West Law Report

G v R & ANR

Last Updated: 5:49PM BST 25/06/2008
House of Lords Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Mance June 16, 2008
Basis of plea – Child sex offences – Criminal charges – Justification – Presumption of innocence – Proportionality – Rape – Right to fair trial – Right to respect for private and family life – Strict liability – Young offenders – Conduct falling within ambit of s. 5 and s. 13 Sexual Offences Act 2003 – Lawfulness of prosecutor’s decision to prosecute under s. 5 – Art. 6(1) European Convention on Human Rights 1950 – Art. 6(2) European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – s. 13 Sexual Offences Act 2003 – s. 5 Sexual Offences Act 2003

FACTS

The appellant (G) appealed against his conviction for rape of a child under the age of 13 contrary to the Sexual Offences Act 2003 s. 5. G was 15 at the time of the offence, and the complainant was 12. She had originally complained that he had intercourse with her against her will. G was charged with the s. 5 offence. He offered to plead guilty on the basis that the complainant willingly agreed to have intercourse with him and that he believed she was 15 because she had told him so. The prosecutor was at first unwilling to accept that basis of plea, but then the complainant changed her account of the incident and decided she was content with G’s basis of plea. The prosecutor was invited to drop the case altogether but declined to do so. G appealed against his conviction and sentence, but only succeeded with respect to the sentence. The Court of Appeal certified two questions as being of general public importance, namely (i) whether a criminal offence of strict liability could violate the European Convention on Human Rights 1950 art. 6(1) or art. 6(2); (ii) whether it was compatible with a child’s rights under art. 8 to convict him of rape contrary to s. 5 in circumstances where the agreed basis of plea established that his offence fell properly within the ambit of s. 13 of the Act. G submitted that (1) the offence created by s. 5, interpreted as one of strict liability, was incompatible with art. 6(2), which provided that everyone charged with a criminal offence was to be presumed innocent until proved guilty according to the law. The European Court of Human Rights in Salabiaku v France (A/141-A) [1991] 13 EHRR 379 had stated that art. 6(2) required states to confine “within reasonable limits” presumptions of fact or law in criminal proceedings. The creation of strict criminal liability would always engage a consideration of compatibility with the presumption of innocence; (2) his right to respect for his private life had been violated because the prosecutor did not drop the charge under s. 5 and substitute one under s. 13. His conviction and sentencing for the s. 5 offence involved both a stigma and practical consequences which were disproportionate.

ISSUES

(1) Whether the offence created by s.5, interpreted as one of strict liability, was incompatible with art. 6(2).

(2) Whether G’s right to respect for his private life had been violated.

HELD (appeal dismissed) (Lords Hope and Carswell dissenting on the art. 8 issue)

(1) G’s argument read far too much into the wording of art. 6(2) and the court’s reasoning in Salabiaku. Article 6 was concerned with the procedural fairness of the system for the administration of justice in the contracting states, not with the substantive content of domestic law, Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163 and R v G (2002) EWCA Crim 1992, [2003] 3 All ER 206 applied. When art. 6(2) referred to “innocent” and “guilty” it was dealing with the burden of proof regarding the elements of the offence and any defence to it; it was not dealing with what those elements were or what defences ought to be available. Salabiaku was not inconsistent with that analysis, Salabiaku considered. Section 5 was not incompatible with art. 6(2).

(2) It was compatible with a child’s rights under art. 8 to convict him of rape contrary to s. 5 in circumstances where the agreed basis of plea established that his offence fell properly within the ambit of s. 13. “Rape of a child under 13” still accurately described what G had done. Parliament had decided to use that description because children under 13 could not validly consent to sexual intercourse. G’s real complaint was that he had been convicted of an offence bearing the label “rape”. If that engaged G’s art. 8 rights at all, it was entirely justified. The state would have been open to criticism if it had not provided the complainant with adequate protection. It sought to do that by a clear rule that children under 13 were incapable of consenting to sexual activity, and treating penile penetration as a most serious form of such activity. That did not amount to a lack of respect for the private life of the penetrating male. Even if it did, it could not be an unjustified interference with that right to label the offence “rape”.

(3) (Per Lords Hope and Carswell) Where choices were left to the prosecutor they had to be exercised compatibly with the Convention rights. It was unlawful for the prosecutor to continue to prosecute G under s. 5 in view of his acceptance of the basis of G’s plea, namely that the complainant had consented to intercourse. As the offence fell properly within the ambit of s. 13, G’s conviction of rape under s. 5 was disproportionate and incompatible with his rights under art. 8.

Tim Owen QC and Rebecca Trowler (instructed by Alexander & Partners) for the appellant. David Perry QC and Melanie Cumberland (instructed by Crown Prosecution Service) for the respondent. Jeremy Johnson (instructed by Treasury Solicitor) for the intervener.

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KHAN v COMMISSIONER OF POLICE OF THE METROPOLIS

Last Updated: 7:17PM BST 11/06/2008
Court of Appeal (Civil Division) Pill, May and Moses LJJ June 6, 2008
Police powers and duties – Reasonable belief – Right to respect for private and family life – Search and seizure – Statutory interpretation Reasonable belief that premises owned or occupied by arrested person – Lawfulness of search – Literal interpretation of s. 18(1) Police and Criminal Evidence Act 1984 – S. 18(1) Police and Criminal Evidence Act 1984 – s. 32 Police and Criminal Evidence Act 1984 s. 8 Police and Criminal Evidence Act 1984 – Serious Organised Crime and Police Act 2005 – s. 3(1) Human Rights Act 1998 European Convention on Human Rights 1950 Art. 8 European Convention on Human Rights 1950

FACTS

The appellant police commissioner appealed against a decision of the judge that a police search of the home of the respondent (K) had not been conducted lawfully. Following his arrest, a suspect (M) had given false details to the police, including K’s home address as his own. Purporting to act under the Police and Criminal Evidence Act 1984 s. 18(1), police officers entered and searched K’s home in the middle of the night despite K’s objections and the presence of members of his family. Nothing relevant to the investigation of M was found. K issued proceedings against the commissioner. The judge found that the requirements of s. 18 of the Act had not been met, as there was no evidence that M had ever owned or occupied K’s premises, so that the police search had not been lawful. K was awarded damages for trespass. The commissioner contended that s. 18(1) of the Act should be interpreted to make a search lawful where a police officer had a reasonable belief that the premises had been owned or occupied by the arrested person. It was submitted that a literal interpretation of s. 18 was unworkable, as the police could never be sure of a property’s ownership or occupation when the decision to search it needed to be made.

