Public

Time Limits Expiring on Holidays - R (Elham Modaresi) v Secretary of State for Health, First-Tier Tribunal (Mental Health), West London Mental Health NHS Trust - Court of Appeal, [2011] EWCA Civ 1359, 23 November 2011; Mummery, Richards and Black LJJ

Thu, 05 Jan 2012 20:35:38 GMT

The Court of Appeal has overturned in part a decision of the High Court. The judgment clarifies what happens in relation to time limits for applications to the Tribunal when they expire on a weekend or public holiday: namely, they are extended to the next working day. The short facts are that Ms Modaresi was a patient under section 2 of the Mental Health Act 1983, the 28-day assessment provision. Her right to apply to a Tribunal under s66 of the Act expired on 2 January 2011, the statute giving 14 days for the application. She completed the application form on New Year's Eve 2010, a Friday, and handed it to ward staff. It was forwarded to the Mental Health Act administrator at the hospital in office hours, but not sent on (having either been overlooked or the member of staff having left early). It was seen on 4 January 2011, the next working day, and sent to the Tribunal but rejected as out of time. The Secretary of State was involved in the litigation as a request was made that there be a reference to the T ribunal under section 67 of the Act: this had been refused on the basis that by that time, 7 January 2011, Ms Modesari was on a s3 detention and treatment order and so had a fresh right to apply for a Tribunal: the Secretary of State suggested that she use her s3 application and indicated that consideration might be given to the making a referral later in the s3 period (there being only one right to apply per detention period).

In judicial review proceedings, the three arguments raised were: (i) the Tribunal should have found the application to be within time, (ii) the Secretary of State should have made the reference, and (iii) the Trust had a systemically-unfit system. During the judicial review, a s67 reference was made, and then Ms Modesari was placed on a CTO. The judge held that the application to the Tribunal was out of time as the time limit was set in the statute and expired on 2 January 2011, that the Secretary of State had not acted unreasonably in suggesting that Ms Modesari use her application right under s3 first in the context of a right to ask for a s67 application later in the s3 period, and that the Trust had not failed to have an adequate system at the time, but there had merely been some sort of administrative error.

The Court of Appeal decided that, as had been determined in extradition appeal cases - Mucelli v Govt of Albania [2009] 1 WLR 276, [2009] Extradition LR 122 - a statutory time limit for making an application that expired on a non-working day was to be extended to the next business day: so the application under s2 had been in time. That meant that it did not consider the appeal relating to the Trust, because that was academic in light of the Trust having lodged the application in time. The Court did, however, hold that the judge had been right to conclude that the Secretary of State had not acted unreasonably.

R (McDonald) v Royal Borough of Kensington and Chelsea (Respondents) [2011] UKSC 33 (6 July 2011)

Thu, 04 Aug 2011 16:18:13 GMT

In this case, the appellant was assessed as having a community care need to be assisted to the commode during the night: she had suffered a stroke and so needed assistance with mobility, and had a small bladded which meant that she needed to urinate frequently. The local authority decided that it would no longer pay for the carer at night since Ms McDonald could sleep with incontinence pads. The majority of the Supreme Court held that this was acceptable. It did not breach her rights under Art 8 ECHR as they were not engaged, or if they were engaged the interference was justified on economic grounds (and also because it allowed Ms McDonald greater privacy); nor did it breach any rights under section 21 of the Disability Discrimination Act 1995 as the decision was not a policy or practice that made it difficult for a disabled person to receive a benefit (and would have been a proportionate means of achieving the legitimate aim of saving costs). Baroness Hale dissented, but only on one point: she viewed Ms McDonald as not being incontinent (for which pads would be relevant) but as needing assistance to move to the commode (for which a carer was relevant).

R (G) v The Governors of X School [2011] UKSC 30 (29 June 2011)

Thu, 04 Aug 2011 16:16:30 GMT

In this case, a school teaching assistant aged 22 allegedly formed a relationship with a boy aged 15 doing work experience at the school. The parents of the boy complained: the police investigated but took no action, but the school held a disciplinary hearing and dismissed G on the basis of gross misconduct, and then referred the matter to the Secretary of State for consideration of whether to take action under legislation relating to the safeguarding of children. This might have meant that G would be barred from working in a school environment, which would mean the end of his career. The problem was that he had not been allowed legal representation during the disciplinary hearing, though he had been allowed to have a colleague present. The question was whether his rights under Article 6 had been engaged, namely the right to a fair trial: if so, it would then fall for determination as to whether that right had been breached by the absence of legal representation.

The Supreme Court by a majority overturned the findings of the High Court and Court of Appeal. It agreed with the statement of principle applied by the Court of Appeal, namely that civil rights were engaged by a decision in proceedings that had a substantial influence or effect on a later vindication or denial of a Convention right. And it agreed that G’s right to a livelihood as a teaching assistant was a civil right. But it held that the proceeding that would determine this right was that before the Independent Safeguarding Authority that sat under the Safeguarding Vulnerable Groups Act 2006, not the school governors.

R (Cart) v Upper Tribunal (and related cases) [2011] UKSC 28 (22 June 2011)

Thu, 04 Aug 2011 16:15:12 GMT

The issue in this case started as one of whether the Upper Tribunal was immune from judicial review. The Upper Tribunal was established under the Tribunals, Courts and Enforcement Act 2007 to hear appeals on points of law from the various chambers of the First-tier Tribunal, with permission of the FTT or the UT; it may also review its own decisions. A further appeal is provided on points of law to the Court of Appeal, but not in relation to “an excluded decision”, which includes a decision on an application for permission to appeal (s13 of the 2007 Act). The UT also exercises judicial review functions transferred to it. Mr Cart sought to challenge the refusal of the Upper Tribunal to grant permission to appeal in relation to a decision of the First-tier Tribunal (FTT) relating to child maintenance.

Initially, the government argued that because the Upper Tribunal was designated as a superior court of record it was not subject to judicial review at all. The Divisional Court (Laws LJ and Owen J) [2010] MHLR 35 concluded that the Upper Tribunal was amenable to judicial review, but only on grounds of jurisdictional error (namely acting where it simply had no jurisdiction) or a denial of the right to a fair hearing. The Court of Appeal ([2010] MHLR 353 agreed, but on different grounds, holding that the UT was amenable to judicial review but that it amounted to an alter ego of the High Court and so should only be reviewed in exceptional circumstances, since the full panoply of judicial review would be disproportionate. Those exceptional grounds could include matters such as an egregious error of jurisdiction or a failure to act fairly.

In the Supreme Court, the issue was limited to the circumstances in which a judicial review should be permitted, the government having dropped its contention that no judicial review was possible. The Supreme Court held that a proportionate test for judicial review would be the second-tier appeal criteria, namely an important point of law or principle or some other compelling reason. This is broader than the exceptional criteria test laid down in the Court of Appeal; but it remains a fairly narrow test.

R (Imran Bashir) v. The Independent Adjudicator, HMP Ryehill and the Secretary of State for Justice [2011] EWHC 1108

Fri, 01 Jul 2011 12:20:15 GMT

No doubt sure to raise the ire of unthinking tabloid journalism is a case involving a long-term prisoner using his freedom of religion rights to avoid a conviction for failing to give a sample for a mandatory drugs test; in the tabloid world, this would be an unjustifiable escape on a technicality. Naturally, a proper review of the case shows it to be a more straightforward and simple application of established principles.

Mr Bashir, who is serving a fifteen-year prison sentence, was required to provide a urine sample because officers suspected that he had taken drugs. As he was towards the end of a fast recommended by his Imam, he could not produce a sample; and he declined to take a drink so as to be able to produce a specimen. This led to a charge that he refused an order to obey, and disciplinary proceedings that led to a conviction and 14 additional days' imprisonment. The conviction was quashed in judicial review proceedings on the very simple basis that the adjudicator had not even considered the issue of whether this was a disproportionate breach of Mr Bashir's right to manifest his religion. There is a policy document relating to mandatory drugs tests that makes it plain that Muslim prisoners should not be manoeuvred into breaching their religious tenets during the Ramadan day-time fasting, and the judge held that this was an example of how Article 9 ECHR could properly be taken into account. In short, this was si mply an example of a public law decision maker not asking the right questions and so falling into error.

McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)

Fri, 01 Jul 2011 12:18:54 GMT

In early judgments on the scope of the Human Rights Act 1998, it was determined that court hearings relating to events that pre-dated the coming into force of the 1998 Act would not apply the Act's substantive provisions. This might mean that, in the context of an inquest as an example, deaths that occurred one day apart, one before and one after the date of the 1998 Act coming into force, would receive different standards of review (given that the legislation affecting the conduct of inquests has been interpreted to require a much broader inquiry into potential state fault as a result of the interpretive obligation of the 1998 Act). The justification for this is that it was felt to be the intention behind the statute that there should be no retrospectivity. Cut-off dates are, of course required, and the courts decided that this should be the date of the event rather than of the court hearing, even though that would leave courts acting in a non-Convention compliant way if the events pre-dated the Act but the court hearing was after the Act came into effect.

The ECtHR occasionally has to face a similar question because a general principle of international law is that obligations entered into by state signing up to a treaty are prospective. In Šilih v Slovenia [2009] Inquest LR 117, the issue before the Grand Chamber was whether the procedural obligation arising under Art 2 ECHR to investigate a death was separable from the substantive obligation to protect life, and hence capable of coming into play in respect of deaths which occurred prior to the date of ratification of the Convention. The Court held that the investigative obligation was detachable and so was not excluded by virtue of the fact that the deaths occurred prior to the Convention coming into force. The Court added that this did not mean that everything had to be reinvestigated: rather, the question was whether there remained a significant proportion of steps that had to be carried out.

In In re McKerr [2004] 1 WLR 807, [2004] Inquest LR 35, the House of Lords had ruled that the non-retrospectivity principle it had already established applied to inquests. But the applicants in In re McCaughey argued that this should be revisited in light of the approach of the ECtHR in Šilih. The facts related to a long-delayed inquest into the deaths in 1990 of 2 men who were attacking a police station in Northern Ireland, in which the families of the deceased wished to argue that there had been an improper “shoot to kill” policy. The question was the level of investigation the coroner should undertake into the background to the deaths: the police and Ministry of Defence (who were involved because the shots were fired by soldiers) argued that the coroner should limit his role because the enhanced inquest did not apply to deaths that pre-dated the Human Rights Act, as established in McKerr.

The Supreme Court decided that the holding of the ECtHR in Silih should be followed. This was by a majority, and the reasoning indicated that the Court felt that McKerr was a more rational decision but that the approach of the ECtHR should be mirrored in domestic law, given that the applicants would then have a case they could take in Strasbourg.

Critics will no doubt complain that this decision undermines the value of legal certainty on which the non-retrospectivty principle is based: but is really does no more than substitute one certainty for another (ie the nature of the inquest), so as to create certainty for the future, and does so in a circumstance that allows the avoidance of the ludicrous idea that a coroner should ignore the practice that was required for human rights compliance on the basis that the procedural laws applicable were those that existed at the time of the death not the time of the inquest.

Elekta Limited v. The Common Services Agency, [2011] CSOH 107

Thu, 23 Jun 2011 13:16:00 GMT

Outer House case concerning the procurement of radio therapy equipment (with an estimated value of around £21m) for cancer centres in Scotland.

Elekta, which produced radio therapy equipment, complained that the Common Services Agency (also known as NHS National Services Scotland), which was responsible for procuring the equipment, had effectively excluded them from bidding by specifying criteria which could only be met by one tenderer. Four out of the five cancer centres in Scotland had a system manufactured by Varian and the Agency specified that the equipment would have to integrate with the Varian system. However, Elekta argued that Varian system was not compatible with those of other suppliers meaning that everyone other than Varian was excluded from bidding.

The effect of Elekta raising the proceedings (in terms of the Public Contract (Scotland) Regulations 2006) was to prevent the Common Services Agency from entering the contract with Varian and the Agency applied for an interim order bringing that prohibition to an end.

After considering the authorities, Lord Glennie laid down a number of points:

• the contracting authority must be entitled to decide upon the functional requirements it wishes to satisfy;

• the fact that the criteria included in the tender notice can only be met by one tenderer, or a limited range of tenderers, does not of itself contravene the principle of equality;

• the inclusion of these criteria can only be considered discriminatory if they cannot be justified objectively having regard to the characteristics of the contract and the needs of the contracting authority.

Lord Glennie noted that Elektra had not argued that the criteria were not objectively justified and pointed out that there a number of possible justifications for the decision such as the cost, disruption and potential teething problems involved in replacing one system with another.

Elekta also referred to the fact that the Agency had followed an open procedure (under regulation 15 of the procurement regulations) rather than the negotiated procedure (under regulation 14) arguing that, if it chose to follow the open procedure, it had a duty to frame the criteria in such a way that allowed a range of tenderers to bid. However, Lord Glennie said that, whilst it may have been that the Agency could have used the negotiated procedure, it did not follow that, by going down the route of the open procedure, it had to remove criteria which it regarded as essential to define its requirements (i.e. that the system could integrate with the Varian system).

In addition, Elektra complained that the criteria requiring integration with the Varian system had also been applied to the one cancer centre which did not already have Varian equipment. However, Lord Glennie also found that there was no merit in this point. The contracting authority was entitled to decide what its procurement requirements were and how to frame them. It could properly decide (on the basis of objectively justifiable criteria) that there should be a sole tenderer to provide equipment across the five centres.

Lord Glennie was not asked to dismiss Elekta’s action but found its case to be a very weak one which had no reasonable prospect of success. As such, an interim order was granted removing the prohibition on the Agency contacting with Varian.

Evans, R (on the application of) v The Lord Chancellor & Anor [2011] EWHC 1146 (Admin) 12/05/2011

Fri, 10 Jun 2011 00:43:19 GMT

The Legal Services Commission has a Public Interest Advisory Panel, which makes decisions on whether to grant public funding for cases that involve a wider public interest. The LSC Funding Code, which sets the relevant criteria, was amended as from April 2010 to provide that judicial review proceedings could not be funded if the applicant had no personal interest and so was motivated only by public interest grounds (though an exception was made for environmental decisions). This was challenged by Ms Evans: in the past she had been involved in peaceful protests (see Blum and Others v DPP [2006] EWHC 3209, in which she was convicted of participating in an unlawful demonstration by reading out on Whitehall the names of those killed in Iraq without seeking permission) and she had secured a ruling that the transfer to the Afghan authorities of those taken into custody by UK troops was illegal because of the risk of torture (see R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin)).

The challenge rested on three grounds: (i) the consultation process had been flawed, as documents had not been disclosed, including concerns raised by the Ministry of Defence in relation to applications that might be brought on public interest grounds; (ii) the statutory regime was incompatible with the changed regime and so it was ultra vires; (iii) it was irrational to have a different regime for environmental cases only.

The High Court rejected the second and third grounds, but upheld the challenge on the basis of the first ground: in short, it was determined that the true reason for making the change was to prevent successful actions such as that brought by Ms Evans against the Ministry of Defence, but this had not been revealed in the consultation process and in any event was something that was legally irrelevant. The situation this revealed was that the state would prevent unwelcome judgments by not allowing the litigation to be brought in the first place, which would be inimical to the rule of law.

Alice Emms v. The Lord Advocate [2011] CSIH 7

Sun, 30 Jan 2011 15:19:19 GMT

In this reclaiming motion, the pursuer and reclaimer appealed against an interlocutor of the Lord Ordinary, who had dismissed her petition for judicial review. The reclaimer had sought review of a decision of the Lord Advocate to refuse to order a public inquiry under section 1(1)(b) of the Fatal Accident and Sudden Death Inquiries (Scotland) Act 1976 and to review the failure of the respondent to hold an inquiry, compatible with the requirements of Article 2 of the European Convention on Human Rights, into the death of her late son George Emms. The deceased died on 8 September 2004 at St John's Hospital, Livingston, shortly after undergoing a percutaneous endoscopic gastrostomy (“PEG”) which had apparently passed without complications. A subsequent post mortem examination noted that the deceased had died primarily as a result of septicaemia, the combined effects of inhalation of gastric contents and peritonitis, the insertion of a gastric feeding tube, and encephalitis and strokes. Secondary causes were the deceased’s ongoing conditions of diabetes mellitus, hepatitis C and chronic pancreatitis and cholelithiasis.

The reclaimer submitted that her case was based on a possible systematic failure on the part of the hospital employees, which had caused or contributed to the deceased’s death. It was submitted that these failings might have contributed to the deceased’s demise through infection. The Lord Ordinary had dismissed the petition on the basis that the terms of Article 2 ECHR and a reading of the authorities on those terms, did result in an obligation on the respondent to hold a public inquiry into every case where a person dies in medical care. The Lord Ordinary had also noted that the reclaimer’s failure to take up a professional negligence case in the civil courts. The reclaimer submitted that this indicated the Lord Ordinary had adopted a “remedy based” approach and that this was incorrect in the face of the obligations under Article 2.

Dismissing this petition and upholding the original interlocutor, the court noted that occasional mistakes in medical care were to be expected, as hospitals are staffed by human beings, but that such mistakes leading to fatalities were mercifully rare. The court noted that if mistakes were made, the medical professionals responsible may be sued in civil litigation, but such circumstances do not generally give rise to sufficient public interest to justify holding a public inquiry, unless systemic failures can be identified which have caused more deaths, or will cause more deaths in the future.

The court agreed with the view of the Lord Ordinary that not every death in hospital gave rise to an Article 2 obligation to review. The court observed that persons seeking to engage the Article 2 obligation would therefore have to aver and provide evidence which showed that there was "a serious possibility" that a serious systemic failure has arisen which has caused, or contributed to, the death or deaths in question. The court held that the pleadings in this case did not do so, and that there was no supporting material which went anyway near persuading the court that there were grounds for genuine concern about the circumstances of the deceased’s death. The court moreover noted that even if there had been such concerns, there had already been an independent and thorough public investigation conducted into the circumstances of the death by the Procurator Fiscal, on behalf of the Lord Advocate. The court concluded that there was never any basis for pursuing this action before the courts and extended its sympathies towards the reclaimer for her loss. Reclaiming motion refused.

James and Catherine Cosgrove t/a Fishers Tours v. an order of the Upper Tribunal dated 9th October 2010 under the Transport (Scotland) Act 1985, section 117(2) and Schedule 4(14) [2011] CSIH 5

Sun, 23 Jan 2011 20:11:29 GMT

The appellants ran a bus company from premises in Dundee. Following an inspection of their services in December 2009, the Traffic Commissioner for the Scottish Traffic Area had ordered the appellants to pay a penalty of £12,650 under section 39 of the Transport (Scotland) Act 2001 and also placed restrictions on the appellants’ public service vehicle licence under section 39 of the 2001 Act. They appealed against this decision to the Upper Tribunal, who upheld the decision of the Traffic Commissioner. The appellants appealed against that ruling under section 117(2) and paragraph 14 of Schedule 4 of the Transport Act 1985.

The appellants argued that the Traffic Commissioner had breached natural justice during a public inquiry into their bus operations. They argued that the Commissioner had contended that registration of some of their bus services was a sham and that their bus signage had been inadequate; these contentions had not been raised with them prior to the Public Inquiry, and the appellants had consequently not anticipated having to deal with such contentions. The appellants submitted that this breach had moreover been exacerbated because of the Traffic Commissioner’s failure to offer them an adjournment to respond to the contentions. The Upper Tribunal had held that even if these contentions had been notified to the appellants, the outcome of the Public Inquiry would not have been any different, in light of the other overwhelming evidence presented against the appellants.

Having heard submissions, the Inner House agreed that the conduct of the Public Inquiry did give rise to a material breach of natural justice. The Inner House considered that these breaches of natural justice did affect the decision made by the Traffic Commissioner, and found that there was moreover no good reason why the contentions made could not have been notified to the appellants in advance of the hearing. The Inner House moreover found that the Traffic Commissioner should have granted the appellants an adjournment, in order that they could properly respond to the issues raised. Finding that the Upper Tribunal had erred in law in concluding that the outcome of the Public Inquiry would have been the same, the Inner House allowed the appeal and sent the case back to a fresh Traffic Commissioner to be considered anew.

The Scottish Ministers Civil Recovery Unit v. John Welsh Sinclair, Sheriff William H. Summers, Forfar Sheriff Court, 23 December 2010

Thu, 06 Jan 2011 19:27:05 GMT

In this action brought by the Scottish Ministers' Civil Recovery Unit, the first defender was a convicted drug dealer, whom the police forces had received intelligence on in March 2010, indicating that he was once again involved in the sale and supply of heroin. That intelligence had been assessed by the police as credible and reliable, and accordingly, they sought and obtained a warrant authorising the search of the first defender’s property.

While no drugs were found during the search, the sum of £1,100 was found in a tin in the first defender’s jacket. The tin had been wrapped in cellophane. A further sum of £140 was found in another of the first defender’s jacket pockets. In this application, the Scottish Ministers sought a cash forfeiture order for these sums in terms of section 298 of the Proceeds of Crime Act 2002. The application was made in terms of a non-conviction based forfeiture, as it proceeded on the basis of intelligence gathered by the police forces, rather than on the basis of any conviction.

The first defender submitted that he was no longer involved in the sale and supply of drugs and that the sum of money found had been received as an inheritance, following his mother’s death earlier in the year. Having heard evidence, the Sheriff concluded that the first defender was not a credible and reliable witness. The Sheriff moreover found much of his evidence to be largely incredible claims, containing a number of material inconsistencies. The Sheriff accordingly preferred the evidence of the pursuers, and concluded that the first defender was still actively involved in drug dealing.

On that basis, the Sheriff noted that he was satisfied for the purposes of section 241 of the Act that the first defender was engaged in unlawful conduct and that he had intended to use the sum of cash found in his possession for that unlawful conduct. The Sheriff was also satisfied for the purposes of section 242 of the Act that the sum of £1,100 found represented the proceeds of unlawful conduct, and was therefore “recoverable property” in terms of section 304. The sum of £140 found separately was accepted by the Sheriff as being related to the first defender’s benefits. Accordingly, an order for forfeiture was made only in respect of the sum of £1,100.

British Gurkha Welfare Society & Ors, R (on the application of) v Ministry of Defence [2010] EWCA Civ 1098 13/10/2010

Fri, 26 Nov 2010 01:56:25 GMT

Article 14 of the European Convention on Human Rights is not a free-standing right against discrimination, since it requires that another fundamental right be engaged. As such it stands in contrast to the provisions of the other major general human rights convention to which the UK is a party, the International Covenant on Civil and Political Rights, Article 26 of which provides a general right to equal protection of the law without discrimination. However, the European Court of Human Rights has found ways to extend the coverage of Article 14, both by giving a wide interpretation as to what counts as a status on the basis of which discrimination is not permitted and by requiring not that there be an actual breach of another Article of the Convention but that this other right be engaged.

The right engaged in this case was the right to property: the underlying question was the treatment of Gurkha soldiers, who had been paid at a lower level and had a lesser-valued pension entitlement as a consequence. Changes to the pension arrangements meant that Gurkhas could transfer into the Armed Forces Pension Scheme from the separate Gurkha Pension Scheme if they served after 1 July 1997; but their credits to the AFPS relating to their pre-1 July 1997 was based on the lower valuation of their pensions, although service after that date would receive a credit similar to that given to other soldiers. This was challenged as discriminatory on the basis of national origin and age.

