European Court of Human Rights rules deportation to Jordan would amount to ‘flagrant denial of justice’ under Article 6

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Eric Metcalfe acted on behalf of the NGO intervener JUSTICE in the case of Othman v United Kingdom before the European Court of Human Rights. JUSTICE, jointly with Amnesty International and Human Rights Watch, had been granted leave by the Court to intervene in the proceedings, which concerned the UK government’s attempt to deport radical cleric Abu Qatada to Jordan, notwithstanding its ‘widespread and routine’ use of torture.

In Feburary 2009, the House of Lords unanimously upheld the earlier ruling of the Special Immigration Appeals Commission (‘SIAC’) that Othman – better known as Abu Qatada – could be safely returned to Jordan notwithstanding its well-known use of torture, on the strength of a Memorandum of Understanding between the UK and Jordan that promised that those returned would be humanely treated. The House of Lords also overturned the Court of Appeal ruling’s that Abu Qatada could not be deported on fair trial grounds, due to the likelihood that any subsequent trial in Jordan would involve reliance upon evidence obtained by torture.

The European Court upheld the House of Lord’s conclusion that Abu Qatada would not face a ‘real risk’ of ill-treatment contrary to Article 3 of the European Convention of Human Rights, despite considerable evidence of the use of torture by the Jordanian security forces, due to guarantees contained in the Memorandum of Understanding between the UK and Jordan. The Court also found that Abu Qatada had been able to challenge relevant evidence in proceedings before SIAC, notwithstanding its extensive reliance on closed material and the lack of sufficient disclosure to Abu Qatada of the case against him. However, the European Court agreed with the earlier conclusion of the English Court of Appeal that Abu Qatada’s removal to Jordan would involve a ‘flagrant denial of justice’, due to the existence of a ‘real risk’ that any trial in Jordan would involve the use of testimony from witnesses extracted under torture. The ruling provides important guidance concerning the reliance on governmental assurances against ill-treatment contrary to article 3 in the context of deportation, extradition and removal, as well as significant analysis of the ‘flagrant denial of justice’ test under articles 5 and 6 of the Convention.

For further press coverage, please click here.

Tim Ward QC to Represent Iceland in Banking Case

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Tim Ward QC, instructed directly by the Icelandic Foreign Minister is set to represent Iceland in a dispute with the European Free Trade Association (EFTA) Surveillance Authority (ESA) over its breach of the Deposit Guarantee Directive.

The claim concerns the application of the Directive to UK and Netherlands-based depositors in Landsbanki’s Icesave branches following the bank’s collapse in October 2008.

For further coverage on this item, please click here.

Monckton Members to Address the Irish Tax Institute

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Paul Lasok QC, Melanie Hall QC and Frank Mitchell will be speaking to the Irish Tax Institute on Thursday 20 January in Dublin.  The talks will focus on the impact of the European Courts of Justice in relation to VAT.

Christopher Vajda QC Listed in The Lawyer’s Hot 100 for 2012

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Chambers is pleased to announce that Christopher Vajda QC has been listed in The Lawyer’s Hot 100 2012 which states that “Vajda’s EU and competition expertise is top notch.”

The Lawyer states:

“Appearing in not one but two of The Lawyer’s top 20 cases for 2012, and with two Supreme Court cases expected to be heard in the coming months, Monckton Chambers’ Christopher Vajda QC is on a roll.

In March interlocutory hearings will begin as telecoms giant Nokia, represented by Vajda, seeks damages for alleged price-fixing against LCD screen manufacturers Samsung.  Later in the year Vajda will argue the case for HM Revenue & Customs over VAT payments on loyalty card schemes in the Supreme Court and will also return to the court to argue a competition case, BCL Old Co Ltd & Ors v BASF & Ors. Vajda’s EU and competition expertise is top notch.

The annual supplement identifies members of the legal profession who have excelled in their chosen fields during the past year.

