Mark practices across public, human rights, EU and civil law. Specialisations include immigration (business and personal); asylum; public and private claims for unlawful detention; freedom of expression, media and defamation; privacy, data protection and information law; community care and a range of other judicial review work; standards and public governance; and political parties and other unincorporated associations.
According to the legal directories, “he has an awesome intellect” and “one of the finest legal minds at the Bar” (Legal 500 2016); "impresses with his top-notch courtroom skills and confidence in both national and international courts" (Chamber and Partners 2015); "his mind is as sharp as a razor blade, and he is a masterful legal tactician" (Legal 500 2015); and he is "held in high esteem ... extremely thorough and never compromises on standards” and “has usually already thought of every point he is confronted with in court and has a better answer” (Chambers and Partners 2016). He was awarded Legal Aid Barrister of the Year in 2010, the citation identifying “his agility of intellect and encyclopaedic legal knowledge combined with his forensic attention to detail".
Over the last two decades, he has acted in numerous leading cases spanning public law, EU law, freedom of expression, immigration and asylum, detention law, and community care. He is experienced in running strategic litigation, including test cases affecting many thousands of claimants in the UK and the EU. He has acted for national and international NGOs in their public interest interventions, as well as dealing with such interventions in his own cases.
His work encompasses all levels of domestic courts together with the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). He has appeared as lead advocate before both the Chamber and the Grand Chamber of the CJEU. He was advocate in the Grand Chamber in the landmark case of NS which held that the UK had no opt out from the EU Charter of Fundamental Rights, and in McCarthy, the case in which the Grand Chamber held that the UK was not entitled to suspend free movement rights based on claimed systemic threats to UK borders, and that the UK’s Frontier Protocol to the Lisbon Treaty gave the UK no opt out from free movement rights. Recent cases in the ECtHR include Paulet, in which he acted as lead counsel in the first ever successful Strasbourg challenge to confiscation under the Proceeds of Crime Act 2002, with the Strasbourg Court accepting that confiscation violated the right to peaceful enjoyment of property under A1, P1.
His domestic law work has involved cutting edge public law issues such as the limits of freedom of expression, the right to disclosure and cross-examination in judicial review, and the standard of judicial review in Human Rights Act cases. Recent domestic cases have cases have included Foster v McNicol and Corbyn, one of the most politically significant and sensitive cases to have come before the High Court in recent years, in which he acted for the Labour Party as lead counsel in its successful defence of the NEC’s ruling that the Leader of the Labour Party (and Leader of the Opposition) could not be excluded from the ballot to determine a leadership challenge. Other cases this year include Babbage, which held that there was no prospect of enforced removals to Zimbabwe, and that Zimbabwean Foreign National Prisoners could not be detained, regardless of risk, and could be neither detained nor prosecuted for refusing to leave the UK voluntarily.
Previous authorities include Gaunt v Ofcom which established the right of journalists to bring free speech challenges to Ofcom rulings against broadcast companies, and the British Army Gurkha judicial review which led to the Government’s defeat in Parliament over Gurkha veterans’ right to settle in the UK. (He was subsequently part of the delegation that collected the Human Rights Award from Justice and Liberty on behalf of the Gurkha Justice Campaign).
He has addressed conferences and seminars on judicial review, EU law, asylum, immigration, and community care for organisations such as Justice, Legal Action Group, the Public Law Project, the Immigration Law Practitioners Association (ILPA), the Centre for European Legal Studies at Cambridge, and the British Institute of International and Comparative Law. He is author of the Best Practice Guide to Asylum and Human Rights Appeals, the latest electronic edition published by EIN in 2015. He was one of the longest ever elected members of the Executive of ILPA from 2000 until he stood down in 2012 and currently represents ILPA on the user group of the Administrative Court. He has sat on Bar Council working parties and advised the Bar Council on public funding issues.