The Court of Appeal, upholding the approach of the High Court, dismissed the claim. It held that, the approach to Art 14 should involve asking whether there was enough of a real difference between the situations of two people to justify different treatment; that whilst distinctions based on nationality required particularly strong justification, the same could not be said of distinctions based on age; that the margin of discretion allowed to the legislature in making assessments of what was justified was not reduced by the fact that there were soldiers involved, but that it had been open to the legislature to work on the basis that the group who served pre-1 July 1997 would spend their retirement in Nepal and at the costs incurred there (in part because of immigration provisions), and so contributions from prior to that date should be actuarially valued rather than given a value equivalent to that of a non-Gurkha soldier’s pension as of that date.

Manchester City Council v Pinnock [2010] UKSC 45 03/11/2010

Fri, 26 Nov 2010 01:55:28 GMT

ASBOs, Demoted Tenancies and Article 8

Morrison Sports Limited and others (Respondents) v Scottish Power (Appellant) (Scotland), [2010] UKSC 37, 28/07/2010

Thu, 05 Aug 2010 18:37:03 GMT

At the heart of this appeal is whether a breach of certain provisions of the Electricity Supply Regulations 1988 can give rise to a private right of action.

In March 1998 Mr Brian Pritchers owned two buildings, at 23 and 25 Moss Street, Paisley. The tenants of the ground floor shop at number 23 were Morrison Sports Ltd. On 6 March 1998 the building at number 23 was destroyed by fire. Two other buildings were also damaged. Investigations identified the seat of the fire as an electricity meter cupboard in number 23. Those affected by the fire, who are now the respondents, raised three separate actions for damages against Scottish Power UK plc. All three actions are framed in the same way. The respondents aver that it was the presence of a shim fitted by employees of Scottish Power that was the cause of the fire. Scottish Power deny that the shim was fitted by their employees.

One of the bases on which the respondents seek to hold Scottish Power liable is that the fire was caused by Scottish Power’s breach of their statutory duty under regulations 17, 24 and 25 - relating to a supplier’s works - of the 1988 Regulations. The 1988 Regulations were made by the Secretary of State by virtue of his powers under section 16 of the Energy Act 1983. Part I of the 1983 Act, including section 16, was repealed by the Electricity Act 1989, but the power to make regulations was maintained in section 29 of the new Act. Scottish Power now accept that the 1988 Regulations have effect as if they were made under section 29 of the 1989 Act.

The difference between section 16 of the 1983 Act and section 29 of the 1989 Act – and, hence, the point in dispute in the Court of Session – lies in the concluding words of section 29(3). Section 29(3) of the 1989 Act, but not section 16(3) and (4) of the 1983 Act, provides that nothing in subsection (3) “shall affect any liability of any such person to pay compensation in respect of any damage or injury which may have been caused by the contravention.” The Extra Division thought that, by enacting section 29(3), Parliament had indeed made specific provision for a private right of action for damages for loss caused by breaches of the regulations. They therefore considered that in section 29(3) Parliament had introduced an important private right of action for damages “by reservation”. Scottish Power appealed to the Supreme Court.

The Supreme Court unanimously allows the appeal. It holds that contraventions of regulations 17, 24 and 25 of the 1988 Regulations do not give rise to a private right of action. The judgment of the Court is delivered by Lord Rodger.

R (on the application of the Electoral Commission) (Respondent) v City of Westminster Magistrates Court (Respondent) and The United Kingdom Independence Party (Appellant), [2010] UKSC 40, 29/07/2010

Thu, 05 Aug 2010 18:30:11 GMT

The appeal concerns an order made by City of Westminster Magistrates Court for forfeiture of donations made to the United Kingdom Independence Party (UKIP), a registered political party. Restrictions on donations to political parties are set out in Chapter II of Part IV of the Political Parties,
Elections and Referendums Act 2000 ("PPERA").

Mr Alan Bown, a member of UKIP, was entitled to be registered as an elector but, for the period 1 December 2004 - 2 February 2006, his name was not on any electoral register. During that period Mr Bown made donations to UKIP amounting to £349,216. UKIP did not return any of the donations
within thirty days, or at all. On 16 March 2007, the Electoral Commission applied to the City of Westminster Magistrates Court for an order of forfeiture of an amount equal to the donations. The judge ordered the forfeiture of only £14,481, being the value of donations received by UKIP after
the date of a meeting between the Electoral Commission and the party at which UKIP was aware that Mr Bown was not on the electoral roll.

The appeal was allowed and the order of the Magistrates’ Court restored. The majority of the Court (Lords Phillips, Mance, Kerr and Clarke) held that section 58(2) permitted the forfeiture of a sum less than the total donation and that the presumption in favour of forfeiture was displaced in the present case where the donor was eligible to be on the UK electoral register but had not been registered by reason of administrative oversight. UKIP would be required to forfeit £14,481. Three dissenting Justices (Lords Rodger, Brown and Walker) would have held that the full donation must be forfeited.

R (Smith) v The Secretary of State for Defence and another - [2010] UKSC 29, 30 June 2010

Fri, 30 Jul 2010 01:04:53 GMT

Applicability of the Human Rights Act 1998 to Armed Forces in Iraq

R (Noone) v The Governor of HMP Drake Hall and another [2010] UKSC 30, 30 June 2010

Fri, 30 Jul 2010 01:02:52 GMT

Sentence Calculation – Eligibility for Release on Home Detention Curfew

HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, 7 July 2010

Fri, 30 Jul 2010 01:00:49 GMT

The issue raised in this case was the proper test for refugee status when the claimed basis for persecution was sexual orientation. The facts involved two homosexual men from countries where homosexual conduct is criminal. The Court of Appeal had accepted government arguments that they could conceal their sexual orientation and so did not meet the test for a “well-founded fear of persecution”: the approach of the court was that this was a “reasonably tolerable” situation and so was outside the criteria for refugee status. The Supreme Court disagreed and held that the test applied by the Court of Appeal was contrary to the proper understanding of the Refugee Convention.

The Supreme Court determined that compelling a person to deny his sexuality and to prevent the opportunity for matters such as freedom of expression and association in order to prevent imprisonment is not permitted. The fact that a person can avoid persecution by not offending their persecutors does not mean that there is no persecution of the group of which he is a member. Equally, the fact that there is social stigma that might cause someone to conceal their sexuality does not prevent the situation being persecution if the fear of state action is a material reason for that approach.

MS (Palestinian Territories) (Appellant) v Secretary of State for the Home Department (Respondent), [2010] UKSC 25

Thu, 01 Jul 2010 18:48:12 GMT

Decision to remove from the UK under immigration law – whether the location to which the person would be removed was part of the decision and so provided a ground of appeal if the person could not be removed there

Secretary of State for the Home Department (Respondent) v AP (Appellant), [2010] UKSC 24

Thu, 01 Jul 2010 18:46:51 GMT

Control orders and Deprivation of Liberty

Al Rawi & Ors v Security Service & Ors, 04/05/2010, [2010] EWCA Civ 482

Thu, 20 May 2010 22:06:34 GMT

The underlying private law action brought by the six claimants in this case is for damages for improper detention and mistreatment as part of the “war on terror”, phrased in conventional torts such as false imprisonment, trespass to the person and misfeasance in public office, and public law breaches such as breach of the Human Rights Act 1998 on the basis that the treatment was torture or inhuman or degrading treatment. They had been held at Guantanamo Bay. Various government departments were said to be complicit in the harm suffered: they filed an open defence, but also sought to rely on closed material and to have proceedings that would consider this closed material by way of special advocates (ie keeping the defence away from the Claimants and their lawyers). This was presented as little more than an obvious extension of the principles of public interest immunity and the hearing of some evidence in private through the well-established process of the special advocate; indeed, they suggested that the process of considering and making the relevant PII applications would take some 3 years or more, and so the alternative process suggested would secure expedition. Silber J accepted these arguments: the Claimants appealed, joined by human rights organisations and some media companies.

The Court of Appeal overturned the judgment. Lord Neuberger MR, speaking for the Court, noted that the question was whether in the absence of a specific statutory regime it was permissible to order a private law trial for damages to be heard in private: the unambiguous conclusion was that there was no such power in the absence of a statute to that effect (though the possibility of the parties agreeing to the process was left open). In truth, determined the Court of Appeal, the approach adopted by Silber J was not a matter of developing the common law in a flexible way: rather, the judge had forgotten a fundamental principle of the common law, namely that of open justice and the adversarial process, under which the lawyers of the parties see all the relevant evidence and have the ability to use or test it. In short, the rule was that fair trial involved irreducible minimum requirements that could not be taken away in the absence of specific statutory authority: that could not be provided by the general lan guage as to effective case management in the CPR.

Servier Laboratories Limited v National Institute for Health and Clinical Excellence & Anr, [2010] EWCA Civ 346, 31/03/2010

Thu, 06 May 2010 19:53:00 GMT

The functions of the National Institute for Health and Clinical Excellence (NICE), a body within the NHS, include appraising the benefits of drugs: those not approved by NICE are unlikely to be funded through the NHS. NICE operates by commissioning an independent academic review of a drug (a Technology Assessment Report) and seeking comments on that, leading to an Evaluation Report, which is considered by an expert committee with evidence from witnesses, leading to an Appraisal Consultation Document. This is also put out for comments, and the committee then makes a Final Appraisal Determination, which goes to the NICE Guidance Executive for approval and further consultation (including the possibility of an appeal), following which it becomes NICE guidance.

In relation to a drug produced by the claimants for osteoporosis, NICE had concluded that it was too expensive and insufficiently effective (particularly in light of alternative drugs). The Technology Assessment Report had been relatively unimpressed by the drug, despite its approval by the European Medicines Agency (which licences drugs), which had sought information about its efficacy before granting a licence. Representations had been made by the claimants during the process, including on an appeal from the initial Final Appraisal Determination, which led to a revised FAD allowing the drug’s use if the patient could not use one of the alternative drugs. The claimants then sought judicial review, the grounds including the failure to take proper account of some of the data relating to the testing of the drug, and also a reasons-based challenge. The Court of Appeal decided that as a central part of the reasoning in the TAR for rejecting data about the efficacy of the drug had not been adopted in t he FAD, and the committee issuing the FAD had not commented on this reasoning, it had failed to give adequate reasons. This is a classic judicial review approach, demonstrating that the duties exist in the commercially important areas that are public in nature.

R. (on the application of McVey) v Secretary of State for Health, Admin Court, 2010] EWHC 437 (Admin), 5/03/2010

Thu, 06 May 2010 19:52:07 GMT

The emergency of fatal and untreatable variant CJD (known colloquially as "mad cow disease”) led to the creation of government-funded trust fund to provide financial support to victims, chaired by a High Court judge. He subsequently proposed a radical change in the methods of operation of the trust, in particular to reduce with wide discretions of the trustees; this proposal was made as part of a duty to make recommendations as to the terms of the trust. The Department of Health took legal advice and decided not to adopt the changes, but the trust was asked to devise less radical proposals, which were accepted. This led to a judicial review challenge which sought to challenge the failure of the Secretary of State to accept the radical proposals. There were a number of other issues raised, but on the central point, the Judge hearing the judicial review application determined that the Secretary of State had to consider recommendations from the Trustees, giving suitable deference to the their vi ews, but reaching his or her own decision on the merits (and giving adequate reasons), which was rational. Again, the decision is expressed in classic judicial review terms: the interesting point is the subject-matter that came in front of the Administrative Court.

D.McF v. Secretary of State for Work and Pensions [2010] CSIH 26

Thu, 01 Apr 2010 12:21:28 GMT

Application for Leave to Appeal:- By a decision of the respondent dated 18 August 1981 the applicant qualified to receive National Insurance (Incapacity) Credits. The test for entitlement is whether an applicant is capable or incapable of work in terms of sub-section 171A(1) of the Social Security Contributions and Benefits Act 1992. Until 2006 the applicant continued to receive the credits at which time her entitlement fell to be re-considered. As part of the re-assessment process, the applicant completed a questionnaire. The respondent re-assessed the applicant's qualification and, on 9 January 2007, the respondent determined that, as a result of a change of circumstances, as defined by section 10 of the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991), the applicant no longer qualified for the credits. The applicant appealed to a Tribunal. The Tribunal refused the appeal and confirmed the decision of the respondent on 25 July 2007. The applicant appealed to the Social Security Commissioner and on 13 February 2008, the appeal was dismissed on the basis that there was no error of law in the Tribunal's decision. Here the applicant sought leave to appeal on the basis that both the Tribunal and the Commissioner had erred in law in concluding that, because any mental problems which the applicant suffered from had stemmed from her physical condition, she was thereby not entitled to any mental health descriptor points. It was maintained that both the Tribunal and the Commissioner had asked the wrong question, namely whether the applicant had any mental health problems independent of her physical problems instead of whether she had any mental health problems for whatever reason. Here the court considered whether there was any error of law from the decisions of the Commissioner or the Tribunal.

Disability Discrimination Act and Public Law - R (Dennis Gill) v Secretary of State for Justice, 26 February 2010,Disability Discrimination Act and Public Law - R (Dennis Gill) v Secretary of State for Justice, 26 February 2010, [2010] EWHC 364 (Admin)

Thu, 25 Mar 2010 14:38:01 GMT

DG was a life sentence prisoner, having been sentenced to an automatic life sentence for a second serious offence. His tariff had expired, and so his continuing detention depended on whether the Parole Board formed a view as to the danger he presented. The Board had recommended that he undertake programmes designed to address offending-behaviour attitudes, but he had not been able to address them because of his learning difficulties. In judicial review proceedings, Cranston J found that the identified need for DG to undertake offending behaviour work and the identified difficulty for him to undertake the existing courses because of his disability meant that there was discrimination for the purposes of the Disability Discrimination Act 1995, in particular there was a failure to make reasonable adjustments under s21 of the Act so as to allow him to access courses on the same terms as those who were not disabled. The judge noted that the steps that could have been taken included adapted courses, additional aid, or transfer to prisons better equipped to provide him with access to appropriate work.

The interesting point here is the move away from public law irrationality (which was the basis for the decision in another case involving apparently discriminatory treatment, see R (FB) v DPP [2009] Mental Health Law Reports 61, where it was decided that the differential treatment of a disabled witness was irrational because it was discriminatory and so the 1995 Act (as amended) did not add to the approach of the common law. In this case, the judge put the 1995 Act first.

Morrison Sports Limited and Others v Scottish Power [2009] CSIH 92

Thu, 18 Mar 2010 10:18:35 GMT

Fire Damage and Statutory Duties

These three reclaiming motions concern the proper construction of the Electricity Supply Regulations 1988. The pursuers contend that the regulations give them a civil right of action to recover damages in respect of alleged breaches of Regulations 17, 24 and 25. The defenders submit that no such right arises. After debate, Lord Wheatley sustained the pursuers' argument, and by interlocutor dated 18 July 2007 allowed a proof before answer in each case on the pursuers' averments including averments of breaches of the regulations as set out in Article 6 of Condescendence. The defenders reclaimed, seeking to exclude the statutory case from probation.

Tomlinson and others (FC) (Appellants) v Birmingham City Council (Respondents) UKSC 2009/0050

Thu, 04 Mar 2010 17:09:06 GMT

In this case, Birmingham City Council maintained that it had successfully discharged its duty to a number of applicants who were homeless and fulfilled the relevant criteria. The applicants disputed this, claiming that, although written notification of the kind the law requires may have been sent to them by the authority, they never actually received it. The dispute between the parties as to whether the duty had been discharged therefore turned entirely on a pure question of fact. It was therefore of a nature which a county court judge on appeal has no power to determine.

Before this Court, the applicants argued that the lack of a fact-finding jurisdiction for a county court on appeal put that aspect of the system in breach of Article 6(1) of the European Convention on Human Rights, which guarantees the right to a fair trial in the determination of civil rights and obligations.

Martin (Appellant) v Her Majesty's Advocate (Respondent) (Scotland) UKSC 2009/0127

Thu, 04 Mar 2010 17:05:26 GMT

On 17 December 2007 and 14 May 2008, respectively, in summary proceedings Sean Martin and Ross Miller were each sentenced by Sheriffs to periods in excess of six months imprisonment for driving while disqualified contrary to s.103(1)(b) of the RTA. They both sought to challenge their sentences on the basis that amending the relevant provisions of the 2007 Act were outside the legislative competence of the Scottish Parliament.

The High Court of Justiciary (“the HCJ”) dismissed the appeals, holding that the increase in the sentencing power of Sheriffs sitting summarily by s.45 of the 2007 Act was within the Scottish Parliament’s legislative competence. The HCJ gave the Appellants permission to appeal to the Supreme Court.

R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, 10 February 2010, [2010] EWCA Civ 65

Wed, 24 Feb 2010 23:54:57 GMT

Open and Closed Judgments, Public Interest Immunity and Redacted Court Judgments

Adams, R (on the application of) v Secretary of State for Justice [2009] EWCA Civ 1291 (27 November 2009)

Tue, 29 Dec 2009 23:50:23 GMT

Recovery of compensation for a miscarriage of justice – what is a "new or newly discovered fact".

Child Poverty Action Group, R (on the application of) v Secretary of State for Work and Pensions [2009] EWCA Civ 1058 (14 October 2009)

Tue, 29 Dec 2009 23:48:35 GMT

Is the statutory regime for reclaiming overpaid benefits exclusive, or does the common law of restitution apply?

Boyle, R (on the application of v Haverhill Pub Watch & Ors [2009] EWHC 2441 (Admin) (08 October 2009)

Thu, 03 Dec 2009 20:11:57 GMT

An occasional issue in judicial review proceedings is the standing of a party because it is an unincorporated association. In this case, B had been banned from entering pubs, the decision being taken by a scheme which was in the form of an unincorporated association of the operators of pubs in an area (though local council and police authorities were involved in the process). The Court determined that the unincorporated association could not be a party and so could not be sued, but that this would not prevent the Court from investigating the matter by substituting the members of the scheme as a party; but there was a greater problem for the applicant, namely that the publicans were acting in their private capacity, and the involvement of the police and local authorities in promoting such schemes did not make the decisions taken public in nature and so amenable to judicial review.

Kaupthing Bank HF, R (on the application of) v HM Treasury [2009] EWHC 2542 (Admin) (20 October 2009)

Thu, 03 Dec 2009 20:10:39 GMT

As part of the response to the liquidity problems in the banking sector, the Banking (Special Provisions) Act 2008 was passed. Acting under powers in this act, the UK subsidiary of an Icelandic Bank was made subject to an Order that transferred its liabilities (in the form of what it owed its depositors) to a third-party. This was permitted if the Treasury formed the view that it was necessary to secure the stability of the banking system. The parent bank challenged this on the basis that an improper purpose had been followed, ie protecting depositors rather than maintaining the stability of the banking system, and that the analysis of the Treasury was incorrect. It sought judicial review of the Order. The application was refused, the Court finding that the evidence available made plain that the Treasury had exercised the power for the proper statutory purpose and that its analysis did not involve any legal error.

Electoral Commission, R (on the application of) v City of Westminster Magistrates Court & Anor [2009] EWCA Civ 1078 (19 October 2009)

Thu, 03 Dec 2009 20:09:31 GMT

Under s54 of the Political Parties, Elections and Referendums Act 2000, donations to political parties over a set amount may only come from a donor on the electoral roll. There are various related provisions, including a duty to take reasonable steps to verify that a donor is permitted to make donations. Under s58 of the Act, a breach of the provisions can lead to an order of forfeiture of an amount equal to the donation. Such an order had been made by the Magistrates Court, though the donor involved had been entitled to registration (though had not been registered). The decision was quashed in judicial review proceedings and remitted for reconsideration: the High Court had commented that the approach to the question of forfeiture was that it was not a presumed outcome on a finding of a breach of the Act. The Commission challenged this ruling successfully, the Court of Appeal deciding that forfeiture did not follow in every case but was the usual course, since that was the only method of giving teeth to the legislation. Moreover, the test of impermissibility was whether the donor was on the electoral register, not whether they could be.

Chester, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2923 (Admin) (28 October 2009)

Thu, 03 Dec 2009 20:08:10 GMT

In R (Pearson and Martinez) v Home Secretary and Two Electoral Registration Officers; Hirst v The Attorney General [2001] Prison Law Reports 209, the Administrative Court held that it was not necessary to grant serving prisoners the right to vote to comply with the requirements imposed by Article 3 of the First Protocol to the European Convention on Human Rights, which guarantees a representative democracy. Subsequently, in Hirst v UK (No 2) [2005] 1 Prison Law Reports 275, the European Court of Human Rights determined that it was beyond the margin of appreciation to have an electoral system which denied all serving prisoners the right to vote. The Court of Session (sitting as an electoral appeal court) has subsequently granted a declaration of incompatibility in relation to the ongoing failure to provide a new regime: see Smith v Scott [2007] CSIH 9, 2007 SC 345. Mr Chester, a lifer in the English prison system, sought a similar declaration, resting on the refusal to allow him to register for the recent European Union elections. He also raised concerns about the proposals in consultations papers relating to the extension of the franchise, and in particular proposals that those serving longer than 4 years’ imprisonment would not be allowed to vote. Burton J indicated that the existing declaration of incompatibility meant that a further one was not appropriate; and that it was not the role of the court to intervene before legislation had been passed on the proposals made.

AA v Cheshire and Wirral Partnership NHS Foundation Trust [2009] UKUT 195 (AAC) (01 October 2009)

Mon, 02 Nov 2009 11:52:13 GMT

Whether an application to a Tribunal by a Detained Patient Lapses if the Patient is Placed on a Community Treatment Order

N, R (on the application of) v Secretary of State for Health [2009] EWCA Civ 795 (24 July 2009)

Wed, 19 Aug 2009 18:52:07 GMT

Despite a clear judgment of the Divisional Court dismissing the claim on the merits ([2008] Mental Health Law Reports 150), the Court of Appeal was persuaded to reconsider the question of whether it was a breach of Arts 8 and/or 14 of the ECHR to ban smoking in a secure hospital setting.

Under the Health Act 2006, all enclosed public premises in England have to be free of cigarette smoke unless exemptions are granted by regulation. The Smoke-free (Exemption & Vehicles) Regulations 2007 (SI 2007/765) granted various exemptions, including to designated rooms in prisons and also care homes and hospices (Reg 5). Psychiatric hospitals were given a brief exemption, but this was ended on 1 July 2008, essentially after consultation led to a conclusion that the risks of second-hand smoke, the inconsistency of allowing smoking in a hospital the primary purpose of which was to assist health, and concerns that chronic smoking was associated with and might intensify some mental disorders, meant that it was not appropriate to allow smoking at all. This was challenged, and significant expert evidence was adduced on the role of smoking in assisting or causing problems in psychiatric facilities.

The Divisional Court held that questions of the “right” to smoke were not so tied up with a person’s integrity as to be protected by Art 8 ECHR; and that the nature of a psychiatric institution was not to be equated with a private home in assessing what freedoms should be allowed. The Court also rejected the idea that smoking was within the ambit of Art 8 for the purposes of engaging Art 14: but even if it was, there was nothing irrational or disproportionate so as to amount to a breach of Art 14.

The Court of Appeal dismissed the appeal, though only by a majority. The central points made by the Court were similar to those made by the Divisional Court: (i) the institutional setting inevitably meant that a number of freedoms were lost; just as the freedom to choose what to drink (eg alcohol) was lost, so was the right to choose to smoke; (ii) smoking was not an activity integral to a person’s integrity and so did not qualify for protection under Art 8 as such, nor was within the ambit of Art 8 for the purposes of considering whether it was improperly discriminatory (given the different treatment of those in prison) and so potentially in breach of Art 14; (iii) if Art 8 was engaged, it was legitimate to protect health by banning smoking, which secured greater benefits than disbenefits, and the differential treatment of patients and prisoners was reasonable and based on the results of a consultation process and so would not have breached Art 14 even if it was engaged.

