided today.  The Commission found that there were features of the PPI market which prevented restricted or distorted competition in connection with the supply of PPI in the United Kingdom.

The Tribunal concluded that the Commission had failed to take into account the loss of convenience which would flow from the imposition of the POSP in assessing whether it was proportionate to include it in its proposed remedies package.  In the Tribunal’s view, this constituted a failure to take into account a relevant consideration, and the Tribunal has therefore decided to quash that part of the Report which imposes the POSP as part of the proposed remedies package and remit the question whether a POSP should be so included for the further consideration of the Commission in accordance with the principles set out in the Tribunal’s judgment.

John Swift QC, Kassie Smith and Elisa Holmes represented the Commission

Paul Lasok QC and Tim Ward represented the intervening party, Shop Direct Group Financial Services Ltd

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Paul Lasok QC
John Swift QC
Tim Ward QC
Kassie Smith QC
Elisa Holmes

Monckton tenant Jeremy McBride has prepared a study for the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe on ‘The specificity and added value of the acquis of the Council of Europe treaty law’ which will form the basis of a report to be prepared by the Committee’s rapporteur, John Prescott, under the heading ‘For a greater commitment of member states concerning the efficiency and implementation of the Council of Europe Treaty Law’.

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Jeremy McBride