Public

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 Part I of the 1983 Act, including section 16, was repealed by the Electricity Act 1989, but the power to make regulations was maintained in section 29 of the new Act.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

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.

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.

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 (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.

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.

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.

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.

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.

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.

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.

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.

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.

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.