Malcolm is an experienced public lawyer with expertise across a broad range of subject areas including commercial judicial review, public international law, education, financial regulation, media and advertising, immigration, information law, inquiries, aviation, gaming, pharmaceutical and food regulation and civil liberties and human rights. Malcolm also has considerable experience advising and representing those subject to investigation or enforcement proceedings for suspected breaches of consumer law. He is currently the Secretary of the Constitutional and Administrative Law Bar Association and a member of both the Attorney General's B Panel of Counsel and the Equality and Human Rights Commission’s panel of counsel.
Examples of his recent experience and instructions include:
- R (Dulgheriu) v Ealing LBC (Liberty Intervening) [2019] EWCA Civ 1490 – acting for the intervener (Liberty) in this challenge, the first occasion in which the Court of Appeal considered the lawfulness of a Public Space Protection Order made pursuant to the Anti-social Behaviour, Crime and Policing Act 2014 (led by Victoria Wakefield QC).
- R. (on the application of Independent Workers Union of Great Britain) v Mayor of London and Transport for London [2019] EWHC 1997 (Admin) – acting for the defendants in their successful defence of this challenge, which contended that amendments to the London congestion charging scheme constituted unlawful discrimination contrary to the Equality Act 2010 and/or the ECHR (led by Martin Chamberlain QC).
- viagogo AG v Competition and Markets Authority [2019] EWHC 1706 (Ch) – acting for viagogo AG in this successful application for declaratory relief relating to the construction of an enforcement order made under Part 8 of the Enterprise Act 2002.
- R (EU Lotto Ltd) v Secretary of State for Digital, Culture, Media and Sport [2019] 1 CMLR 41 – acting for the Claimants in this challenge to the lawfulness of a ban imposed by secondary legislation on betting on the outcome of the EuroMillions lottery draw (led by Martin Chamberlain QC).
- R (Liberty) v Director of Legal Aid Casework [2019] EWHC 1532 (Admin) – acting for the Defendant in his successful defence of this challenge concerning the proper construction of certain provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
- R (Faulkner) v Lord Chancellor [2019] 1 WLR 560 (CA) – acting for Defendant in this successful defence (before the Administrative Court and Court of Appeal) to a challenge concerning the extent to which damages for State detention pursuant to the European Convention on Human Rights are subject to the statutory charge applied by the legal aid regime (led by Paul Nicholls QC).
- Northants County Council v Lord Chancellor [2019] 1 FLR 169 – acting (unled) for the Lord Chancellor in this application for declaratory relief concerning the procedure for seeking damages for breach of the Human Rights Act 1998 in care proceedings.
- Acting for the claimant in R (Holmcroft Properties Ltd) v KPMG LLP [2018] EWCA Civ 2093 both on appeal and at first instance. This was a judicial review challenge to the process followed by KPMG, an “independent reviewer” appointed to oversee the exercise of a redress scheme operated by Barclays Bank and overseen by the Financial Conduct Authority in respect of mis-sold Interest Rate Hedging Products (‘IRHPs’), and concerned the extent to which private bodies (such as KPMG) can be subject to public law challenge by way of judicial review when performing public functions. Led by Richard Gordon QC.
- R (Ames) v Lord Chancellor [2018] Lloyd’s Rep FC 545 – acting for Defendant before a Divisional Court in this claim concerning public funding for the defence of a substantial fraud prosecution (led by Paul Nicholls QC).
- R (Monarch Airlines) v Airport Coordination Ltd [2018] 1 Lloyd’s Rep 549 (CA) – successfully acting for the Administrators of Monarch Airlines in these highly expedited judicial review proceedings concerning whether Monarch entitled to be allocated “slots” at Gatwick and Luton Airports (led by Marie Demetriou QC). Due to the significance and urgency of the case, it was heard by a Divisional Court within a week of the claim being issued, and an appeal was heard by the Court of Appeal a week thereafter.