The dissenting judge felt that the public health objective of protecting people against second-hand smoke could be achieved by something less than a total ban: but the feature on which he placed concern was that there were no facilities for patients in a high secure setting to go outside. This, however, is a consequence of the risk posed by the patients at the hospital concerned and so seems obviously relevant to the proportionality of the restriction.

Secretary of State for Justice v James [2009] UKHL 22 (6 May 2009)

Tue, 05 May 2009 23:00:00 GMT

Just one case is discussed this month, relating to the House of Lords’ consideration of one of the developments in criminal justice policy, namely the increased importance of sentences based in part on the risk of future violence. The Criminal Justice Act 2003 introduced an indeterminate sentence of Imprisonment for Public Protection for those who commit a specified offence carrying 10 years or more (and a schedule to the Act sets out a large number of offences) and who are judged to present a risk of causing serious harm in the future but do not merit a life sentence. However, in almost all respects the IPP sentence is analogous to a life sentence. This has led to a significant growth in the population of indeterminate sentence prisoners, whose release cannot occur until they are judged safe to release by the Parole Board, which considers their cases once they have passed their tariff dates (ie the minimum term required for punitive purposes). This invariably requires that they complete courses relating to offending behaviour. But the resources have not been provided to allow those courses to be completed in a timely fashion, ie before they reach tariff expiry.

Litigation has ensued: early court decisions taking an expansive view of the powers of the courts to declare detention of those not provided with offending-behaviour courses illegal has been replaced by a more conservative analysis, with the House of Lords endorsing the more conservative approach.

The first case was R (Wells) v Parole Board; R (Walker) v Home Secretary [2007] EWHC 1835 (Admin): Laws LJ sitting with Mitting J in the Divisional Court held that, whilst the detention of the prisoners did not breach Art 5 ECHR, given that it was still detention following conviction by a competent court, the Secretary of State had acted unlawfully by failing to provide for measures to allow and encourage IPP prisoners to demonstrate to the Parole Board by the expiry of their tariffs that it was no longer necessary for the protection of the public for them to be confined.

Then in R (James) v Secretary of State for Justice [2007] EWHC 2027 (Admin), Collins J decided that the failure to provide courses being unlawful and frustrating the purpose of Parliament in introducing the IPP sentences, it would be wrong for a court to uphold post-tariff detention and he ordered that an IPP prisoner be released, but then stayed that pending an appeal.

The Court of Appeal heard joint appeals: R (Walker and James) v Secretary of State for Justice, [2008] EWCA Civ 30. It upheld the conclusion that the Secretary of State had acted unlawfully failed to provide adequate resources. In essence, it was held that sufficient courses had to be provided to allow prisoners to demonstrate their fitness for release as soon as their tariffs had expired. However, the Court held that the lawfulness of the detention depended on the risk posed (that being the basis for detention) not the provision of courses for the purpose of addressing that risk. The Court did note, however, that it might be possible to find arbitrary detention if there was an extensive period without any meaningful review of detention because of the failure to provide courses: but that time had not been reached. As such, the order for release in the case of Mr James had been wrong and was set aside. The case was then appealed to the House of Lords.

Then in R (Lee and Wells) v Secretary of State for Justice [2008] EWHC 2326 (Admin) it was held again that there was no breach of Art 5(1) ECHR; there was a concession that Art 5(4) was breached. That case was joined to Walker on a leapfrog appeal to the House of Lords.

In the House, (i) it was conceded that the decision to introduce the IPP sentencing regime by bringing the statutory provisions into force before the resources were in place was unlawful as a matter of public law, reaching the level of irrationality. (ii) In relation to Art 5(1), the fact that the sentence was imposed under a regime that was irrationally brought into effect did not mean that there was a breach of Art 5(1)(a): the House noted that the European Court of Human Rights jurisprudence indicated that what was needed was a connection between the sentence imposed and the ongoing detention, and so long as the prisoner remained dangerous and there was an ongoing regular assessment of that, there was no breach of Art 5(1)(a). The obvious argument that an irrationally introduced regime of indeterminate detention makes the detention unlawful in domestic law and so inevitably outside Art 5(1) does not seem to feature: the point is that, whilst there is no doubt a judicial assessment of risk at the time the sentence is imposed, which is the feature on which the House concentrates, the regime as a whole should never have been introduced without the necessary resources – in other words, the judges should not have been asked to make the assessment of risk unless there were provisions in place to deal with that risk.

(iii) The third conclusion of the House was even more conservative. The Secretary of State conceded that there would be breaches of Art 5(4) if post-tariff prisoners were not provided with any courses and so had no chance to demonstrate a reduction of risk and so have any prospect of release. However, the Parole Board intervened and argued that Art 5(4) was not breached. The House concluded that in fact Art 5(4) was not in play: it provided a procedural right only, limited to having a court review of detention. That was still provided, even though the Parole Board considering the cases where there had been no offending behaviour work would not have anything of substance on which to adjudicate. Somewhat bizarrely, in light of this conclusion, the cases of Wells and Lee were remitted to the Administrative Court of an assessment of damages in relation to the conceded breach of Art 5(4) which the House indicated should never have been made: this inevitably means, of course, that everything the House said about Art 5(4) is strictly obiter.

McE, Re (Northern Ireland) [2009] UKHL 15 (11 March 2009)

Wed, 11 Mar 2009 18:57:00 GMT

The substantive issue arising in various cases was whether the prison authorities and the police could make use of covert surveillance during discussions between detainees and their solicitors or a doctor who was deciding whether a detainee was fit to be interviewed. Declarations were sought that legal and medical consultations could take place without such surveillance, reflecting the importance at common law of legal professional privilege and also the privacy of medical consultations, but also various statutory rights of a similar nature. The Queens Bench of the High Court of Northern Ireland granted held that the Regulation of Investigatory Powers Act 2000 was designed to cover consultations between legal advisers and their clients, but that the regime in place for authorising surveillance of such meetings was inadequate and so the monitoring was unlawful. An appeal was taken on the point as to whether RIPA did indeed displace the common law protection of legal professional privilege and, by analogy, medical privilege.

The House of Lords held that the 2000 Act did indeed apply so as to permit covert surveillance despite the existence of either legal professional privilege or statutory rights as to consultation with a solicitor: this was subject to the proviso that the provisions of the Act were followed (including the provisions of the Code of Practice issued under the Act) and that there was no breach of Convention rights. It was noted that the purpose of RIPA was to provide compliance with Art 8 ECHR and so it could only be permissible to have covert surveillance such as would be proportionate in support of one of the legitimate aims listed under Art 8(2). That in turn meant that, given that RIPA allows different safeguards depending on the sensitivity of the intrusion, the procedure to be used had to be at an enhanced level, which in RIPA terms required that the intrusive surveillance provisions of s32 RIPA had to be deployed.

Ahmad, R (on the application of) v London Borough of Newham [2009] UKHL 14 (4 March 2009)

Wed, 04 Mar 2009 13:49:00 GMT

Under s167 of the Housing Act 1996, as amended by section 16 of the Homelessness Act 2002, local housing authorities are required to have schemes for determining priorities in the allocation of housing: and the scheme shall grant a reasonable level of preference to certain groups, including those who are homeless, live in insanitary, overcrowded or otherwise unsatisfactory housing conditions or who need to move for medical or welfare reasons. The scheme in Newham was, in essence, to have one register for all those with priority needs and allocate housing on the basis of length of time spent awaiting housing. The High Court had determined that this was improper and the Court of Appeal had upheld that decision. However, the House of Lords allowed a further appeal, determining that such a scheme was neither irrational nor unlawful: the Court emphasised the need to defer to the housing authority’s judgments, which indicated that irrationality was a hard test to meet.

The Child Poverty Action Group, R (on the application of) v Secretary of State for Work and Pensions [2009] EWHC 341 (Admin) (27 February 2009)

Fri, 27 Feb 2009 00:00:00 GMT

The CPAG challenged the government policy of seeking repayment of overpaid social security benefits under common law powers. The overpayments were ones without fault on the part of the recipient (for which there was a statutory recovery scheme). The issue raised was whether common law powers for the recovery of mistaken payments were applicable in light of the existence of the powers for recovery under s71 of the Social Security Administration Act 1992. It was held that there was no inconsistency between the augmented rights under s71 and the continuation of common law powers in other situations of mistaken payments.

A v B (Investigatory Powers Tribunal: Jurisdiction) - [2009] EWCA Civ 24, CA (Civ), 18 February 2009

Wed, 18 Feb 2009 00:00:00 GMT

The underlying facts involved a former “spy” who wished to publish a book including mention of his work for the security service, but the Director of Establishments of the Security Service refused consent for this. The author wished to appeal and so brought judicial review proceedings to challenge the refusal of consent, relying on Art 10 ECHR (freedom of expression). A preliminary issue was whether judicial review was permissible in light of the existence of the Regulatory Powers Tribunal (under the Regulation of Investigatory Powers Act 2000). The Court of Appeal by a majority held that the statutory regime was exclusive and so there was no judicial review jurisdiction.

Black ,R (On The Application of) v Secretary of State for Justice [2009] UKHL 1 (21 January 2009)

Wed, 21 Jan 2009 00:00:00 GMT

Article 5(4) and Prisoner:

Cases brought by prisoners have been one of the major sources of public law developments over the last few decades or so, and this now often involves points relating to the coverage of the European Convention on Human Rights. On this occasion, a series of cases in both the House of Lords the Court of Appeal had established a role for Art 5(4) ECHR in relation to determinate sentence prisoners, but the House of Lords in Black has produced a conservative approach to the question. No doubt the question will now head to the European Court of Human Rights.

The legal regime is worth noting, first. On being given a determinate sentence, a prisoner is entitled to release after a certain time (subject to losing days for disciplinary offences); and there is also a discretionary scheme for release, parole. Under the Criminal Justice Act 2003, the question of discretionary release arises in relation to sexual and violent offenders given an extended sentence. For those sentenced under the Criminal Justice Act 1991, parole arises in relation to all those serving 4 years or more. There is an additional element to the 1991 scheme, namely that the Home Secretary (now Secretary of State for Justice) retained the final decision in relation to those serving 15 years or more: in relation to all other prisoners, the Parole Board had the final say.

What is important to note is that the question of release on parole involves a risk assessment as to whether the prisoner is as of the date of the application for parole too great a risk for release. This is a very different question from that asked by the sentencing judge when imposing the level of sentence. In relation to life sentence prisoners, the fact that a very different risk assessment question arises once the tariff has expired is the reason why their detention has to be considered afresh by a court in order to comply with Art 5(4) ECHR. The essential reasoning is that fresh issues determine the lawfulness of detention, and so a court has to make the decision.

In terms of how this applies to determinate sentence prisoners, it has been held by the House of Lords that it applies to determinate sentence prisoners who have been released on parole and then recalled: R (Smith and West) v Parole Board [2005] 1 WLR 350. Following that, in R (Johnson) v Secretary of State for the Home Department [2007] 1 WLR 1990, the Court of Appeal decided that an 8 ½ months’ delay by the Parole Board in its consideration of an application for parole breached Art 5(4). This was then applied in R (O'Connell) v Parole Board [2008] 1 WLR 979. It is also worth noting that the Home Secretary sought to appeal Johnson to the House of Lords on the basis that Art 5(4) did not apply: but leave to appeal was refused.

The Black case involved a prisoner sentenced to 24 years’ imprisonment. Had he received a discretionary life sentence, he would have been entitled to have the Parole Board consider his release after the tariff period (set at half of the notional determinate term so as to equate with determinate sentence prisoners’ rights to see parole). But under the CJA 1991, he had to receive a positive recommendation from the Board and then persuade the Secretary of State. The Court of Appeal held that his entitlement to a speedy judicial decision on his release was breached by the fact that the Secretary of State was the decision-maker: [2008] 3 WLR 845. It granted a declaration of incompatibility. The House of Lords, however, held that Article 5(4) did not apply: the reasoning is, in essence, that the question of early release in a determinate sentence is an administrative implementation of the sentence rather than a decision involving fresh questions of lawfulness because the European Court of Human Rights has never ruled to the contrary. So the Court of Appeal case law was overturned. Given that one of the aims of the Human Rights Act was that the domestic courts would become involved in developing European Convention jurisprudence, this decision – which in effect indicates that the domestic courts should not move until the European Court gives them permission to do so – is disappointing. At least Lord Phillips, in a dissent, was able to recognise the obvious logic of extending the established principles, which is all that had happened in the Court of Appeal.

R (F) v Secretary of State for Justice – CA, 18 December 2008, [2008] EWCA Civ 1457

Thu, 18 Dec 2008 00:00:00 GMT

F had been transferred from detention to hospital under the Mental Health Act 1983 on the day that he would otherwise have been released. In a judicial review challenge to the warrant of transfer, the judge found that the warrant was unlawful because the medical opinions on which it had been based did not deal with an essential precondition for detention in hospital, the treatability of the psychopathic disorder from which he was said to be suffering. However, on the basis that judicial review remedies are discretionary, she declined to quash the warrant because evidence filed in the proceedings made clear that the medical view was that the treatability requirement was met, and so had the Secretary of State carried out further enquiries and clarified the opinions of the doctors, the warrant would still have been issued.

An appeal to the Court of Appeal was successful. It applied a more orthodox position: the basis for detention was an unlawfully issued warrant (because the criteria for its imposition were not met), and it could not be saved as a matter of discretion to refuse relief.

East Renfrewshire District Council v. Glasgow City Council [2008] CSOH 175

Wed, 17 Dec 2008 17:46:00 GMT

Debate:- The parties were the education authorities for their respective areas. The dispute between the parties related to the cost of the provision of additional support services for children of families ordinarily resident in the defenders' area, who therefore belonged to the defenders' area. In each case the child was placed in school as a result of a parents' application to the pursuers. The pursuers submitted that the defenders were liable because the children belonged to their area, and that liability for the cost of the additional support was to be determined on that basis. The defenders submitted that they were not obliged to provide for additional support of the children in question because they were not responsible for their school education, and were therefore not liable for the relative costs as they had not been involved in the placement of the childrenin schools in the pursuers' area, and there was no arrangement between them and the pursuers that provided for such payment. Here the court considered who was responsible for the costs.

Telefonica O2 UK Ltd v Office of Communications – CA, 12 December 2008, [2008] EWCA Civ 1373

Fri, 12 Dec 2008 00:00:00 GMT

Judicial Review as an “Effective Appeal Mechanism”:

The decision of Ofcom to award wireless telegraphy licences in certain spectrums was objected to by two mobile telephone companies, O2 and T-Mobile, on the basis of the potential impact on other licences already held by these companies because of an Ofcom policy. The companies appealed to the Competition Appeal Tribunal, but it decided that it did not have jurisdiction. The decision of the Tribunal was challenged in the Court of Appeal, the issue being whether the challenge to the Ofcom decision was appealable to the Tribunal or should be challenged by judicial review. The Court held that, as a matter of statutory construction, there was no appeal to the Tribunal, and so judicial review was the remedy to seek. One of issues was whether judicial review was an "effective appeal mechanism" as required by art 4 of EU Directive 2002/21: the Court of Appeal noted that judicial review procedure could be adapted to require whatever standard of review of the merits was necessary to comply with the Directive.

R (on the application of JL) (Respondent) v Secretary of State for Justice (Appellant), [2008] UKHL 68

Wed, 26 Nov 2008 11:53:00 GMT

This appeal raises the question of the nature of the investigation that must be carried out by the State whenever a prisoner in custody makes an attempt to commit suicide that nearly succeeds and which leaves him with serious injury.

The respondent (JL) was arrested, charged and remanded in custody to Feltham Young Offender Institution. In August 2002 he was found hanging from the bars of the window of his cell. He was resuscitated but suffered serious brain damage.

The London Area Manager of the Prison Service initiated an investigation into what had occurred. He instructed Mr Sheikh, a retired Prison Governor acting as a Senior Investigating Officer, to carry this out. Mr Sheikh’s report concluded that the treatment and care provided to JL at Feltham was in line with the national as well as the local requirements and that the staff at Feltham had provided the, “necessary required care and attention and support".

JL sought judicial review. He contended that art.2, of the ECHR imposed a duty on the Secretary of State to carry out an independent investigation into his attempted suicide; that this investigation had to satisfy a number of criteria; that Mr Sheikh’s investigation did not satisfy those criteria; and that the report disclosed facts that raised the possibility that Feltham had failed to discharge the duty to safeguard JL’s life imposed on the State by art.2. He sought a mandatory order requiring the Secretary of State to carry out an investigation that satisfied art.2, reserving the right, in the light of the findings of this investigation, to pursue a further claim for breach of the obligation to safeguard his life.

The Court held that it was arguable that the State was responsible for the injuries sustained by JL. Therefore there was an obligation to hold an investigation that complied with art.2 and the Court granted a declaration to that effect.

In July 2007, the Court of Appeal dismissed the Secretary of State’s appeal. The Court held that the requirement for an initial independent investigation had not been satisfied in this case, if only because Mr Sheikh did not have the degree of independence required. The Court went on to state that unless from the independent investigation it is, “plain that the State or its agents can bear no responsibility”, a further investigation - called a D-type investigation - would also be required.

The Secretary of State appealed to the House of Lords. The House rejected the Secretary of State’s submission that an art.2 investigation was only required where the State was in arguable breach of its substantive art.2 duty to protect life. The relationship between the State and prisoners was such that the State was bound to conduct an art.2 compliant inquiry whenever its system for preventing suicide failed and as a result the prisoner suffered injuries in circumstances of near-suicide significantly affecting his/her ability to know, investigate, assess and/or take action by him or herself in relation to what has happened. The House held that an art.2 investigation was required in this case.

Whilst he no longer sought to avoid a D-type investigation into JL’s near-suicide (and the House therefore unanimously dismissed the appeal on this ground alone), he was concerned by the resource implications if the principles identified by the Court of Appeal were applied generally. The House recognised that in bringing this appeal the Secretary of State was for practical purposes seeking guidance as to future policy and procedures. However, the House stated that there were obvious limits as to how far the House could give anything like detailed guidance on these matters. It would be for the independent investigator to decide, once he had become familiar with the issues, whether an art.2 compliant investigation would be sufficient or whether there needed to be a further D-type investigation.

Kay (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent), [2008] UKHL 69

Wed, 26 Nov 2008 11:00:00 GMT

This case involves Critical Mass cycle rides. These rides take place spontaneously without any advance planning or organisation by any individual or individuals. Cyclists gather at a certain place and set off in a group for a ride through a city. The route for the ride is not predetermined but evolves as the trip proceeds, with those at the front of the group choosing which way to go.

Until September 2005 the police did not attempt to require the participants in the London Critical Mass cycle ride to comply with s.11 of the Public Order Act 1986. An attempt was then made to impose notification requirements under this provision. Therefore, the question in this case is whether Critical Mass is a “procession [which is] commonly or customarily held in the police area (or areas) in which it is proposed to be held", so that it falls within the exemption granted by s.11(2) of the 1986 Act and therefore does not require prior notification. The wider issues raise the question of whether, and if so how, s.11 of the 1986 Act applies to events such as Critical Mass.

The Administrative Court held that s.11 could apply to Critical Mass but that it was exempt under s.11(2).

The respondent appealed. The appellant did not cross-appeal and therefore that appeal turned on the narrow issue of whether Critical Mass was a procession that was commonly or customarily held in the Metropolitan Police Area. The Court of Appeal, by a majority, allowed the appeal.

The appellant appealed to the House of Lords. The House of Lords unanimously allowed the appeal. The House held that Critical Mass cycle rides were a monthly procession of cyclists which had been taking place since 1994. They had therefore become a procession commonly or customarily held in the police area or areas concerned and were therefore exempt from prior notification in terms of s.11(2). It could not be said that a fixed and known route was an essential characteristic of a procession commonly or customarily held.

Kay c Commissioner of The Police of The Metropolis [2008] UKHL 69 (26 November 2008)

Wed, 26 Nov 2008 00:00:00 GMT

Commonly or customarily held processions : Since April 1994 cyclists have gathered in London at the South Bank at a set time early in the evening of the last Friday of each month for a mass ride through the streets, known as Critical Mass: the aims include the promotion of cycling. The route, however, is not fixed. Under s11(1) of the Public Order Act 1986 written notice (which must include the proposed route – s11(3)) is required to be given of a public procession which is intended to demonstrate support or opposition to particular views, or to publicise a cause, or to mark an event, unless it is not reasonably practicable to give any advance notice of the procession. There is an exception under s11(2) where the procession is one commonly or customarily held. If no notice is given the persons organising the procession are guilty of an offence: s11(7). The question arose as to whether the Critical Mass ride was commonly or customarily held and so within the terms of the exemption. The Divisional Court ([2006] Police Law Reports 111) held that it was, but the Court of Appeal ([2007] Police Law Reports 135, [2007] 1 WLR 2915) upheld the Commissioner’s appeal by a majority on the basis that each procession was unique because of the different routes, and so could not be common or customary. The House of Lords disagreed with the Court of Appeal, holding that the test of being commonly or customarily held did not exclude something that took a different route each month: as a matter of the ordinary meaning of language, sufficient similar features of processions that took place at regular intervals could be the same procession even if a different route was followed. There were also comments to the effect that the spontaneous nature of the event – with only the start time and location fixed – probably meant that it was not something that was planned in advance and so was outside s11 in any event.

R (on the application of Bancoult) (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant), [2008] UKHL 61

Wed, 22 Oct 2008 13:34:00 GMT

This appeal concerns the validity of s.9 of the British Indian Ocean Territory (Constitution) Order 2004 (“the Order”). The British Indian Ocean Territory (“BIOT”) is situated south of the equator and consists of a group of coral atolls known as the Chagos Archipelago. s.9 of the Order states that BIOT has been set aside for the defence purposes of the Governments of the UK and the USA and therefore no person has the right of abode in the BIOT. Accordingly, no person is entitled to enter or be present in the BIOT, except as authorised by or under the Order or any other law for the time being in force in the BIOT.

The Divisional Court held s.9 to be invalid. It accepted an argument that the Order was irrational because its rationality had to be judged by the interests of BIOT. That meant the people who lived or used to live on BIOT. The Order was not made in the interests of these people but in the interests of the UK and the US and was therefore irrational.

This decision was affirmed by the Court of Appeal where it was stated that the removal or subsequent exclusion of the population “for reasons unconnected with their collective wellbeing” could not be a legitimate purpose of the power of colonial governance exercisable by Her Majesty in Council. It was an abuse of that power. The Court of Appeal also considered the Foreign Secretary’s press statement in 2000 which had stated that a new Immigration Ordinance would be put in place to allow these people to return to the outer islands. This was a promise to the people which gave rise to a legitimate expectation that, in the absence of a relevant change of circumstances, their rights of entry and abode in the islands would not be revoked. There had been no such change.

The Secretary of State appealed to the House of Lords. By a majority of 3:2, the House of Lords allowed the appeal. The majority held that it was not for the courts to substitute their judgment for that of the Secretary of State advising Her Majesty as to what could properly have been said to conduce to the peace, order and good government of BIOT. Also, the time at which the factors governing reasonableness had to be assessed was, self-evidently, the time of making the decision called into question. Bearing this in mind, it could not be said that no reasonable Secretary of State could have made the decision that he did – it could not be said that his decision should not be set aside on the ground of irrationality. With regard to the issue of legitimate expectation, the majority accepted that breach of such an expectation could give rise to an actionable claim. However, the press statement in 2000 did not give an unequivocal assurance that the people could be allowed to resettle the islands.