Government victory in tobacco industry challenge to the “Tobacco Display Ban”

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R (Imperial Tobacco, BAT, Philip Morris and Gallaher) v Secretary of State for Health

Twice adjourned and listed as one of the top 10 cases of 2011 by The Lawyer, the tobacco industry’s long running proceedings for judicial review of the primary and secondary legislation prohibiting the display of tobacco products in shops have now concluded in the Government’s favour. The tobacco manufacturers and retailers alleged that the prohibition of display infringed in particular the free movement of goods and freedom of expression provisions of the EU Treaty and the ECHR respectively. A five day hearing was fixed for early February 2012, but the Claimants have now discontinued proceedings.

Ian Rogers was instructed by the Secretary of State for Health.

In England, the ban will come into force in large shops, such as supermarkets, on 6 April 2012 and will protect young people from unsolicited promotions, helping them to resist the temptation to start smoking. It will also help and support adults who are trying to quit. Smoking kills more than 80,000 people in England alone every year. Small shops do not have to change their displays until 2015.

Wales, Scotland and Northern Ireland are also moving towards similar bans.

In a case run in parallel with the display challenge, the Court of Appeal upheld the prohibition of cigarette vending machines by a majority and set out in detail how the principles of proportionality and the margin of discretion applied in a public health context: R(Sinclair Collis) v Secretary of State for Health [2011] EWCA Civ 437; [2011] 3 C.M.L.R. 37; [2011] A.C.D. 98.

In addition, Ian Rogers appeared at the oral hearing for the United Kingdom in support of Norway’s case in the EFTA Court (Philip Morris Norway v Norway Case E-16/10), in which Philip Morris sought to strike down the Norwegian display ban.

Government victory in tobacco industry challenge to the “Tobacco Display Ban”

Written by

R (Imperial Tobacco, BAT, Philip Morris and Gallaher) v Secretary of State for Health

Twice adjourned and listed as one of the top 10 cases of 2011 by The Lawyer, the tobacco industry’s long running proceedings for judicial review of the primary and secondary legislation prohibiting the display of tobacco products in shops have now concluded in the Government’s favour. The tobacco manufacturers and retailers alleged that the prohibition of display infringed in particular the free movement of goods and freedom of expression provisions of the EU Treaty and the ECHR respectively. A five day hearing was fixed for early February 2012, but the Claimants have now discontinued proceedings.

Ian Rogers was instructed by the Secretary of State for Health.

In England, the ban will come into force in large shops, such as supermarkets, on 6 April 2012 and will protect young people from unsolicited promotions, helping them to resist the temptation to start smoking. It will also help and support adults who are trying to quit. Smoking kills more than 80,000 people in England alone every year. Small shops do not have to change their displays until 2015.

Wales, Scotland and Northern Ireland are also moving towards similar bans.

In a case run in parallel with the display challenge, the Court of Appeal upheld the prohibition of cigarette vending machines by a majority and set out in detail how the principles of proportionality and the margin of discretion applied in a public health context: R(Sinclair Collis) v Secretary of State for Health [2011] EWCA Civ 437; [2011] 3 C.M.L.R. 37; [2011] A.C.D. 98.

In addition, Ian Rogers appeared at the oral hearing for the United Kingdom in support of Norway’s case in the EFTA Court (Philip Morris Norway v Norway Case E-16/10), in which Philip Morris sought to strike down the Norwegian display ban.

Monckton Feature in The Lawyer’s Top 20 Cases for 2012

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Monckton Chambers has been listed for 3 cases in The Lawyer’s Top 20 Cases of 2012 which include:

Nokia v Samsung & Others (alleged price-fixing in relation to LCD technology)

Featuring

Tesco v Office of Fair Trading (a challenge to a £10.4m fine for a competition infringement in the OFT’s dairy investigation)

Featuring

Loyalty Management UK v HM Revenue & Customs (an appeal to the Supreme Court in relation to VAT payments for loyalty cards)

Featuring

  • Christopher Vajda QC for HM Revenue & Customs

The cases, selected by over 100 leading litigators, barristers and senior clerks represent the most significant cases for 2012 in terms of developing the law as well as increasing London’s reputation as an international centre for litigation.

