EU Law

R v Horncastle and others (Appellants) (on appeal from the Court of Appeal Criminal Division), [2009] UKSC 14

Tue, 02 Feb 2010 23:20:18 GMT

Supreme Court - Press Summary

BACKGROUND TO THE APPEAL
The appellants were convicted of serious criminal offences after trials in which the victims of the offences did not give evidence: in one case because he had since died and in the other because she had run away in fear when the trial was about to commence. In each case a statement from the victim was admitted pursuant to s 116 Criminal Justice Act 2003 and placed before the jury. The appellants complained that their convictions were based ‘solely or to a decisive extent’ on the statement of a witness whom they had had no chance to cross-examine. This had infringed their right to a fair trial guaranteed by articles 6(1) and 6(3) of the European Convention on Human Rights which provide:

‘6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
(3) Everyone charged with a criminal offence has the following minimum rights:
…
(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’.

The Court of Appeal had dismissed the appellants’ appeals against conviction, holding that the test of fairness laid down by the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 was not determinative of the results in these appeals. The United Kingdom had requested that this decision be referred to the Grand Chamber of the Strasbourg Court. On 5 June 2009 the Panel of the Grand Chamber adjourned consideration of that request pending the judgement of the Supreme Court in this case.

JUDGMENT
The Supreme Court unanimously dismissed the appeal. The judgment of the court was given by Lord Phillips, President.

REASONS FOR THE JUDGMENT
 The questions before the court were (i) whether the regime enacted by Parliament in relation to the admission of the evidence of an absent witness at a criminal trial will result in an unfair trial and, if not (ii) whether the case law of the European Court on Human Rights nonetheless requires the court to apply that regime in a manner contrary to the intention of Parliament.

 The requirement to take into account any judgment of the European Court of Human Rights found in s 2 Human Rights Act 1998 would normally result in the Supreme Court applying principles that were clearly established by the Strasbourg court. There would however be rare occasions where the court had concerns as to whether a decision of the Strasbourg court sufficiently appreciated or accommodated particular aspects of the UK trial process. In such circumstances it was open to the Supreme Court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This was likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that was in issue, so that there took place what might prove to be a valuable dialogue between the courts [para 11].

 The conclusions of the Court of Appeal were correct and the judgement of the Supreme Court should be read as complementary to that of the Court of Appeal and not as a substitute for it [para 13].

 The Supreme Court held that the appellants’ trials were fair notwithstanding the decision in Al- Khawaja for the following reasons:

(i) The common law hearsay rule addressed the aspect of a fair trial covered by article 6(3)(d). Parliament had enacted exceptions to the hearsay rule in a regime which contained safeguards that rendered the ‘sole or decisive’ rule unnecessary.

(ii) The Strasbourg Court had recognised that exceptions to article 6(3)(d) were required
in the interests of justice but the jurisprudence on the exceptions lacked clarity and had introduced a ‘sole or decisive’ rule without discussion of the principle underlying it or full consideration of whether it was justified to impose it equally on common law and continental jurisdictions

(iii) The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure. In almost all cases English law would reach the same result without it. Al-Khawaja did not establish that it was necessary to apply the rule in this jurisdiction.

R (on the application of Barclay and others) v Secretary of State for Justice and others, [2009] UKSC 9

Tue, 02 Feb 2010 22:41:54 GMT

Supreme Court Press Summary

Background to the appeal
Sark is an island in the Channel Islands of about 600 inhabitants. In this appeal, Sir David and Sir Frederick Barclay sought to challenge new constitutional arrangements in Sark contained in the Reform (Sark) Law 2008.

Under the Reform Law, the electorate (of about 500 people) vote for 28 members of Sark’s legislature, which is called the “Chief Pleas”. But there are two members of the Chief Pleas who are not elected.

The first is the “Seigneur” (or Lord) of Sark, who holds a title first granted by Queen Elizabeth I in the sixteenth century. Although he may speak, the Seigneur cannot vote at any meeting of the Chief Pleas, but he does have a power temporarily to veto Ordinances of the Chief Pleas. The second is the “Seneschal” (or Steward), whose office was created by the Crown in the seventeenth century. The Seneschal convenes meetings of and presides over the Chief Pleas, but has no power to speak in debates or to vote. Historically, both the Seigneur and the Seneschal were able to vote in the Chief Pleas.