Bancoult, R (On The Application of) v Secretary of State For Foreign and Commonwealth Affairs [2008] UKHL 61 (22 October 2008)

Wed, 22 Oct 2008 00:00:00 GMT

The lawfulness of the exile of the Chagossian population -The background to this case is that Diego Garcia, officially part of the British Indian Overseas Territory, was chosen by the USA as the preferred location for its long range bombers at a time when the UN-sponsored process of decolonialisation was ongoing: the creation of the BIOT – which involved taking the Chagos Islands, of which Diego Garcia is a part, away from Mauritius before the latter became independent – breached a specific UN resolution and a general principle that the decolonialisation process should be unconditional. A secret deal was then negotiated with the USA, which involved the UK government buying the plantation company that operated on Diego Garcia and offered the only employment for the 2000 people who lived there, but also the making by the Commissioner appointed to rule the BIOT of an Immigration Ordinance in 1971 which ordered the population to move to Mauritius. It was suggested that this was not the forced exile of a population but the movement of contract labourers. When the full story became revealed following freedom of information requests in the USA, judicial review proceedings led to a declaration that the Immigration Ordinance of 1971 was ultra vires: R (Bancoult) v Foreign Secretary [2001] QB 1067 because it amounted to a forced exile not the making of laws to govern the territory. The Government’s initial indication that it would restore the population to the Chagos Islands except Diego Garcia was reversed by way of the British Indian Ocean Territory (Constitution) Order 2004 and a similar Immigration Order, both by Order in Council, which meant that no-one had a right of abode in the BIOT save under a permit (which in practice was not going to be granted). These orders were quashed by the Divisional Court in R (Bancoult No 2) v Foreign Secretary [2006] EWHC 1038 (Admin); the Court of Appeal dismissed a government appeal - [2008] QB 365 – holding the Orders in Council to be a breach of a legitimate expectation of return after the first decision, and so an unlawful abuse of prerogative powers. The House of Lords, has, however taken a different view. A bare majority held that the power to legislate for a ceded territory could be exercised in relation to the UK’s wider interests (which meant that a narrower reading in the first case was overturned). They also determined that the right of abode was a legal right that could be taken away, and on the facts was a past right the continued existence of which was purely symbolic since it was not a practical proposition – meaning that the decision to terminate the right of abode was not unreasonable in public law terms in light of the cost and security implications of allowing resettlement in the BIOT. Moreover, no legitimate expectation had been created by the government reaction to the first case: no unambiguous promise had been given that they would be free to return to the islands.

Haase) R (on the application of) v Independent Adjudicator & Anor [2008] EWCA Civ 1089 (14 October 2008)

Tue, 14 Oct 2008 00:00:00 GMT

Prison Adjudications: Impartial Prosecutors: The introduction of the Human Rights Act 1998 (and litigation taken in the European Court of Human Rights in relation to events before the statute came into effect) has produced a significant change to the hearing of disciplinary adjudications in prisons. Previously, sentences of up to 42 days (characterised as putting back what would otherwise be the early release date) could be imposed by the prison governor (or, more often, a deputy). Since an adjudication would often place the word of prison officers against prisoners, the governor was not an independent and impartial adjudicator: but the first question was whether Art 6 ECHR and the need for a independent and impartial trial arose. This in turn depended on whether the adjudication determined a criminal charge or not. European Court jurisprudence, in the form of Ezeh and Connors v UK (2004) 39 EHRR 1, [2004] Prison Law Reports 95 (Grand Chamber, upholding the Chamber, (2002) 35 EHRR 691, [2002] Prison Law Reports 354), held that it did, in large part because of the additional deprivation of liberty at stake: even though it might be within the envelope of the court-imposed sentence, it was nevertheless sufficient of a penalty as to amount to a criminal penalty. A domestic Court of Appeal decision to the contrary, R (Carroll and Al-Hasan, and Greenfield) [2001] Prison Law Reports 59, was accepted to be wrongly decided when the matter proceeded to the House of Lords. The effect of this was that a new system was introduced whereby any award of additional days had to be made by a visiting District Judge. However, that was the trigger for other arguments. For example, did the hearing have to be in public (which is the default position for Art 6)? The answer to this was that it did not: see Bannatyne [2005] 2 Prison Law Reports 1. Another question has now been determined by the Court of Appeal, namely whether the guarantee of fair trial could only be met if there was a prosecution service that was independent. Mr Haase was charged with refusing an order to provide a specimen for a drugs test. The “prosecution” was in the form of a statement by the officer who reported him for the offence. The challenge to this was based on the absence of an independent prosecuting body as would be present in relation to the majority of criminal prosecutions in the magistrates court. Reliance was placed on a decision of the Courts-Martial Appeal Court to the effect that the absence of an independent prosecutor was a systemic failure to comply with the requirements of Art 6: R v Stow ([2005] EWCA Crim 1157). The Court of Appeal dismissed Mr Haase’s claim, however, noting that the language of Art 6.1 ECHR referred to the independence and impartiality of the adjudicator not of the prosecutor, that no ECtHR jurisprudence required it, and that Stow was decided on the basis of an acceptance by the prosecution that there should be an independent prosecutor and so should be treated with caution and was in any event not binding in relation to the different context of prison adjudications. Rather than any systematic failure, the question was whether the absence of an independent prosecutor resulted in unfairness, which turned on the facts of each case.

R (Hopkins) v Parole Board Administrative Court (Stadlen J), 3 October 2008, [2008] EWHC 2312 (Admin)

Fri, 03 Oct 2008 00:00:00 GMT

Parole and Oral Hearings: Another aspect of prison law that has been changed significantly by reason of the ECHR is that of parole. This has proceeded in waves: first, the release of life sentence prisoners was gradually transferred from the Home Secretary to the Parole Board in order to comply with Art 5 ECHR. Then questions arose in relation to determinate sentence prisoners. First, those released on licence who were recalled had to have an oral hearing before the Board in order to determine whether their recall was proper and should lead to ongoing detention: see R (Smith and West) v Parole Board [2005] 1 WLR 350, [2005] 2 Prison Law Reports 14. There was then a finding by the Court of Appeal that the failure to consider a prisoner for release on parole in a timely fashion breached Art 5(4), in essence because a separate test was applicable for detention after the half-way point of the sentence and so new questions of lawfulness could arise, which should be the trigger for Art 5(4) rather than the fact that there had been release on licence: see R (Johnson) v Secretary of State for the Home Department [2007] EWCA Civ 427, [2007] 1 WLR 1990. The effects of the latter decision are still being worked out, and in particular whether the application of Art 5(4) means that oral hearings are usually required (which was the finding in the Smith and West case in relation to recall). In Mr Hopkins case, there were a number of features against the grant of parole, including assessments of risk which were somewhat old; but there were a number of features in support, including motivation to reform and support in the community. On the facts, the judge held that the failure to hold an oral hearing was unfair because it deprived Mr Hopkins of the chance to state his case about risk in circumstances where that might have made a difference. This will no doubt often be the case on the facts.

Corner House Research & Ors, R (On The Application of) v The Serious Fraud Office [2008] UKHL 60 (30 July 2008)

Wed, 30 Jul 2008 00:00:00 GMT

Criminal Investigations Ended by Foreign Pressure – Lawfulness – Section 1(3) of the Criminal Justice Act 1987 allows the Director of the Serious Fraud Office to investigate serious or complex fraudUnder this power, the Director began to investigate the Al Yamamah contract between the UK and Saudi Arabia, the main beneficiary of which was BAE Systems, based on an allegation that BAE had made corrupt payments in order to secure the contract. Such payments were being investigated as being in breach of=2 0the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, an international obligation to which effect was given by ss108-110 of the Anti-Terrorism, Crime and Security Act 2001. The SFO exercised its powers to require disclosure of various material, including one notice to BAE requiring them to disclose details of payments to agents and consultants. BAE did not provide the material but indicated that it would be regarded by Saudi representatives as a serious breach of confidentiality. Senior officials at the Ministry of Defence also indicated that international relations with Saudi Arabia would be compromised. The Attorney General and the Director then decided to consider whether there was a public interest in proceeding with the investigation. The Prime Minister, Foreign Secretary and Defence Secretary noted the importance of Saudi Arabia as a trading partner and also in relation to operations designed to counter terrorist threats involving extremists supporting Islam. However, the Attorney General and Director decided it was in the public interest to proceed. However, when the SFO subsequently indicated its intention to investigate Swiss bank accounts and payments to a Saudi official, which the Swiss authorities indicated they would cooperate with, the Saudi government made explicit threats to withdraw from anti-terrorism and similar operations and also withdraw from negotiations relating to an extension of the arms deal. Further representations were made about the public interest in the investigation proceedings, including from the Prime Minister, particularly in relation to national security matters. Following further consideration, the Director of the SFO ended the investigation, concluding that national security concerns (though not economic concerns) meant that the investigation should not proceed. This was challenged by Corner House Research, a pressure group concerned with international corruption. The Divisional Court ([2008] EWHC 714 Admin) quashed the decision, deciding that, although the Director was able to take into account risks to life and national security, it was impermissible to have acted following a threat from a foreign government relating to the enforcement of the criminal law. It held that there was an insufficient appreciation of the damage to the rule of law in the circumstances, and that the lawfulness of a decision to stop an investigation when there was a threat depended on there being no alternative course of action. The SFO appealed to the House of Lords, which held that the test applied by the Divisional Court was novel and unsupported by authority, and incorrect: the question was whether the decision was outwith the discretion of the Director, which it was not. As Lord Bingham put it at para 41, the Director “was confronted by an ugly and obviously unwelcome threat” but took a lawful decision: at para 42, indeed, Lord Bingham noted that any responsible decision maker would have reached the same conclusion.

Juncal, R (on the application of) v Secretary of State for the Home Department & Ors [2008] EWCA Civ 869 (25 July 2008)

Fri, 25 Jul 2008 00:00:00 GMT

Lawfulness of Detention on a Finding of Unfitness to Stand Trial without a Finding that the Actus Reus was Committed : J had been found unfit to stand trial in Northern Ireland in 1997; under Art 49 of the Mental Health (Northern Ireland) Order 1986, the finding led to the making of a hospital order with a restriction order. In contrast to the position in England and Wales and Scotland at the time the order was made, the jury in Northern Ireland did not have to go on to make a finding that the actus reus had been committed before an order could be made; however, the 1986 Order reflected the position in the other parts of the UK at the time it was promulgated. J was transferred to hospitals in Scotland and then England, and challenged his detention on the basis that it was arbitrary in the absence of a finding that he committed the actus reus. The Court of Appeal held that the finding of unfitness to stand trial overlapped with the question of whether a person was within the test of unsoundness of mind for the purposes of Art 5(1)(e) ECHR, and on the evidence J met that test because his mental disorder had warranted detention during his time in hospital: accordingly, the detention was not capricious or based on a random choice.

Bhatt Murphy (a firm), R (on the application of) v The Independent Assessor [2008] EWCA Civ 755 (09 July 2008)

Wed, 09 Jul 2008 00:00:00 GMT

Consultation obligations: The International Covenant on Civil and Political Rights 1966 is a worldwide equivalent of the European Convention on Human Rights, though it has some supplemental rights, including a right to compensation for miscarriages of justice (Article 14.6: this is recognised only in an optional protocol to the ECHR, Art 3 of Protocol No 7). The Criminal Justice Act 1988 has a scheme which partly meets this obligation, which is limited to situations where someone has been convicted and a newly-discovered fact shows that the conviction is improper. There was also a supplemental ex-gratia payment scheme operated by the government for those outside the statute: this would include, for example, those who were acquitted at trial or whose convictions were overturned on appeal without any reliance on fresh evidence. However, the government withdrew this ex-gratia scheme without notice (which meant that people planning to submit claims were excluded from the possibility of making a claim), and also announced that there would be restrictions on the legal fees payable to those involved in making miscarriage of justice claims. The changes in policy were challenged in judicial review proceedings on the basis that there was no consultation in advance of the changes. It was suggested that this breached a legitimate expectation based on the Cabinet Code of Practice on Consultation. The Court of Appeal held that the Cabinet Code applied to the conduct of consultations but did not create any principle or legitimate expectation that a consultation process should always be followed before a policy was changed. Accordingly, those who had not yet made applications under the ex-gratia scheme had no basis to believe that it would continue to their benefit, and so it was lawful for it to be withdrawn without any consultation. Nor did lawyers involved in the cases have any legitimate expectation that they could claim legal fees at a private client rate rather than the new rates introduced

Mustafa (Hamza) v The United States of America & Anor [2008] EWHC 1357 (Admin)

Fri, 20 Jun 2008 00:00:00 GMT

Extradition – Torture Evidence and Lengthy Prison Sentences: A significant part of the work of the Administrative Court has become appeals from extradition decisions, often raising arguments under the European Convention of Human Rights because extradition is not proper if it breaches the Convention. This was central to the argument raised by Abu Hamza as to why he should not be extradited to the USA on several terrorism charges. The proceedings had been adjourned pending a prosecution in the UK that resulted in a prison sentence, and so there was also an argument bas ed on delay, namely that it would be oppressive to extradite. The human rights arguments advanced were that the USA’s case relied on evidence obtained by torture, that he would be subject to torture (in breach of Art 3 ECHR) because he would likely face life without parole and be held in a prison with intense security, which would be particularly problematic because of physical disabilities, and there would also be a disproportionate interference with his family life in breach of Art 8 ECHR. The Administrative Court dismissed the appeal. In relation to the delay question, as this related to the legitimate process of bringing him to justice in the UK, it did not make it oppressive to return to the extradition process Turning to the merits, the factual matrix indicated that there was no reliance on evidence directly obtained by torture which would not be admissible in domestic courts. The lengthy sentence to which he would be sentenced if convicted was not such as to breach the ECHR, and questions of his ill-health and any disabilities would be taken into account by the American authorities. There was no breach of Article 8 either, as a lengthy sentence for a serious offence inevitably interfered with family life but justifiably so.

Doherty, Re (Northern Ireland) [2008] UKHL 33 (11 June 2008)

Wed, 11 Jun 2008 00:00:00 GMT

Standard of Proof – Allegation of Criminal Conduct in Lifer Review Case: The US Supreme Court accepts that the importance of liberty rights is such that the civil detention of mental health patients requires a standard of proof of clear and convincing evidence, lying between the civil and criminal standards. Should this apply in the UK? In R (AN) v Mental Health Review Tribunal (Northern Region) [2006] Mental Health Law Reports 59, [2006] QB 468, the Court of Appeal held that the Mental Health Review Tribunal should apply the normal civil standard, namely the balance of probabilities. The issue has come up again in the context of the detention of a mandatory lifer, CD, in Northern Ireland. His release is a matter for the Life Sentence Commissioners, whose function in England and Wales is carried out by the Parole Board. CD had been released but recalled when it was alleged that he was guilty of serious sexual assaults on two nieces. No criminal prosecution was brought, but the allegations were relied on by the Secretary of State in the proceedings before the Commissioners. In essence, it was argued that he had committed the abuse and so presented too great a risk to be released. The consequence for CD was ongoing detention (and in prison pursuant to his earlier life sentence). Nevertheless, the civil burden of proof applied. But did it require something more than a balance of probabilities? The House of Lords confirmed, in Re Doherty, UKHL 33, 11 June 2008, that, aside from criminal trials and professional disciplinary proceedings, the only standard of proof is whether a fact is more likely than not. However, there is scope for flexibility in approach, in that the more serious the allegation, or the more serious the consequences if it is proved, the less likely it is that it occurred; moreover, courts can accept that some matters are inherently more unlikely. In all these cases, the strength or quality of the evidence that will be required to reach the balance of probabilities will be higher, but the standard of proof remains the same.

G, R (on the application of) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin) (20 May 2008)

Sun, 25 May 2008 00:00:00 GMT

Smoking in the High Secure Hospitals: Although the Health Act 2006 banned smoking in all enclosed public premises in England, there were limited exemptions in the Smoke-free (Exemption & Vehicles) Regulations 2007 (SI 2007/765). Amongst the exemptions were designated rooms in prisons and also care homes. But psychiatric hospitals were provided a temporary exemption only until 1 July 2008. Such hospitals include the special hospitals, which are high secure in nature and whose populations have as limited access to the open air as closed prisons. The decision to allow smoking for only a limited time was determined by the government after a consultation process and was supported by the majority of those who were involved. The government relied on the risks of second-hand smoke, the fact that hospitals should assist physical and mental health, which is not assisted by smoking, and concerns that chronic smoking was associated with and might intensify some mental disorders. Judicial review proceedings were brought to challenge the temporary nature of the exemption by patients at one of the high secure hospitals. Their central claim was that the hospital was their home and so Article 8 ECHR was engaged, and the ban was disproportionate; or it amounted to unwarranted discrimination in breach of Art 14 when compared to the position of those in care homes or prisons. The Divisional Court held that the challenge fell at the first hurdle because neither Art 8 nor Art 14 were engaged. The Court engaged in a lengthy discussion of the nature of what is protected by Art 8, making the point that restrictions on a person’s freedom of action do not necessarily interfere with the right to respect for private and home life required by Art 8. This is a matter to be determined on the particular facts, the relevant features including the circumstances in which a person is living: distinctions can be drawn between a private home and an institution, or types of institution, or even between institutions that have similar effects such as depriving someone of their liberty. In the context of a mental health detainee, there was no general obligation to make arrangements for smoking: indeed, more generally, it was decided that preventing a person smoking does not generally involve such adverse effects upon his or her physical or moral integrity as to amount to an interference with the right to respect for private or home life within the meaning of Art 8. A specific argument that smoking an aid to social contact was rejected on the basis that security arrangements at the high secure hospitals meant that a limited range of social contact was permitted. The Court went on to consider the matter in case it was wrong and Art 8 was engaged. Interferences with Art 8 rights are permitted by Art 8(2), the test being essentially whether it is proportionate. It noted that the policy protected the rights of citizens to enjoy smoke-free enclosed public spaces and assisted those who wished to give up smoking, and was proportionate in light of the interests of public health and security (which made it impossible to allow smoking outdoors). It was certainly within the margin of appreciation to be allowed, particularly in light of the wide consultation before the Regulations were passed. Turning to Article 14, the Convention non-discrimination provision, this first requires that the activity be within the ambit of the substantive right involved, in this case Art 8. This is a wider test than when considering whether Art 8 is directly engaged, but was felt not to be met. In any event, the Court noted that Art 14 requires differential treatment on the basis of “status” and being a mental health patient does not qualify under that test.

Edwards-Sayer, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 467 (Admin) (13 March 2008)

Thu, 13 Mar 2008 00:00:00 GMT

When Does a Remand Prisoner Become a Serving Prisoner: Convicted prisoners and remand prisoners are not supposed to mix, and the latter have additional access to matters such as visits: so the status is a matter of some practical importance. Under r2 of the Prison Rules 1999, a convicted prisoner is one who has been convicted or found guilty of an offence; Prison Service Order 4600, a policy document setting out the special rules for “Unconvicted, Unsentenced and Civil Prisoners” indicates the prisoners who have been convicted but not yet sentenced are treated as if convicted. The question arising was whether an unsentenced prisoner was in fact a convicted prisoner and so lost the various additional entitlements available to an unconvicted prisoner. His argument was that he became convicted only when sentenced, suggesting that the definition “convicted or found guilty” should be applied only when the sentencing process was complete. The Divisional Court rejected this, holding that the inclusion of words “found guilty” must mean that the status of a convicted prisoner was engaged without any need for sentence to have been imposed. An argument that does not seem to have featured is that the effect of the sentence can be that there is no conviction: a defendant can be discharged, absolutely or conditionally, and that has the effect that there is no longer a conviction. But that might not have been enough to avoid the fairly clear language of the rule.

Secretary of State for Justice v Rayner [2008] EWCA Civ 176 (12 March 2008)

Wed, 12 Mar 2008 00:00:00 GMT

Recalled psychiatric patients – referral to Mental Health Review Tribunal – how immediate is speedy for the purposes of Article 5(4) ECHR – does it matter that the patient cannot apply: Article 5(4) requires a court review of the lawfulness of detention: in fact, it specifically refers to the detainee having the right to take proceedings. (This language was part of the reason why the failure to have an arranged review of the detention of a person with limited capacity to take proceedings was found not to breach Article 5(4) in R (MH) v Secretary of State for Health [2005] 3 WLR 867, [2005] Mental Health Law Reports 302). But a restricted patient recalled to hospital by the Secretary of State (previously the Home Secretary now the Secretary of State for Justice) has no right to commence proceedings. Instead the Secretary of State must refer the case to the Mental Health Review Tribunal within a month (section 75 of the Mental Health Act 1983); following the reference, the Tribunal is held 5-8 weeks thereafter. On the facts, no reference was made within a month and so there was a pretty obvious breach of both domestic law and the Convention, but there was nevertheless argument as to whether the statutory reference requirement was sufficient, or whether it was necessary for the patient to have the right to apply. In the Administrative Court ([2007] Mental Health Law Reports 249), it was determined that a reference requirement was suitable to comply with Article 5, but that it required the Secretary of State to exercise it more or less immediately: the judge held that the fourth working day after recall was the appropriate last day for a speedy reference and so the breach of Article 5 commenced then and continued until the date a reference was actually made. The Secretary of State appealed this and the patient cross-appealed the finding that Article 5(4) did not require that the patient be able to make an application. The Court of Appeal dismissed both the appeal and the cross-appeal. It determined that the test was whether there had been a failure to proceed with reasonable despatch in the circumstances, which would depend on a case by case analysis. Accordingly, the judge had been wrong to use language relating to the need to have an immediate referral, but his finding that there was a breach from a few working days after the recall was appropriate. In relation to the cross-appeal, the Court noted that the trend of case law from the European Court of Human Rights was such as to require that a patient had a right to make an application: but the combination of the statutory duty and the right of the patient to enforce this by judicial review met the requirements of the Convention.

Hafner & Ors, R (on the application of) v City of Westminsters' Court & Anor [2008] EWHC 524 (Admin) (05 March 2008)

Wed, 05 Mar 2008 00:00:00 GMT

International Criminal Cooperation – Relevance of ECHR : The Australian Securities and Investment Commission was investigating certain individuals and sought to take evidence in the UK under the Crime (International Co-operation) Act 2003 from two employees of a corporate service provider concerning its relationship with the Claimants, a Swiss lawyer and his firm. The Claimants were concerned that the information sought included material covered by legal professional privilege and Swiss laws of confidentiality, and that any disclosure would breach Art 8 of the European Convention on Human Rights. The District Judge conducting the hearing held that Art 8 was not engaged and declined to allow the Claimants to participate in the hearing. This was challenged by judicial review. The Divisional Court determined, first, that Article 8 was engaged, noting that business correspondence was not excluded from the concepts of “private life” and “correspondence”. Second, that the court acting under the 2003 Act had to take these matters into account, and that the appropriate way for this to be achieved was by allowing the Claimants to appear at the hearing in the Magistrates Court and make representations about their Art 8 rights and whether it was proportionate within Art 8(2) for them to be overridden. The matter was remitted for a different District Judge to consider the matter.