ISSUE

Whether the police search of K’s home had not been conducted lawfully.

HELD (appeal dismissed)

There was no justification for reading s. 18 of the Act otherwise than in accordance with its plain words. Premises had to be occupied or controlled by the person under arrest if a search under s. 18 was to be lawful, and the absence of those requirements was not unimportant or irrelevant. Other powers of entry were available to police under s. 32 of the Act, or by obtaining a search warrant under s. 8 of the Act. Both of those sections referred to the necessity for “reasonable belief”, and its omission from s. 18(1) had not been accidental. Further, Parliament had revised the operation of powers under the Act and made certain amendments to it by the Serious Organised Crime and Police Act 2005, but it had not taken the opportunity of qualifying the requirements of occupation and control in s. 18(1). Further, under the Human Rights Act 1998 s. 3(1), the 1984 Act had to be read in a way that was compatible with an individual’s rights under the European Convention on Human Rights 1950, and giving the words in s. 18(1) of the Act their ordinary meaning accorded with the right to respect for private and family life under art. 8 of the Convention. The judge had, accordingly, been correct in his conclusion.

Rajeer Shetty (instructed by Bircham Dyson Bell) for the appellant. The respondent appeared in person.

No humanitarian reason prevents removal

From The TimesJune 6, 2008

No humanitarian reason prevents removal
European Court of Human Rights
Published June 6, 2008
N v United Kingdom (Application No 26565/05)
Before J-P. Costa, President and Judges Sir Nicolas Bratza, P. Lorenzen, F. Tulkens, J. Casadevall, G. Bonello, I. Cabral Barreto, B. M. Zupancic, R. Maruste S. Botoucharova, S. Pavlovschi, J. Borrego Borrego, K. Hajiyev, L. Mijovic, D. Spielmann, R. Jaeger and M. Villiger Deputy Registrar M. O’Boyle
Judgment May 27, 2008

The removal of an alien suffering from a serious illness to a country where the facilities for treating that illness were inferior to those available in a state party to the European Convention on Human Rights might raise an issue under the Convention but only in a very exceptional case where humanitarian grounds against removal were compelling.

The Grand Chamber of the European Court of Human Rights held, by 14 votes to 3, that there would be no violation of article 3, prohibiting inhuman or degrading treatment, if the applicant, Ms N, were to be sent back to Uganda from the United Kingdom. The Grand Chamber also held, by 14 votes to 3, that no separate issue arose under article 8, guaranteeing the right to respect for private and family life.

Ms N was a Ugandan national, born in 1974 and lived in London. She had Aids. The case concerned her allegation that her return to Uganda would cause her suffering and lead to her early death because of her illness. She came to the United Kingdom on March 28, 1998, under an assumed name. She was seriously ill and was admitted to hospital. On March 31, 1998, solicitors lodged an asylum application on her behalf, claiming that she had been illtreated and raped by the National Resistance Movement in Uganda and was in fear of her life and safety if she were returned.

The Secretary of State for the Home Department refused her asylum claim on March 28, 2001, finding that her claims were not credible, that there was no evidence that the Ugandan authorities were interested in her, that treatment of Aids in Uganda was comparable to any other African country, and that all the major antiviral drugs were available in Uganda at highly subsidised prices. The applicant appealed.

On July 10, 2002, her appeal was dismissed concerning the asylum refusal, but allowed in relation to article 3. The Home Secretary appealed against the article 3 finding.

The Immigration Appeal Tribunal allowed the appeal on November 29, 2002. The applicant appealed unsuccessfully to the Court of Appeal (The Times October 23, 2003; [2004] 1 WLR 1182) and the House of Lords ( The Times May 9, 2005; [2005] 2 AC 296).

The application was lodged with the European Court of Human Rights on July 22, 2005.

I Alleged violation of article 3

The Court summarised its case-law concerning expulsion cases where the applicant claimed to be at risk of suffering a violation of article 3 on the ground of ill-health, noting that it had not found such a violation since D v United Kingdom (Application No 30240/96) ( The Times May 12, 1997; (1997) 24 EHRR 423)) where very exceptional circumstances and compelling humanitarian considerations were at stake.

The Court recalled that aliens who were subject to expulsion could not in principle claim any entitlement to remain in the territory of one of the states which had ratified the European Convention on Human Rights in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling state. The fact that the applicant’s circumstances, including her or his life expectancy, would be significantly reduced if s/he were to be removed from the Convention state was not sufficient in itself to give rise to breach of article 3.

The decision to remove an alien who was suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness were inferior to those available in the contracting state might raise an issue under article 3, but only in a very exceptional case, where the humanitarian grounds against the removal were compelling, such as in D.

Although many of the rights it contained had implications of a social or economic nature, the Convention was essentially directed at the protection of civil and political rights. Furthermore, inherent in the whole of the Convention was a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

Advances in medical science, together with social and economic differences between countries, meant that the level of treatment available in the contracting state and the country of origin might vary considerably. Article 3 did not place an obligation on the contracting state to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A contrary finding would place too great a burden on the state.

Finally, the Court observed that, although the applicant’s case concerned the expulsion of a person with an HIV and Aids-related condition, the same principles had to apply to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which might cause suffering, pain and reduced life expectancy and require specialised medical treatment which might not be so readily available in the applicant’s country of origin or which might be available only at substantial cost.

Although the applicant applied for, and was refused asylum in the United Kingdom, she did not complain before the Court that her removal to Uganda would put her at risk of deliberate, politically motivated ill-treatment. Her claim under article 3 was based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country.

The evidence before the national courts indicated that if the applicant were to be deprived of her current medication, her condition would rapidly deteriorate and she would suffer ill-heath, discomfort, pain and death within a few years. According to information collated by the World Health Organisation, antiretroviral medication was available in Uganda, although, through lack of resources, it was received by only half of those in need.