Monckton Feature in The Lawyer’s Top 20 Cases for 2012

Written by

Monckton Chambers has been listed for 3 cases in The Lawyer’s Top 20 Cases of 2012 which include:

Nokia v Samsung & Others (alleged price-fixing in relation to LCD technology)

Featuring

Tesco v Office of Fair Trading (a challenge to a £10.4m fine for a competition infringement in the OFT’s dairy investigation)

Featuring

Loyalty Management UK v HM Revenue & Customs (an appeal to the Supreme Court in relation to VAT payments for loyalty cards)

Featuring

  • Christopher Vajda QC for HM Revenue & Customs

The cases, selected by over 100 leading litigators, barristers and senior clerks represent the most significant cases for 2012 in terms of developing the law as well as increasing London’s reputation as an international centre for litigation.

Victory for Environmental Groups on EU emissions

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The Court of Justice of the European Union has today ruled that extending the EU emissions trading scheme to international aviation activities, under Directive 2008/101, does not breach public international law.  The extension will enter force as from 1 January 2012.

The Court rejected the claim from US airlines including United, Continental, American and their trade association, the Air Transport Association of America (ATA) that the Directive contravened the Open Skies Agreement 2007 between the EU and the US, and various customary international law principles including the principle of the sovereignty of States over their own air space.  It also held that the validity of the Directive could not be reviewed in the light of the Chicago Convention 1944 or the Kyoto Protocol 1997.

A unique transatlantic coalition of environmental groups consisting of three US-based organisations, the Environmental Defense Fund, Earthjustice, and the Center for Biological Diversity, as well as WWF-UK, Transport & Environment, and the Aviation Environment Federation in Europe, intervened in the proceedings, which were commenced in a judicial review in the High Court.

The Court concluded by stating that “examination of Directive 2008/101 has disclosed no factor of a kind that affects its validity.”

The coalition was represented by Jon Turner QC and Laura Elizabeth John.

Please find links to further press below:

http://www.guardian.co.uk/environment/2011/dec/21/international-airlines-carbon-emissions

http://www.nytimes.com/2011/12/22/business/global/court-upholds-europes-plan-to-charge-airlines-for-carbon-emissions.html?_r=1

http://www.bbc.co.uk/news/business-16282692

 

Key Strasbourg Ruling on Hearsay Evidence and “Judicial Dialogue”

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Eric Metcalfe acted on behalf of the NGO intervener JUSTICE in a landmark judgment by the Grand Chamber of the European Court of Human Rights in the case of Al Khawaja and Tahery v United Kingdom.

The much-anticipated ruling came in the wake of the judgment of the UK Supreme Court in R v Horncastle in late 2009 in which the Supreme Court had strongly criticised the earlier chamber judgment of the European Court in Al Khawaja. At issue was the use of hearsay evidence under the Criminal Justice Act 2003 as the “sole or decisive” basis for a person’s conviction, and whether this was compatible with the right to cross-examine witnesses as part of the right to a fair trial under Article 6(3)(d) of the European Convention on Human Rights. The UK Supreme Court complained that the European Court of Human Rights had misunderstood the safeguards in the 2003 Act that prevented unfairness to the accused. The UK government therefore sought a referral to the Grand Chamber and a hearing was held in May 2010.

In its judgment, the Grand Chamber upheld its previous rulings that a conviction based “solely or decisively” on the testimony of absent witnesses was likely to breach the right to a fair trial under article 6 unless it could be shown that “there are sufficient counterbalancing factors in place”, including “measures that permit a fair and proper assessment of the reliability of that evidence to take place”. The Grand Chamber ruled that the safeguards available in the case of one of the applicants (Al Khawaja) had been sufficient to meet fair trial concerns, but found the UK government in breach of article 6(3)(d) in relation to the second applicant, Mr Tahery.

In addition to its implications for “sole or decisive” rule under article 6, the Grand Chamber ruling has a significant public law dimension as it relates to the process of “judicial dialogue” under section 2 of the Human Rights Act between the UK Supreme Court and the European Court in cases in which the UK Supreme Court has serious concerns about the implications of a Strasbourg ruling for UK law. In a concurring opinion, the European Court’s President Sir Nicolas Bratza described the case as “a good example of the judicial dialogue between national courts and the European Court on the application of the Convention”.