He is regularly briefed as a leading junior, and appears against silks in the domestic courts and the CJEU, including recently as lead counsel against a team led by the Attorney General in the Grand Chamber in McCarthy. He is accustomed to dealing with urgent court applications in cases ranging from expulsion to media. He will act on conditional fee agreements where appropriate.
The Legal 500 2016: “One of the finest legal minds at the Bar.”; “He has an awesome intellect and really gets into the detail of a case”; “successfully represented a man who had been detained for over two years, despite it being impossible to deport him to Zimbabwe, in High Court case R (Babbage) v SSHD”
Previous editions: "His mind is as sharp as a razor blade, and he is a masterful legal tactician" (2015); "An absolute perfectionist" (2014); “a great tactician" (2013); “very skilled in complex [European Economic Area] cases” (2012).
Chambers and Partners 2016: "Held in high esteem for a practice that sees him acting in leading cases in the fields of asylum, human rights and EU free movement law. Peers are quick to point out his public law expertise... Strengths: Mark is extremely thorough and never compromises on standards. He has usually already thought of every point he is confronted with in court and has a better answer."
Previous editions: "impresses with his top-notch courtroom skills and confidence in both national and international courts.... really pushes cases as far as he can... lots of experience and gets good results... Very skilled on complex EEA appeal matters." (2015) "Has a complex caseload in the UK and Europe. Praised by his peers... not afraid to tackle the most complex issues." (2014) "Solicitors instruct Henderson on complicated EEA cases as he is "absolutely excellent on really difficult, technical cases" (2013); “true expert... extraordinarily tenacious character and a creative thinker who expects the best of himself” (2012); "commended for his expertise on immigration, asylum, EU law and human rights and has recently been involved in cutting-edge judicial review cases relating to disclosure. Sources admire his "phenomenal preparation" as well as his passion and enthusiasm for his subject" (2011) "outstanding with encyclopaedic knowledge" (2010) "hugely passionate public lawyer" (2010), "a master of tactics and strategy" (2007) "incredibly bright" (2004).
Judicial review and public law are at the core of Mark’s practice. His work has involved cutting edge issues such as the entitlement to disclosure and oral evidence in judicial review, the role of the Court in determining claims under the Human Rights Act, and the application of the EU Charter of Fundamental Rights in the UK. He also deals with the Court’s practice and procedure on the Administrative Court Users Group, where he has represented ILPA for several years. He has most recently been involved in achieving changes to crucial Administrative Court guidance for determining inter partes costs disputes where cases have otherwise settled.
Recent leading cases include Heesom, which considered the proportionality of punishing political expression in order to maintain standards in public life. The High Court quashed the penalty imposed by the Adjudication Panel as a disproportionate interference with freedom of expression under Article 10. It gave guidance on interpreting local authority codes of conduct compatibly with Article 10. It considered the relationship between councillors and officers, and the requirement of mutual trust between them. It established that all political expression was entitled to the same enhanced protection, and that it was wide enough to cover disputes about the selection processes for appointing impartial public officials. It considered the test for a finding of bullying and the circumstances in which promoting a constituent’s case could amount to improper involvement in the decision making process and bring the local authority and the office of councillor into disrepute. It also dealt with the standard of proof in regulatory proceedings involving elected politicians, and with the approach of the Administrative Court on a statutory appeal not limited to points of law. The Welsh Government exceptionally applied for and was granted permission to intervene in a statutory appeal in order to explain its approach to imposing local government standards.
Another leading freedom of expression judicial review was Gaunt, which established the standing of individual journalists to judicially review Ofcom under Article 10, even where the broadcasting company accepts the ruling. It also considered the role of the Court when hearing a challenge to Ofcom under the Human Rights Act.
He acted in the domestic courts and the CJEU in NS, the judicial review that established the binding effect of the EU Charter of Fundamental Rights in the UK (contrary to claims from a previous Prime Minister and current Lord Chancellor to have achieved an opt out for the UK). It has wide ramifications for public law.