The Barclay brothers argued that the position of the Seigneur and the Seneschal, under the new arrangements, was incompatible with Article 3 of the First Protocol to the European Convention on Human Rights, which protects “the free expression of the opinion of the people in the choice of the legislature”. They argued that the effect of that Article is that all members of a single chamber legislature must be elected members.

An appeal was also brought by Dr Tomas Slivnik, who wanted to stand for election to the Chief Pleas. He argued that the Reform Law discriminated against him contrary to the European Convention. He said that this was because, even though he had a right to vote as a resident, he nevertheless did not have a right to stand for election as he was a citizen of Slovenia.

Judgment
The Supreme Court held that the unelected position of the Seigneur and the Seneschal was not incompatible with Article 3 of the First Protocol to the European Convention on Human Rights. It held also that the restriction on Dr Slivnik’s standing for election complied with his Convention rights. The appeals were unanimously dismissed.

Reasons for judgment
The leading judgment was given by Lord Collins, with whom the other Justices (Lords Hope, Scott, Brown and Neuberger) agreed.

As to whether the position of the Seneschal and the Seigneur in the Chief Pleas of Sark, as provided for in the Reform Law, was a breach of Article 3 of the First Protocol to the European Convention on Human Rights:

There was no invariable rule in Article 3 of the First Protocol that all members of a legislature had to be elected irrespective of their powers and irrespective of the circumstances [67], [70].
Until 1922 the composition of the Chief Pleas reflected the feudal system in Sark and between 1922 and 2008 the feudal Tenants dominated the Chief Pleas. Against that background, and in light generally of the constitutional history and the political factors relevant to Sark, the position of the Seigneur and the Seneschal was well within the margin of appreciation given to Contracting States to the Convention under Article 3 of the First Protocol. The free expression of the opinion of the people of Sark was not impeded by their membership of the Chief Pleas [71]-[72], [74].
The Seigneur’s power temporarily to veto legislation was proportionate and consistent with Article 3 of the First Protocol. In reaching that conclusion, it was legitimate to take account of the fact that the power had not been used in modern times, and that the Seigneur had indicated it would only be used in very limited circumstances [78].
The Seneschal’s powers were those which any presiding officer would be given or would need. His position could not realistically be said to impair the essence of the rights under Article 3 of the First Protocol [83].

As to whether the prohibition imposed by the Reform Law on persons who are “aliens” from standing for election to the Chief Pleas of Sark is a breach of the right under Article 3 of the First Protocol, read alone and / or in conjunction with Article 14 of the Convention:

Under the European Convention, as reflected in the decisions of the Strasbourg Court and in the practice of the members of the Council of Europe, it is citizens, and not non-resident aliens, who have the right to vote and stand for election. There may be some exceptions, but the general rule is clear [93].
Article 3 of the First Protocol does not require a justification for qualifications which are stricter for standing for election than for voting. Historical and political factors have determined the definition of “alien” in UK law. Eligibility for standing for election in Sark was limited to those with a genuine connection with Sark in the form of residence or ownership of property. It was clear that in the light of those factors and the breadth of the margin of appreciation, the exclusion of aliens from eligibility to stand for election was justifiable [95].

Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action, [2009] UKHL 28

Wed, 10 Jun 2009 13:35:00 GMT

The three appellants, AF, AN and AE, are subject to non-derogating control orders involving significant restriction of liberty. Each control order was made pursuant to s.2 of the Prevention of Terrorism Act 2005 (“the PTA”) on the ground that the Secretary of State had reasonable grounds for suspecting that the appellant was, or had been, involved in terrorism-related activity. The issue raised by their appeals is whether, in each case, the procedure that resulted in the making of the control order satisfied the appellant’s right to a fair hearing guaranteed by art.6 of the European Convention on Human Rights (“art.6”) in conjunction with the Human Rights Act 1998 (“the HRA”). Each contends that this right was violated by reason of the reliance by the judge making the order upon material received in closed hearing the nature of which was not disclosed to the appellant.