The applicant claimed that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she came. It appeared that she had family members in Uganda, although she claimed that they would not be willing or able to care for her if she were seriously ill.

The United Kingdom authorities had provided the applicant with medical and social assistance at public expense during the nine-year period it had taken for her asylum application and claims under articles 3 and 8 to be determined by the domestic courts and the European Court. However, that did not in itself entail a duty on the part of the United Kingdom to continue to provide for her.

The Court accepted that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda. Currently, however, the applicant was not critically ill.

The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, involved a certain degree of speculation, particularly in view of the constantly evolving situation as to the treatment of HIV and Aids worldwide. Concluding that the applicant’s case did not disclose very exceptional circumstances, the Court found, with Judges Tulkens, Bonello and Spielmann dissenting, that her removal to Uganda would not violate article 3.

II Alleged violation of article 8

The Court held, with the same three judges dissenting, that it was not necessary to examine the complaint under article 8. Full text at http://www.echr.coe.int

WOOD v COMMISSIONER OF POLICE OF THE METROPOLIS

Last Updated: 3:27PM BST 04/06/2008
Queen’s Bench Division (Admin) McCombe J May 22, 2008
Photographs – Retention – Right to respect for private and family life – Surveillance – Police photographing individuals in streets – Breaches of art. 8 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950

FACTS

The claimant (W) applied for judicial review of the decision of the defendant police commissioner’s officers to photograph him whilst he attended the Annual General Meeting of a third party company (R). At the relevant time W was a media co-ordinator employed by an unincorporated association (C) that campaigned against the arms industry. R, through a subsidiary company, organised trade fairs for various industries, including the arms industry. Over the years R’s offices in the United Kingdom had been subjected to demonstrations, some involving criminal damage. It became known to R that a number of individuals opposed to the arms industry intended to attend R’s AGM, and it informed the police. The commissioner took the view that there was a real possibility of a demonstration at the AGM and that unlawful activity might occur. He decided to authorise the deployment of police officers with a civilian photographer around the hotel where the AGM was taking place. Those officers, having observed W in the company of a known arms industry protestor, decided to photograph him. The police subsequently discovered W’s identity from the photographs and retained them. W submitted that the taking and the retention of photographs by the police officers amounted to an unjustified interference with his right to respect for privacy under the European Convention on Human Rights 1950 art. 8. The commissioner submitted that art. 8 was not engaged as W had been photographed, not in his private capacity, but as a media officer of C, which had been conducting a legitimate but public campaign against R, so that W could have had no reasonable expectation of privacy and, further, that W had not been photographed randomly or arbitrarily, but in the light of past offences that had been committed against R, and in the light of W’s association, on the instant occasion, with the known protestor. Additionally, the commissioner argued that the photography had been overt and that the photographs were retained, not for the compilation of a national database or for general publication, but for the purposes of identifying at future events persons who had been involved in unlawful activity.

ISSUE

Whether the taking and the retention of photographs by police officers of W amounted to an unjustified interference with W’s right to respect for privacy under the European Convention on Human Rights 1950 art. 8.

HELD (application refused)

There was no interference with W’s rights under art. 8(1) of the Convention by the taking and retention of the photographs. The English courts at the highest level had adopted a very robust approach to questions of interference with rights under art. 8(1) in relation to photographs in public places and their subsequent retention, and in relation to the retention of intimate samples for proper police purposes in assisting in the detection of crime. Adopting the “reasonable expectation” of privacy test in regard to disclosure of photographic material in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457 and the views of the House of Lords concerning, firstly, the stop and search powers in R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12, [2006] 2 AC 307 and, secondly, the retention of DNA samples in R (S) v Chief Constable of South Yorkshire [2002] EWHC 478 (Admin), [2002] Po LR 273, it was difficult to see how the taking and retention of the photographs in the instant case could be an interference with W’s rights under art. 8. On the facts, W could have little expectation of privacy generally in relation to his attendance at R’s AGM. He was attending as a media co-ordinator of a high-profile national pressure group. One of C’s members was actively and publicly canvassing those attending the meeting. R was a company that had been the victim of criminal activity in the conduct of its lawful business in the past. It would not have been surprising if press interest had led to photography of those attending, irrespective of police interest. W was photographed in a public street, in circumstances in which police presence could not have been unexpected by W or anyone else. The images were to be retained, without general disclosure, for very limited purposes. Their retention was not part of the compilation of a general dossier of information concerning W of the type that had been held in the past to constitute an interference with art. 8 rights.

Martin Westgate (instructed by Liberty) for the claimant. Sam Grodzinski (instructed by in-house solicitor) for the defendant.

R (G) v NOTTINGHAMSHIRE HEALTHCARE NHS TRUST: R (N) v SECRETARY OF STATE FOR HEALTH: R (B) v NOTTINGHAMSHIRE HEALTHCARE NHS TRUST

Last Updated: 3:25PM BST 04/06/2008
Queen’s Bench Division (Admin) Pill LJ, Silber J May 20, 2008
Discrimination – Mental hospitals – Mental patients – Proportionality – Right to respect for private and family life – Smoking – Detained mental patients – Ban on smoking in mental health units – Interference with art. 8 rights – art. 14 European Convention on Human Rights 1950 – s. 3(2) Health Act 2006 – Art. 8 European Convention on Human Rights – Health Act 2006 – Reg. 10 Smoke-free (Exemptions and Vehicles) Regulations 2007 – Reg. 10(3) Smoke-Free (Exemptions and Vehicles) Regulations 2007

FACTS

The applicant patients (P) applied to quash the Smoke-free (Exemptions and Vehicles) Regulations 2007 reg. 10(3) as being incompatible with their rights under the European Convention on Human Rights 1950 art. 8. P were mental-health patients detained at a high security psychiatric hospital. P were not permitted to leave the building in order to smoke. The Health Act 2006 made provision for the prohibition on smoking in enclosed or substantially enclosed premises from July 1, 2008. Reg. 10 provided a temporary exemption for mental health units so that where it was not feasible to permit smoking outside a designated room could be used for smoking. Reg. 10(3) provided that the exemption would cease to have effect from July 1. P considered that as they were long-term detainees the hospital should be regarded as their home and that under the Health Act 2006 s. 3(2) homes were exempted from the requirement to be smoke free. The defendant Trust had introduced a smoke-free policy that allowed for flexibility only in exceptional circumstances. P submitted that the termination of the exemption for mental health units under reg. 10(3) was unlawful because it failed to respect their art. 8 rights, either directly or by reason of discrimination against them within the meaning of art. 14, and that a more proportionate measure would have allowed the reg. 10 exemption to continue permanently.