He acted in the domestic courts and the CJEU in NS, the judicial review that established the binding effect of the EU Charter of Fundamental Rights in the UK (contrary to claims from a previous Prime Minister and current Lord Chancellor to have achieved an opt out for the UK). It has wide ramifications for public law. He is currently acting in a reference from the Administrative Court, McCarthy, in which the Grand Chamber is considering whether UK law breaches fundamental principles of mutual recognition between Member States, and whether the UK has an opt out from elements of free movement law. He is familiar with procedure for obtaining and formulating references to the CJEU from judicial reviews.
His case of CM considered the role of PII Advocates and Special Advocates in judicial review and Upper Tribunal proceedings. The case of S established that judicial review could be brought against the Government's conduct in other court proceedings. The case considered whether and how a public authority could rely on its duty of candour to disclose the claimant’s confidential information in an unrelated judicial review. It involved a direct challenge to the conduct of the Treasury Solicitor in another case and the Attorney General’s personal explanation of that conduct.
In Khadir, Parliament enacted legislation to deprive the claimant of the judgment that he won in the Administrative Court and he appealed to the House of Lords arguing that retrospective legislation to deprive him of his judgment violated constitutional principles of access to the Court. He also acted in major national security cases in the House of Lords, and in Rudi, the House of Lords considered the effect of the common law principle of equality on a judicial review challenge and its relationship with Article 14.
Access to justice cases have included CMX, a judicial review challenging the handling by the Legal Services Commission, Ministry of Justice, and Home Office of the sudden closure as a result of legal aid cuts of a large national provider of legal services. In the course of successive hearings, it was accepted that there was a duty to arrange and fund continuing representation for all several thousand former clients who were initially to be left without representation.
He won a declaration of incompatibility in Nasseri in relation to a key plank of Government legislation (the first in asylum law). This was ultimately overturned by House of Lords which gave important guidance on the role of the Court on such a challenge.
The case of Ahmed broke new ground in judicial review proceedings with extensive orders for disclosure of UK-Iraqi negotiations and orders for cross-examination of Home Office and FCO officials. The sustained efforts necessary to compel full disclosure from the Home Office led the Court to grant Mr Ahmed's application for indemnity costs against it.
A number of judicial reviews have involved challenges to detention or detention conditions - please see the Actions against Public Authorities on this profile. He is experienced in applying for bail as interim relief. One case in which he acted as leading junior involved fundamental issue of abuse of power by the Home Secretary through using administrative detention to punish non-co-operation with removal where the CPS had advised that no further criminal charge could be brought, and abuse of power by using solitary confinement as punishment, instead of for security and control purposes.
Mark has acted in many leading asylum and immigration cases since the mid 1990s in the UK and Europe. His work ranges from conducting test cases, sometimes with thousands of claimants depending on the outcome, to advising confidentially on particularly sensitive applications to the Home Office.
He has a deep understanding of immigration law, policy, and practice developed through both his litigation and his work on immigration policy issues since the 1990s, including as one of the longest ever elected members of the Executive of ILPA and as an expert adviser to the Immigration Services Commissioner. The last paper edition of his Best Practice Guide to Asylum and Immigration Appeals was distributed to all immigration practitioners nationally by ILPA and the Immigration Services Commissioner. The current electronic edition, co-authored with Alison Pickup, is published on the EIN. LAG will publish a new hard copy edition in 2014.
Leading cases in the CJEU in which he has acted as lead advocate include the current case of McCarthy, which was heard by the Grand Chamber due to its importance. The Advocate General’s Opinion has now been delivered, with judgment awaited. The Advocate General accepted the arguments of the McCarthy family that the UK’s visa and carriers liability regime is incompatible with EU free movement law and that its Frontier Protocol to the Lisbon Treaty gives the UK no opt out from relevant free movement law. In another recent case, Onuekwere, the CJEU clarified the effect of imprisonment on the right of EU citizens and their family members to permanent residence in EU Member States, and the rationale for the status of permanent resident. He presented the landmark case of NS to the Grand Chamber as well as acting in the domestic courts. It established a duty binding on all Member States to respect fundamental rights in preference to EU principles of mutual trust between Member States when transferring asylum seekers under the EU asylum system. It affects thousands of asylum seekers throughout the EU, and forced changes to the main EU legislation which distributes responsibility for considering asylum claims between Member States. He is experienced in obtaining and formulating references to the CJEU in asylum and immigration cases.
