Human Rights

Appeals under Section 74 of the Criminal Procedure (Scotland) Act 1995 by MATTHEW McALLISTER and ors vHER MAJESTY'S ADVOCATE

Thu, 07 Jan 2010 12:06:53 GMT

Employment of Counsel

REFERENCE BY THE SHERIFF AT TAYSIDE CENTRAL AND FIFE AT FORFAR, in the cause; HER MAJESTY'S ADVOCATE v DUNCAN McLEAN (Minuter)

Thu, 07 Jan 2010 11:59:16 GMT

Appeal Court: Opinion of the Court delivered in reference by the Sheriff at Forfar Sheriff Court. Minuter was charged on indictment with theft of a motor vehicle and wilful fire-raising. Minuter detained under s14 of the Criminal Procedure (Scotland) Act 1995. Minuter not offered legal assistance nor did he ask to be represented. He was granted right to intimate to a named solicitor the fact and place of his detention. Thereafter, the minuter was interviewed in the absence of representation and he made a number of admissions upon which the Crown now intends to rely. Sheriff referred certain questions to the Appeal Court for determination. Determination: whether the fact that legal representation is not available from the moment of entry into police custody, constituted a violation of an accused person's rights under Article 6 (1) and 6 (3) (c) of the European Convention on Human Rights.

ALYSON KING v THE ADVOCATE GENERAL FOR SCOTLAND

Thu, 07 Jan 2010 11:49:06 GMT

OUTER HOUSE;Action for declarator of the occurence of a nuisance and infringement of Convention Rights arising from aircraft flying at less than 250 feet. Action for damages in the sum of £100,000. The pursuer represented herself in respect of this action for declarator and for damages. The pursuer averred that Operational Low Flying carried out by the RAF over her farm amounted to a nuisance and a breach of her private and family life and home, to her detriment and injury. Disputed: whether in fact the aircrafts had carried out operations over the pursuers property at a level below 250 feet.

R (on the application of L) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent), [2009] UKSC 3

Wed, 25 Nov 2009 13:38:50 GMT

This case raises important issues about the meaning and application in practice of s.115(7) of the Police Act 1997 as to the information that is to be provided by the chief officer of a police force to the Secretary of State for inclusion in an enhanced criminal record certificate (“ECRC”).

The appellant L was the mother of X who was born in 1989. Following upon a child protection conference in 2002, X’s name was placed on the child protection register under the category of neglect. In 2003, X was convicted for a robbery and was sentenced to three years’ detention in a young offender institution. His name was then removed from the child protection register as he was in detention. He was released in February 2004.

From February to December 2004 the appellant was employed by an employment agency which provided staff to schools. Between March and July 2004 she worked as a midday assistant at a secondary school. At the start of her employment the agency applied for an ECRC in accordance with s.115 of the 1997 Act. In December 2004 the ECRC was issued in response to the police check. It recorded that the appellant had no criminal convictions and that no information on her was recorded either on the list held under s.142 of the Education Act 2002 or on the Protection of Children Act 1999 list. However, in the box titled “Other relevant information disclosed at the Chief Police Officer’s discretion”, the Secretary of State disclosed information pertaining to the circumstances surrounding X. Shortly afterwards the appellant was informed by the agency that her services were no longer required.

The appellant sought judicial review of the Commissioner’s decision to disclose the information contained in the ECRC. Her application was dismissed by Munby J. The Court of Appeal granted leave to appeal and the Secretary of State made an application to intervene which was granted. In March 2007 the Court of Appeal dismissed the appeal. L appealed.

The Supreme Court unanimously dismissed the appeal. It held that it was possible for s.115(7) to be read and to be given effect to so that decisions were taken which were compatible with the applicant’s article 8 right.

Further, the court refused the appellant’s request that the decision that was made in her case be quashed. There was no doubt that the information that was disclosed about her was relevant for the purpose for which the ECRC was being required. As for the question whether it ought to have been disclosed, insufficient weight was given to the appellant’s right to respect for her private life. However, there was no doubt that the facts that were narrated were true. It was also information that bore directly on the question whether she was a person who could safely be entrusted with the job of supervising children in a school canteen or in the playground. It was then for the employer to decide what to make of this information. The risk to the children was held to outweigh the prejudicial effects that disclosure would give rise to.