ISSUE

Whether the termination of the exemption for mental health units under reg. 10(3) was unlawful because it failed to respect P’s art. 8 rights, either directly or by reason of discrimination against P within the meaning of art. 14.

HELD (application refused)

(1) There was no notion of an absolute right to smoke wherever a person was living. The privacy and freedom of action to which a person was entitled for the purposes of art. 8 would vary with the nature of the accommodation in which that person was living. The requirement to respect private and home life in art. 8 did not impose a general obligation on those responsible for the care of detained people to make arrangements to enable them to smoke. The question as to whether P would have a “status” within the meaning of art.14 did not therefore arise. The exemptions under the 2007 Regulations could be granted without creating a breach of art. 8. There could be cases, although rare, in which the protection of mental health required that facilities to smoke should be made available.

(2) The legislative objectives of reg. 10 and the Trust’s policy which included protecting the rights of citizens to enjoy smoke-free air, reducing the levels of exposure to second-hand smoking and increasing the number of smoke-free enclosed public places and work places were sufficiently important to justify limiting any rights that P had under art. 8. In view of the evidence, substantial health benefits would arise from the ban and the disbenefits were insubstantial. Both health and security considerations justified the ban even though smoking in the grounds, which might have been possible at other hospitals, was not feasible in P’s case. The exemption in reg. 10 was plainly intended to be temporary and could not be read as conferring a permanent or longer term exemption.

Paul Bowen (instructed by Cartwright King) for the applicants G. Paul Bowen (instructed by Scott-Moncrieff Harbour & Sinclair) for the applicant N. Hugh Southey (instructed by Roberts Moore Nicholas Jones) for the applicant B. David Lock and Nageena Khalique (instructed by Mills & Reeve) for the respondent Nottinghamshire Healthcare NHS Trust. Jonathan Swift and Karen Steyn (instructed by in-house Solicitor) for the respondent Secretary of State.

AA (UGANDA) v HOME SECRETARY

Last Updated: 3:18PM BST 04/06/2008
Court of Appeal (Civil Division) Buxton, Carnwath and Lloyd LJJ May 22, 2008
Asylum and Immigration Tribunal – Asylum seekers – Error of law – Humanitarian Protection – Internal relocation – Misdirections on law – Prostitution – Uganda – Undue harshness of returning young woman to Kampala – Art. 3 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – Refugee or Person in Need of International Protection (Qualification) Regulations 2006

FACTS

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The appellant (X), a 22-year-old Ugandan, appealed against the Asylum and Immigration Tribunal’s decision that it would not be unduly harsh to return her to Kampala. X’s parents had both been killed in Uganda, and she went to live with a succession of family members who all treated her brutally. She came to live in the United Kingdom with an aunt, but the aunt’s husband raped her. She then attempted suicide, and was taken into the residential care of a project for vulnerable young people. X’s claim under the European Convention on Human Rights 1950 art. 3 and art. 8 was rejected. When it came before the AIT for reconsideration the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 had come into force, under which persons who did not qualify on other grounds should be granted humanitarian protection if they were in danger of suffering serious harm in their country of origin. Such a grant was not available if the person could avoid the serious harm by relocation to another part of his home country and could reasonably be expected to stay in that part of the country. An expert report before the AIT stated that X, who suffered from anxiety and depression, would be especially vulnerable, would be unable to find secure and decent housing, and would only be able to find employment as a sex worker. The AIT based its decision on, among other things, a finding that X would be able to turn to the church in Uganda for support.

ISSUE

Whether it would not be unduly harsh to return X to Kampala.

HELD (appeal allowed)

(1) The AIT’s conclusions about the role of the church were not based on relevant evidence and were perverse. There was no evidence from which the AIT could properly conclude that the church would make a difference to X’s life in Kampala that offset or protected her from the dangers described in the expert report.

(2) It was difficult or impossible to apply the jurisprudence of AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2007] 3 WLR 832 to the instant case. There, the conditions in the place of relocation involved poverty, disease, and the living of a life that was structured quite differently from the refugees’ previous way of life. On the evidence accepted by the AIT, X was faced not merely with poverty and lack of any sort of accommodation, but with being driven into prostitution. Even if that was the likely fate of many Ugandan women, it was not conceivable that either the AIT or the House of Lords in AH (Sudan) would have felt able to regard enforced prostitution as coming within the category of normal country conditions that the refugee must be expected to put up with. The instant case called for an enquiry as to whether conditions in Kampala were unacceptable to the extent that it would be unduly harsh to return X to them even if the conditions were widespread there. In not addressing that enquiry, the AIT had acted irrationally and its determination could not stand. It was clear that it would be unduly harsh to return X to Kampala.

(3) Even if it had been open to the AIT to hold that it would not be unduly harsh to return young women generally to Kampala, it was still necessary to consider whether X had characteristics that would render remission unduly harsh in her case. The AIT had erred in failing to address the question of whether X was as well able as most to bear conditions in Kampala, and had erred in applying the art. 3 standard in relation to all of the medical issues in the case, for the purposes of the art. 3 claim but also in relation to undue harshness. On the basis of the medical evidence, there was no doubt that X was manifestly less able than most to bear the conditions in Kampala.

(4) (Per Carnwath LJ) The observation in AS (Libya) v Secretary of State for the Home Department [2008] EWCA Civ 289, Times, April 16, 2008 that Baroness Hale’s guidance in AH (Sudan) about the “limited role of this court” extended to “decisions by a specialist tribunal on points of law” was troubling, to the extent that it implied that the House of Lords had modified the Court of Appeal’s established approach to correction of errors of law by lower courts or tribunals. R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, [2005] Imm AR 535 stated authoritatively that errors of law had to be “material” to justify intervention on appeal. If the court in AS (Libya) intended to suggest that the test of “materiality” in the formulation in R (Iran) was to be replaced by one which limited review to errors of law which were “quite clear”, then it was wrong to do so. It was doubtful that Baroness Hale so intended, and there was nothing in the speech of Lord Bingham, with whom all the members of the House agreed, which was inconsistent with the established principles, or indicative of a wish to change them.

