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The Continuing Dialogue Between the Supreme Court and the European Court: Haney

Posted by :David Hoffman On : January 21, 2015
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Category: Human Rights, News

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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)

Criminal records and spent convictions: T

Posted by :David Hoffman On : September 16, 2014
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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

Balancing Rights – a recent example

Posted by :David Hoffman On : September 16, 2014
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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

The Human Rights Act: taking into account the decisions of the European Court

Posted by :David Hoffman On : April 2, 2014
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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.

 


[1] R(Hicks) v Metropolitan Police Commissioner [2014] EWCA Civ 3

[2] Ostendorf v Germany 34 BHRC 738

Life Sentences: politics and human rights

Posted by :David Hoffman On : March 26, 2014
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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.

 


[1] Vinter v UK (2012) 55 EHRR 34

[2] Vinter v UK (apps. 66069/09, 130/10 and 3896/10), GC

[3] Re Attorney General’s Reference (69/2013),  R v Mcloughlin [2014] EWCA Crim 188

Religious Dress in Court: Religion v Justice

Posted by :David Hoffman On : March 26, 2014
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     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.

 

David Hoffman on LBC radio

Posted by :David Hoffman On : July 9, 2013
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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!

Deporting Abu Qatada

Posted by :David Hoffman On : July 8, 2013
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Deporting criminals is a usual response to crimes committed by nationals of other countries. The basic idea is that someone who is allowed into the country has to behave themselves, and if they don’t, they can be asked to leave. One of the principles that the European Court has developed is that someone should not be deported if the result will be that they will face serious mistreatment, because while they are within a Convention state, they deserve the same protection as all other people. This is usually applied under Article 3 of the Convention, protection from torture.

This issue is at its most acute where the people whom the government wishes to deport have committed, or are suspecting of being involved in, crimes of terrorism, but there is no country which will take them where they can be free of ill-treatment. The European Court has confirmed that their conduct does not deprive them of the protection of Article 3.[1]

Article 6 can also apply if the mistreatment feared includes such a fundamental lack of fairness in legal process that there is likely to be a miscarriage of justice, in particular where there is a real risk that evidence obtained by torture will be relied on. This was considered in the case of the terrorist suspect Abu Qatada, where the House of Lords  applied this test and held that it was not met. The European Court disagreed: there would be a real risk of such evidence being admitted and there would be a breach of Article 6.[2]

After a long legal battle, Abu Qatada has now been deported. This is because the state of Jordan, his destination, provided sufficient guarantees, in a treaty, that his trial would be fair and free of evidence obtained by torture.

This lengthy battle on the part of the government to deport Abu Qatada has been controversial because of the time it has taken and the cost in legal fees (including legal aid). But the result has been that the state of Jordan has had to guarantee certain basic rights that were not guaranteed before. It is also an affirmation of the rule of law – that the government has had to follow the rules, no matter what Qatada was accused of. Although it has been a bit of an epic, it is important that everyone, no matter what we may think of them, has the same human rights protection that we would want to enjoy.


[1] Saadi v Italy [2008] 24 BHLR 123

[2] RB (Algeria) v Home Secretary [2009] UKHL 10, [2010] 2 AC 110; Othman (Abu Qatada) v UK (2012)  55 EHRR 1

Open Justice – Bank Mellat

Posted by :David Hoffman On : June 22, 2013
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The issue of whether or not the courts have a power to consider evidence without it being shown to one of the parties (“closed material”) where there are security reasons for this has been considered recently by the Supreme Court.

The Supreme Court had to consider whether or not it could review closed material in an appeal by Bank Mellat, an Iranian bank, concerning the measures taken by the Treasury which restricted the bank’s access to UK financial markets under the Counter-Terrorism Act 2008.[1]

The application to set aside the order included a closed material procedure, so that material which the Treasury wished to rely on could be seen by the Court without being seen by the bank, for security reasons. The bank’s appeal to the Court of Appeal was dismissed also relying in part on closed material.

The Supreme Court considered first whether it could adopt  a closed material procedure. The Court expressed distaste and concern about the possibility of such a hearing, however understandable the reasons for suggesting it were. But by a majority (6-3), the Court held that it could conduct a closed material procedure where it was necessary to dispose of an appeal fairly and there would be a risk of injustice if the Court did not consider the closed material. Thus the Court did view the closed material, although the Court have guidance for the use of closed material. In general this should be restricted as far as possible; and the Judge deciding a case should make clear the basis of the decision in the open judgment as much as can properly be said about the closed material which has been relied on. And on an appeal, the Court should only be asked to look at closed material if absolutely necessary, and if possible, it should be the subject of submissions in open court albeit without reference to the confidential sections.

This was not an easy decision: a minority dissented, considering that the principle of open justice[2] was fundamental and, without express legislative authority, the court could not limit this basic general right.

The Supreme Court went on to consider the substantive appeal,[3] and held that the Treasury’s measures were arbitrary and disproportionate as well as being unlawful because of a failure to  give the bank prior notice and the opportunity to make representations before the direction was made.

The possibility of a closed material procedure has now been implemented by the Justice and Security Act 2013 which provides for the possibility of a closed material procedure in civil cases. This will allow security-sensitive material to be put before the Court without it being disclosed in the public forum of open court. This therefore avoids the problem perceived by the security services; but does not tackle the problem that justice cannot be seen to be done and that a case can be decided without one of the parties knowing the evidence relied on by the other.

 


[1] Bank Mellat v HM Treasury  [2013] UKSC 38

[2] Al-Rawi v Security Service [2011] UKSC 34, [2012] 1 A.C. 531

[3] Bank Mellat v HM Treasury  [2013] UKSC 39

Excluding contractual liability – Unfair Contract Terms Act 1977

Posted by :David Hoffman On : June 22, 2013
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Category: Commercial law, News

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This Act has for some years regulated clauses excluding certain contractual and tortious liability – some terms are simply ineffective, others are subject to the test of reasonableness. This is primarily a question of fact for the judge at first instance, which means that it is crucial in defending an exclusion clause to succeed at trial on the facts, and this may mean putting the right facts into evidence.

In addition, if a party relies on standard terms with an exclusion / limitation clause but makes no express allegation of reasonableness, they are held to be impliedly making the case that terms are reasonable: “The assertion as to the term satisfying the requirement of reasonableness may properly be regarded as a necessary particular of the Defence which is based on the exemption clause.”[1]

This might mean ensuring that the issue is addressed in evidence even if no point is taken on the pleadings. For example – why is it necessary? What does it protect the business from? Why can’t the business take this risk? Is it standard in the industry, and if so why?

Even widely used terms can be unreasonable. An example is Schyde Investments Ltd v Cleaver.[2] The clause there which was held to be unreasonable was a term from the Standard Conditions of Sale of Land (4th edition) 7.1.3 and held that it did not exclude misrepresentation on the facts of the case. The Court of Appeal held that although the term had a long history, was a well-established feature of property transactions and had been endorsed by the Law Society, and although both sides were represented by solicitors and the parties had negotiated variations of other standard provisions, they would not interfere with the Judge’s decision on the facts of the case.

So be sure to be able to justify your exclusion clause on the facts of your case!

 


[1] Sheffield v Pickfords Ltd (1997) LTL 11.2.97 per Sir Ralph Gibson

[2] Schyde Investments Ltd v Cleaver [2011] EWCA Civ 929