- Sophocleous & Others v Secretary of State for the Foreign and Commonwealth Office, Secretary of State for Defence [2019] 2 WLR 956 (CA) – acting for the Claimants at the trial (and appeal) of this preliminary issue concerning the applicable limitation law in this claim relating to the United Kingdom Government's liability for acts of torture allegedly committed by the British Army and colonial forces during the "Cyprus Emergency" of the 1950s (led by Zachary Douglas QC).
- R (Tirkey) v Lord Chancellor [2018] 1 WLR 2112 – successfully defending challenge concerning compatibility of charge imposed by section 25 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 with European Convention on Human Rights (unled at permission and detailed grounds stage; led at hearing by Martin Chamberlain QC).
- R (Ian Stewart-Brady) v Lord Chancellor [2017] EWHC 410 (Admin); [2017] MHLR 274 - Malcolm appeared (unled) for the Lord Chancellor in his successful defence of this challenge, brought by Ian Stewart Brady (the Moors Murderer), who contended that the Lord Chancellor had breached Articles 5, 6 or 8 of the European Convention on Human Rights by failing to provide a lawyer of his choice in proceedings by which he wished to establish that he ought to be released from Ashworth Psychiatric Hospital.
- R (on the application of Ibori) v Secretary of State for the Home Department [2017] All ER (D) 23 (Jun) Malcolm acted (unled) for the Home Secretary in defending this challenge by the former Governor of Delta State in Nigeria, to his detention and (following his release) his claim for damages for false imprisonment. The High Court ordered his release following an urgent hearing, but at the subsequent hearing of his damages claim, awarded only nominal damages of only £1 for false imprisonment. The Claimant was refused permission to appeal to the Court of Appeal against this decision.
- R (Troitino) v National Crime Agency v Secretary of State for the Home Department, Spanish Judicial Authority [2017] EWHC 931 (Admin) - appearing (unled) for successful Defendant before the Divisional Court in judicial review proceedings concerning the extradition of a convicted terrorist.
- Thompson v Director of Legal Aid Casework [2017] EWHC 230 (Admin); [2017] 1 Costs LR 163 – acting (unled) for successful defendant in claim which contended Defendant’s decision violated the Claimant’s rights under Article 8 of the European Convention on Human Rights.
- R(IS) v Director of Legal Aid Casework & Lord Chancellor [2016] 1 WLR 4733 (CA). Acting (led by Martin Chamberlain QC) in this successful defence of the legality of the Exceptional Case Funding (ECF) scheme for the administration of legal aid.
- R (Collins) v Secretary of State for Justice [2016] QB 862; [2016] 2 WLR 1303; [2016] 3 All ER 490; Times, February 23, 2016 concerning the circumstances in which the so called “Householder Defence” law introduced by the Crime and Courts Act 2013 affords a defence to those who use disproportionate force against people believed to be intruders in their home, and the compatibility of this law with the European Convention on Human Rights (led by Paul Bowen QC).
- R (BD) v Director of Legal Aid Casework [2016] EWCA Civ 733 concerning relevant principles on assessment of costs in compromised judicial review proceedings (led by Guy Mansfield QC).
- R (RJ) v Director of Legal Aid Casework [2016] Inquest LR 91; [2016] EWHC 645 (Admin) concerning the extent to which interested persons at inquests may benefit from the procedural protections of Article 6 of the European Convention on Human Rights.
- R (Barda) v Mayor of London [2016] 4 WLR 20. Malcolm is instructed by Liberty (led by Marie Demetriou QC) in this case which concerns alleged breaches of the right to protest during demonstrations by the "Occupy Democracy" movement in the lead up to the 2015 general election.
- R (Letts) v Lord Chancellor (Equality and Human Rights Commission Intervening) [2015] EWHC 402 (Admin); [2015] 1 W.L.R. 4497; [2016] 2 All E.R. 968; [2015] 2 Costs L.R. 217; [2015] Inquest L.R. 15 Defending challenge to the lawfulness of guidance regarding the circumstances in which Article 2 of the European Convention on Human Rights requires public funding for representation at inquests (led by Martin Chamberlain QC).