Dumfries & Galloway Council v. Kevin Dunion, Scottish Information Commissioner [2008] CSIH 12

Wed, 13 Feb 2008 10:20:00 GMT

Appeal under section 56 of the Freedom of Information (Scotland) Act 2002 against a decision of the Respondent dated 21 November 2006:- On 9 February 2005 the applicant, Mr. Reid, made a request, under section 8 of the FOISA, for details of any complaints lodged in the previous ten years against any or all of a named company, any named directors of the company, and any named employee of the company. The Council's response was to issue a refusal notice dated 9 March 2005, referring inter alia to the exemptions from disclosure provided by section 35 of FOISA and Part 9 of the Enterprise Act 2002. Thereafter the applicant applied for the Commissioner's decision on 15 August 2005. The Commissioner found that the Council failed to deal with the applicant's request for information in accordance with Part 1 of FOISA. In particular, he concluded that the Council misapplied section 26(a) and section 35(1)(g) of FOISA to the information withheld and therefore failed to deal with the application properly in terms of section 1(1) of FOISA. He required the Council to supply to the applicant the information he had requested, within two months of the date of receipt of his decision. Under sections 1(1) and 2(1) of FOISA, the applicant is entitled to be given that information unless it is information that is exempt from disclosure under a provision of Part 2. It may either be exempt absolutely (section 2(1)(a)) or be exempt if the public interest in disclosure is outweighed by the public interest in non-disclosure (section 2(1)(b)). Sections 2(2)(b) and 26 provideds that information is exempt absolutely if its disclosure by a Scottish public authority is "prohibited by or under an enactment". Here counsel for the Council submitted that the information requested by the applicant was exempt absolutely because disclosure was prohibited by Part 9 of the Enterprise Act. Here the court considered whether either section 237(6) or section 241(1) of the Enterprise Act created an absolute exemption under section 2 of FOISA.

C (A Minor), R (on the application of) v Secretary of State for Justice [2008] EWHC 171 (Admin) (08 February 2008)

Fri, 08 Feb 2008 00:00:00 GMT

Amending the Secure Training Centre Rules – Duty as to Consultation : The issue arising in the Divisional Court in this case was process prior to amendments that had been made to the rules that control the management of Secure Training Centres, the places of incarceration for children. There is a power given to the Home Secretary, now Secretary of State for Justice, to issue rules for the management of prisons: section 47 of the Prison Act 1952. The Secure Training Rules 1998 are issued under that section, which is applicable to Secure Training Centres by virtue of section 7 of the Criminal Justice and Public Order Act 1994. The 1998 Rules were amended in 2007 by providing that restraint could be used for the purposes of good order and discipline as well as to prevent escape or harm or property damage. The Secretary of State consulted with the Youth Justice Board, which overseas the custodial estate for juveniles, and directors of the Secure Training Centres. C, a black child remanded in custody on charges subsequently discontinued, commenced judicial review proceedings in which he argued that the consultation process was inadequate because it had not involved the Children’s Commissioner or the Local Safeguarding Children Boards (established under the Children Act 2004), had not involved a racial equality impact assessment under the Race Relations Act 1976, and was otherwise unreasonably narrow. The Court determined that, although there was no statutory duty to consult more widely, it was nevertheless unreasonable not to consult the Children's Commissioner in light of the significant amendment of the policy as to the use of restraint: and so there was a breach of a common law duty to consult. (It was not unreasonable not to consult other interested parties, however.) It further held that there had been a duty to carry out a racial equality impact assessment in light of the significant change in policy, which triggered a duty to consider any potentially discriminating impact. No remedy was granted, however, because there was an ongoing process of consultation that would make good the defects.

The Scottish Ministers v. Russell Stirton & Alexander Anderson [2008] CSOH 20

Wed, 06 Feb 2008 18:22:00 GMT

Petition for an Interim Administration Order in terms of the Proceeds of Crime Act 2002and for Warrant for Inhibition and Arrestment:- An interim administration order was made on 3 February 2005 under section 256 of the Act. The court appointed LR as interim administrator and gave her certain powers as regards the conduct of that interim administration. LR has proceeded since then to act as interim administrator and in the process has inter alia seized property identified in the order and made investigations with a view to identifying what property is recoverable property within the meaning of the Act. She has reported on an interim basis on at least two occasions but has not yet produced a final report. The first and thirteenth respondents have failed so far to co-operate with her. On 27 August 2007 the respondents enrolled a motion in the following terms:- "In terms of section 260(3) of the Proceeds of Crime Act 2002. To recall the interim administration order ab initio in that there was a serious default in the petitioners' application ... in that the petitioners knew or ought to have known that the basis of the petition was incompetent." The petitioners lodged grounds of opposition to the motion in the following terms:- "(1) The motion discloses no grounds upon which to recall the interim administration order. (2) In any event, the interim administration order should not be recalled. It is explained that the interim administration order was competently granted on 3 February 2005." In their motion for recall of the order appointing the interim administrator the respondents submitted that (1) the petitioners could not show probabilis causa litigandi; and (2) the petitioners inability to show probabilis causa litigandi had been clear to them from the start and in their failure to bring certain matters to the attention of the court, the petitioners were in breach of their obligation of full and frank disclosure. Here the court considered that there was a duty to disclose to the court the fact that the alleged victims of the alleged extortion had consistently denied from as far back as mid-2004 that they were the victims of any extortion and that they had maintained that position in precognitions under oath. The court held that this failure was absolutely central to the central allegation against the respondents and the petitioners failure to comply with its duty of disclosure was sufficiently serious to raise the question whether it should be dealt with by "the ultimate sanction of discharge" namely to grant the motion for recall of the order granted by Lord Brodie on 3 February 2005.

R (G) v Chief Constable of West Yorkshire, [2008] EWCA Civ 28, 5 February 2008

Tue, 05 Feb 2008 00:00:00 GMT

Powers of Police Detention: G, a young offender, was arrested on suspicion of an assault occasioning actual bodily harm. His legal representative suggested that there was sufficient evidence to proceed to charge, and so that should be done. The custody sergeant, however, noted that section 37A required that regard be had to guidance from the Director of Public Prosecutions and decided that he had a power to detain pending the receipt of advice from the Crown Prosecution Service on the appropriate charge. The CPS advised that G be charged with affray and common assault rather than assault occasioning actual bodily harm, which is what happened. The process took three hours. G challenged the legality of his detention during this period. The Court of Appeal, overturning the High Court, held that section 37 provided a code for the powers of detention once evidence had been collected, and did not include any power to detain whilst advice was sought: rather, the suspect had to be released on bail. As such, the detention of G for 3 hours was unlawful.

Brooke & Ors , R (on the application of) v The Parole Board & Anor [2008] EWCA Civ 29 (01 February 2008)

Fri, 01 Feb 2008 00:00:00 GMT

Historically, the detention of life sentence prisoners (and also of those sentenced to life detention in psychiatric hospitals) ended when the Home Secretary so decided: the Parole Board was created to provide advice in relation to these matters (and the Mental Health Review Tribunal). Various cases in the European Court of Human Rights led to legislative changes whereby the Board and Tribunal were given powers of release, in order to satisfy the requirements of Article 5(4) of the Convention that there be a court-like body able to determine the lawfulness of detention and order release in the absence of lawfulness. The Divisional Court had ruled that the Parole Board did not meet the pre-requisite of being court-like, namely sufficient objective independence from the executive: in particular, and in contrast to the Mental Health Review Tribunal, which is part of the Tribunal’s Service, the Parole Board was sponsored by the prison service, which is answerable to the Secretary of State for Justice and also a party to proceedings in front of the Board. This had led to several instances in which the need to avoid the appearance of bias had been compromised. The concerns centred around matters such as (i) appointment to the board and members' security of tenure; (ii) the role of the Secretary of State in making rules of procedure and giving directions; (iii) funding and sponsorship. For example, a dispute between the Board and the Secretary of State about the Board carrying out a power to interview prisoners whose cases it otherwise considered on the papers led to a reduction in the budget for such interviews, and there were instances when the Secretary of State had referred to the Board as an instrument of criminal justice policy. The Home Secretary challenged this, but the Court of Appeal determined that the lower court’s conclusion was fully justified. Guidance was given by the Court of Appeal as to the steps required to remedy the problems.

Failure to provide courses for life sentence prisoners – lawfulness of detention: Secretary of State for Justice v Walker and James

Fri, 01 Feb 2008 00:00:00 GMT

The Criminal Justice Act 2003 introduces an indeterminate sentence of Imprisonment for Public Protection for those who commit a specified offence carrying 10 years or more (and a schedule to the Act sets out a large number of offences) and who are judged to present a risk of causing serious harm in the future but do not merit a life sentence. However, in almost all respects the IPP sentence is analogous to a life sentence. This has led to a significant growth in the population of indeterminate sentence prisoners, whose release cannot occur until they are judged safe to release by the Parole Board, which considers their cases once they have passed their tariff dates (ie the minimum term required for punitive purposes). This invariably requires that they complete courses relating to offending behaviour. Two prisoners had challenged the lawfulness of their continued detention at HMP Doncaster, where the courses they needed to do were not provided because of limited resources. The High Court had ruled broadly in their favour and in the case of J had directed his release as he had served the minimum term prescribed for punitive purposes. The Court of Appeal upheld the conclusion that the Secretary of State had acted unlawfully failed to provide adequate resources. In essence, it was held that sufficient courses had to be provided to allow prisoners to demonstrate their fitness for release as soon as their tariffs had expired. However, the Court held that the lawfulness of the detention depended on the risk posed (that being the basis for detention) not the provision of courses for the purpose of addressing that risk. The Court did note, however, that it might be possible to find arbitrary detention if there was an extensive period without any meaningful review of detention because of the failure to provide courses: but that time had not been reached. As such, the order for release in the case of J had been wrong and was set aside.

Whaley & Anor v Lord Advocate (Scotland) [2007] UKHL 53 (28 November 2007)

Fri, 28 Dec 2007 00:00:00 GMT

The Human Rights Act 1998 gives significant powers to the judiciary to change the interpretation of statutory language from that intended by the Parliament which passed the particular statute if to do so is required to ensure compliance with the European Convention (and it is possible to stretch the language to achieve that). The democratic legitimacy of this is that the Parliament which passed the 1998 Act so decided that courts should operate. In relation to statutes from the Scottish Parliament, the courts have even greater power: a failure to abide by the requirements of the Convention mean that the statute can be declared not to be law. One statute which has now passed that scrutiny is the Protection of Wild Mammals (Scotland) Act 2002, which preceded similar legislation in England and Wales to prohibit hunting with hounds. The main Convention rights on which reliance was placed were Articles 8, 9 and 11, and also Article 14. In relation to Article 8, the argument was in essence that the legislation deprived hunters of their rights to carry out what they chose to do with their lives: but the House of Lords indicated that it was not engaged by hunting, which did not involve issues of personal autonomy, but was a public activity mainly for pleasure and relaxation. In short, Article 8 did not amount to a generalised right of respect for minority community activities. Article 9, the right to freedom of thought and religion was not breached because a passionate belief in hunting was not protected by Article 9, and in any event the statutory prohibition did not compel action which was contrary to his conscience or expressing his support for hunting. As for Article 11, the right to freedom of assembly, this did cover gatherings for social purposes: rather, it was aimed to cover the kind of assembly the protection of which was fundamental to securing democracy. Moving to Article 14, the right to freedom from discrimination in relation to substantive rights, this can be engaged without an actual breach of a substantive right, but there must be a state restriction which conflicted with a core value protected by the substantive right. As that test was not made out, Article 14 was not breached.

Siborurema, R (on the application of) v Office of the Independent Adjudicator [2007] EWCA Civ 1365 (20 December 2007)

Thu, 20 Dec 2007 00:00:00 GMT

The Higher Education Act 2004 provided for a review process relating to complaints by students at institutions of higher education, and the Office of the Independent Adjudicator – in fact a company limited by guarantee – was designated under the Act as a body able to consider complaints if a student was unsatisfied by the results of the institution’s internal complaints process. The facts related to a student who had been withdrawn from a course after failing exams on several occasions: an internal complaint was unsuccessful and a complaint was then lodged with the OIA. The reviewer from OIA issued a preliminary view that the complaint was not justified; after further written representations, a final decision was made that the complaint was not justified. In judicial review proceedings, the issue arose as to whether the OIA was amenable to judicial review (in addition to the remedy that the student would have against the relevant university) and whether it had followed the correct approach to the complaint. In relation to the former point, the OIA accepted that it was judicially reviewable in relation to natural justice points, but submitted that it was not amenable to judicial review in relation to the merits of its decisions because its purpose was to offer an alternative dispute resolution service and so exercised broad discretions that were not suitable to review. The Court of Appeal determined that it was amenable to judicial review in relation to complaints not based on natural justice grounds, but that that nature of its functions and the wide discretionary powers it enjoyed meant that there would be few instances where judicial review was proper on the merits. The application was not one of those few instances.

Haase, R (on the application of) v Independent Adjudicator & Ors [2007] EWHC 3079 (Admin) (20 December 2007)

Thu, 20 Dec 2007 00:00:00 GMT

Whether an Independent Prosecution Service is required in a prison context: Following case law in the European Court of Human Rights to the effect that prison disciplinary proceedings that could lead to additional days being served were criminal for the purposes of Art 6 European Convention, a system was established that the adjudication be carried out by a visiting District Judge if such a punishment was in prospect. H was charged with such an offence, and convicted and sentenced to 21 additional days by a District Judge. The defence had rested on whether the officer who gave the main evidence was being entirely truthful. The prosecution in disciplinary cases is presented by the prison officers involved in giving evidence (though an independent prosecutor may be appointed). The challenge to the conviction was based on the proposition that Art 6 required independent prosecutors: this had been the basis on which the Courts-Martial Appeal Court in R v Stow [2005] EWCA Crim 1157 had quashed a conviction by a court-martial. Stanley Burnton J, finding that there was no clear authority from the European Court of Human Rights to the effect that Art 6 required that there be an independent prosecutor, and commenting that this would place difficulties in the way of private prosecutions and local authority prosecutions, where there was no such independence, held that Stow should not be extended beyond courts-martial, and that prison disciplinary proceedings had various features to secure fairness without any need for an independent prosecutor: the offences considered by Independent Adjudicators are at the less serious end of the spectrum of gravity (being limited to a maximum of 42 additional days’ imprisonment) and are unlikely to involve wide-ranging inquiries that render disclosure important, there must be disclosure of witnesses and statements to be used, there is a need for speed in the rulings, the prisoner is entitled to legal representation, the Independent Adjudicator must act fairly and justly in an inquisitorial process, and may make orders to secure additional evidence if needed.

Hasan, R (on the application of) v Secretary of State for Trade & Industry [2007] EWHC 2630 (Admin) (19 November 2007)

Wed, 19 Dec 2007 00:00:00 GMT

The United Kingdom allows the export of military equipment to Israel. Arms exports can be controversial, and the Secretary of State has to lay an annual report before Parliament as to the operation of the licencing scheme (pursuant to the Export Control Act 2002). In addition, the Government issues quarterly reports which are considered by a House of Commons Select Committee. The claimant, who lived in the Occupied Territories in Palestine and whose land had been confiscated by Israeli authorities, contended that he might well be affected by military equipment which might be used for the purposes of repression in the Occupied Territories (and so had standing) and that the Secretary of State’s quarterly reports were inadequately reasoned because they did not give reasons in relation to each licence granted. On the question of standing, which requires a sufficient interest in the decision in question, Collins J held that the approach was liberal and could be satisfied by an indirect interest such as that held by the claimant. On the question of substance, there was no general duty to give reasons, but they would be required where fairness made that necessary: the fairness in issue was the need for scrutiny to ensure that there was compliance with the statutory requirements as to export licencing, and that was achieved by the actions of the Select Committee (which had the benefit of being able to receive material relating to any sensitive matters of the sort which might arise in relation to exports). There was therefore no reason for the Secretary of State to give to the claimant the information he sought.

O'Connell, R (on the application of) v The Parole Board & Anor [2007] EWHC 2591 (Admin) (13 November 2007)

Thu, 13 Dec 2007 00:00:00 GMT

There has been a gradual extension of the reach of Article 5(4) of the European Convention into the regime relating to the early release of prisoners. It was extended first to the release of life sentence prisoners who had served their punitive tariff; next, it became established that determinate sentence prisoners who had been released and then recalled to prison for breach of the their licence had a right to a fair hearing in relation to the propriety of the recall and their continued detention, which would invariably involve an oral hearing (R (West and Smith) v Parole Board [2005] UKHL 1). The Government contention that this was as far as it extended meant that the next line of challenge was whether those serving determinate sentences had a right to an Article 5(4) compliant consideration of the question of release when they reached the date of eligibility for release. The Government position was that the detention remained lawful until the end of the sentence and so Article 5(4) only kicked in if they actually had been released (as in West and Smith). The counter argument was that Article 5(4) requires a court hearing when there is a different basis for detention (as in relation to lifers who move from the punitive tariff period to the preventive risk-based portion of their life sentence), and that is the same when a determinate sentence prisoner becomes eligible for early release (when the Parole Board determines whether they are sufficiently low risk to allow release).

Green, R (on the application of) v City of Westminster Magistrates' Court & Ors [2007] EWHC 2785 (Admin) (05 December 2007)

Wed, 05 Dec 2007 00:00:00 GMT

Private prosecutions for blasphemous libel: This was an attempt to bring criminal proceedings against those responsible for putting on the stage show and television versions of Jerry Springer – The Opera. The particular concern was that there were elements of the show in which Christ was portrayed in a contemptuous manner. But a District Judge refused to allow a private prosecution for blasphemous libel on the basis that there was no prima facie showing that the offence was made out, and in any event in relation to the theatre production there was a statutory bar on prosecution in that s4 of the Theatres Act 1968 prevents a prosecution for common law offences “where it is of the essence of the offence that the performance or, as the case may be, what was said or done was obscene, indecent, offensive, disgusting or injurious to morality…..” . In judicial review proceedings, it was noted that the gist of the offence – which protects only the Christian religion - was a general undermining of the community by endangering the peace or public morality. It was further noted that there was an equivalent to s4 of the Theatres Act in a Schedule to the Broadcasting Act 1990, which covered the televising of the show, and so the District Judge’s views that the 1968 Act prevented a prosecution should have been applied to the television version as well. The Court went on to agree that there was no basis on which a jury could find that the fabric of society was undermined by the play, and so the District Judge had been right to find that there was no prima facie showing of an offence.

Shreeve, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 2431 (Admin) (26 October 2007)

Fri, 26 Oct 2007 00:00:00 GMT

One of the areas of the law where the Human Rights Act 1998 and the incorporation of the European Convention has had a significant impact is prison disciplinary proceedings, which are such that an independent and impartial tribunal is required if there is the possibility of extra days' detention being added to the sentence as the punishment. The main change nevertheless involved the need to take a case through to the European Court of Human Rights because of the conservative view taken by the domestic courts: see Ezeh and Connors v UK [2004] Prison Law Reports 95; the Court of Appeal in R (Greenfield) v SSHD [2001] Prison Law Reports 59 had declined to make such a ruling. The result is a new disciplinary system whereby District Judge's rove around the prison system considering cases where additional days may be awarded, leaving less serious allegations to be dealt with by the governor grade officers in the prison. But the latter must apply the criminal standard of proof. In R (Robert Shreeve) v SSHD [2007] EWHC 2431 (Admin), Munby J considered such a case: a conviction for possessing an unauthorised article was taken to judicial review after an internal appeal had been unsuccessful. The charge was under r51(12) of the Prison Rules 1999, which is a general catch-all for prisoners found with things they should not have at all (such as mobile phones) or things which belong to other prisoners. In Mr Shreeve's case, the allegation was that he had an item which was dangerous to have, namely a bamboo incence holder (which was authorised) which had been sharpened into a stabbing implement (and so became unauthorised). The dispute on the facts was whether it was simply a sharp item or a sharpened item: only the latter would be sufficient for the charge to be made out. The judge held that the prison governor had fallen into an error which had not been cured by the internal appeal in failing to explore or reach a conclusion to the necessary criminal standard that the item had been sharpened and that Mr Shreeve knew this. The Judge further commented that the wrongful conviction was a matter of importance because of the difficulties that might be caused for a prisoner if such a conviction was on his record.

Appeal under section 21 of the Education (Additional Support for Learning)(Scotland) Act 2004 by W.D. v. Glasgow City Council [2007] CSIH 72

Thu, 18 Oct 2007 07:34:00 GMT

Reclaiming Motion:- "M" and his parents resided in the local authority area of West Dunbartonshire. West Dunbartonshire Council were responsible for "M's" education in terms of the Education (Scotland) Act 1980. "M" was born on 4 April 1991 and suffered from cerebral palsy and was blind. "M" attended a mainstream school which was in the area of West Dunbartonshire Council and managed by them. "M's" mother did not want him to attend the mainstream school and wanted him educated in a special school which was in the area of Glasgow City Council and under their control. "M's" mother made a placing request to Glasgow City Council to place him in the special school in Glasgow. On 15 August 2006 Glasgow City Council refused the mother's request on the ground that placing "M" in the special school would breach section 15(1) of the Standards in Scotland's Schools etc Act 2000 that, unless specified circumstances arise in relation to the child, education should be provided in a school other than a special school. "M's" mother referred the Glasgow City Council's refusal of the placing request to an Additional Support Needs Tribunal for Scotland. The Tribunal concluded that there was no statutory provision for the hearing by the Tribunal of a reference relative to the decision by Glasgow City Council and the Tribunal had no jurisdiction to hear it and the reference was dismissed. The mother of "M" appealed to the Court of Session where the Lord Ordinary refused the appeal. The mother recalimed against the decision of the Lord Ordinary. Here the Court considered whether the jurisdiction of an Additional Support Needs Tribunal for Scotland extended to a reference of a refusal by an education authority of a placing request made to them in respect of a child for whose school education they were not responsible for where the child had additional support needs and required a co-ordinated support plan. Link: Education (Additional Support for Learning) (Scotland) Act 2004

Gilboy, R (on the application of) v Liverpool City Council & Anor [2007] EWHC 2335 (Admin) (15 October 2007)

Mon, 15 Oct 2007 00:00:00 GMT

One of the now significant range of ASBO powers is that relating to the eviction of local authority tenants who are (or whose children or visitors are) involved in anti-social behaviour. Although such tenancies are invariably secure, the Housing Act 1985 has been amended to allow the county court to turn the tenancy into a "demoted" tenancy if the tenant or someone residing with or visiting the tenant has engaged or has threatened to engage in anti-social behaviour (or use of the premises for unlawful purposes). The court must also be satisfied that it is reasonable in all the circumstances to make the order. Ms Gilboy's tenancy was demoted by a judge for a 12 month period because of the anti-social behaviour of her son. Once demoted, the tenancy may be brought to an end by the giving of notice with reasons, but subject to a review (which will typically be by a more senior officer than the one who gave the initial notice). The review can involve an oral hearing, and the tenant may be represented: however, legal aid is not available. If the review concludes against the tenant, the final order for possession must be made by the county court, but its investigation is limited to the question of whether the statutory procedure has been followed: in other words, the only consideration of the merits is at the review stage. When the Council gave notice that they planned to end Ms Gilboy's tenancy because of her son's continuing conduct, she called for a review which was conducted by a more senior officer and reached a conclusion adverse to her. She then brought judicial review proceedings in which she argued that the process breached Article 6 of the European Convention because it amounted to the determination of her civil rights but on the basis of findings of fact made by someone who was not independent and impartial. It was accepted that a judicial review of the decision was available, but the primacy of the fact-finding meant that the bifurcated process involving the court only at the judicial review stage was not adequate for judicial review purposes. Stanley Burnton J held that it was adequate for Article 6 purposes. Indeed, he made it fairly clear that but for authority in relation to an analogous type of tenancy (the introductory tenancy, which is equally insecure), in which the Court of Appeal had held that a review process engaged Article 6, he would have held that Article 6 was not engaged since the internal process simply allowed the council to make the application to the court, and it was the county court that made the order determining any civil rights engaged. This is an unnecessarily legalistic view, given that the county court has no substantive power, being limited to the question of whether the process has been followed and so being bound by the findings on the merits of that process The Court of Appeal authority which prevented the judge from applying his view - McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129 - also held that the review plus judicial review was adequate for Article 6 purposes. Ms Gilboy had sought to avoid this by pointing to a subsequent European Court authority, Tsfayo v UK [2007] ECHR 656, that a local authority Housing Benefit and Council Tax Benefit Review Board was not adequate for the purposes of Article 6 when combined with judicial review. Stanley Burnton J held that this case was distinguishable (in large part because the HBRB was considering whether to give out local authority money on the basis of a simple factual question, whereas the review in Ms Gilboy's case involved the rights of other tenants to a quiet life and also could consider wider questions such as the impact on vulnerable family members) and in any event he had to follow the Court of Appeal authority even if a subsequent European Court case was inconsistent with it.

