David has been published in the new issue of the Journal of Professional Negligence with a book review of Professor Jane Wright’s “Tort Law and Human Rights” (2nd edition). The book is highly recommended, in particular for its discussion of horizontal effect. The journal is published by Bloomsbury Professional and the reference is JPN (2018) vol 34 p. 52.
Archives for : Human Rights
The Supreme Court has had to consider the interaction between the Human Rights Act and the powers of the devolved legislative bodies in a number of cases. One area that has recurred is compensation for industrial injury or disease claims caused by exposure to asbestos. This has an interest because there is evidence to suggest that some of the asbestos industry knew more about the risks of exposure to asbestos than it revealed before it became so heavily regulate to ensure safety, and because a small exposure a long time ago can still cause disease.
This was before the Supreme Court case of AXA Insurance v Lord Advocate[1] concerning legislation by the Scottish Parliament about asbestos claims, which held that the Scottish legislation interfered with the rights of insurers about certain asbestos claims but was proportionate and so not in breach of the Act.
A proposed bill relating to asbestos claims has been considered further by the Supreme Court but this time in the case of Wales in the case of Recovery of Medical Costs for Asbestos Diseases (Wales) Bill.[2] Here the National Assembly of Wales passed a law which was intended to impose liability for the medical costs of treating victims of asbestos-related disease where that disease was the subject of compensation, usually because the victim was an employee of a company which handled asbestos in some way. The medical costs were those incurred by the NHS and the compensation was paid both by employers and insurers of employers (or others), and whether or not liability was admitted. The liability under the bill was also retrospective: it applied even to asbestos exposure in the past.
The Supreme Court held (by a majority) that the bill was outside the legislative competence of the Welsh Assembly. The Welsh Assembly’s role in the organisation of the NHS in Wales which allowed it to set charges to cover NHS costs did not extent to raising money from any source just because it was being used for the NHS. It also was not empowered to deal with insurers. The Court went on to hold that even if the Assembly were acting within its proper scope, the bill would infringe Article 1 of Protocol 1. Particular justification was needed for retrospective legislation and that had not been provided here.
[1] [2011] UKSC 46, [2011] 3 WLR 871
[2] [2015] UKSC 3
The Supreme Court has considered the interaction between the law of negligence and the Human Rights Act in the case of Michael v Chief Constable of South Wales [2015] UKSC 2 in which judgment has just been given.
The case concerned an argument that there should be a common law duty of care in negligence where the police knew or should have known that a specific member of the public was at risk as to her life or physical safety. There had been an emergency call and the victim had been killed while waiting for police to arrive. Due to miscommunication, the call was not given as prompt attention as it should have been and this was criticised by the police inquiry. However, following the leading cases of Hill v Chief Constable of West Yorkshire [1989] AC 53 and Smith v Chief Constable of Sussex Police [2008] UKHL 50, [2009] 1 AC 225, the Court had held that the police had no liability in negligence.
The Supreme Court agreed. The police in general terms do not owe a duty of care to members of the public. They may in some individual cases have accepted a responsibility to specific persons, but they had not done so in this case.
The Supreme Court was in particular invited to develop the law of negligence to give effect to the duties under the European Convention to protect life (Article 2) and prevent serious harm (Article 3). The Court declined to do so, although there were dissents from Lord Kerr and Lady Hale on this point.
In the majority judgment, given by Lord Toulson, he confirmed that whilst there have been areas where English private law has developed to give effect to Convention rights, most notably the law relating to privacy, this was where it was necessary for the law to comply with the Convention as it would otherwise be deficient [124]. There is no need to develop the law of negligence to give effect to Article 2 and 3 since there is an adequate remedy for these in an action under the Act, with different time limits and approaches to damages. This does not need to be duplicated by the common law. If the remedy under the HR Act is considered to be inadequate, it should be remedied by Parliament, and not by the courts, since the police already have a duty to comply with Article 2 and 3 [129-130].
However, the Court did consider unanimously that the victim’s family’s claim under the Human Rights Act could continue. Thus, a party can claim for a breach of Article 2 or Article 3 under the Act, but not through the law of negligence.
The Supreme Court has confirmed a particular approach to the place of the Act in our private law – namely, that it does not necessarily require the common law to be developed to match it (for further discussion, see the relevant chapters in the book ‘The Impact of the Human Rights Act on Private Law’ (Cambridge, 2011))
The issue of whether or not the Supreme Court can or should refuse to follow a European Court decision had to be considered recently in the case of Haney. [1] The topic was review of imprisonment following conviction for an offence, which is permitted under Article 5 of the European Convention as long as the detention is lawful and not arbitrary.