Peter Morris (instructed by Kingston and Richmond Law Centre). Claire Weir (instructed by Treasury Solicitor) for the respondent.

Smoking is not a human right protected by law

From The TimesMay 28, 2008

Smoking is not a human right protected by law
Regina (G) v Nottingham Healthcare NHS Trust Regina (N) v Secretary of State for Health Regina (B) v Nottingham Healthcare NHS Trust in the Queen’s Bench Divisional Court
Queen’s Bench Divisional Court

Published May 28, 2008

Regina (G) v Nottingham Healthcare NHS Trust Regina (N) v Secretary of State for Health Regina (B) v Nottingham Healthcare NHS Trust

Before Lord Justice Pill and Mr Justice Silber Judgment May 20, 2008

Preventing detained mental patients from smoking was not a breach of article 8, right to respect for private and family life, or article 14, prohibiting discrimination, of the European Convention on Human Rights.

The Queen’s Bench Divisional Court so held when dismissing claims for judicial review by the claimants, G and B, against the Nottinghamshire Healthcare NHS Trust and by N against the Secretary of State for Health, by which they applied to quash regulation 10(3) of the Smoke-free (Exemption and Vehicles) Regulations (SI 2007 No 765) as being incompatible with their rights under the Convention.

Alternatively, they sought a declaration that regulation 10(3) was unlawful for introducing only a partial, rather than a complete exemption in relation to mental health units, from the requirement in the Health Act 2006 that all premises used by the public be smoke-free by July 1, 2008.

In the further alternative, they claimed that the regulation should be read and given effect under section 3 of the Human Rights Act 1998 by reading into it the words “except in mental health units where it is not feasible to permit patients to smoke outdoors”.

Mr Paul Bowen for G and N; Mr Hugh Southey for B; Mr David Lock and Ms Nageena Khalique for the NHS Trust; Mr Jonathan Swift and Miss Karen Steyn for the Health Secretary.

LORD JUSTICE PILL, giving the judgment of the court, said that the claimants either were, or had been detained at Rampton Hospital, a high security psychiatric hospital managed by the Nottinghamshire Healthcare NHS Trust.

Section 1 of the 2006 Act made provision for the prohibition of smoking in certain premises, places and vehicles. Some exemptions were granted by Part 2 of the 2007 Regulations. Regulation 10 provided for temporary exemption for mental health units and regulation 10(3) provided that the exemption would cease to have effect on July 1, 2008.

It was not possible to read the words “except in mental health units where it is not feasible to permit patients to smoke outdoors” into regulation 10(3) of the 2007 Regulations without the court performing a legislative as distinct from an interpretative act.

Preventing a person smoking did not generally involve such adverse effect upon his physical or moral integrity as would amount to an interference with the right to respect for private or home life within the meaning of article 8. There was not an absolute right, subject to article 8.2 to smoke wherever one was living. References to the “ambit” or “scope” of article 8 did not introduce, via article 14, an application of article 8.

On that view, the question whether the claimants had “other status” within the meaning of article 14 did not arise. The status relied on was that of detained patients in high security mental hospitals.

Mental illess did not itself confer a status, and a narrower definition of the status as a mental patient detained in hospital presented further problems of definition. That status was not a personal characteristic contemplated by article 14.

If, contrary to the conclusion above, the claimants’ article 8 rights were engaged, either directly or read with article 14, health considerations, security considerations and the procedure adopted for scrutinising the regulations supported the conclusion that the measures taken were proportionate.

Solicitors: Scott-Moncrieff Harbour & Sinclair; Roberts Moore Nicholas Jones, Birkenhead; Mills & Reeve, Birmingham; Solicitor, Department of Health.

MURRAY v BIG PICTURES (UK) LTD

Posted in Art. 8 European Convention on Human Rights, Privacy, Westlaw Reports by mrkooenglish on May 23, 2008

Last Updated: 11:26AM BST 22/05/2008
Court of Appeal (Civil Division)

Sir Anthony Clarke MR, Laws and Thomas LJJ

May 7, 2008 (Filed: May 22, 2008)

Celebrities – Children – Photographs – Publications – Right to respect for private and family life – Children of celebrities – Publication of candid photographs – Reasonable expectation of privacy

FACTS

The appellant (M), acting through his parents, appealed against the striking out ([2007] EWHC 1908 (Ch), [2007] ECDR 20) of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under the European Convention on Human Rights 1950 art. 8. M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M’s claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that, even if the decision in Von Hannover v Germany (59320/00) [2004] EMLR 21 ECHR had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457, he was bound to follow Campbell in preference.

ISSUE

Whether the judge had been wrong to strike out M’s claim.

HELD (appeal allowed)

(1) In deciding whether there had been an infringement of art. 8, the first question to be asked was whether there was a reasonable expectation of privacy. That was an objective question and took account of all the circumstances of the case, including the attributes of the claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and purpose of the intrusion, the absence of consent, the effect on the claimant and the circumstances in which, and the purposes for which, the information reached the hands of the publisher. If the answer to that were yes, then the second question was how the balance should be struck as between the claimant’s right to privacy and the publisher’s right to publish. At that stage, the question of whether the publication of those private facts would be considered highly offensive to an objective, reasonable person might be relevant, Campbell followed and Von Hannover considered.

(2) It was at least arguable that M had a reasonable expectation of privacy. The fact that he was a child had greater significance than had been attributed to it by the judge. Although the Press Complaints Commission had ruled that the mere publication of a child’s image could not breach its Editors’ Code of Practice when taken in a public place and unaccompanied by private details that might embarrass the child, everything depended on the circumstances. It was at least arguable that a child of parents who were not in the public eye could reasonably expect that the press would not target him and publish photographs of him, and the same was true of M, especially since the photograph would not have been taken or published had he not been the son of a well-known author. In reaching his decision, the judge had relied on the decision in Hosking v Runting (2005) 1 NZLR 1 CA (NZ) for a significant part of his reasoning. However, that decision was not a sufficient reason to hold that M could not show a reasonable expectation of privacy at trial, Hosking considered.