Cases in the European Court of Human Rights include the recent leading judgment of Paulet. Mr Paulet had obtained employment by using a false passport and the case concerned whether the Crown should confiscate the wages of migrants who had used false documents in order to obtain work. In the first successful challenge to confiscation under the Proceeds of Crime Act 2002 in Strasbourg, the Court held that the procedure breached Mr Paulet’s right to peaceful enjoyment of property under A1, P1. He also acted in the domestic courts and in Strasbourg in the landmark case of Bensaid, in which the Strasbourg Court first established that Article 8 could be relied upon extraterritorially based on risks in the receiving country that did not engage Article 3. It was key to the House of Lords finally holding that articles of the ECHR other than Article 3 could be relied upon in this way in an expulsion case. Current cases in Strasbourg include Nasseri which has recently been communicated to the UK on the issue of whether the safeguards for asylum seekers facing removal to EU Member States constitute an effective remedy for the purpose of Article 13. In the course of that litigation in the domestic courts, he won the first declaration of incompatibility under the Human Rights Act in respect of asylum legislation. It was ultimately reversed by the House of Lords in 2009 which held that the Court must reach its own factual decision on every claim but was limited to granting a declaration of incompatibility on the facts.
Recent cases domestically include CM (Zimbabwe) which is now the leading Court of Appeal authority on the disclosure and candour obligations applying to the Home Office and Foreign Office in asylum appeals, including country guidance appeals in the Upper Tribunal. It also gave guidance on whether a Special Advocate or PII Advocate should be appointed to deal with Public Interest Immunity issues in asylum appeals.
Before that, he conducted a series of Zimbabwean test cases in the Upper Tribunal, Administrative Court, and Court of Appeal over several years on which thousands of Zimbabwe refugees depended, and which established., for a substantial period, that Zimbabwean asylum seekers were entitled to refugee status unless they were aligned with the Mugabe regime. Later cases involved extensive disclosure of Government policy on Zimbabwe and internal FCO assessments, including exceptional and extensive disclosure orders made by the Court of Appeal.
He also conducted a series of test cases from 2005 challenging removal of asylum seekers to Greece on the basis that it was unsafe. These largely prevented such removals from 2005 until the Home Secretary agreed in 2010, in the face of an application for general relief, to end removals to Greece under the Dublin system and consider claims substantively. She subsequently accepted that such removals violated Articles 3, ECHR and Article 4 of the EU Charter of Fundamental Rights.
He has been involved in a number of cases in which the Home Office was ordered to take steps in a foreign country to achieve the return to the UK of claimants who had been unlawfully removed. The case of S went further by establishing that the Court could order the return of an asylum seekers despite his removal having been lawful, where subsequent conduct by the Home Office had put him at risk from his own authorities. The case involved the duty of confidentiality to asylum seekers in domestic, EU and international law, and established that disclosure could be prohibited even in other legal proceedings (information had been wrongly disclosed by the Treasury Solicitor in a test case challenging a charter flight removal to Sri Lanka, and had led to allegations against the claimant on the Sri Lankan President’s website).
The British Army Gurkha challenge, Limbu, forced the reversal of the Government's policy of preventing Gurkha veterans settling in the UK and led to large numbers being able to do so. The case was decided by the Administrative Court after the claimants judicially reviewed the Tribunal’s decision that it had no power to order the required disclosure on an immigration appeal.