O'Callaghan, R (on the application of) v The Charity Commission for England & Wales & Ors [2007] EWHC 2491 (Admin) (05 October 2007)

Fri, 05 Oct 2007 00:00:00 GMT

The case related to Alexandra Park, operated by a charitable trust. A proposal was in place for part of the property to be developed, and this had led to the promulgation by the Charities Commission of the Charities (Alexandra Park and Palace) Order 2004, which authorised the granting of a lease on certain terms. Whilst the order was passing through Parliament, an undertaking was given that there would be a public consultation. However, after a preferred developer was chosen, the trustees, with the permission of the Commission, did not publish the proposed lease as part of the consultation process, though the Commission was satisfied that the lease was in the interests of the charity. The claimant argued that the consultation process was flawed in the absence of sight of the lease. The judge agreed that the action of the Charity Commission in authorising the trustees to grant the lease was unlawful in the absence of proper consultation, which was a breach of the promise given to Parliament. The substance of the matter was the lease, but this was kept confidential and so was outside the consultation process, rendering it unfair, unreasonably depriving the assurance to Parliament of any real effect. However, it was not necessary to reveal the entirety of the lease, but enough had to be shown to allow there to be a meaningful response to the consultation process.

Strickland v Preston County Court and Others [2007] EWCA Civ 1132 (Date Uncertain)

Mon, 01 Oct 2007 00:00:00 GMT

The High Court has jurisdiction by way of judicial review over public bodies, but also over inferior courts, including the county court. The issue in Strickland v Preston County Court and Others [2007] EWCA Civ 1132 was the extent to which a judicial review should be permitted. The factual matrix involved a claim against the local authority and police in relation to the death of the claimant's daughter, but the claim was struck out on the basis that the claim form had not been served in a timely fashion. The district judge's decision was appealed to the circuit judge and upheld. At that stage, judicial review proceedings were commenced, effectively the only further appeal available to the claimant because of the general prohibition in the Access to Justice Act 1999 of more than one appeal. The issue of whether there could be a judicial review in these circumstances proceeded to the Court of Appeal, where the opportunity was taken to restate and expand the guidance given in R (Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475 as to the judicial review of county court decisions.   The Court of Appeal applied the general principle that judicial review can be excluded only by the most express of language, given the place of judicial review in the constitution. But it also noted that there was also a clear policy in the 1999 statute that there be only one level of appeal. Putting these two matters together led to the conclusion that judicial review should only be permitted to proceed in exceptional circumstances, when there was a corruption or frustration of the judicial process, such as where there was a fundamental departure from correct procedures, or the court had exceeded its jurisdiction by undertaking an enquiry outside its powers or failing to adjudicate on something it was duty bound to address. The test was not met on the facts.

Brooke & Anor, R (on the application of) v Parole Board & Anor [2007] EWHC 2036 (Admin) (07 September 2007)

Fri, 07 Sep 2007 00:00:00 GMT

The Parole Board started life as a body offering advice to the Home Secretary. As a result of a significant number of cases taken through to the European Court of Human Rights and then brought under the Human Rights Act, its jurisdiction has been extended by statute and its procedures have been made much more court-like. In this case, there was a successful attack on its very independence, in light of the closeness of the relationship between the prison service part of the Home Office (now Ministry of Justice) and the Board. Facts: The Parole Board is the usual decision-maker in relation to the discretionary release on licence of prisoners and also whether any recalled prisoners should remain in detention. The Board, created as an advisory board to the Home Secretary, now exercises many powers on which it previously advised. It now operates as Executive Non-Departmental Public Body under the sponsorship of the Sentencing Policy and Penalties Unit of the National Offender Management Service, which was formerly part of the Home Office and now part of the Ministry of Justice. Its members included judges, psychiatrists and psychologists, criminologists and lay members, most of whom are part-time. The Board has to act in a court-like manner: it was accepted that this required it to be independent of the parties and from the Executive (both as a matter of common law and under Art 5(4) ECHR where applicable). In judicial review proceedings, it was argued that the Board had insufficient independence from the Executive, as the Secretary of State was a party to proceedings in front of it and also controlled its budget, appointed its members (for terms of only 3 years, renewable for a second term) and had a power of dismissal (including on the wide ground of unsatisfactory performance of duties), made its rules (albeit that that was subject to the negative resolution procedure in Parliament) and gave it directions, provided its accommodation and staff and monitored its activities. Decision: Although there was no question about the independence of mind or impartiality of the individual members of the Board, it was also necessary to consider the question of objective independence. To be a court for Art 5(4), there has to be a sufficient demonstration of independence and impartiality. Regard must be had inter alia to the manner of appointment of a body’s members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence. In relation to the question of impartiality, even when subjective personal integrity was not in question, there is an objective test, namely whether there are guarantees sufficient to exclude any legitimate doubt in this respect, appearances being important to secure public confidence in the judicial system: the latter is closely linked to the concept of independence. The common law test of apparent bias, whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased, was similar to the objective test under Art 5(4), though it must yield to any express statutory provision. On the facts, the issue was the relationship between the Board and its sponsoring executive body (the Home Office and then the Ministry of Justice). Although some of the elements of the relationship were consistent with the necessary objective independence (including the appointment process and the fact that the Minister of Justice made its procedural rules), others were not. In particular the fact that executive sometimes treated the Board as part of its establishment, did not offer sufficient security of tenure, and had on occasion used powers of funding and appointment and the giving of directions in a way inconsistent with the requirements of objective independence. In that context, ongoing confidential meetings between the Board and the executive body which was a party in its proceedings, plus the fact that it had been integrated in terms of accommodation and electronic communications, were also inconsistent with the requirements of independence. As such, there was a breach of Art 5(4) and/or the common law.

James, R (on the application of) v Secretary of State for Justice [2007] EWHC 2027 (Admin) (20 August 2007)

Mon, 20 Aug 2007 00:00:00 GMT

Facts: J was sentenced to imprisonment for public protection under the Criminal Justice Act 2003, with a tariff of 1 year and 295 days which expired in July 2007. His ongoing detention was therefore under the preventive detention part of the sentence, and he was entitled to seek an order for his release from the Parole Board. A hearing before the Board had been fixed for September 2007, but it was suggested that there was limited prospect of an order for release as he would not be able to demonstrate a reduction in risk. The reason for this was that, as he had been incarcerated in a local prison, he had had limited access to any relevant offending behaviour work. The failure to provide such work to IPP prisoners with short tariffs had been ruled irrational in other litigation. The question raised was the consequences of that finding in relation to a prisoner who was now past tariff and being detained on preventive grounds. Decision: Although the relevant statutory regime provided that detention should continue until an IPP prisoner was shown not to be too dangerous for release, but the failures to provide the relevant offending behaviour work rendered the detention unlawful. In the case of a post-tariff indeterminate sentence prisoner, there was also an arguable breach of Article 5(4) ECHR. Accordingly, it was ordered that J be released immediately. However, permission to appeal was granted and the order stayed pending appeal.

Wells v The Parole Board & Anor [2007] EWHC 1835 (QB) (31 July 2007)

Tue, 31 Jul 2007 00:00:00 GMT

The Criminal Justice Act 2003 introduced a serious of requirements to detain prisoners preventively on a finding that they were dangerous: in the event of a finding of dangerousness following a conviction for one of a lengthy list of sexual or violent offences, an indeterminate sentence must be passed if the maximum sentence is 10 years or more (and a life sentence can be imposed if that is the maximum available and the court finds life to be appropriate). The sentence consists of a punitive tariff period and thereafter preventive detention until the Parole Board orders release. The prisoner is only released if the Parole Board is satisfied that a life sentence prisoner or one serving the new indeterminate sentence of Imprisonment for Public Protection is no longer such as danger as to require detention. For offences carrying lesser maximum sentences, the sentence to be passed is an extended sentence, which is a determinate sentence but with early release subject to a risk-assessment process. The issue raised in the case was the lawfulness of the regime for IPP prisoners in practice, in light of the failure to provide them with courses to allow them to address their offending. Facts: The Home Secretary’s published policy was that those whose punitive tariff was short or who were approaching the expiry of their tariff had to be given priority in offending behaviour programmes, so that they could be given the opportunity to demonstrate their safety for release at tariff expiry. In addition, directions to the Parole Board issued under the 2003 Act required the Board to take into account efforts made by the lifer to deal with offending behaviour before directing release. Whilst the 2003 Act was passing through Parliament, ministerial assurances were given that prisoners would be able to address risks. In April 2006, Mr Walker was sentenced to IPP for indecent assault, with a tariff of 18 months. He had been held in a local prison and had not been able to do any courses relevant to his offending as they were not available. The evidence suggested that 2500 IPP sentences had been imposed since they became available in April 2005, but that there had been no increase in resources to provide offending behaviour courses even though such prisoners often received short tariff. As a result, very few had done any relevant work in the approach to their tariff expiry and their right to appear before the Parole Board. Additional resources were planned, but it was likely to be 2 years before they were properly in place. Decision: In relation to an IPP sentence, detention prior to tariff expiry is justified on the basis of punishment; after that point, it is justifiable if preventive detention remain necessary. As such, the existence of measures to allow and encourage the IPP prisoner to progress is inherent in the justification for his continued detention. Further, the assessment of the need for continuing detention requires that the Parole Board has available to up-to-date information as to risk: if there is no current and effective assessment of the danger he does or does not pose, detention cannot be justified and becomes unlawful. This was a point of law on which the court could rule: it did not rest on matters such as the allocation of resources which were not for the courts. Rather, it was a ruling that the policy was so unreasonable as to be unlawful, and a declaration to that effect was granted.

Officer L, Re [2007] UKHL 36 (31 July 2007)

Tue, 31 Jul 2007 00:00:00 GMT

The House of Lords, considering an appeal from Northern Ireland, has given guidance on the circumstances in which a witness should be allowed to have anonymity because of a suggested risk to their lives. The context was an inquiry into the death of Robert Hamill, whose family believe his death was sectarian and that police officers had colluded with the attackers; it was also alleged that the investigation into the death had been obstructed by the police. The inquiry was established on the recommendation of a retired senior Canadian judge who was asked to review the matter. Officer L was called to give evidence, and sought anonymity (as did 28 others) on the basis that his identification would make him the target for terrorist action. There was a police risk assessment by the Police Service of Northern Ireland to the effect that all former and current officers faced some risk, but the Inquiry found that there was no evidence of a specific threat arising from giving evidence and so it refused the application. This was challenged successfully in judicial review proceedings on the basis that the Inquiry had misdirected itself in law; the matter, however, proceeded to the House of Lords, after the Court of Appeal had upheld the decision of the High Court. The House determined that the correct test involved two stages: first, it had to be shown that there was a material increase in the risk of death or injury if evidence was given without anonymity; if not, the application should be refused. If there was such an increased risk, there was a further question of whether the increased risk was of a real and immediate risk to life such as to require action to be taken by virtue of the right to life in Article 2 of the European Convention (the test found in Osman v UK 29 EHRR 245, [2000] Inquest Law Reports 101). These are objective matters, and reflected the test the Inquiry had applied and so the judicial review courts had been in error. However, there was also the common law to consider, namely whether fairness required anonymity: this was a concept which allowed subjective fears to be taken into account, given that they might have an impact on matters such as the witness’s even if not objectively justified. The matter was disposed of by remittal to the High Court as an argument which had not been dealt with there was raised, namely whether the decision of the Inquiry was irrational at common law.

Secretary of State for the Home Department v Lim & Anor (R, on the application of) [2007] EWCA Civ 773 (25 July 2007)

Wed, 25 Jul 2007 00:00:00 GMT

L, a Malaysian citizen, was to be deported because he had breached a condition of his leave to enter the UK, but only by working at a restaurant other than that at which he was given leave to work. He was provided with a statutory appeal under s82 of the Nationality, Immigration and Asylum Act 2002, but that could only be exercised out of the UK unless it was argued that removal would breach international asylum law or the European Convention (s84(1)(g)) – an avenue not open because the Home Secretary had certified that no such argument was possible. A successful out of country appellant has to fund his or her own return trip to the UK unless the removal was found to be unlawful (as opposed to merely unreasonable). However, in the High Court the judge had allowed a judicial review to proceed, finding the case exceptional: the Court of Appeal overturned this, finding that – whilst the decision to remove was a “colossal overreaction to what, even if proved, was a venial breach of condition”, it did not provide an exceptional reason not to use the statutory appeal. The Court of Appeal did comment that it would be unjustified to remove L at public expense to Malaysia and require him to establish his innocence from there and then return at his own expense.

Playfoot (a minor), R (on the application of) v Millais School [2007] EWHC 1698 (Admin) (16 July 2007)

Mon, 16 Jul 2007 00:00:00 GMT

The school had a ban on wearing jewellery; P wished to wear a “purity ring” to manifest her commitment to the view that, as a committed Christian, she should abstain from sexual conduct before marriage. The school would not allow her to wear the ring, finding that there was no evidence of a link between P’s religious beliefs and the wearing of the ring, and she challenged this by way of judicial review; she also alleged that girls of other religions were allowed exemptions from the school policy on more occasions than Christians. Held: (1) The absence of any obligation founded in P’s religion to wear such a ring meant that it was not manifestation of religious beliefs and so Article 9 of the Convention was not engaged; (2) There was no evidence of discrimination for the purposes of Article 14.

MM, R (on the application of) v Secretary of State for the Home Department [2007] EWCA Civ 687 (06 July 2007)

Fri, 06 Jul 2007 00:00:00 GMT

If a restricted patient is given a conditional discharge by a Mental Health Review Tribunal (or the Home Secretary), he or she is liable to recall to hospital under s42 of the Mental Health Act 1983. On the facts, MM was recalled after testing positive for illicit drug use. He argued that it was unlawful to recall him in the absence of evidence that his mental health had deteriorated as a result or would inevitably do so. The High Court dismissed the claim ([2006] Mental Health Law Reports 358). The Court of Appeal dismissed an appeal, confirming the view of the High Court that there was no need for a deterioration in mental health to be inevitable or imminent: the test was whether it was likely that there would a deterioration in the patient’s mental health.

R (L) v. London Borough of Waltham Forest and another 29 June 2007; [2007] All ER (D) 393 (Admin); Administrative Court, Rabinder Singh QC sitting as a deputy judge of the High Court

Fri, 29 Jun 2007 00:00:00 GMT

Responsibility for maintaining statement. Regulation 7 of the 1996 Education (Areas to which Pupils and Students Belong) Regulations was not confined to questions of recoupment between local authorities. In the instant case, a looked-after child had been placed in a children’s home within the area of the second defendant local authority. The issue then arose as to who was responsible for maintaining the statement and, accordingly, for producing a transition plan in respect of the claimant pursuant to s328 of the Education Act 1996. Held: Regulation 7 of the 1996 Regulations was not confined to questions of recoupment between local authorities. The 1996 Regulations were made under s579(4) of the Education Act 1996 which began ‘For the purposes of this Act’. Those words were not confined to the question of recoupment. The first defendant local authority, which had issued a statement of his special educational needs, was therefore responsible. (Digested from a summary by Katie Green, Barrister, as the full judgment was not immediately available).

YL v. Birmingham City Council& Ors [2007] UKHL 27 (20 June 2007)

Wed, 20 Jun 2007 00:00:00 GMT

Privatisation of Governmental Functions: Avoiding the Human Rights Act. YL, aged 84 and suffering from Alzheimer's disease, was provided with community care services by virtue of her age and her mental disability, namely residential accommodation under section 21 of the National Assistance Act 1948, one of the main componenents of the welfare state legislation. Section 26 of the Act allows the section 21 duty to be exercised by virtue of arrangements with “a voluntary organisation or any other person who is not a local authority”, and Birmingham entered into a contract with Southern Cross Healthcare Limited. Community care services are means-tested, and the fees were provided mainly by Birmingham but with a small amount from YL’s relatives. When Southern Cross decided that it no longer wished to offer accommodation to YL, a claim was commenced in the Family Division for a declaration that it would not meet her best interests to move her and a ruling that Southern Cross was bound by section 6 of the Human Rights Act 1998 not to take action which would breach Article 8 of the European Convention. (It was also argued that Articles 2 and 3 would be breached.) The case proceeded to the House of Lords on the issue of whether a private care home was bound by the 1998 Act, which applies to public authorities: this is defined in section 6(3) as including “(b) any person certain of whose functions are functions of a public nature ...”. The Court of Appeal had held that a private care provider was not a public authority: see R (Johnson and others) v LB Havering; R (YL, by her litigation friend, the Official Solicitor) v Birmingham City Council and others [2007] Mental Health Law Reports 69. Part of the reasoning here was that there was already an authoritative ruling on this, namely R (H) v Leonard Cheshire Foundation [2002] Mental Health Law Reports 201. The House was not constrained by authority, and so was able to approach the issue on principle. It was unable to agree, so the decision was by a bare majority of three to two. For the majority, the public function was that exercised by the local authority in arranging for the provision of accommodation by virtue of section 21; but the provision of services on a commercial basis remained private even if it was in consequence of that public function. Lord Scott summed this up, expressing the view that the conclusion was clear: “27. ... the fees charged by Southern Cross and paid by local or health authorities are charged and paid for a service. ...It is a misuse of language and misleading to describe Southern Cross as publicly funded. ... it seems to me absurd to suggest that the private contractor, in earning its commercial fee for its business services, is publicly funded or is carrying on a function of a public nature. It is simply carrying on its private business with a customer who happens to be a public authority.” Lord Bingham and Baroness Hale dissented. For them, the question was the nature of the service being provided, and the commercial motive of the provider could not change this. In short, the provision of residential care for a very vulnerable group in society is subjected to very detailed control by statute, regulation and official guidance, together with criminal sanctions. The question was one of statutory interpretation: Parliament was aware when it passed the Human Rights Act 1998 that many services such as these – clearly public in nature if provided by a local authority – are now privatised. So the question was whether the definition of what is a public authority was designed to cover these private providers: for the minority, it clearly was. Lord Bingham summarised it: “20. ... The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case which section 6(3)(b) was intended to embrace.”

Secretary of State for Defence v Al-Skeini & Ors [2007] UKHL 26 (13 June 2007)

Wed, 13 Jun 2007 00:00:00 GMT

The Territorial Reach of the Convention. The basic requirement of the European Convention on Human Rights, set out in Article 1, is that the states which joint the Convention “shall secure to everyone within their jurisdiction” the rights guaranteed in the Convention. Although the Convention is a document of the Council of Europe, this does not necessarily limit its reach to the geographic area of Europe. In the first place, some European countries incorporate territories away from Europe, usually as a result of a colonial past. For example, in Mathew v The Netherlands [2006] 2 Prison Law Reports 1, a breach of Article 3 was found in relation to prison conditions in Aruba, a Caribbean constituent part of The Netherlands. In Al Skeini the issue was what was the result of a fresh take-over of a foreign country, namely the action taken in Iraq. The claim related to deaths in the Basrah area of Iraq, where British forces were operating: five deaths occurred in armed incidents involving British troops in the city, and the sixth occurred in a prison on a British base (involving Mr Mousa). It was alleged that Articles 2 and 3 of the European Convention were breached: that was predicated on whether the Convention and the Human Rights Act 1998 applied. The House of Lords concluded that only Mr Mousa’s relatives could bring a claim. They followed the jurisprudence of the Grand Chamber of the European Court of Human Rights in Bankovic v Belgium & Others (2001) 11 BHRC 435 (which arose out of Nato operations against Belgrade during the Kosovo conflict), where the Court held that Nato operations had not involved taking control of the territory and so did not extend the Convention. It was held that it would be wrong for the domestic courts to give a wider meaning to Article 1 than the court designated as the one to give definitive meanings to the Convention. The question therefore was whether the UK operated as the government of the Basrah area: it did not, but offered more limited policing functions. The exception to this was that in the prison – by analogy to diplomatic buildings, which are considered to be part of the state which operates them – the UK government was the provider of all governmental functions and so it was to be considered part of the UK and in turn was a place where the Convention applied. That dealt with the question from the perspective of international law. The next issue was whether the Human Rights Act 1998 also applied, since that gave the domestic courts their jurisdiction. For Lord Bingham, there was nothing in the language of the 1998 Act to lead to the conclusion that it displaced the presumption in statutory interpretation that a UK statute applies only to events in the UK unless it expressly applies outside. The majority, however, found a Parliamentary intention to apply the Act outside the UK because its duties are not geographically limited and its overall purpose is to allow claims to be heard in the domestic courts rather than requiring action to be taken in the Strasbourg court. As such, Mr Mousa’s claim was properly brought in the domestic courts.

Secretary of State for the Home Department v Baiai & Ors [2007] EWCA Civ 478 (23 May 2007)

Wed, 23 May 2007 00:00:00 GMT

Marriage and Immigration. As part of the ongoing obsession with controlling immigration and the actions of immigrants, ss19-25 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and the Immigration (Procedure for Marriage) Regulations 2005 required that persons subject to immigration control could only get married in the UK if they had a Certificate of Approval from the Home Secretary. The aim was to prevent sham marriages being used to get around the strictures of immigration control. Under the policy applicable, which was set out in Immigration Directorate Instructions, an appropriate certificate was refused unless the person concerned had a valid right to enter or remain in the UK for more than six months, and there were more than three months remaining on that period. The Court of Appeal found that the policy was unlawful as it amounted to a disproportionate breach of the rights under Article 12 of the Convention to marry and found a family. In essence, the policy operated as a presumption against the genuineness of a marriage if the person involved was outside the terms of the policy: whilst immigration control policies allowed the refusal of permission in relation to marriages which were or were likely to be sham arrangements designed to promote the applicant’s status for immigration purposes rather than for genuine reasons, this required proper investigation of individual cases (though it might be possible to identify a category of cases which were very likely to be shams). The scheme adopted was not shown to be proportionate and so was found unlawful.

