Deportations will not infringe human rights
From The TimesFebruary 19, 2009
Deportations will not infringe human rights
House of Lords
Published February 19, 2009
RB (Algeria) v Secretary of State for the Home Department
U (Algeria) v Same
Othman (Jordan) v Same
Before Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Lord Brown of Eaton-under-Heywood and Lord Mance
Speeches February 18, 2009
Appeals from decisions of the Special Immigration Appeals Commission were restricted to questions of law or irrationality.
The commission had been entitled to conclude, having regard to assurances given by the respective governments and to closed material, that the appellants would not, if deported, face a real risk of inhuman treatment contrary to article 3 of the European Convention on Human Rights or of violation of the article 6 right to a fair trial.
The House of Lords (i) dismissed appeals by RB and U, Algerians, from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Buxton and Lady Justice Smith) (The Times August 3, 2007; [2008] QB 533) which had allowed their appeals from the commission and remitted their cases to it for reconsideration and (ii) allowed an appeal by the Secretary of State for the Home Department from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Buxton and Lady Justice Smith) (The Times April 15, 2008; [2008] 3 WLR 798) which had allowed Omar Othman’s appeal that his expulsion would contravene article 6.
Mr Rabinder Singh, QC and Mr Hugh Southey for RB; Mr Richard Drabble, QC, Mr Hugh Southey and Mr Raza Husain for U; Mr Ian MacDonald, QC, Mr Mark Henderson and Ms Michelle Butler for Liberty, intervening; Mr Robin Tam, QC and Mr Robert Palmer for the Home Secretary; Mr Martin Chamberlain as special advocate for RB and U. Mr Michael Beloff, QC, Mr Robin Tam, QC, Mr Tim Eicke and Mr Alan Payne for the Home Secretary; Mr Edward Fitzgerald, QC, Mr Guy Goodwin-Gill, Mr Raza Husain and Mr Danny Friedman for Mr Othman; Mr Angus McCullough and Mr Martin Chamberlain as special advocates for Mr Othman. Lord Pannick, QC, Miss Helen Mountfield and Mr Tom Hickman for Justice and Human Rights Watch, intervening in all cases.
LORD PHILLIPS said that the Home Secretary wished to deport the appellants on the ground that each was a danger to the national security of the United Kingdom. Each contended that she could not do so because that would infringe his Convention rights.
RB and U contended that deportation to Algeria would infringe their rights under article 3 in that it would expose them to a real risk of torture or inhuman or degrading treatment. Mr Othman made a similar contention and also contended that he would face a real risk of a flagrant breach of his right to liberty under article 5 and of his right to a fair trial under article 6.
Each had unsuccessfully appealed against the order for his deportation to the commission and successfully appealed to the Court of Appeal. In each case, closed material had been put before the commission, which had given open and closed judgments, as had the Court of Appeal.
Closed material was defined by rule 37(1) of the Special Immigration Appeals Commission (Procedure) Rules (SI 2003 No 1034) as material on which the secretary of state wished to rely but which she objected to disclosing to the appellant or his representative.
The right to appeal to the Court of Appeal from a final determination of the commission was stated by section 7 of the Special Immigration Appeals Commission Act 1997 to be “on any question of law material to that determination”.
By restricting appeals to questions of law, Parliament had deliberately circumscribed the review of commission decisions that the Court of Appeal was permitted to undertake, so that it fell well short of the review that would be carried out if a case reached the European Court of Human Rights at Strasbourg.
The commission’s conclusions could only be attacked on the ground that it had failed to pay due regard to some rule of law, had regard to irrelevant matters, failed to have regard to relevant matters or been otherwise irrational. Its decisions could also be attacked on the ground that its procedures, such as the use of closed material, had failed to meet requirements imposed by law.
The wording of subsections (3) and (6) of section 5 of the 1997 Act was clear and contained no hint that rules providing for closed hearings could only be made in so far as that was necessary in the interests of national security and not in relation to the issue of safety on return, as the appellants contended. Rule 4 of the 2003 Rules fell fairly and squarely within the rule-making power in section 5.
The commission’s procedures struck a fair balance between the public interest, to which it was required to have regard, and the need to ensure that the hearing was fair. The appellants had not been denied a fair trial by reason of the use of the closed material.
In RB and U’s cases, the commission had held that, having regard to assurances given by the Algerian Government as to the way in which they would be treated on return, they would not face a real risk of inhuman treatment under article 3 if returned. The Jordanian Government had given similar assurances in Mr Othman’s case.
Decisions of the Strasbourg Court did not establish a principle that assurances had to eliminate all risk of inhuman treatment before they could be relied on, although they should be treated with scepticism if given by a country where inhuman treatment by state agents was endemic. The contention that the assurances did not, on their true construction, protect against inhuman treatment was not well founded.
Mr Othman contended that, if deported, he faced a retrial in respect of charges on which he had been convicted in his absence, that he would be tried by the State Security Court, which was not an independent and impartial tribunal, and that he would be at real risk of being convicted on the basis of confessions made by others that had been obtained by torture.
Before the deportation of an alien would be capable of violating article 6, there had to be substantial grounds for believing that there was a real risk that there would be a fundamental breach of the principles of a fair trial guaranteed by it and that that failure would lead to a miscarriage of justice that itself constituted a flagrant violation of the victim’s fundamental rights. The focus had to be not simply on the unfairness of the trial process but on its potential consequences.