A week before the commencement of the appeal in the House, the Grand Chamber of the Strasbourg Court handed down its judgment in A and others v United Kingdom. Before that case, Strasbourg had made it plain that the exigencies of national security could justify non-disclosure of relevant material to a party to legal proceedings, provided that counterbalancing procedures ensured that the party was accorded “a substantial measure of procedural justice”. Following that case, the Grand Chamber has now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order.

The result will be that, in the s.3(10) hearing under the PTA, the judge will have to consider not merely the allegations that have to be disclosed in order to place in the open sufficient to satisfy the requirements laid down by the Grand Chamber, but whether there is any other matter whose disclosure is essential to the fairness of the trial.

The House, with a bench of 9, unanimously allowed the appeals in each case. In none had the disclosure required by the decision of the Grand Chamber been given. The appropriate course was to remit each case to the judge for further consideration in accordance with the decision of the House.

Austin (FC) (Appellant) & another v Commissioner of Police of the Metropolis (Respondent), [2009] UKHL 5

Wed, 28 Jan 2009 11:24:00 GMT

In May 2001 at about 2pm, a crowd of demonstrators marched into Oxford Circus from Regent Street South. By the end of the afternoon some 3,000 people were within the Circus and several thousands more were gathered outside in the streets that lead into it. The appellant was among those who went to Oxford Circus as part of the crowd to demonstrate, but she was not one of the organisers. She was prevented from leaving the area by the police cordon for about 7 hours.

In April 2002 she brought a claim for damages against the respondent for false imprisonment and for breach of her right under art.5(1) of the Convention to liberty.

The court at first instance and the Court of Appeal dismissed the appellant’s claims.

The House unanimously agreed with the lower courts. The House held that when deciding whether a confinement or a restriction of movement imposed on an individual by some public authority constituted a deprivement of liberty for the purposes of art.5.1 of the European Convention, the purpose of the confinement or restriction and the intentions of the persons responsible for imposing it rank very high in the circumstances to be taken into account in reaching the decision. The imposition by the police of the Oxford Circus cordon on the appellant, and many others, was done for the purposes of protecting the physical safety of the demonstrators, including the appellant, and of protecting the neighbourhood properties from the violence that it was justifiably feared some of the demonstrators would perpetrate, violence that the appellant herself regarded as likely to happen. The intention of the police was to maintain the cordon only so long as was reasonably thought necessary to achieve those purposes and it was accepted by the appellant that the cordon was not maintained longer than was necessary to achieve those purposes. In the circumstances, the confinement and restriction of movement that the cordon inevitably imposed on those within it did not constitute an Article 5 deprivation of their liberty.

R (on the application of Wright and others) (Appellants) v Secretary of State for Health and another (Respondents), [2009] UKHL 3

Wed, 21 Jan 2009 09:45:00 GMT

Adults who need special care and who receive personal care in their homes or who live in care homes, need to be protected from potential harm. Accordingly, Part VII of the Care Standards Act 2000 provides that care workers employed in looking after such vulnerable adults may be placed on a list of people considered unsuitable to work with vulnerable adults. The effect of listing is to deprive the care worker of his/her employment as a care worker and to prevent him/her from getting any other such employment. The 2000 Act scheme only provides for a judicial hearing before being placed on the list, after a lengthy administrative process during most of which the care worker is provisionally on the list. The question for the House of Lords is whether this aspect of the scheme is compatible with the care worker’s rights under arts.6 and 8 of the ECHR.

Stanley Burnton J held that the automatic effect of provisional listing upon a care worker’s employment was a determination of his/her civil rights and obligations within the meaning of art.6 of the Convention. The care worker’s employment might be terminated on the ground of alleged misconduct without any opportunity of his/her being heard. This necessarily involved a breach of art.6. Although he accepted that there had to be some way of protecting vulnerable adults while cases were investigated, he did not think the scheme was fair. Its adverse effects upon the rights of care workers were disproportionate. He also held that the right to respect for private life protected by art.8 was engaged. Although the Convention did not confer a right to work in a chosen profession, listing was calculated to interfere, not only with employment, but also with personal relationships with colleagues, the vulnerable people with whom they worked, and with others. For the same reasons as those under art.6, the procedures did not ensure due respect for the care workers’ rights. He declared, therefore, that s.82(4)(b) of the 2000 Act was incompatible with the rights afforded by arts.6 and 8 of the Convention.