Cases in the House of Lords have included Adan and Aitsegeur, which established as a matter of international law that the Refugee Convention had a single autonomous meaning that domestic courts were required to ascertain, rather than a range of legitimate interpretations. Other cases involved a challenge to the Home Office’s family amnesty in the House of Lords (Rudi). He has also acted in leading cases in the House of Lords dealing with the rules applying to SIAC appeals. (see under National Security)
He has been involved in numerous cases involving asylum support and destitution including acting for the charity Refugee Action in MK, which established that the Home Office’s policy of failing to provide asylum support pending a subsequent asylum claim was unlawful. (see under Community Care)
He has been involved in numerous significant cases since 1995 dealing with the detention of asylum seekers (see also under Actions Against Public Authorities). These include Ahmed, the lead case about the failed attempt to expel asylum seekers to Baghdad by charter flight in October 2009. They often involve applying for complex disclosure of inter governmental communications in order to expose obstacles and delays in effecting removals. His cases have also led to significant concessions in respect of the rights of asylum and immigration detainees to lawyers and to access the Court prior to removal, and effective intervention for those claiming to be children in age dispute cases.
His cases often involve mental health issues, including whether the continued detention of hunger striking mentally ill detainee breached Article 3. His work with children involves cases relying on duties towards children in immigration cases arising from domestic legislation, EU law, and the UN Convention on the Rights of the Child, and include acting for a 10 year old child who attempted suicide in detention in a case which attracted national attention to the detention of children.
He also acts and advises in sensitive and significant individuals applications and appeals in respect of asylum and immigration claims, including advising on alternative bases for obtaining settlement such as investor and entrepreneur applications. In this regard, he can advise on options to enter and remain in the UK for business, employment, and personal purposes; and on making and supporting applications to the Home Office, including PBS applications and particularly sensitive business and personal visitor applications. He can deal with challenges by way of appeal or judicial review.
He usually works with a solicitor but in appropriate cases, he can advise on a public access basis. He cannot reply directly to correspondence on a public access basis until instructions are accepted by his clerks.
Mark is regularly instructed on business and commercial immigration issues. He is instructed by corporate clients (directly and on behalf of employees) to advise and act in matters ranging from business visits to settlement, including establishment of businesses and employee migration and settlement. He also acts for high net worth and prominent individuals on a range of immigration issues from sensitive visitor applications to options for work and settlement including, where appropriate, asylum (clients have ranged from high ranking oil executives to celebrities).
He has a special expertise in EU freedom of movement and rights of establishment, having appeared as lead advocate in leading cases free movement cases in the Chamber and Grand Chamber of the Court of Justice of the European Union in Luxembourg.
He also has a deep understanding of domestic immigration policy and practice acquired through high level casework over decades and through his involvement in policy over that period, including as one of the longest ever serving members of the Executive of ILPA, and as an expert adviser to the Immigration Services Commissioner.
Mark has long experience of community care challenges to decisions of local authorities and the Home Office, including cases involving vulnerable migrants and asylum seekers. He is experienced in handling urgent cases and conducting emergency applications for interim relief on behalf of vulnerable claimants. He has conducted seminars on the procedures and tactics involved in urgent applications for interim relief. He addressed the LAG Community Care conference on using the right to human dignity in community care cases.
Recent cases include acting as leading junior for a major charity Refugee Action, in their intervention in MK, where it was successfully contended that the risk of Article 3 ill-treatment and breach of EU law meant that the Government's policy on asylum support for subsequent claims was unlawful. Other cases included establishing that asylum support appeals were covered by the fair trial guarantees in Article 6.
Mark is regularly instructed in claims against public authorities, especially the Home Office. He is very experienced in public law challenges to detention, including regular test cases, and in claims for damages, by public and private law proceedings, for unlawful detention and unlawful treatment in detention. He is familiar with disputes about the transfer of unlawful detention cases out of the Administrative Court, and with enforcing the enhanced rights to disclosure and cross-examination where unlawful detention claims are determined by the Administrative Court by judicial review.
His cases include the test case of Ahmed about whether there was a sufficient prospect of enforced removal to Iraq to make detention lawful. The case broke new ground in judicial review with Mr Ahmed winning extensive orders for disclosure of UK-Iraqi negotiations and orders for cross-examination of Home Office and FCO officials in order to test the prospects of removal and the history of such attempts. The sustained efforts necessary to compel full disclosure from the Home Office led the Court to grant Mr Ahmed's application for indemnity costs.
