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Court: High Court

Not for court to rule on whether Parliament should include Sikh ethnic group’ tick box on Census

R (Gill on behalf of the Sikh Federation) v The Cabinet Office [2019] EWHC 3407 (Admin)

The Sikh Federation has campaigned for the inclusion of a Sikh ethnic group tick box response in the census, in the hope that funding and public services will then be more effectively focused on meeting the needs of the Sikh community.  In this case, they applied for judicial review of “the contemplated exercise of Her Majesty’s discretion to direct a census based on an Order in Council, which does not include a Sikh ethnic tick box”.

Held: The claim is dismissed on the ground that it is premature, and in breach of parliamentary privilege and the constitutional convention of the separation of powers. If the Court were to rule that it would be unlawful for Her Majesty to not include a Sikh ethnic tick box, it would be a clear interference with the Queen in Council’s law-making function, contrary to the constitutional convention of the separation of powers. 

There is a fundamental constitutional distinction between the Court reviewing the lawfulness of an Order in Council once it has been made, and the Court making a declaration which curtails the Queen in Council’s exercise of discretion when making law. This is not an exceptional case which justifies any departure from the general rule that this Court will respect the separation of powers and so not interfere with Parliamentary proceedings.

Home Office’s approach to victims of trafficking found to be unlawful

JP and BS v Secretary of State for the Home Department [2019] EWHC 3346 (Admin)

In this case the High Court decided that the Home Office’s approach to protecting victims of trafficking is unlawful.

The test case was brought by two victims of trafficking, who challenged the lawfulness of the Secretary of State’s policy that, in the case of a victim of trafficking who is also making an application for asylum, the Secretary of State will not determine the victim’s application for a residence permit under Article 14(1) of ECAT before making a decision on the asylum application.

The court held that the Defendant breached the rights the claimants under Article 14 (read with Articles 4, 8 and A1P1) of the ECHR, contrary Human Rights Act 1998, s6.

£33 million judgment from Federal Court of Nigeria, unenforceable in UK

Agbara v The Shell Petroleum Development Company of Nigeria Limited [2019] EWHC 3340 (QB)

This case discusses the setting aside of the registration of a judgment of the Federal Court of Nigeria for damages worth approximately £33m, before interest, under the Administration of Justice Act 1920, s9. This would mean that the judgment was not enforceable in the UK.

Held: appeal allowed and the registration of judgment will be set aside. The applicant suffered a serious breach of natural justice through being prevented from presenting its defence to the claim, and such a breach would ordinarily lead to the conclusion that it is not “just and convenient” for the judgment to be registered. It would not be just and convenient for the judgment to be enforced in the UK.

News article about Conservative Member made allegation of “strong grounds to suspect” anti-semitism

Lord Sheikh v Associated Newspapers [2019] EWHC 2947 (QB)

This claim concerned an article published by it on the Mail Online website on and after 15 August 2018 under the headline:

“EXCLUSIVE: Top Tory peer’s appearance at Corbyn’s ‘hate conference’ in Tunisia comes after YEARS of rubbing shoulders with Islamists, hate preachers and Holocaust deniers”.

Following pre-action correspondence, the parties agreed to a trial of preliminary issues in relation to the following:

1. what meaning(s) the words and photographs complained of bear; and
2. whether the words and photographs complained of, in the meanings found, are statements of fact or expressions of opinion.

Held: The article was essentially factual reporting of the claimant’s conduct, coupled with some express and implied conclusions about its significance.

The natural and ordinary meaning of the words and photographs complained of, in their context, is that the claimant has a long history of support for, or close association with, people and organisations that express or hold anti-Semitic and other extremist views and attitudes. Despite his attempts to explain it, the article:

i. provides strong grounds for suspecting that the claimant is secretly an anti-Semite who approves of and sympathises with Holocaust denial, Islamist jihad and hatepreaching, which he is prepared knowingly and actively to support;
ii. is shocking and disturbing.

Under PACE, journalists can only be ordered to produce immediately admissible trial evidence

R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin)

DE, a former Newcastle United footballer, was interviewed live-to-air on the Victoria Derbyshire show about sexual abuse by a club coach in the 1990s. A BBC researcher had made a note of a mock interview with DE, recording answers giving his account of the abuse.

DE was to be a prosecution witness at the subsequent Crown Court trial of the coach. After the trial commenced the police obtained a production order for the note from the trial judge under PACE, Schedule 1. The CPS wanted to disclose it to the defence for possible use to attack DE’s credibility at trial, if (depending on its contents) it undermined/contradicted his evidence for the prosecution.

Held: The Divisional Court upheld the judge’s rulings that the police application was “for the purposes of a criminal investigation” under PACE, s.9(1), and that the note was likely to be of substantial value to the investigation. But another PACE, Schedule 1 para 2, access condition requirement was not made out because it was not open to the judge to conclude that the note was “likely to be admissible evidence”. The DC held that this access condition requires that the material the journalist is ordered to produce must be immediately admissible per se, whereas the admissibility of this document was conditional.