The Court of Appeal reversed that decision in part. The majority held that provisional listing did engage art.6, but that a breach could be avoided by giving the care worker a right to make representations before being placed on the list. The Court did not consider it necessary to consider article 8.

With regard to art.6, the House unanimously held that the scheme as enacted in the Care Standards Act 2000 did not comply with art.6(1). The process did not begin fairly, by offering the care worker an opportunity to answer the allegations made against him/her, before imposing upon him/her possibly irreparable damage to his/her employment or prospects of employment.

The House also took the same view with art.8. There would be some people for whom the impact upon personal relationships was so great as to constitute an interference with the right to respect for private life and others for whom it may not. The scope of the ban was very wide. The ban was also likely to have an effect in practice going beyond its effect in law. Even though the lists were not made public, the fact was likely to get about and the stigma would be considerable. The House therefore held that the scheme had to be devised in such a way as to prevent possible breaches of the art. 8 rights.

Overall, the House returned to the solution adopted by Stanley Burnton J and made a declaration that s.82(4)(b) of the Care Standards Act 2000 was incompatible with the Convention rights.

Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellants), [2008] UKHL 74

Wed, 10 Dec 2008 10:07:00 GMT

In July 2004 Mrs Carol Savage, who was suffering from paranoid schizophrenia, absconded from Runwell Hospital where she was being treated as a detained patient. She then committed suicide by throwing herself in front of a train. Mrs Savage’s adult daughter, Miss Savage, brought the present proceedings alleging that the South Essex Partnership NHS Foundation Trust violated Mrs Savage’s art.2 Convention right to life by allowing her to escape from the hospital and kill herself. Miss Savage also stated that as a result of her mother’s death, she suffered distress, anxiety, vexation, bereavement, loss and damage. She claimed just satisfaction for the violation of art.2, including damages.

The Trust successfully applied for a question of law to be determined as a preliminary issue. The question related to the proper test for establishing a breach of art.2 of the Convention on the basis of the facts set out in the particulars of claim. The Trust contended that the extent of the obligations of health authorities to protect a patient’s life in a case like the present was to be found in the decision of the European Court in Powell v United Kingdom (2000) 30 EHRR CD362. The claimant argued, on the basis of Osman v United Kingdom (1998) 29 EHRR 245, that a duty to take steps to prevent a particular patient from committing suicide arose if the authorities know or ought to know that there was a real and immediate risk of her doing so. The court accepted the argument for the Trust and struck out the action. The Court of Appeal allowed the claimant’s appeal and ordered a trial. The Trust appealed to this House.

The House of Lords unanimously dismissed the appeal. Per Lord Rodger of Earlsferry, in terms of art.2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, they may require to fulfil a number of complementary obligations. Firstly, health authorities must ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of art.2. If, for example, a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and, as a result, a patient is able to commit suicide, the health authority will have violated the patient’s right to life under art.2.

If a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide, there would be no violation of any obligation under art.2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too.

Finally, art.2 imposes a further “operational” obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities’ more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a “real and immediate” risk of suicide. In these circumstances art.2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under art.2 to protect the patient’s life.

In re E (a child) (AP) (Appellant) (Northern Ireland), [2008] UKHL 66

Wed, 12 Nov 2008 16:36:00 GMT

The essence of the appellant’s case is that the state and its emanation, the police force, failed to take appropriate steps to discharge their positive obligation under art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) to protect the appellant and her young daughter against the infliction upon them of inhuman and degrading treatment. It was also claimed that the police had discriminated against them in their handling of the events in which such treatment occurred.

At the material time, the appellant’s daughter went to a Catholic primary school (Holy Cross) in Ardoyne Road in a largely Catholic district. The appellant and her daughter walked to school. A housing estate which was inhabited by Protestant families bordered Ardoyne Road.

Serious disorder broke out on Ardoyne Road on 19 June 2001. This developed into abuse towards and attacks on children returning from school and their parents. This situation continued for the rest of that school term and then again into the new school session. At one point, an explosive device was thrown into the road. During that time, in order to enable the children to get to school without physical harm, they walked in a group between lines of armoured vehicles and police or service personnel holding riot shields. The situation ended in November 2001.