- R (Gudanaviciene & Ors) v Lord Chancellor & Director of Legal Aid Casework [2014] EWCA Civ 1622 [2015] 1 W.L.R. 2247; [2015] 3 All E.R. 827 Acting for Defendants (led by Martin Chamberlain QC) in these six joined applications for judicial review. These were intended as test cases regarding the circumstances in which legal aid must be made available in immigration cases and were heard in the Administrative Court over five days and by the Court of Appeal over four days.
- R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs - Appearing (led by Martin Chamberlain QC) before the Supreme Court (reported at [2014] 1 WLR 2697), Court of Appeal (reported at [2013] 1 WLR 2938) and Administrative Court ([2013] EWHC 168 (Admin)) in this case, which concerned whether Mrs Sandiford, a British National facing the death penalty in Indonesia had an enforceable EU, ECHR or domestic law right to legal assistance.
- J Sainsbury’s Ltd v Independent Reviewer of Advertising Standards Authority Adjudications (Tesco Supermarkets Ltd, Interested Party) [2014] EWHC 3680 (Admin) - Appearing for the interested party (led by David Anderson QC) in this judicial review claim concerning the application of Directive 2006/114/EC concerning misleading and comparative advertising and Directive 2005/29/EC on unfair business-to-consumer commercial practices.
- Bimini Blue Coalition Ltd v Prime Minister of The Bahamas & Ors [2014] UKPC 23 - Appearing (led by Richard Gordon QC) before the Judicial Committee of the Privy Council in this appeal involving an appeal against the refusal of interim relief in judicial review proceedings to restrain development works, the legality of which was the subject of the underlying proceedings.
- R (Pressbof) v Secretary of State for Culture, Media and Sport & Ors [2014] EWCA Civ 965 - Acting for the Claimants in this challenge to the 2013 Royal Charter for Press Regulation (led by Richard Gordon QC).
- Acting as junior counsel to the ‘Pollard Review', chaired by former Head of Sky News Nick Pollard into matters surrounding a dropped Newsnight investigation which featured allegations of sexual abuse by Jimmy Savile.
- To defend a substantial Frankovich damages claim concerning financial regulation before the Commercial Court (led by Andrew Henshaw QC).
- To advise and assist the Financial Services Authority (now the Financial Conduct Authority) on the consequences of the Financial Services Act 2012.
- Appearing before the First Tier Tribunal and Upper Tribunal in a large number of immigration and asylum cases across a range of areas (including Asylum appeals, PBS appeals, ECO refusals and judicial review applications before the Upper Tribunal).
- R v Lundy [2013] UKPC 28; (2013) Times, December 10; [2014] 2 NZLR 273 - Appearing as sole junior counsel for the successful appellant in this historical miscarriage of justice case from New Zealand which was heard by the Judicial Committee of the Privy Council over three days.
- Taylor v R [2013] 1 WLR 1144 - Appearing pro bono for the appellant before the Judicial Committee of the Privy Council in this historical miscarriage of justice appeal from Jamaica.
- R v Pora [2015] UKPC 9; [2016] 1 Cr. App. R. 3; [2015] Crim. L.R. 884; Times, April 20, 2015 - Appearing as junior counsel for the Appellant in this historical miscarriage of justice case from New Zealand which was heard by the Board over two days in early November 2014.
Other Experience
Malcolm is a former fellow of Keble College, University of Oxford, where he taught Constitutional and European Union law. While working as an academic, Malcolm assisted with a number of public law cases, including Barlow v the Queen [2009] UKPC 30 (regarding the Privy Council's prerogative jurisdiction to hear historical appeals from New Zealand) ; FH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 385 (successful appeal to the Court of Appeal on grounds of delay in considering application for leave to remain on human rights grounds) and Dore v Leicestershire County Council [2010] EWHC 34 (Ch).
Malcolm was appointed in 2003 by the New Zealand Human Rights Commission to a National Advisory Council overseeing the development of a national plan of action for human rights, which was published in 2006. He has co-authored a number of reports, including on barriers to claims for human rights abuses in the Democratic Republic of Congo for United Nations Special Representative John Ruggie, and on remedies under human rights legislation for an Australian government inquiry. While an academic, he provided legal research assistance to Hon Anthony Ford, then Chief Justice of Tonga.