His significant detention cases date back to the 1990s when he obtained judgments that established significant rights in relation to bail and damages (see significant cases). Later cases included the House of Lords’ decision in Khadir which clarified fundamental issues concerning the basis of the statutory power of immigration detention.
He has acted as leading junior in major unlawful detention challenges such as Mliswa, which was for some time the lead case determining the lawfulness of the administrative detention of a large number of Foreign National Prisoners (FNPs) from Zimbabwe. Another case in which he acted as lead junior involved important issues of the abuse of the power of administrative detention of an FNP in order to circumvent criminal procedures, and abuse of the power of solitary confinement as punishment, and whether continued detention of a mentally ill detainee who was on hunger strike breached Article 3.
He continues to act in a series of cases challenging the lawfulness of detaining FNPs from Zimbabwe in light of the obstacles to their removal and the attitude of the Zimbabwean Government, which are either ongoing or have been resolved favourably. Other recent challenges resolved favourably have included a judicial review challenging detention of Iraqi Kurds on the basis of current ability to remove to Iraq, including whether the civil war with Islamic State undermined any realistic prospect of the Kurdish Regional Government accepting removals to Northern Iraq.
Recent cases include Tarakhil, a HIgh Court civil claim, in which substantial damages, including aggravated damages and uplifts, were awarded for unlawful detention by the Home Office resulting from public law errors in its decision making (Mark was interviewed about the judgment by LexisNexis).
He has also acted in civil claims for damages under the Human Rights Act where administrative actions have interfered with family and private life under Article 8.
Media law and freedom of expression is a major part of Mark’s practice, including defamation, privacy, misuse of private information, breach of confidence, and election law.
The nature of his work means that many of his clients cannot be identified. He has advised prominent political, trade union, media, and sports figures on defamation, privacy and data protection matters, often on an urgent basis and against a backdrop of high controversy in national media. He is accustomed to working with solicitors in seeking to pre-empt, mitigate, and correct adverse coverage pre and post publication without resort to litigation.
He is also experienced in advising on alternative resolutions via regulatory codes, including Ofcom, the BBC, and Ipso. His case of Gaunt v Ofcom is the leading case on the application of Article 10 to Ofcom’s duties as a broadcasting regulator, and it established the right of journalists and presenters to challenge Ofcom rulings under Article 10 even where the broadcasting company has accepted Ofcom’s ruling. He currently acts in the Strasbourg proceedings which challenge Ofcom’s scope to rely on offensiveness to the broadcast audience as a basis for adverse rulings that interfere with political speech.
He acts for both claimants and publishers in defamation cases. Current instructions, other than confidential matters, include acting for Tony Blackburn in the Dame Janet Smith Enquiry and addressing the BBC’s response to it. Recent successful matters include acting for a leading figure in the gypsy and traveller community in a successful libel claim against the Daily Mail (for a story suggesting that he made false allegations of racial abuse to support a racially aggravated prosecution). He also acted for the Morning Star in dealing with a defamation and data protection claim by a former senior police officer about trade union blacklisting issues. He acted for the Police Commissioner for Kent, Ann Barnes, against an opposition candidate who published a defamatory statement about her on Twitter during her election campaign, the case being conceded in the face of an imminent emergency injunction application based on breach of election law.
He has been instructed in confidential privacy and data protection matters in the course of major media investigations, and his cases include a school teacher’s privacy and breach of confidence claim against the Daily Mail for publication of stolen topless photographs.
He also identifies and litigates free speech and privacy/breach of confidence issues in his wider public law practice. His case of Heesom led to a major Article 10 judgment in which the High Court ruled that the penalty imposed on a local councillor for vociferous and allegedly offensive public and private criticism of council officers was a disproportionate interference with free speech. The judgment emphasised the very wide scope of political expression and that all political expression was entitled to the same enhanced protection under Article 10. He acted in the ground-breaking breach of confidence judicial review of S which established the right to rely on breach of confidence in public law proceedings, developed the public law obligation to respect confidential information, and achieved an unprecedented remedy for breach of confidence.