The issue here was considering prison sentences which are indeterminate for the protection of the public. An indeterminate sentence includes a minimum term fixed by the judge and then there is the opportunity for release.
In the case of James,[2] the House of Lords had held that there was no breach of Article 5(1), unless there should be a lengthy period without effective review by the Parole Board. The prisoners who brought that case had complained about the lack of availability of courses to allow them to meet the conditions that would demonstrate they were sufficiently rehabilitated for the Parole Board to allow them to leave prison on licence. The House of Lords rejected this as amounting to arbitrary detention.
The European Court disagreed. [3] It held that the lack of availability of the courses meant that, once the prisoners had served the minimum term, their indefinite detention was arbitrary.
The Supreme Court has now had to consider the European Court decision in James and decide whether or not to follow it: and it decided not to do so. In Haney, there were four prisoners whose minimum term had expired; and they were complaining that their progress towards release had been hindered by lack of relevant services.
The Supreme Court held that the decision of the European Court in James was unworkable in practice, because the lawfulness of detention would depend on the steps being taken to rehabilitate the offender at any one time and the resources available to a particular prison. These are far too uncertain and could lead to detention being unlawful and then being lawful again following their release.
However, the Supreme Court did hold that in the light of the European Court decision, the House of Lords in James was wrong to hold that the aim of a life or indefinite sentence did not include rehabilitation and so does include a duty to rehabilitate. But the Supreme Court held this was not part of whether or not the detention is arbitrary, under Article 5(1), but only a part of the duty to review detention. Thus it can be supervised through judicial review of the Parole Board but does not create an express duty to provide specific courses or facilities. The detention remains lawful and within Article 5 since it results from the conviction; and it prevents release before the Parole Board have concluded that release is safe. The prisoner can seek review of their detention and damages if there has been a failure to provide steps towards rehabilitation, and damages were awarded to two of the prisoners in the appeal in Haney itself.
As well as being important on the substantive matter of Article 5, this is also a very important case about the obligation in s.2 of the Act on the courts to ‘take into account’ the jurisprudence of the European Court. In analysing whether or not to follow the European Court in James, the Supreme Court considered very carefully the obligation on it to take this case into account. The Court recognised that it is not always possible simply to reflect European Court jurisprudence; it may have to decide a point which has not been decided by the European Court; or it may decide that a European Court case cannot be supported and decline to follow it, following dicta in Pinnock[4] and Chester,[5] but noting that the domestic court would have to be very satisfied that the European Court’s approach was flawed in some way.
In declining to follow the European Court in James, the Supreme Court considered that the reasoning in James was out of line with other European Court decisions as well as being not practicable (as discussed above). Thus, it held that it should not follow the European Court decision. This sets a clear signal both that our courts will decline to follow a European Court case if they consider that they should do so, but also of the high threshold for doing so. It is also relevant that the Supreme Court did not ignore the European Court case – they did regard the House of Lords decision in James as incorrect in light of it – but they did depart from the analysis of the European Court on Article 5.
The Supreme Court in Haney also had to consider another case which had been decided by the European Court, the case of Clift. The House of Lords[6] had held that early release provisions which differentiated between those who were of foreign nationality and those of UK nationality were in breach of Article 5, taken with Article 14, and made a declaration of incompatibility, but held that whether or not the minimum period of the sentence, that determined by the Judge, had expired was not a relevant factor. The European Court[7] had confirmed that there was a violation and held that whether or not the minimum period had expired was also a factor which could result in discrimination in breach of Article 14 and that there had been an unjustifiable distinction drawn between different types of offenders. In Haney, the Supreme Court noted that this may well mean that whether offenders’ minimum period has expired might be a relevant difference in status for Article 14, ie that this aspect of Clift in the House of Lords should be reviewed. However, in the case being considered (in fact the appeal of Mr Kaiyam), the Supreme Court held that any difference in treatment was entirely justified and so there was no discrimination in breach of Article 14.
[1] R (Haney) v Secretary of State for Justice [2014] UKSC 66, [2015] 2 WLR 76
[2] Secretary of State for Justice v James [2009] UKHL 22, [2010] 1 AC 553
[3] James v United Kingdom (2012) (apps 25119/09, 57715/09 and 57877/09)
[4] Manchester City Corporation v Pinnock [2010] UKSC 45, [2011] 2 AC 104
[5] R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271
[6] Clift v Home Secretary [2006] UKHL 54, (2007) 1 AC 484
[7] Clift v United Kingdom [2013] (app 7205/07)
One recurring issue is how to balance respect for privacy in information held by the state, and the protection of the public, which manifests itself in the requirements for criminal record checks. What about where a conviction is an old one and it may not be a good indicator that a person is dangerous or a risk?