The appellant does not claim that she and her daughter were directly subjected to abuse or attacks, but she states that her daughter was frightened and upset by witnessing a violent incident which took place.

The police saw the events as part of a complex community dispute, in which a loyalist enclave on this area of North Belfast saw itself as under threat from the encroaching nationalists, and was exercising a right to ‘protest’ about this. The police later accepted that this was not a legitimate exercise of the right to protest. However, at the time they believed that more sinister forces on the loyalist side might exploit the dispute to foment much more serious violence elsewhere in Belfast if the matter was not carefully handled and ultimately a political solution found.

The essential dispute before the House was whether the police were entitled to take into account the risk of serious harm and even death to unspecified people elsewhere in Belfast when deciding how to protect the Holy Cross school children.

Both the trial judge and the Court of Appeal thought that the police were entitled to take those wider considerations into account.

The House of Lords held that, as a general principle, a police officer is not entitled to stand by and let one person kill or seriously ill-treat another, when he has the means of preventing it, just because he fears the wider consequences of doing so. In this case, however, the House held that it had not been shown that, had the police behaved at the outset in the way in which it is now said that they should have behaved, the children’s experience would have been any better. Indeed, it could have been a great deal worse. They were in very real physical danger at the beginning. The difficulties and dangers to them in doing what it is now suggested should have been done could not be ignored.

For that reason, the House unanimously dismissed the appeal.

Nigel Maurice Johnston v. The Scottish Ministers

Thu, 26 May 2005 23:00:00 GMT

Domestic and EU Legislation:

Case C-341/02 Commission v Germany (judgment of Court of Justice of 14 April 2005)

Thu, 14 Apr 2005 00:00:00 GMT

A Member State is not obliged, when checking to ensure that the minimum wage is being paid to workers posted from another Member State, to take all allowances and supplements into account.

Keller (Social security for migrant workers) [2005] EUECJ C-145/03 (12 April 2005))

Tue, 12 Apr 2005 00:00:00 GMT

The costs of medical treatment of a person holding forms E111 and E112 who, for urgent medical reasons, has to be admitted to hospital in a non-Member State must be borne, in accordance with its rules, by the social security institution of the Member State of stay on behalf of the institution of the Member State of affiliation

Case C-446/03 Marks & Spencer v Halsey (HM Inspector of Taxes) (judgment of Court of Justice of 7 April 2005)

Thu, 07 Apr 2005 00:00:00 GMT

According to Advocate General Poiares Maduro a group relief scheme which does not allow a parent company to deduct the losses of its subsidiaries established abroad under any circumstances is incompatible with Community law.

Gillette Company & Ors (Approximation of laws) [2005] EUECJ C-228/03 (17 March 2005)

Thu, 17 Mar 2005 00:00:00 GMT

Without being the owner of a trade mark, a third party may use it in order to indicate the intended purpose of a product which it markets. Such use must, however, satisfy the criterion of necessity and fulfil the condition of ‘honest practices in industrial and commercial matters’.

Bidar (Social policy) [2005] EUECJ C-209/03 (15 March 2005)

Tue, 15 Mar 2005 00:00:00 GMT

Assistance covering maintenance costs of students falls within the scope of application of the EC Treaty for the purposes of prohibition of discrimination on grounds of nationality.

easyCar (Environment and consumers) [2005] EUECJ C-336/03 (10 March 2005)

Thu, 10 Mar 2005 00:00:00 GMT

Distance contracts for car hire are not covered by the right to a full refund in the event of cancellation by the consumer.

Commission v United Kingdom (Taxation) [2005] EUECJ C-33/03 (10 March 2005)

Thu, 10 Mar 2005 00:00:00 GMT

The VAT (Input Tax)(Persons Supplied) Order 1991 permitting employers to deduct VAT on sums reimbursed to employees for vehicle fuel they buy is incompatible with EC law.

Svenska v Government of Republic of Lithuania [2006] 1 Lloyds Law Rep 181

Tue, 11 Jan 2005 00:00:00 GMT

Gloster J held that an arbitration award could be enforced against Lithuania. Although Lithuania had not lost immunity under ss2 or 3 of the State Immunity Act 1978, it had lost immunity under s9.