He sits on the Administrative Court’s Working Group on Anonymity and Reporting Restrictions which is responsible for developing procedures for applications for anonymity/ reporting restrictions which are fair to claimants and the media. He has also advised and acted in a number of cases dealing with restrictions on publication by the media of the identity and other sensitive information about parties and witnesses.
Mark is instructed in a range of information law matters, and acts both for those seeking to obtain and to resist the release of information. He has conducted specialist training on freedom of information and data protection.
His instructions in this area are often confidential but have included advising major figures on asserting data protection rights to prevent release of personal information without their consent, including in response to media investigations, challenging apparent use and leaking of personal information in the context of actual and contemplated high profile disciplinary proceedings.
He also deals with common law breach of confidence, misuse of private information, and the public law obligation to protect confidential information, together with procedural rights to consultation, under public law and Article 8, prior to the release of sensitive information by a public authority. His case of S is a leading authority, inter alia, on the duties of public authorities in respect of confidential information. He draws on his EU law expertise in data protection work, which has included relying on the EU right to protection of personal data in the Charter of Fundamental Rights extraterritorially. He has also tested the rights of individuals to obtain orders from domestic courts for disclosure and further information about confidential steps in EU infringement proceedings in which they have an interest.
He has won ground-breaking disclosure orders in judicial review, developing the law on disclosure against public authorities in public law cases. He also acts in applications concerning anonymity of litigants and witnesses and whether the publication of evidence should be prohibited.
Mark is experienced in litigating in both of the European courts and in using international law in domestic courts.
He is regularly instructed in important and complex EU law cases, both in the domestic courts and the Court of Justice in Luxembourg, where he has presented cases before the Chamber and the Grand Chamber. He is experienced in the procedures for requesting references and formulating and negotiating the terms of a reference from the Administrative Court, Upper Tribunal, and Court of Appeal, and in procedure in the CJEU.
Mark acted for the claimant both in the domestic courts and the CJEU in NS, one of the most important EU law cases of recent years. He presented the case to the Grand Chamber in what was amongst the CJEU’s most complex ever hearings, partly due to the exceptional number of interventions from Member States and national and international organisations. It established the binding effect of the EU Charter of Fundamental Rights in the UK. The case was of fundamental importance throughout the EU because it established that Member States’ duties under the Charter override the basic EU principle of mutual trust and recognition between Member States.
He also acted as lead advocate in Onuekwere, where the Court gave guidance on the effect of imprisonment on the rights of EU citizens and their family members to obtain permanent residence in other Member States and considered the rationale for granting permanent residence.
He appeared most recently as lead advocate before the Grand Chamber in the leading free movement case of McCarthy in which a number of Member States intervened. The Attorney General appeared for the UK. The Grand Chamber’s judgment is pending. The Advocate General’s Opinion agreed with the McCarthys that UK visa legislation breaches EU law and that the UK’s Frontier Protocol provides it with no opt out from the relevant free movement principles. The AG considered that “to accept that the United Kingdom should implement measures of general application would be tantamount to allowing a Member State to circumvent the right of freedom of movement” and would violate EU principles of mutual recognition between Member States.
His cases in Strasbourg include Paulet, in which he acted as lead counsel in what was, in essence, the appeal from a leading English criminal authority on confiscation proceedings under the Proceeds of Crime Act 2002. It was the first ever successful challenge to confiscation proceedings on the basis of a violation of the right to peaceful enjoyment of property under Article 1, Protocol 1 (A1, P1). The judgment is also of general importance in relation to A1, P1 because it confirms the implicit procedural guarantees in A 1, P1, breach of which may lead to a violation of the substantive article.