(3) There may well be circumstances, even after Hannover, in which there would be no reasonable expectation of privacy. However, it all depended on the circumstances of the case. It was not possible to draw a distinction between activities that were part of a person’s private recreation time and publication of which would be intrusive, and other activities such as a walk down the street or a trip to the grocer’s to buy milk. Moreover, it was not necessarily the case that such routine activities should not attract any reasonable expectation of privacy; all depended on the circumstances. Subject to the facts of the case, the law should protect children from intrusive media attention, at any rate to the extent of holding that a child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on his behalf. The judge had therefore been wrong to strike out M’s claim. M had an arguable case and his parents were to be permitted to take the claim to trial on his behalf.

Richard Spearman QC and Godwin Busuttil (instructed by Schillings) for the appellant. Mark Warby QC and Jonathan Barnes (instructed by Solomon Taylor & Shaw) for the respondent.

Council’s short-cut violated right to respect for tenant’s home

From The TimesMay 23, 2008

Council’s short-cut violated right to respect for tenant’s home
European Court of Human Rights
McCann v United Kingdom (Application No 19009/04)
Before L. Garlicki, President, and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, D. Thór Björgvinsson, J. Šikuta and P.Hirvelä
Section Registrar L. Early
Judgment May 13, 2008

A local authority which bypassed the statutory scheme for evicting a tenant, had violated his right to respect for the home, as guaranteed by article 8 of the European Convention on Human Rights, when the summary procedure used had not provided appropriate procedural safeguards.

The European Court of Human Rights so held, unanimously, finding that a joint tenant had been dispossessed of his home without any possibility of having the proportionality of that measure determined by an independent tribunal.

The applicant, Gerrard McCann, was a British national who was born in 1968 and lived in Birmingham. Mr McCann and his ex-wife were secure tenants, under the Housing Act 1985, of a three-bedroom house belonging to Birmingham City Council.

The marriage broke down and, in April 2001, Mrs McCann asked to be re-housed on the ground of domestic violence. In August 2001 she and the children moved into another council house allocated to them in accordance with the local authority’s domestic violence policy. She informed the local authority that she was giving up the tenancy and returned the keys of the house. As far as the local authority was concerned, the three-bedroom house was from then on uninhabited.

In November 2001, however, the applicant moved back into the vacant house and did a considerable amount of work to renovate it.

His relationship with Mrs McCann improved and she supported his application for an exchange of accommodation with another local authority tenant, as the three-bedroom house was too big for him but he still required a home in the area so that his children could visit.

In January 2002, a housing officer, having realised that the property was not in fact empty, and having taken legal advice, visited Mrs McCann and asked her to close the tenancy by signing a notice to quit. The effect of that notice under domestic law was to bring an end to the tenancy. Mrs McCann signed the notice but, a week later, requested for it to be withdrawn.

In June 2002, the local authority decided, among other things, that in accordance with the domestic violence policy, the applicant would not be granted the right to accede to the former tenancy of the house and that, in any event, he had no dependants living with him and would not therefore qualify for such a dwelling.

In April 2003, the local authority’s claim for possession against the applicant was dismissed. The county court judge found that Mrs McCann had not been advised and had not understood that the notice to quit would effectively remove her ex-husband’s right to live in the house or exchange it for another local authority property.

On appeal, however, it was found that the local authority had acted lawfully and that the notice to quit was effective despite it having been signed without an understanding of its consequences. That decision was upheld in judicial review proceedings brought by the applicant and again on appeal.

In its judgment, the Court held:

Relying, in particular, on article 8 of the Convention, protecting the right to respect for private and family life, the applicant complained about the eviction proceedings brought against him by Birmingham City Council.

He alleged, in particular, that in asking his ex-wife to sign a notice to quit, the local authority gave no consideration to his relationship with his children who stayed with him three nights a week.

Alleged violation of article 8

The Court found, as also accepted by the British courts and the parties, that the council house formerly occupied by the applicant with his ex-wife as a joint tenant and where he had lived on his own from November 2001, had continued to be his home, under article 8.1.

It was also agreed that the notice to quit, together with the possession proceedings, had amounted to an interference with the applicant’s right to respect for his home.

The Court considered that that interference had been in accordance with the law and had pursued the legitimate aim of protecting the local authority’s right to regain possession of property from an individual who had no contractual or other right to be there. It also aimed to ensure that the statutory scheme for housing provision was properly applied.

The Court noted that any person at risk of losing his home, which was a most extreme form of interference with the right to respect for one’s home, should be able to have the proportionality of the measure determined by an independent tribunal, even if, under domestic law, the right of occupation had come to an end.

The legislature in the United Kingdom had set up a complex system for the allocation of public housing which included, under section 84 of the Housing Act 1985, provisions to protect secure tenants with public authority landlords.

Had the local authority sought to evict the applicant in accordance with that statutory scheme, it would have had to apply for a possession order and, in those proceedings, the applicant could have asked the court to examine his personal circumstances, including the need to provide accommodation for his children and whether his wife had really left the family home because of domestic violence.

However, the local authority had chosen to bypass that statutory scheme by asking Mrs McCann to sign a common law notice to quit, which had resulted in the termination of the applicant’s right, with immediate effect, to remain in the house. The authority, in the course of that procedure, had not given any consideration to the applicant’s right to respect for his home.

Nor had the ensuing possession proceedings or judicial review proceedings provided any opportunity for an independent tribunal to examine whether the applicant’s loss of his home had been proportionate to the legitimate aims pursued.

The Court therefore concluded unanimously that, under the summary procedure available to a landlord where one joint tenant served notice to quit, the applicant had been dispossessed of his home without any possibility to have the proportionality of that measure determined by an independent tribunal, in violation of article 8.

Application of article 41

The Court awarded the applicant €2,000 in respect of non-pecuniary damage and €75,000, less €850 in legal aid paid by the Council of Europe, for costs and expenses.