In the case of T[2], the Supreme Court had to consider the requirement that criminal record certificates should include spent convictions, which is to say convictions that are ignored for most purposes because of the time that has passed since the offence was committed. In this case, police cautions or warnings were disclosed even though happened some years ago. The Court of Appeal had held that the scheme was unlawful.
The Supreme Court agreed that this case engaged Article 8, that the legislation requiring disclosure of the convictions interfered with Article 8 and held that there was a breach of Article 8 because there was no mechanism for reviewing the decision in an individual case. The disclosure of the spent convictions was not necessary for the protection of children, which was the point of the legislation. Thus, it was incompatible with Article 8. This did mean however that the regulations made under the Act remained in force – they could not be declared unlawful since they were made to give effect to primary legislation and the primary legislation remained in force until amended even though it was incompatible with the Convention.
(In fact, by the time of the Supreme Court appeal, the government had amended the legislation to remove the incompatibility, but the appeal had to be heard on the basis of the law prior to the amendments).
[1] R (L) v Metropolitan Police Commissioner [2009] UKSC 3, [2010] 1 AC 410
[2] R (T) v Secretary Of State For The Home Department [2014] UKSC 35, [2014] 3 WLR 96
An interesting example of the need for the Courts to balance different Convention Rights was the case of TW.[1] Here the Court of Appeal had to consider a case where two rights of a patient came into conflict in the decision of a social worker whether to commit a patient to hospital under the Mental Health Act. The social worker had a duty to consult the patient’s nearest relative, unless it was not reasonably practicable to do so. This therefore ensured that the patient’s interests were considered before she was detained, which is relevant to ensuring there is no arbitrary detention contrary to Article 5. On the other hand, consulting a relative might involve disclosing private information about the patient’s medical history, and this bears on the patient’s rights under Article 8, respect for privacy. The Court considered the issues of reasonableness and proportionality and considered that both Articles were relevant to the proper interpretation of the statutory test of what is ‘reasonably practicable’. Since they had not properly been taken into account, there was an arguable case, so permission to bring a claim for wrongful detention was granted.
[1] TW v Enfield London Borough Council [2014] EWCA Civ 362
One of the ways in which the Human Rights Act 1998 operates is to oblige our courts to take into account the decisions of the European Court of Human Rights in Strasbourg. Note that the words are ‘take into account’ – this raises a question whether in any particular case the European Court case is binding or not, and to what extent this is affected by the doctrine of precedent. Previous case law has established that courts below the Supreme Court do still have to abide by clear and binding law which contradicts European Court case law. What about where it is not clear?
The Court of Appeal has recently reviewed this in the case of Hicks.[1] This was a decision about various detentions made on the day of the royal wedding in 2011. The detentions were to prevent a breach of the peace. The question was whether these were compliant with Article 5 because they were to prevent the commission of a crime.
The European Court in the case of Ostendorf v Germany[2] had expressed the view that Article 5(1)(c) only covered pre-trial detention where an offence had been committed. The Court of Appeal considered that this is not what Article 5(1)(c) says on a straightforward reading: it allows for the possibility of detention to prevent the commission of a crime and applies to it the safeguard that the purpose of the detention is to bring the detainee before the relevant legal authority promptly. The suggestion to the contrary in Ostendorf appears to contradict this wording and also to contradict other European Court case law. Thus, the Court of Appeal had to consider whether it was obliged to follow Ostendorf.
The Court held that the s. 2 to take into account decisions did not mean that every decision had to be followed. The UK would be bound to follow a decision given by a Grand Chamber as authoritative or a clear line of European Court authority unless it was clear that it had misunderstood or overlooked some significant feature of English law or practice which, properly explained, would lead to that decision being reviewed in due course when properly explained. Where, as here, there were mixed decisions, the UK courts would need to make a judicial choice about the scope of the relevant Convention Right. In the present case, the Court would not follow Ostendorf, which was not part of a line of clear and consistent European Court authorities and did not appear to be consistent with the wording of the Article itself, so it was able to hold that the detentions were compliant with Article 5.
The analysis here bears close attention for anyone looking at this area. The Court of Appeal ultimately did not follow the European Court; but it did quite definitely take it into account, and indeed treated it as persuasive precedent. This continues the trend of ensuring that the use of European Court case law is not automatic, but also is part of a robust dialogue between our courts and the Strasbourg court.
Life sentences remain politically controversial. Recently the European Court decided the case of Vinter, which looked at the interaction between whole life sentences and Article 3, the right to freedom from degrading treatment. Vinter had been considered by a chamber of the European Court [1], which had held that mandatory life sentences were not to be in breach of Article 3.