Other important cases in Strasbourg include Bensaid, a landmark judgment on the territorial scope of the Convention, in which the European Court of Human Rights established for the first time that Article 8 could be engaged by treatment in foreign countries that did not engage Article 3 (and which was a foundation of the leading domestic authority on the territorial scope of the Convention). His domestic cases have also included ground breaking arguments on the extra territorial application of the ECHR.
Ongoing cases that the Strasbourg Court has decided to communicate to the UK involve freedom of speech (Gaunt) and whether a declaration of incompatibility is an effective remedy under Article 13 for an Article 3 breach given that a court can only advise Parliament that primary legislation violates human rights, rather than order it to change the law to remedy the breach (Nasseri).
He regularly deals with international law in domestic courts. Other international work has included acting in a case challenging inadequate implementation of international refugee law and EU asylum law in Gibraltar.
He has acted at the highest level in two of the leading national security appeals. RB (Algeria) involved whether the Special Advocate procedure in terrorism cases in SIAC violated Articles 3 and 6 and common law constitutional principles. He also acted for a coalition of NGOs in the internationally acclaimed case which ruled that evidence obtained through torture was inadmissible even in national security cases, A No. 2.
He also acted as leading junior in the leading case on whether a Special Advocate or PII Advocate should deal with FCO disclosure of closed material in the context of a PII process in a country guidance case (CM (Zimbabwe)).
Mark acted as lead counsel in the important recent case of Heesom on standards in local government, in which the High Court gave extensive guidance on the rights and duties of local councillors vis a vis council officers (senior and junior), the interpretation of local government codes of conduct aimed at maintaining standards in public life which restrict freedom of speech, and the approach to determining a proportionate sanction for breach of a code of conduct. It quashed the sanction imposed on Cllr Heesom as disproportionate under Article 10. It considered the relationship between councillors and officers, including mutual trust, and the boundary between forceful criticism of officers, which was protected by Article 10, and bullying and other conduct which breached the code and merited sanction consistent with Article 10. It established the test for a finding of bullying under the code of conduct. It considered the circumstances in which advocating constituents’ cases could be held to be an attempt to obtain political gain by improper involvement in the decision making process, and whether conduct brought the local authority, and the office of councillor into disrepute. The Welsh Government exceptionally applied for and was granted permission to intervene in a statutory appeal in order to explain its approach to local government standards.
He advises on public procurement issues and claims, in particular relating to provision of legal services. He also deals with governance and policy issues in respect of access to justice. Another of his leading cases considered the handling by the Ministry of Justice and Legal Services Commission of the collapse of a major national legal services provider (CMX).
He advises and acts on behalf of solicitors in relation to regulatory issues. He also acted as an expert adviser to the Immigration Services Commissioner who wrote a forward to his Best Practice Guide to Asylum and Immigration Appeals which was used by the Commissioner to develop best practice and distributed by him to all regulated advisers.
Mark advises solicitors on costs issues, public funding and regulatory matters, and has represented solicitors at hearings of the Legal Services Commission/ Legal Aid Authority’s dispute resolution panels. He acted in a test case which established the right to ongoing public funding for thousands of claimants who were represented by a national legal services provider which went into administration (CMX).
His recent publications include an article on procedures and tactics in obtaining inter partes costs where a judicial review settles, and he has been at the forefront of efforts to improve procedures for determining IP costs applications in the Administrative Court via its Users Group where he represents ILPA . He has also conducted training on obtaining inter partes costs in judicial review.
Mark has a strong interest in equality and discrimination issues, which arise regularly in his cases, whether under domestic law, EU law, or the ECHR/ Human Rights Act. His case of Rudi in the House of Lords considered whether the common law principle of equality now required a proportionality test. He deals with public sector equality duties in his public law practice. His work beyond litigation has included serving on a Bar Council working party on the implementation of the Bar’s Equality Code.
Court of Justice of the European Union, European Court of Human Rights, and House of Lords/Supreme Court
MA (Hertford College, Oxford)
Administrative Law Bar Association
Bar European Group
Immigration Law Practitioners Association
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