R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent), [2009] UKHL 45

Wed, 26 Aug 2009 15:07:00 GMT

Ms Purdy suffers from primary progressive multiple sclerosis for which there is no known cure. It was diagnosed in 1995 and it is progressing. She expects that there will come a time when her continuing existence will become unbearable. When that happens she will wish to end her life while she is still physically able to do so. But by that stage she will be unable to do this without assistance. So she will want to travel to a country where assisted suicide is lawful, probably Switzerland. Her husband, Mr Omar Puente, is willing to help her to make this journey.

Assisting a person to commit suicide is a crime in this country – s.2(1) of the Suicide Act 1961. Accordingly, there is a substantial risk that the acts which Ms Purdy wishes her husband to perform to help her to travel to Switzerland will give rise to a prosecution in this country.

Counsel for Ms Purdy submitted that the prohibition in s.2(1) of the 1961 Act constitutes an interference with Ms Purdy’s right to respect for her private life under art.8(1) of the ECHR and that this interference is not “in accordance with the law” as required by art.8(2), in the absence of an offence-specific policy by the Director of Public Prosecutions which sets out the factors that will be taken into account by him and Crown Prosecutors acting on his behalf in deciding under s.2(4) of the 1961 Act whether or not it is in the public interest to bring a prosecution under that section.

Ms Purdy does not ask that her husband be given a guarantee of immunity from prosecution. What she seeks is information that she says she needs so that she can take a decision that affects her private life. However, the Director has declined to say what factors he will take into consideration in deciding whether or not it is in the public interest to prosecute those who assist people to end their lives in countries where assisted suicide is lawful.

The Court of Appeal held that it was unable to find in Ms Purdy’s favour on either branch of her argument. It had previously been held that art.8 was directed to the protection of personal autonomy while the person was alive but did not confer a right to decide when or how to die. Whilst the European Court of Human Rights disagreed, the Court of Appeal held that it was bound to follow the decision of this House and was not at liberty to apply the ruling of the Strasbourg court. As for the question whether the requirements of art.8(2) were satisfied, the Court of Appeal held that the absence of a crime-specific policy relating to assisted suicide did not make the effect of s.2(1) of the 1961 Act unlawful or mean that it was not in accordance with the law.

The House unanimously allowed the appeal and required the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s case exemplifies, whether or not to consent to a prosecution under s.2(1) of the 1961 Act.

Begum, R (on the application of) v. Denbigh High School [2006] UKHL 15 (22 March 2006)

Wed, 22 Mar 2006 00:00:00 GMT

No interference of right to manifest religion under Art. 9 ECHR. A school's refusal to allow a pupil to wear a jilbab at school did not interfere with her right under the European Convention on Human Rights 1950 Art.9 to manifest her religion and, even if it did, the school's decision was objectively justified under Art.9(2). In the circumstances, the pupil had not been denied access to education in breach of Protocol 1 Art.2 of the Convention.

Ali v. Lord Grey School [2006] UKHL 14 (22 March 2006)

Wed, 22 Mar 2006 00:00:00 GMT

Protocol 1 Art. 2 ECHR – Right not to be denied access to the general level of educational provision available. The European Convention on Human Rights 1950 Protocol 1 Art.2 did not confer a right to be educated at a particular school but rather conferred a right not to be denied access to the general level of educational provision available in the Member State. On the evidence a pupil had not been excluded from school education in breach of his Convention rights in circumstances where he had chosen not to take up the school's invitation to attend a meeting to re-admit him to the school, nor its offers to provide work for him to do from home and to arrange alternative tuition.

Takoushis, R (on the application of) v HM Coroner for Inner North London & Ors [2005] EWCA Civ 1440 (30 November 2005)

Wed, 30 Nov 2005 00:00:00 GMT

Administration of Justice. It was held that an inquest had not been full and fair and a new inquest was therefore ordered to investigate why a schizophrenic who was at risk of self harm had been able to leave the A&E department of a hospital before being seen by a doctor. Where a person died as a result of what was arguably medical negligence in an NHS hospital, the system in operation in England, including both the possibility of civil process and the inquest, met the requirements of Art.2 of the European Convention on Human Rights 1950 for a practical and effective investigation.

Canning v HM Coroner for Northampton, DC, 23/11/2005

Wed, 23 Nov 2005 00:00:00 GMT

Discretion not to hold inquest where death probably not unnatural. A coroner was held to be entitled to refuse to hold an inquest into the death of a child where she was satisfied that the death was not unnatural.