This has now been reviewed by the Grand Chamber[2], which agreed that having a life sentence is not by itself in breach of Article 3. However, the Grand Chamber did find a breach of Article 3 because the life sentences of the applicants were without any prospect of release or proper review. There used to be a power which required review on the part of the Home Secretary after 25 years but this had been removed. Thus, there was no prospect of any form of rehabilitation or release or review. Further, the legal position as to review and release was unclear and inconsistent. Thus there was a breach of Article 3 as there was no guarantee of the review of detention.
The effect of this has been considered by the Court of Appeal in McLoughlin[3]. A five member Court of Appeal confirmed that whole life sentences themselves were not incompatible with the Convention Rights. The Court then considered the decision in Vinter and held that the review regime in place at the time of the sentences in that case had not been compatible with the Convention Rights. However, the law had changed since then and the power on the secretary of state to review a sentence in the Crime (Sentences) Act 1997 s.30, which provides for the possibility of release in exceptional circumstances on compassionate grounds, was sufficiently broad to ensure that the statutory scheme was compliant with the Convention. This was especially so as the secretary of state was bound to exercise his s.30 power in a manner compatible with Article 3. Thus, whilst whole life sentences would continue to be rare, they were not incompatible with the Convention as there was a real power of review and the possibility of release if justified.
The decision of the European Court was politically extremely controversial and not surprisingly was taken as another example of the European Court interfering in a political matter. However it is important to note that the decision was not that a life sentence was a breach of the Convention, nor that the individual applicants should expect their release any time soon. It was only that basic standards of humane behaviour require that anyone, no matter how heinous their crime, has the possibility of compassionate release or release if they can show that they have rehabilitated themselves.
It is also important to note that whilst the Court of Appeal did disagree with the Grand Chamber, this was not about this basic principle. Rather, it was about the Grand Chamber’s interpretation of the current law – actually, the law as it was by the time of the later decision. The Court of Appeal held that the law does allow for the sort of review required by Article 3 – this can be taken into account in our system, which allows for compassionate release.
This is a very good example of dialogue between our courts and the European Court: the European Court took into account the margin of appreciation in penal policy; the Court of Appeal considered in more detail and with more authority the current UK law position.
One case that has been in the headlines recently is the case of Dawson.[1] In this case, a female defendant on trial at Blackfriars Crown Court for witness intimidation, Rebekah Dawson, asked to be able to wear a niqab, which included a veil covering her face, during her trial. There was no issue of identification in the case and Ms Dawson’s held the religious belief that she was required not to reveal her face to men who were not family members.
The Judge held that Ms Dawson was entitled to manifest her religion under Article 9, and the court would assume that this was a sincere request unless there was evidence otherwise, and that was not affected by differences of views within the Muslim community as to whether this was a religious requirement. However, this had to be balanced against the public interest in open justice and the trial process, which usually required witnesses to be seen so that their demeanour can be taken into account as part of the assessment of the credibility of their evidence. Thus the Judge ruled that Ms Dawson could wear her niqab in court but that she should remove it if there was any issue about identification and when giving evidence (when she could be shielded from the public but not from the Judge, jury or barristers).
The sequel to this ruling was that in the end, Ms Dawson decided not to give evidence.[2] The jury then failed to give a verdict. Before there could be a retrial, Ms Dawson admitted the charge, so the issue did not arise at a further trial.[3]
A balancing exercise of this sort is a good demonstration of the way the Act allows the courts to consider head-on the different interests at stake and take a view as to how they should be addressed. It is very much a cultural norm with UK courts that the focus is on oral evidence, and that the attitude of witnesses can be as much a part of the assessment of their truthfulness as what they are saying. Thus, wearing a full veil interferes with that basic premise of a fair trial. In this case, the Judge went as far as he could to ensure that there was no unnecessary exposure on the part of Ms Dawson, up until the points where her religious rights conflicted with the interests of justice.
It was a great pleasure to be on Nick Ferrari’s breakfast show on LBC radio this morning (9 July) discussing the Human Rights Act. The prompt was the deportation of Abu Qatada – who else would we like to deport, and if the Human Rights Act stops us, should something be done about that? It’s a difficult question and one worthy of popular discussion. My own view is that we do need the Act – it serves an invaluable purpose in ensuring we are protected against the state and by the state, and that if the price is that we have to keep a relatively small number of potentially deportees to prevent them being mistreated otherwise, that is the mark of living in a civilised society. But there is certainly scope for discussion – not every case where the Act is used necessarily gets to the right answer – but that doesn’t mean the Act should be abolished. Something to consider for yourself as well!