Public

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.

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.

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.

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.

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.

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

Scottish Ministers v Scottish Information Commissioner [2007} CSOH 08

Tue, 23 Jan 2007 00:00:00 GMT

Appeal