R (SHAHEEN) v SECRETARY OF STATE FOR JUSTICE

Posted in Art. 8 European Convention on Human Rights, judicial review, Westlaw Reports by mrkooenglish on May 17, 2008

Last Updated: 11:45PM BST 14/05/2008
Queen’s Bench Division (Admin) Dyson LJ May 12, 2008
Queen’s Bench Division (Admin)

Dyson LJ

May 12, 2008

Drug offences – Prisoners – Right to respect for private and family life – Risk – Risk of reoffending – Refusal to consent to prison transfer to serve remainder of sentence Art. 8 European Convention on Human Rights 1950

FACTS

The claimant prisoner (S) applied for judicial review of a decision of the defendant secretary of state to refuse to consent to the transfer of S to the Netherlands to serve the remainder of his 16-year sentence for a drug-related offence.

S, a British citizen who was 61 years old at the time of the offence, had been resident in the Netherlands for 15 years and had a Dutch wife and two teenage children. He had a heart condition and other medical problems.

He was convicted and sentenced in the United Kingdom with his co-accused, a Dutch national (Z), for the offence of importing Class A drugs. Both S and Z applied to be repatriated to the Netherlands to serve the remainder of their sentences there. S did so, in part, on the ground that his family was based in the Netherlands and could not travel regularly to visit him.

Z’s application was granted, but S’s was refused. The secretary of state held that if S were to be transferred to the Netherlands he would be likely to receive a reduction in his sentence, and that would mean that he would be able, after his release, to return to the UK at a time when, but for his transfer, he would have been required to be detained. Z’s case was distinguished from S’s because Z was subject to a deportation order that would prevent him from re-entering the UK.

The secretary of state found that S had demonstrated his willingness to travel to the UK to engage in criminal activity, and concluded that the risk of S reoffending in the UK outweighed the consideration of his family links in the Netherlands. S was 64 years old at the time of the instant proceedings.

S submitted that the secretary of state’s refusal to consent to his transfer to the Netherlands was a disproportionate interference with his rights under the European Convention on Human Rights 1950 art. 8. He argued that the secretary of state had failed to balance three key factors in coming to his decision: the effect the detention had on him and his family, the distinction between his circumstances and those of Z, and the risk of his returning to the UK to reoffend.

S contended that it was not clear what assessment of risk the secretary of state had actually made, and that if it had been assessed as significant it was an overstatement given S’s age and medical condition.

ISSUE

Whether the secretary of state’s refusal to consent to S’s transfer to the Netherlands was a disproportionate interference with his rights under the European Convention on Human Rights 1950 art. 8.

HELD (application refused)

It was true that the secretary of state did not say at what level he rated the risk, but he did say that S had demonstrated a willingness to travel to the UK to engage in criminal activity. By saying that, he was expressing the opinion that there was a real or significant risk that if he were transferred to the Netherlands he would reoffend in the UK.

His words could not bear any other meaning. The secretary of state was reasonably entitled to make that assessment. S’s age, his residency in the Netherlands and his medical condition did not prevent him from committing the index offence, and the fact that he was 64 at the time of the instant proceedings did not reduce the risk of his reoffending.

It was accepted that prisoners had rights under art.8 of the Convention, but the right to see their families was inevitably curtailed simply because of their imprisonment. Even if prisoners were transferred closer to their families, they only had exiguous rights to see them. Further, the secretary of state’s different treatment of Z was soundly based and did not cast doubt on the decision.

Helen Law (instructed by Bhatt Murphy) for the claimant. Parishil Patel (instructed by Treasury Solicitor) for the defendant.

HOME SECRETARY v BRITISH UNION FOR THE ABOLITION OF VIVISECTION & ANR

Last Updated: 11:45PM BST 14/05/2008
Queen’s Bench Division Eady J April 25, 2008
Queen’s Bench Division

Eady J

April 25, 2008

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Animal research organisations – Animal welfare – Confidential information – Data protection – Privacy – Public interest – Requests for information – Vivisection – s. 24 Animals (Scientific Procedures) Act 1986 – Duty of confidence – Misuse of private information – Breach of confidence – Animals (Scientific Procedures) Act 1986 – S. 24 Animals (Scientific Procedures) Act 1986 – s. 41 Freedom of Information Act 2000 – s. 44 Freedom of Information Act 2000 – Freedom of Information Act 2000 – Art. 8 European Convention on Human Rights 1950 – Art. 10 European Convention on Human Rights 1950

FACTS

The appellant secretary of state appealed, pursuant to the Freedom of Information Act 2000 s. 59, against a decision of the Information Tribunal. The breeding and supply of animals for scientific procedures was governed by the Animals (Scientific Procedures) Act 1986 and the Home Office was responsible for related regulation.

Applications to use animals for research had to be submitted to its Animal Scientific Procedures Division for scrutiny before a decision to grant a project licence could be made. Statutory requirements meant that material that was commercially sensitive or useful to competitors and details of locations that could be sensitive for security reasons might have to be included.

The division responsible introduced a policy that tried to balance confidentiality with freedom of information requirements: applicants were asked to submit abstracts of their projects for the Home Office website.

Shortly after the new policy began, the first respondent (B) sought, under the 2000 Act, further information on certain applications. Consequently, information extra to the abstracts that was not exempt under the 2000 Act was provided. B submitted to the tribunal that under s. 24 of the 1986 Act, a penal provision, any information qualifying as “given in confidence” had to be such that it would be an actionable breach for it to be revealed in response to a request under the 2000 Act.

The tribunal upheld that view, interpreting s. 24 as having a similar meaning to s. 41 of the 2000 Act and directing the Home Office to reconsider its interpretation of s. 44 of the 2000 Act. The main issue in the instant case was how far information needed to be made available to the public, given that it had a legitimate interest in knowing what was taking place with regard to animal research, and given the right to make requests under the 2000 Act.

ISSUE

How far information needed to be made available to the public.

HELD (appeal allowed)

(1) The tribunal had relied on the principles of Coco v AN Clark (Engineers) Ltd [1968] FSR 415 Ch D, which provided an exclusive definition such that, whenever “in confidence” appeared in a statute, the legislature must have had those principles in mind. That was not necessarily the case and much depended on context.

The tribunal also read the notion of “public interest” into s. 24 of the 1986 Act, imposing an onerous obligation to weigh up its existence in every case of prima facie confidentiality. The modern law of confidence was wider than the principles applying where an equitable duty of confidence arose, or where there were commercial secrets; it could also arise by express or implied agreement, and presumably under a statutory duty, and there was also a distinction between “old-fashioned breach of confidence” and the modern tort of “misuse of private information”, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457 and McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73 considered.