Legal Remedy UK Ltd, R (on the application of) v Secretary Of State For Health [2007] EWHC 1252 (Admin) (22 May 2007)

Tue, 22 May 2007 00:00:00 GMT

New Scheme for Employment of Junior Doctors. This claim involved the scheme for the specialist training of junior doctors, which involved a centralised, internet based process rather applications to individual training hospitals. The scheme commenced in January 2007, but concerns about its operation led to a review group being appointed, comprised of a number of the Royal surgical and medical colleges, the Department of Health and those involved in operating the new system. Not invited to participate in the review was the claimant, a pressure group for junior doctors; also not invited was the British Medical Association, which had been involved in raising concerns about the system as introduced. The review group, which considered evidence from various sources, including from the BMA, concluded that the system could be modified; the Secretary of State accepted this. The claimant challenged this on the basis that (i) the modification of the system was irrational in light of its deficiencies and (ii) the lack of consultation with the group most obviously affected, ie junior doctors, was unfair and rendered the process unlawful. The High Court dismissed the application, finding that the review group’s decision had been open to it, bearing in mind the competing interests involved and the time-scale, producing a workable solution. The urgency also meant that the level of consultation was appropriate: the views of the junior doctors’ organisation had been made known to the review group. The Court decided that a significant level of deference was due, given that the court could not properly deal with what was really an issue of policy relating to the running of the NHS, whereas the review body did bring with it an appropriate level of expertise.

Belfast City Council v. Miss Behavin' Ltd (Northern Ireland) [2007] UKHL 19 (25 April 2007)

Wed, 25 Apr 2007 00:00:00 GMT

Sex shops, freedom of expression, rights of property and local authority licencing. An application to run a sex shop was refused on the basis of the council’s view that it was not appropriate to have any in the locality. The Court of Appeal in Northern Ireland quashed the decision on the basis that inadequate consideration had been given to the fundamental rights of the owner of the sex shop: they were both freedom of expression rights under Article 10 of the Convention and protection of property rights under Article 1 of the First Protocol. The council appealed to the House of Lords, their claim essentially being that the legislative framework determined the extent of the Convention rights and so there was no room for them to be raised in an individual case. The House of Lords upheld the appeal, though not the entire argument of the appellant. In the context of rights such as freedom of expression which are qualified and can be subject to proportionate restriction, the balancing required in relation to qualified Convention rights is might be secured by the legislation (such that Convention arguments did not require separate consideration). However, it could not be said that the provisions for licensing of sex shops achieved that balance, and so those individual arguments could be raised: but where the decision-maker had not done so, the court had to carry out that function. Accordingly, the question which should have been asked in the judicial review proceedings was there had been a breach of the Convention rights, not the question which had been asked (namely whether they had been taken into account). In answering this question, the court should give due weight to the view of the local authority – which was better able to assess local needs. Assuming that the commercial sale of pornography was protected by Article 10, it was a low level freedom of expression right. It had not been breached on the facts, nor had any right to property.

Main, R (on the application of) v Minister for Legal Aid & Ors [2007] EWHC 742 (Admin) (02 April 2007)

Mon, 02 Apr 2007 00:00:00 GMT

Legal Representation at Inquests. Article 2 European Convention, the right to life, carries with it an investigatory requirement which is engaged when there are grounds to believe that there may have been a default by state agents which has caused a death. What is required for an effective investigation is (i) independence, both structurally and in fact, (ii) an ability to determine whether force was justified and to identity and punish those responsible; (iii) reasonable steps to secure the relevant evidence, (iv) promptness and reasonable expedition, and (v) a sufficient element of public scrutiny, including involvement of the next of kin: see Edwards v UK [2002] Inquest Law Reports 27. The primary mechanism of investigation in England and Wales is the Coroner: inquests, as a result of cases such as R (Middleton) vWest Somerset Coroner [2004] 2 AC 182, are conducted in a much more expansive fashion than had previously been the case. As Moses LJ put it in his laconic style in (R) Lin v Secretary of State for Transport [2006] Inquest Law Reports 161: “32. Long gone are the days of travel to some dispiriting corner of St Pancras or Battersea only to be told peremptorily, when appearing on behalf of the bereaved, "Keep quiet and sit down." Coroners nowadays are more concerned to conduct full inquiries with ample opportunity for participation … and do not believe in offering the bereaved what may be perceived as a second-class inquest.” The fact that effective inquest proceedings might require legal representation for the family of the deceased, and so legal aid, the Access to Justice Act 1999 made provision for the Minster for Legal Aid to grant public funding for advocacy at an inquest in an exceptional case. The issue in R (Main) v Minster for Legal Aid and Others was the failure to grant legal aid. M, a child, lost his mother and sister in a train crash in Berkshire in November 2004 at a level crossing: there was a stationary car, the driver apparently intending to commit suicide from being hit by an express train. The train derailed, and M’s family members died when they were thrown through the train windows. Two of the issues arising were whether the train should have been fitted with sensors to confirm the presence of a car on the crossing (which might have allowed the driver to avoid the collision or slow down enough not to derail) and whether laminated windows should have been fitted on the train (which might have prevented the victims being thrown out). The coroner felt that M’s legal representation would be of assistance, and the Legal Services Commission expressed the view that the case raised issues of wide public importance in relation to rail safety and so should be funded. The Minister, however, disagreed, indicating that there was no significant wider public interest and that an effective inquest would not be assisted by M being represented. Owen J quashed the Minister’s decision: although the statute gave the decision-making power to the Minister, and so there could be no requirement to follow the recommendation of the Legal Services Commission, good reasons had to be given for not following it, given its expertise in assessing the wider public interest. On the facts, there was a clear public interest in rail safety which would not be represented at the inquest unless M was involved. The other parties to the inquest would be representatives of the rail industry, which might take a defensive posture. This also meant that the effectiveness of the inquest required that M be represented.

Hurst, R (on the application of) v. Commissioner of Police of the Metropolist [2007] UKHL 13 (28 March 2007)

Wed, 28 Mar 2007 00:00:00 GMT

This was an appeal from the Court of Appeal: [2005] Inquest Law Reports 115, [2005] 1 WLR 3892. The underlying facts were that a death occurred in May 2000, the context being a long-running neighbour dispute which had involved threats and violence which had been reported to the police. An inquest was adjourned pending the criminal trial (which led to a conviction for manslaughter). By now, the Human Rights Act 1998 was in force, and the coroner was asked to reopen the inquest (to conduct an investigation which would comply with the requirements of Article 2 of the European Convention, in particular to determine whether the failure of the police to take positive action to prevent the death was a breach of that Article). However, he declined to do this. The Court of Appeal had directed that the inquest be reopened, holding that the discretion should be exercised so as to comply with Article 2. The House of Lords disagreed, albeit with a partial dissent from Baroness Hale and Lord Mance. The central holding was that the Article 2 right to life, including the ancillary right to have a proper investigation, applied only to deaths occurring after the 1998 Act came into force in October 2000. In that context, the discretion of the coroner was not one which meant that he was bound to continue with an inquest which met the Article 2 obligation: rather, that was an international law obligation of the state, and so not something he was bound to give effect to in the question of how to exercise his discretion.

Waltham Forest NHS Primary Care Trust & Anor v Malik, R (on the application of) [2007] EWCA Civ 265 (28 March 2007)

Wed, 28 Mar 2007 00:00:00 GMT

The issue in this case was whether the registration of a doctor as able to do NHS work (under the National Health Service (Performers Lists) Regulations 2004) was a possession within Article 1 of Protocol 1 to the European Convention, which is one of scheduled rights to the Human Rights Act 1998. The context was a decision to suspend his registration from the authorised medical performer’s list (which meant that he could no longer be paid for services to NHS clients). In judicial review proceedings, the judge held that the suspension was unlawful; and also that his place on the performers list amounted to a licence and so a possession for Convention purposes: [2006] EWHC 487 (Admin). The Court of Appeal disagreed: it held that the right to practice amounted to a right to earn income, which was a legal right but not a possession akin to goodwill. As such, it was outside the protection of the First Protocol.

Stretford v The Football Association Ltd. & Anor [2007] EWCA Civ 238 (21 March 2007)

Wed, 21 Mar 2007 00:00:00 GMT

S was licensed by the FA to operate as a football players' agent. A dispute arose as to the composition of a disciplinary commission, the context being an alleged breach of disciplinary rules, and he commenced litigation to seek a ruling that the commission breached Article 6 of the European Convention; there was also an argument that the disciplinary rules involved an unlawful restraint of trade. However, the action was stayed pursuant to the Arbitration Act 1996 on the basis that there was a dispute which had been submitted to arbitration. The issue which arose, in a challenge to the stay, was that the arbitration clause in the FA’s rules was in conflict with Article 6 of the Convention and so could not deprive the Court of jurisdiction. The Court of Appeal, however, found that the provisions of the Arbitration Act – including any appeals to the High Court on procedural fairness grounds - provided a fair trial for the purposes of Article 6. The lack of a public hearing amounted to an element of Article 6 which had been waived, even though the arbitration clause was a pre-requisite to obtaining a licence. The Court noted the public interest in encouraging arbitration in sporting contexts.

Secretary of State for the Home Department v E [2007] EWHC 233 (Admin) (16 February 2007)

Fri, 16 Feb 2007 00:00:00 GMT

2. Misuse of Non-Derogating Control Orders. The Prevention of Terrorism Act 2005 allows control orders to be made, which impose various restrictions (including curfews and limitations on freedom of movement). The effect of the orders cannot be to deprive a person of his or her liberty: that would require a different form of control order (the authority for which is not in place, since it requires a derogation from Article 5 of the European Convention on Human Rights). The control order imposed on E, a Tunisian national, required an electronic tag and reporting requirement, a curfew from 7pm-7am, no visitors without the prior approval of the Home Office (except children under 10, a nominated legal representative, landlord, emergency professionals), no pre-arranged meetings outside the residence except with prior approval (with similar limited exceptions), random police searching, no internet access, only one bank account, and no money transfers without prior approval. Beatson J, in a lengthy judgment, determined that cumulative effect of the obligations was such as to amount to a breach of E’s liberty, not merely a limitation on his freedom of movement, and as such it was outside the powers conferred on the Home Secretary. He felt that the level of the curfew alone was not sufficient, since E had been able to function in society; but the searching of his home and the need for approval of visitors and all pre-arranged meetings meant that the restrictions were intense and, taken as a whole, amounted to a loss of liberty. There was a challenge also to the regime set out in the statute, the argument being that it breached the requirement for legal certainty as required by various parts of the European Convention, particularly Article 8. This was rejected by the judge: the requirement for legal certainty was to avoid arbitrariness, and the powers set out in the 2005 Act were sufficiently constrained both by the circumstances in which they could be sought, the types of restriction that could be imposed (which could not breach liberty and had to be such as to restrict involvement in terrorism) and were subject to a full merits judicial review.

Greenpeace Ltd., R (on the application of) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) (15 February 2007)

Thu, 15 Feb 2007 00:00:00 GMT

1. Amenability to challenge: Government policy statements; 2. Adequacy of consultation process. In a White Paper on the future of energy production in the UK published in early 2003, the Government indicated that it was not minded to support new nuclear power stations, though it did not exclude the option completely. However, it stated that "the fullest public consultation" would be allowed before any change of that policy. When there was a review of the policy, announced in November 2005, a consultation period of 12 weeks was allowed, during which time members of the public could submit views; Greenpeace was amongst those that made submissions. The consultation was on a document issued in January 2006 which sought views on various issues that were relevant. At the end of the process, in July 2006 the Secretary of State published a report in which it was announced that the Government had changed its policy and now favoured new nuclear power stations. Greenpeace challenged this on the basis that the consultation process was flawed in light of the promise made as to the nature of the consultation that would be followed before any change of policy: it contended that there was a legitimate expectation that the fullest public consultation would be allowed and that this expectation had been breached. The basis for this was that the document on which consultation had been invited was not suitable for deciding whether there should be a change of policy: in short, it had invited views on the issues which ought to be examined as part of the process of deciding whether there should be a change of policy not on whether there should be a change of policy. So the outcome of the process – ie the change in policy to support new nuclear power stations – had leapfrogged what was expected in light of the promise made in 2003, namely consultation on that substantive question. The government argued that the process was adequate; it also suggested that the court should be slow to intervene on what was a matter of high policy. (The government did not submit that the issue was not justiciable at all.) Decision. (i) Justiciability and Approach. Although there was no challenge to the court’s jurisdiction, Sullivan J made it plain that he felt that the decision taken was amenable to judicial review. He took as a starting point that promises or practices as to how a public body will act are binding in the absence of good reason (as confirmed in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363. On the facts, whilst the issue was one of high government strategy, so was the promise made at a high level, in a White Paper; and no good reason was put forward to resile from that promise. The judge noted that environmental policy making was not simply a privilege of the executive branch of government because the government was bound in international law to provide the fullest public consultation, as required by the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998 (the Aarhus Convention), which it had signed. Further, whilst the decision related to policy, it was a material consideration in which would be taken into account in planning decisions, should any have to be made in relation to applications to build new nuclear power stations. (ii) The adequacy of the consultation process. The judge found that the process followed was flawed and breached the expectation legitimately created by the White Paper. On analysis, the consultation document was not clear as to its purpose, provided information which suggested that it was an issues paper rather than a consultation on the much more complex substantive question of whether there should be new nuclear power stations. In particular, there were no specific proposals, and the information contained in important issues – including building costs and waste – was inadequate for an informed process of consultation. There was no proper discussion of the public considerations that would apply to nuclear new build. Further, the period given for consultation was inadequate in relation to the issue of what the policy should be as opposed to the factors which would be relevant in determining what the policy should be.

Johnson & Ors v London Borough of Havering & Ors [2007] EWCA Civ 26 (30 January 2007)

Tue, 30 Jan 2007 00:00:00 GMT

In R (H) v Leonard Cheshire Foundation [2002] Mental Health Law Reports 201, a claim was made that the Foundation was in breach of the European Convention and hence the Human Rights Act 1998 by virtue of its decision to close a facility in which the claimant lived. The Court of Appeal dismissed the claim on the basis that the Foundation was not exercising a public function even though some of the residents were there on the basis of their placement by local authorities exercising community care functions. The Court determined that the local authority retained its obligations and if it breached the Convention rights of people by virtue of any failing in the arrangements made with a private sector provider, then action could still be taken against it. In the Johnson case, the governmental bodies involved, including the Secretary of State for Constitutional Affairs, sought to argue that the Leonard Cheshire case was wrong in law. The facts involved two people placed in care homes under the National Assistance Act 1948: in one case, the home was transferred from local authority to private control, and in the other the resident was to be removed from the private home in which the local authority had placed her. Both claimants argued that their Article 8 rights would be breached. In the first case, the local authority argued that the residents had exactly the same Article 8 rights and would be able to enforce them directly against the private providers as they were exercising a public function of providing community care, albeit with funding from the local authority. In the second case, the question was whether the actions of the private home breached Article 8. The Court of Appeal rejected the arguments. In the first place, it doubted whether the positive obligations placed onto a state by virtue of Article 8 extended so far as to cover the provision of community care of the sort involved; if so, there was no Article 8 right to lose. Secondly, if there was an Article 8 right, the change of a service provider did not amount to a breach of the right: the right as against the local authority would remain. The Court noted in any event that it was bound by its previous decision in the Leonard Cheshire case. However, Buxton LJ – who delivered the main judgment – went on to express his concerns about any conclusion that a private body performing public functions should always be considered to be outside the Convention; and the other members of the Court, although not associating themselves with these views, did not take the opportunity to express their disagreement either with the Leonard Cheshire approach.

Scottish Ministers v Scottish Information Commissioner [2007} CSOH 08

Tue, 23 Jan 2007 00:00:00 GMT

Appeal

MA (Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1440 (03 October 2006)

Tue, 03 Oct 2006 00:00:00 GMT

The contribution to life in the UK which an asylum seeker brought did not have a bearing on his right to a private life, even though private life included the right to work and carry our other activities. In this case, the applicant worked as a Dari interpreter in the North East of for the National Health Service. The adjudicator had erred, by failing to consider if the applicant’s case was "exceptional". From the determination it was unclear whether the adjudicator had in mind that the applicant needed to establish that his case was one of the rare cases where public concerns in respect of immigration control were overridden by private or family matters. Hence the Tribunal was entitled to find an error of law in the adjudicator’s reasoning.

Lovelock v First Secretary of State, unreported, QBD (Admin), 20 September 2006

Wed, 20 Sep 2006 00:00:00 GMT

The inspector had refused planning permission for the sub-division of an existing dwelling house into two on the basis that the proposed development did not provide the occupier of the new unit a car parking space, which was contrary to the objectives of both national and local authority policy. The refusal of planning permission in this case was difficult to reconcile with the reasonable construction of the planning policy guidance. Absent highway safety issues, it was difficult to see how the national planning policy guidance on transport and housing meant that where the occupier of a new dwelling would be so disadvantaged by the absence of a car parking space, then planning permission for the proposed development should be refused. The inspector’s decision was quashed on the basis of a serious error in her construction of the guidance.

Binomugisha v London Borough of Southwark [2006] EWHC 2254 (Admin) (18 September 2006)

Mon, 18 Sep 2006 00:00:00 GMT

In cases where there was an outstanding application with the Home Office on the basis of the applicants ECHR Article 8 rights, the local authority should do no more than ask itself whether that application was manifestly unfounded. Instead, the local authority in this case had erroneously asked itself the question that the SSHD would have to answer in considering the applicant’s outstanding application under Article 8. Only in the clearest cases should local authorities make their decisions on the basis that the application at issue would be dismissed by immigration authorities. The local authority could investigate the issue of whether the applicant could avoid the degradation of life without financial support in London without returning to her country of origin. With regard to the role of the Court, it considered that it would not quash the decision if it itself considered that the local authority could only arrive at a decision adverse to the applicant. However, this was not the case here, hence the decision to terminate support was quashed.

Khail, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 2139 (Admin)

Wed, 16 Aug 2006 00:00:00 GMT

According to Rule 353 of the Immigration Rules, submissions would amount to a fresh claim for asylum if they were significantly different from the material that had previously been considered. In other words, if taken together with the previously considered material, the new submissions created a realistic prospect of success. Rule 353 closely corresponded with the dictum in R v Secretary of State for the Home Department, Ex p Onibiyo (1996) 2 WLR 490. However, Onibiyo also provided that a decision by the secretary of state as to whether a claim was a fresh claim could only be challenged on Wednesbury grounds. The decision, including this aspect of it, had to be followed until the Court of Appeal held that it was no longer good law, despite the fact that it had been decided before the coming into forces of Rule 353 or the Human Rights Act 1998. Considering all evidence, the Court did not find it unreasonable or irrational of the SSHD to take the view that there was no reasonable prospect of a different conclusion about the general risk to a Pashtun returned to Kabul in 2005 from that made in 2002 by the adjudicator in the applicant’s case.

Robinson v Hammersmith and Fulham [2006] EWCA Civ 1122 (28 July 2006)

Fri, 28 Jul 2006 00:00:00 GMT

Housing: The duty to decide whether a local authority had a duty to provide accommodation under the Housing Act 1996 to a 17year-old child would not cease in order to allow mediation to take place between the child and its family in order to effect a mediation, where, a delay in the process would mean that the child would turn 18 and, if the mediation failed, the child would no longer be in priority need.

Johnson & Ors v London Borough of Havering [2006] EWHC 1714 (Admin) (11 July 2006)

Tue, 11 Jul 2006 00:00:00 GMT

Housing: “Functions of a public nature”, pursuant to section 6(3)(b) of the Human Rights Act 1998, did not include the provision, by a private body working on behalf of a local authority, of accommodation to people in need of assistance notwithstanding that such provision enabled the local authority to exercise its powers under the National Assistance Act 1948, ss 21 and 26. Section 6(3)(b) of the Human Rights Act 1998 covers bodies which carry out both private and public functions to be subject to the Act. It did not aim to bring within the Act bodies which had no duties or functions relating to the public merely because they performed certain acts on behalf of a public body. As such, section 6(1) of the Human Rights Act was not engaged.

Walker v Birmingham City Council [2006] EWCA Civ 815 (22 June 2006)

Thu, 22 Jun 2006 00:00:00 GMT

The Appellant appealed against the local authority’s refusal to allow him to succeed to his deceased mother’s secure tenancy. Under the Housing Act 1985, a person cannot succeed to a secure tenancy if the person from whom he is succeeding is himself a successor in title. As such there is only a right to succeed once- and this had been exhausted when the Appellant’s mother had succeeded to the tenancy on the death of her husband. It was held that this rule did not apply if the successor (the Appellant’s mother) succeeded to the tenancy before the coming into force of the Housing Act 1980 which created secure tenancies.

Conville v London Borough of Richmond-Upon-Thames [2006] EWCA Civ 718 (08 June 2006)

Thu, 08 Jun 2006 00:00:00 GMT

The local authority undertook to provide temporary accommodation to an applicant for assistance pending inquiry into her eligibility for the full housing duty under the Housing Act 1996. Further to those inquiries, it was found that the applicant was homeless, did have a priority need but that she had become homeless intentionally. As such the full duty was not engaged and the local authority gave notice to the Applicant to leave the temporary housing. The applicant claimed that the authority had not given her reasonable opportunity os securing accommodation for her accommodation under s 190(2)(a) of the Act. It was held that while the local authority could take into account ordinary principles, matters such as its resources and other demands on it were not relevant. The duty under s190(2)(a) requires the authority to consider what is reasonable from the applicant’s standpoint, having regard to his circumstances and in the context of the accommodation potentially available.

YD (Turkey) v Secretary of State for Home Department [2006] EWCA Civ 52 (08 February 2006)

Wed, 08 Feb 2006 00:00:00 GMT

The Court of Appeal could order the SSHD not to remove an asylum appellant between the time when an out of time application for permission to appeal and an application for an extension of time were made and the time when the application for permission to appeal was determined. It could do so under its inherent jurisdiction. There was no requirement for the appellant to make an application to the High Court for an injunction restraining removal, as such requirement would be inconvenient and needlessly expensive. But for the court to take such an exceptional course and make the order suspending removal, a strong case would have to be made out by the appellant that he was likely to achieve ultimate success on appeal from the original immigration decision. On the facts, if permission to appeal were granted, the most that the appellant could achieve is a remittal of the case to the AIT for reconsideration some four and a half years after the relevant event, in this case a photograph being published. In the circumstances, the chances of a successful outcome in the AIT did not justify an extension of time for appealing.

Ariaya v Secretary of State for the Home Department [2006] EWCA Civ 48 (08 February 2006)

Wed, 08 Feb 2006 00:00:00 GMT

An example of a case where the SSHD’s grounds of appeal satisfied the test in Miftari v SSHD (2005) EWCA Civ 481. The grounds of appeal were drafted widely enough to encompass the examination of the documentary evidence that the tribunal had undertaken, which founded its conclusion to allow the SSHD’s appeal against the adjudicator’s finding that the applicant, as Turkish Kurd was entitled to asylum on the grounds that if he was returned to Turkey he was likely to be identified as a failed asylum seeker and would be interrogated by airport police.

K v SSHD (unreported, Court of Appeal, 3rd February 2006)

Fri, 03 Feb 2006 00:00:00 GMT

VNM v Secretary of State for the Home Department [2006] EWCA Civ 47 (31 January 2006)

Tue, 31 Jan 2006 00:00:00 GMT

V, a member of a majority tribe in Kenya, had refused her boyfriend's request that she join the Mungiki sect, whose practice was to forcibly inflict female genital mutilation. Members of the sect located V at her mother's home and raped her. Her mother and sisters went missing, and fearing that she would be found and subjected to genital mutilation V fled to the United Kingdom. V was successful in her appeal before an adjudicator, but unsuccessful in a further appeal by the SSHD to the AIT, which found that the Mungiki tribe would be unlikely to discover V in a different part of Kenya to where she had originally resided. The Court of Appeal found that the IAT decision was deficient as it failed to consider whether it would be unreasonable to expect her to relocate there. The SSHD’s appeal was remitted, with a recommendation that the appeal should not be heard until the House of Lords has ruled in Januzi v SSHD (2003) EWCA Civ 1187 and Hamid v SSHD (2005) EWCA Civ 1219, which relate to factors relevant to enquiries into the reasonableness of internal relocation.