It was important in the instant case to remember the need to look at the jurisprudence of the European Convention on Human Rights 1950 art. 8 and art. 10. The tribunal had not addressed those developments and so had proceeded on an incomplete legal basis.

(2) There was tension between s. 24 of the 1986 Act and the aim of greater public access to information that underlay the 2000 Act. It was clear that the government deliberately retained s. 24 of the 1986 Act when repealing provisions before the 2000 Act, and did so as the scientific community had been concerned about confidentiality if it was repealed.

Thus, the court should probably assume that s. 24 was included to provide additional or parallel protection to that in s. 41 of the 2000 Act and its effect should not be diluted. The court should not assume that there was no such intention.

Parliamentary materials gave no answer in the instant case, let alone one that pointed to the tribunal’s interpretation, and the tribunal had erred in concluding that the history of s. 24 of the 1986 Act lent it support.

(3) The instant court’s interpretation was based on the statutory wording, its context, the modern law of confidence and the arguments of the parties.

Accordingly, the information sought by B was obtained by the Home Office division in the exercise of its functions under the 1986 Act; the relevant official reasonably believed that it had been “given in confidence” at the time given; the disclosure sought from the Home Office would not be for the purpose of exercising its functions under the 1986 Act; the terms of s. 24 of the 1986 Act as it stood meant that disclosure was prohibited and would constitute a criminal offence; and the exemption in s. 44 of the 2000 Act applied to the information sought.

Karen Steyn (instructed by Treasury Solicitor). Daniel Alexander QC (instructed by David Thomas) for the first respondent. Akhlaq Choudhury (instructed by Geraldine Dersley).

HOME SECRETARY v E & ANR

Last Updated: 1:26AM BST 07/06/2007
Court of Appeal (Civil Division)
Pill, Wall and Maurice Kay LJJ
May 17, 2007

May 17, 2007 Conditions precedent – Non-derogating control orders – Prosecutions – Restrictions – Right to liberty and security – Impact of control order on rights under Art. 5 European Convention on Human Rights 1950 – Secretary of state’s continuing duty to review prospects of prosecution – Art. 5 European Convention on Human Rights 1950 – Art. 3 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – s. 8(2) Prevention of Terrorism Act 2005
FACTS

The appellant (P) appealed against a decision ([2006] EWHC 1226, [2006] Ch 549) that highly objectionable images of children recovered from his computer following the execution of a search order made in intellectual property proceedings should be disclosed to the police. P had permitted the search of his premises to take place, but asserted that he would rely on his privilege against self-incrimination in respect of any material that the search might disclose. An employee of the company responsible for “imaging” the computer had discovered the offending material and applied to the court for directions. The judge below proceeded on the basis that, by reason of Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, before the Human Rights Act 1998, the privilege against self-incrimination would have applied to permit a defendant in civil proceedings not only to refuse to answer questions or produce documents by way of discovery, but also to refuse to produce any incriminating article found in the course of a search of premises pursuant to a court order.

The judge held that since the 1998 Act and by reason of the decision in Saunders v United Kingdom (19187/91) [1997] BCC 872, the privilege did not apply in criminal proceedings in relation to pre-existing or “independent” evidence. Accordingly, the judge held that, since it was illogical for the privilege to be wider in civil proceedings than in criminal proceedings, the court could modify the common law doctrine as laid down in Rank and could rely on the partial exception to the doctrine of precedent set out in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465. The issue for determination was whether P could invoke the privilege to prevent disclosure of the material to the police. P submitted that it was not permissible for the court to use the 1998 Act when no human rights were engaged in order to justify departing from the law laid down by precedent. The Attorney General, intervening, submitted that, whilst the judge had ultimately made the right decision, there was never any difference between the civil law and the criminal law, and the rationale for the privilege had no application to independent evidence.

ISSUE

(i) Whether the restrictions in the control order did not constitute a breach of Art. 5. (ii) Whether the judge had been wrong to find that he had breached his duty to consider and review the prospects of prosecuting E.

HELD (appeal allowed)

(i) The degree of physical restraint on E’s liberty was far from a deprivation of liberty in terms of Art. 5, Guzzardi v Italy (A/39) [1981] 3 EHRR 333, Engel v Netherlands (A/22) (1979-80) 1 EHRR 647 and Trijonis v Lithuania (Admissibility) (2333/02) considered. E lived in his own home with his family, and was able to leave his home for 12 hours a day with no geographical restriction on where he could go. E had ample opportunity to engage in everyday activities and make a wide range of social contacts, Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141, [2006] 3 WLR 866 distinguished. While the state of a controlled person’s health, and possibly other “person-specific” characteristics, might have an impact on the severity of the effect of the restrictions imposed, the judge below was correct in finding that, in the instant case, only very limited weight could be given to that factor. The judge had been right to conclude that the control order was likely to be renewed on expiry of the relevant 12-month period and to consider the restrictions on that basis. The judge had not erred in considering matters relevant to arguments under Art. 3 and Art. 8 in his consideration of Art. 5.

(ii) When properly considered in its statutory context, the duty under s. 8(2) of the 2005 Act to consider and review the possibility of prosecution was not a condition precedent to the making or renewal of a control order. The judge below had been right to find that the secretary of state had breached his duty to keep the possibility of prosecuting E under review. It was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution. The duty extended to a duty to take reasonable steps to ensure that the prosecuting authorities were keeping the prospects of prosecution under review; it did not extend to the secretary of state becoming the prosecuting authority. The secretary of state had breached his continuing duty of review by omitting to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration, Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, [2006] 3 WLR 839 applied.

(iii) The judge had erred in describing the Belgian judgments as “evidence” giving rise to a realistic possibility of prosecution. He had erred in law in holding that the secretary of state’s breach justified the quashing of the control order, and ought instead to have further analysed the consequences of the breach.

R Tam QC and A O’Connor (instructed by the Treasury Solicitor) for the appellant. K Starmer QC and H Southey (instructed by Birnberg Pierce & Partners) for the respondents. A McCullough (instructed by Special Advocate Support Office) for Special Advocate.