R G (Columbia) v SSHD [2006] EWCA Civ 57

Sun, 01 Jan 2006 00:00:00 GMT

A Columbian national who was homosexual and HIV positive, was unsuccessful at appeal as the adjudicator found that, while accepting that as a group homosexuals were at risk from social cleansing in Columbia, R had lived a homosexual lifestyle and had been with a homosexual partner for 13 years before coming to the UK and had not experienced violence or hatred because he had kept his lifestyle secret. The adjudicator found that the applicant had come to the UK to receive free treatment for his HIV, rather than through fear of persecution and that he could change his behaviour if returned so as not to draw unwanted attention to his homosexuality. The Court of Appeal affirmed that as the adjudicator did not make any finding that the applicant would have to change his behaviour on return, such a decision was not perverse or unlawful. Further it had to be shown that the outcome of his return to Columbia was serious enough to amount to persecution under the Refugee Convention and that had not been shown.

ESSA v SSHD [2005] EWCA Civ 1577

Wed, 21 Dec 2005 00:00:00 GMT

The Court of Appeal found that the AIT had not gone outside the scope of the grounds on which permission to appeal had been granted. The question of risk on return elsewhere in Somaliland was highly relevant to internal relocation, as the new location had to be safe. The AIT had applied the correct test in R (on appln of Robinson) v SSHD (1997) 3 WLR 1162, namely whether it would be unduly harsh or unreasonable to expect E to relocate away from her home area. However, in allowing the appeal the AIT's conclusion was premised upon the assumption that some members of the major clan to which E belonged could be found in other parts of Somaliland and that that would be sufficient to provide protection and support. That assumption was not supported by the background evidence. This amounted to an error of law by the AIT.

AMARE v SSHD [2005] EWCA Civ 1600

Wed, 21 Dec 2005 00:00:00 GMT

The Court of Appeal in this case held that if the adjudicator's reasoning had involved a requirement that A should conceal her homosexuality as the price for avoiding persecution in Ethiopia, he would have committed an error of law. In fact that adjudicator's decision was not based on A having to act secretly or discreetly so as to avoid persecution but that as a matter of fact that was how she would conduct herself having done so previously. Thus there had been no error of law on the adjudicator's part and therefore the IAT had been bound to dismiss the appeal. The Convention gave no licence to the courts to impose on the state obligations that it had not undertaken. Authorities cited by A concerning the administration of domestic law were of limited help in considering the application of the Convention. The argument for a human rights based approach to persecution exposed no error of law by the adjudicator or by the IAT, Hoxha v SSHD (2005) UKHL 19 , (2005) 1 WLR 1063 and Jain v SSHD (2000) Imm AR 76 considered.

GH (Afghanistan) v Secretary of State for the Home Department [2005] EWCA Civ 1603 (20 December 2005)

Tue, 20 Dec 2005 00:00:00 GMT

The Court of Appeal affirmed the principle that the IAT could only entertain an appeal on a point of law if such a point of law was discernible in the grounds of appeal when the permission to appeal was given, Miftari v SSHD (2005) EWCA Civ 481, R (Iran) v SSHD (2005) EWCA Civ 982 and ZT v SSHD (2005) EWCA Civ 1421 applied. Two exceptions were identified: firstly, if there was an obvious point of law relating to the Refugee Convention favourable to the asylum seeker that had not been raised by him, the IAT was under an obligation to pursue that point of law (see R (on appln of Robinson) v SSHD (1997) 3 WLR 1162; secondly, this doctrine was extended slightly to those who were expressly excluded from the Refugee Convention by Art.1F(b) (see A (Iraq) v SSHD (2005) EWCA Civ 1438). There could be no extension of the Robinson jurisprudence in favour of the secretary of state in the instant case because the instant case concerned the European Convention on Human Rights. As the secretary of state's submission identified a point of law, which was not to be found in the grounds before the IAT, the IAT decision was quashed and the decision of the adjudicator restored.

Shaheen v Secretary of State for the Home Department [2005] EWCA Civ 1294 (02 November 2005)

Wed, 02 Nov 2005 00:00:00 GMT

There was no error of law in the decision of the Immigration Appeal Tribunal on the appeal of the SSHD in an asylum case where fresh evidence had come to light. The Court of Appeal drew a distinction between those situations where an appeal court was satisfied, on new evidence, that the SSHD or a tribunal took a decision on the basis of a belief as to the existence of a material fact that was now demonstrated to be wrong, and those situations where it took its decision in the mistaken belief that there was in fact no apparently cogent evidence to refute a material finding it had made. The instant case clearly fell into the second of those categories, since the applicant had consistently asserted that she was in Pakistan during the period in question, for which new evidence revealed her to be in the UK. However, the SSHD pursued his appeal in the IAT on the basis that the case fell into the first category. The IAT committed no error of law when it decided that it did not fall into that category.

R (on the application of Faulkner) v SSHD, Admin Ct, Bean J, 1/11/2005

Tue, 01 Nov 2005 00:00:00 GMT

As the SSHD had failed to give reasons for detention pursuant to immigration powers, following the completion of the applicant’s term of criminal imprisonment, the detention was unlawful. Reasons for detention were only given on the day before the applicant was due to apply for bail pending the determination of his human rights appeal, and the question was whether the applicant’s detention between March and May 2005 was lawful. The Court held that until notified, the applicant could not have known the reason for his detention was the SSHD’s opinion that he posed a risk of absconding if granted bail or a risk to the public.

R (on the application of B) v SSHD, Admin Ct, Bean J, 28/10/2005

Fri, 28 Oct 2005 00:00:00 GMT

Where an asylum seeker (including a minor, as in this case) had the opportunity to make an asylum claim in a third country and had so done, that country was the appropriate country to determine his asylum claim. There was no exception to that rule for unaccompanied minors. The SSHD’s Asylum Policy Instruction on Discretionary Leave did not allow the asylum claims of unaccompanied minors to be substantively decided without regard to Council Regulation 343/2003.

Hamid & Ors v Secretary of State for the Home Department [2005] EWCA Civ 1219 (25 October 2005)

Tue, 25 Oct 2005 00:00:00 GMT

There existed no general presumption or principle that persecution by or on behalf of the state was incompatible with acceptable internal relocation. The three appellants had come from the Darfur region of Sudan. Their claims for asylum were dismissed on the ground that it would not have been unduly harsh for each of them to relocate to Khartoum. The issue before the Court of Appeal was whether a person could be required to internally relocate and thereby rely upon protection from the state that was party to the persecution. The Court held that in most cases where persecution was carried out by state agents it was not limited to a particular part of the country in question. Applicants for asylum had to show a well-founded fear of persecution upon return. If there was not a real fear of persecution in the area to which an asylum seeker would be returned, he could not establish a right to refugee status. The appropriate test in respect of internal relocation was the "unduly harsh" test in Robinson (1997) 3 WLR 1162. There was a need for a clear distinction between matters relevant to refugee status, matters relevant to a right to remain by reason of the Human Rights and considerations that might be relevant to the grant of leave to remain for humanitarian reasons. As a matter of law, the Court rejected the submission that internal relocation could not arise in an asylum case unless the applicant would receive protection at least equal to the basic norms of civil, political and socio-economic human rights.

R (on the application of Adam, Limbuela, Tesema) v SSHD [2005] UKHL 66

Sat, 01 Oct 2005 00:00:00 GMT

As soon as an asylum seeker, who was refused asylum support, made it clear that there was an imminent prospect of a breach of his rights under Article 3 ECHR because the conditions that he enduring were on the verge of reaching the necessary degree of severity, the secretary of state had the power and the duty to act to avoid the breach, under s.55(5)(a) of the Nationality, Immigration and Asylum Act 2002 and the duty under the Human Rights Act 1998 s.6(1) respectively. The purpose of s.55(5)(a) of the 2002 Act was to enable the secretary of state to exercise his powers to provide support under the 1999 Act and accommodation under the 2002 Act before the ultimate state of inhuman or degrading treatment was reached. Once that stage was reached the secretary of state was at risk of being held to have acted in a way that was incompatible with the ECHR. Treatment was inhuman or degrading if, to a seriously detrimental extent, it denied the most basic needs of any human being. The decision by the secretary of state to withdraw support from someone who would otherwise qualify for support under s.95 of the 1999 Act because he was, or was likely to become, destitute was an intentionally inflicted act for which the secretary of state was directly responsible. He was also directly responsible for all the consequences that flowed from it, bearing in mind that asylum seekers were prohibited from employment. The withdrawal of support would not in itself amount to treatment that was inhuman or degrading, but it would do so once the margin was crossed between destitution and the condition that resulted from inhuman or degrading treatment within the meaning of Article 3. The threshold might be crossed if a late applicant for asylum with no means and no alternative source of support, unable to support himself was, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. In each of the instant cases there had been sufficient evidence to justify the conclusion that there was an imminent prospect that the treatment would lead to a condition that was inhuman or degrading.

Smaili, R (on the application of) v Immigration Appeal Tribunal [2005] EWHC 1951 (Admin) (15 August 2005)

Mon, 15 Aug 2005 00:00:00 GMT

A remittal on the grounds of error of law based on perversity of findings. The IAT was entitled to set aside the adjudicator's determination on the grounds that he had erred in law. The adjudicator had reached a decision that S would be at risk of persecution if returned to Iran, that was inconsistent with a number of his findings of fact and that decision was perverse. Accordingly the IAT was entitled to find that the matter should be remitted to a different adjudicator.

Al-Jedda, R (on the application of) v Secretary of State for Defence [2005] EWHC 1809 (Admin) (12 August 2005)

Fri, 12 Aug 2005 00:00:00 GMT

The claimant, who is a British and Iraqi national challenged the lawfulness of his continued detention by British forces in Iraq and the refusal of the Secretary of State for Defence to return him to the UK. He was arrested and detained in Iraq on suspicion of membership of a terrorist group. In refusing the application, the Divisional Court found that there was no basis for construing the HRA as providing rights with an autonomous UK meaning of greater scope than those enforceable in Strasbourg. UNSC Resolution 1546 had a plain meaning and effect and was designed to authorise the multi-national force to exercise the power it previously had as a belligerent occupant and included the power of internment, where necessary for imperative reasons of security. There was no basis for reading UNSCR 1546 in a way which preserved an equivalent right to that protected under the Article 5 of the ECHR. Under Article 103 of the UN Charter the UNSCR 1546 overrode Article 5 of the ECHR. The Claimant failed to establish that his detention was unlawful under the powers conferred by the Resolution. Further, these powers were directed towards the detention of persons in Iraq, not their removal from Iraq. The exercise of powers of detention as a means of securing removal from Iraq fell outside the scope of UNSCR 1546 and would involve actions inconsistent with it. Therefore the SSHD was not acting unreasonably by refusing to return C to the UK.

Boran v Secretary of State for the Home Department [2005] EWCA Civ 1141 (29 July 2005)

Fri, 29 Jul 2005 00:00:00 GMT

The adjudicator had erred in his approach to the issue of proportionality, by having failed to consider the leading authority of R (on the appln of Razgar) v SSHD (2004) 2 AC 368. By failing to direct himself to the matters set out in Razgar, the adjudicator had fallen into error and the IAT, applying that decision, was entitled to set aside the adjudicator's determination on the grounds that he had erred in law.

Szoma v. Secretary of State for the Department of Work and Pensions [2005] UKHL 64 (28 July 2005)

Thu, 28 Jul 2005 00:00:00 GMT

Persons admitted to the United Kingdom temporarily under the Immigration Act 1971 Schedule 2 paragraph 21 were "lawfully present in the United Kingdom" within the meaning of paragraph 4 of the Schedule to The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. The SSHD argued that lawful presence was only gained by having lawfully entered the UK with leave to enter, and that S was not to be regarded as "present" by virtue of s.11(1) of the 1971 Act. The House of Lords held that the purpose of s.11(1) was not to safeguard the person admitted from prosecution for unlawful entry, but rather to exclude him from the rights (such as seeking an extension of leave) given to those granted leave to enter. Even if s.11 would otherwise be capable of affecting the construction of the 2000 Regulations, it would be wrong to carry that fiction beyond its originally intended purpose and deem a person who was in fact lawfully in the country not to be here at all. There was no possible reason why paragraph 4 should be construed as requiring more by way of any positive legal authorisation for someone's presence in the UK other than that they were at large here pursuant to the express written authority of an immigration officer provided for by statute. S was therefore lawfully present in the UK within the meaning of paragraph 4 and the decision to award him income support was reinstated.

Secretary of State for the Home Department v Akaeke [2005] EWCA Civ 947 (27 July 2005)

Wed, 27 Jul 2005 00:00:00 GMT

In the context of ECHR Article 8, delay was relevant, not only to the extent of interference with family life, but also to the proportionality of removal. “Unreasonable delay” was material to removal, without needing to identify any specific prejudice. In normal circumstances the requirement for the maintenance of immigration control would demand the return of E to Nigeria, notwithstanding that her application for entry was likely to be successful. The temporary disruption to her family life would be justified by the need to maintain public confidence in the fairness of the system overall. The delay in the instant case demonstrated such a breakdown in the system of immigration control that the tribunal was entitled to find that confidence was unlikely to be materially improved by maintenance of a rigid policy of temporary expulsions. The Courts retained a supervisory role as final arbiters in relation to genuine issues of law. However, they should be cautious about interfering with decisions on matters within the expertise and competence of specialist tribunals, including immigration tribunals. This principle applied to the evaluation of evidence in individual claims, to questions of general principle on particular categories of claimant or particular countries, and on questions of proportionality. The tribunal, through its day-to-day experience, was much better placed to justify a departure from the ordinary policy approach.

R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982 (27 July 2005)

Wed, 27 Jul 2005 00:00:00 GMT

During the period before the demise of the IAT, its powers were restricted to appeals on points of law by s.101 of the Nationality, Immigration and Asylum Act 2002. The Court of Appeal gave the following guidance: 1. Before the IAT could set aside a decision of an adjudicator on the grounds of error of law, it had to be satisfied that the correction of the error would have made a material difference to the outcome, or to the fairness of the proceedings. This principle applied equally to decisions of adjudicators on proportionality in connection with human rights issues; 2. A finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence. 3. A decision should not be set aside for inadequacy of reasons unless the adjudicator failed to identify and record the matters that were critical to his decision on material issues, in such a way that the IAT was unable to understand why he reached that decision. 4. A failure without good reason to apply a relevant country guidance decision might constitute an error of law. 5. At the hearing of an appeal the IAT had to identify an error of law in relation to one or more of the issues raised on the notice of appeal before it could lawfully exercise any of its powers set out in s 102(1) of the 2002 Act, other than affirming the adjudicator’s decision. 6. Once it had identified an error of law, such that the adjudicator’s decision could not stand, the IAT might, if it saw fit, exercise its power to admit up-to-date evidence or it might remit the appeal to the adjudicator with such directions as it thought fit. 7. If the IAT failed to consider an obvious point of Convention jurisprudence which would have availed an applicant, the Court of Appeal might intervene to set aside the IAT’s decision on the grounds of error of law even though the point was not raised in the grounds of appeal to the IAT. 8. Although this guidance relates to the appellate regime which came to an end in April 2005, with the demise of the IAT and the birth of the AIT, many of the principles set out in the judgment will be equally applicable when issues arise as to the identity of an error of law under the new statutory regime. 9. In future the Court of Appeal will be slower to grant permission to appeal in asylum and human rights cases, as there has been a noticeable improvement in the quality of decision-making, reconsideration of a decision of the AIT is restricted to issues of law; and the law in this sphere is, in a far more settled state than it was when Koller v SSHD [2001] EWCA Civ 1267 was decided.

Afzal, R (on the application of) v Election Court & Ors [2005] EWCA Civ 647 (26 May 2005)

Thu, 26 May 2005 00:00:00 GMT

A judicial review of the decision that C had been guilty of corrupt and illegal practices in relation to a council election. The Court of Appeal held that the circumstances in which the police officer identified C in court were unsatisfactory. If the Commissioner was minded to prefer the identification evidence of the police officer to the evidence of those who said that C was not there, which was supported by the police note of names and addresses, he should have made that plain and given C the chance to ask for the police officer to be recalled. Equally, if he was minded to conclude that C had passed himself off as someone else, he should have made that plain so that counsel could have had the chance to make submissions. The Commissioner failed to ensure that C had a fair opportunity to deal with the case against him. The Commissioner's finding that C had been guilty of corrupt and illegal practices was quashed, as the finding that C was present was at the heart of the Commissioner's finding of guilt.

Yilmaz v Secretary of State for the Home Department [2005] EWHC 1068 (Admin) (26 May 2005)

Thu, 26 May 2005 00:00:00 GMT

The standstill clause to the European Community Association Agreement, which provided that Turkey and the UK should refrain from introducing any new restrictions on the freedom of establishment and freedom to provide services, applied to a person whatever his status regarding his right to enter the UK, save where a person entered the country by the use of fraud. As C had been given temporary admission for the purpose of having his case considered, he was not lawfully in the UK, but was in an intermediate position which differed from those in the country illegally. A perpetrator of fraud would not be in a better position because of temporary admission. Fraud by an applicant entitled the secretary of state to refuse an application under the agreement. It was the deceptive intention of the person seeking entry that was important, not whether the person was successful in the deception.

R (B) v Haddock [2005] EWHC 921 (Admin) (20 May 2005)

Fri, 20 May 2005 00:00:00 GMT

The claimant mental patient challenged the decision to administer medication without his consent. His challenge failed as he was suffering from a mental disorder, lacked the capacity to refuse consent, and the proposed treatment was necessary and considered effective. In considering the need for the treatment, the only question was whether the patient's treatment had been convincingly shown to be medically necessary.

Schmidt v Secretary of State for the Home Department [2005] EWHC 959 (Admin) (18 May 2005)

Wed, 18 May 2005 00:00:00 GMT

C’s challenge to R’s extradition order raised issues which had been fully ventilated before the Divisional Court earlier and its decision by reference to s.11(3) Extradition Act 1989 effectively covered the same territory as was encompassed by the exercise of discretion under s.12(2)(a) of the Act. The new information adduced added nothing material. The mere fact that proof of the extradition crimes might be more difficult to achieve at the present time due to the passage of time, could not serve to impugn an application for extradition made some years previously as made in bad faith. R’s evaluation of the arguments under Art.6 and Art.8 of the ECHR was beyond any criticism on public law grounds.

Aegis Group Plc & Ors v Inland Revenue [2005] EWHC 1468 (Ch) (13 May 2005)

Fri, 13 May 2005 00:00:00 GMT

C’s judicial review application had been discontinued, as the validity of legislation was challenged in other High Court proceedings where C was also a test claimant. On the issue of costs, R’s failure to comply with the judicial review pre-action protocol led to C being ordered to pay only 85% of R’s procedural costs.

Mowlem Plc, R (on the application of) v District of Avon HM Assistant Deputy Coroner & Anor [2005] EWHC 1359 (Admin)

Fri, 13 May 2005 00:00:00 GMT

In judicial review proceedings the High Court had the power to insert words into a coroner's inquisition verdict rather than remit the matter. However, this power ought to be exercised with the greatest of caution and the words inserted in substitution had to accurately reflect the findings of the decision maker.

Dirshe, R (on the application of) v Secretary of State for the Home Department [2005] EWCA Civ 421 (20 April 2005)

Wed, 20 Apr 2005 00:00:00 GMT

Judicial review of a decision of the Secretary of State refusing a request that an asylum interview be tape recorded. From April 2004 a material change in practice had taken place, namely public funding was no longer generally available for the attendance of representatives or interpreters at interviews. Therefore a non-English speaking applicant could not comment on the record at the time of interview and, if he wished to challenge it, he would have no one to corroborate what he had said. That placed an applicant at a substantial disadvantage in practical terms in seeking to persuade either the Secretary of State or an appellate authority that the record was inaccurate. Although applicants were still entitled to have representation, that entitlement was of no practical value without public funding. Accordingly there was real procedural unfairness if a tape recording was not permitted when an applicant did not have a representative or interpreter at the interview.

Salman, R (on the application of) v London Borough of Barking & Dagenham [2005] EWHC 731 (Admin) (14 April 2005)

Thu, 14 Apr 2005 00:00:00 GMT

C had sought to judicially review a decision of the defendant local authority on educational funding. After the issue of proceedings the institute which C attended had become publicly funded, with an offer made by the local authority satisfying all financial loss suffered by C. On the remaining issue of costs the Court held that the appropriate question to ask was whether here was a bona fide claim for relief in the circumstances of the case when the proceedings were issued. On the facts, the decision letter was unlawful and had to be reconsidered. Hence C was entitled to bring the proceedings challenging the decision and she was entitled to her costs of the action.

Jegatheeswaran, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 1131 (Admin) (14 April 2005)

Thu, 14 Apr 2005 00:00:00 GMT

Successful application for judicial review of the Secretary of State’s certification that a claim was manifestly unfounded. The Court found that it was arguable that Art.8 of the ECHR was engaged where C and his family were to be removed to Germany, where they had made a previous unsuccessful asylum claim. The ground relied on by C in challenging the decision was that there was a significant risk that his child, who had severe hearing loss and severe learning difficulties, would not be able to communicate functionally in any spoken language in Germany.

DJ, R (on the application of) v Mental Health Review Tribunal [2005] EWHC 587 (Admin) (11 April 2005)

Mon, 11 Apr 2005 00:00:00 GMT

Unsuccessful judicial review of decisions of two mental health review tribunals not to discharge the claimant patients from hospital. The Court held that the applicable standard to be applied by the mental health review tribunals was the ordinary civil standard of proof. To raise the standard of proof above the ordinary civil standard of proof would be to subvert the obvious purpose of the Act, namely the protection of the interests of the patient whose ability to act in his own best interest had been impaired, and enabling a proportionate balance to be struck between individual and public interests. Under both s.72 and s.73 of the Mental Health Act 1983, with the exception of the question of whether the patient was suffering from a disorder under s.72(1)(b)(i), consideration of the remaining criteria did not involve an application of a standard of proof but required an exercise of judgment or evaluation.

Girling v Parole Board & Anor [2005] EWHC 546 (Admin) (08 April 2005)

Fri, 08 Apr 2005 00:00:00 GMT

An unsuccessful application by a prisoner for an order that the Parole Board reconsider its decision refusing to release him on licence. No legal error was identified in the board's approach. It had noted that C's health had deteriorated but refused parole on the basis that he still posed a substantial risk to the public. There had been an inadvertent trespass on the board's independence by directions given by the Secretary of State. However it had not been so substantial as to deprive the board of its true character as a judicial body. In the circumstances, there had been no breach of Article 5(4) ECHR.

Western Riverside Waste Authority, R (on the application of) v Wandsworth Borough Council [2005] EWHC 536 (Admin)

Thu, 07 Apr 2005 00:00:00 GMT

An unsuccessful challenge to a decision of the defendant local authority fixing a tariff of charges for the collection of commercial waste from commercial organisations. It was the local authority's intention to organise its commercial waste collection services so that it provided a residual service to such of its occupiers as could not be persuaded to engage a private commercial waste contractor. The court should not attempt to substitute its own judgment for what would constitute a reasonable charge but had to review the local authority's exercise of its statutory discretion to fix such charges on Wednesbury principles. There was no basis upon which the court could hold that the local authority's fixing of its tariff for the provision of commercial waste collection services was unlawful. The local authority's policy that its charges for the collection of commercial waste should, as far as possible, cover the cost of the provision of the services was not unreasonable.