The potential consequences in Mr Othman’s case were sufficiently severe to satisfy the second limb of the test. The question was thus whether there were substantial grounds for believing that he faced a real risk of a fundamental breach of the principles of a fair trial as recognised in Strasbourg.
While in a domestic case, the composition of the State Security Court would violate article 6, it did not follow that that would, of itself, constitute a flagrant breach of article 6 sufficient to prevent deportation in a foreign case.
The United Kingdom was not required to retain in this country to the detriment of national security a terrorist suspect unless it had a high degree of assurance that evidence obtained by torture would not be adduced against him. What was relevant in the appeal was the degree of risk that Mr Othman would suffer a flagrant denial of justice if deported to Jordan.
The commission had concluded that there were no reasonable grounds for believing that, if deported, the criminal trial that he would face would have defects of such significance as fundamentally to destroy its fairness. The Court of Appeal had held that in so concluding it had erred in law. In his Lordship’s view it had not done so, and the secretary of state’s appeal should be allowed.
Lord Hoffmann, Lord Hope, Lord Brown and Lord Mance delivered concurring opinions.
Solicitors: Fisher Meredith; Birnberg Peirce & Partners; Ms Corinna Ferguson, Southwark; Treasury Solicitor; Special Advocates Support Office, Treasury Solicitor. Treasury Solicitor; Birnberg Peirce & Partners; Special Advocates Support Office, Treasury Solicitor. Herbert Smith LLP.
Information Tribunal has jurisdiction over BBC as public authority
From The TimesFebruary 12, 2009
Information Tribunal has jurisdiction over BBC as public authority
House of Lords
Published February 12, 2009
British Broadcasting Corporation v Sugar and Another
Before Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Speeches February 11, 2009
The British Broadcasting Corporation was a public authority for the purposes of the Freedom of Information Act 2000 which meant that all requests for information were subject to the jurisdiction of the Information Commissioner and, on appeal, the Information Tribunal, even if the information requested was held for the purposes of art, journalism or literature.
The House of Lords so held by a majority (Lord Hoffmann and Lady Hale dissenting) in allowing an appeal by the appellant, Steven Sugar, against the dismissal by the Court of Appeal (Lord Justice Buxton and Lord Justice Lloyd and Sir Paul Kennedy) ([2008] 1 WLR 2289) of Mr Sugar’s appeal from Mr Justice Davis, in the Administrative Court of the Queen’s Bench Division (The Times May 22, 2007; [2007] 1 WLR 2583) who allowed an appeal by the first respondent, the BBC, from a decision of the Information Tribunal (Mr John Angel, chairman, Mr Henry Fitzhugh and Mr John Randall) promulgated on August 29, 2006, that it had jurisdiction to reach a decision on whether the second respondent, the Information Commissioner, had been correct to rule that the BBC was not a public authority in respect of Mr Sugar’s request for information.
Mr Tim Eicke, Mr David Craig and Mr Siddharth Dhar for Mr Sugar; Ms Monica Carss-Frisk, QC and Ms Kate Gallafent for the BBC; the Information Commissioner did not appear and was not represented.
LORD PHILLIPS said that the 2000 Act provided for a general right of access to information held by public authorities. That right was subject to exceptions. The Act made provision for its enforcement by the Information Commissioner and for a right of appeal from a decision of the commissioner to the Information Tribunal.
Schedule 1 to the Act listed the public authorities to which the Act applied. A small number of those were listed in respect only of certain specified information. One of those was the BBC, which was listed as “The British Broadcasting Corporation in respect of information held for purposes other than those of journalism, art or literature”.
The BBC held a report that it had commissioned in respect of its coverage of the Middle East, the Balen Report. Mr Sugar asked the BBC to provide him with a copy of that report.
The BBC contended that it held the report for the purposes of journalism and not as a public authority and that, in consequence, the Act had no application. His Lordship would call the issue of whether or not the BBC held the report for journalistic purposes “the journalism issue”.
Mr Sugar challenged the BBC’s response before the commissioner. The commissioner upheld the BBC’s contention. Mr Sugar appealed to the tribunal. The BBC argued that the tribunal had no jurisdiction. The tribunal held that it had jurisdiction and purported to exercise it by reversing the commissioner’s decision on the journalism issue.
The BBC then brought, simultaneously, an appeal under the provisions of the Act and a claim for judicial review. The claim succeeded; the judge held that the commissioner had determined that he had no jurisdiction. He had made no decision that was susceptible to an appeal to the tribunal under the Act. The tribunal had acted without jurisdiction and its decision could not stand. His Lordship would describe the issue of whether the tribunal had jurisdiction as “the jurisdiction issue”.
Schedule 1 was lengthy. Some public authorities were listed generically, others individually. Out of approximately 500 names in the list originally scheduled to the Act, nine were qualified by reference to the class of information held, of which one was the BBC. His Lordship would refer to that class of public authorities as “hybrid authorities”. The information held by them in their capacity as public authorities would be described as “public information”. The other information held by them would be described as “excluded information”.
Section 1 of Part I of the Act applied whenever a request for information was made to a public authority, whatever the nature of the information sought, whether the public authority held the information or not and, in the case of a hybrid authority, whether the information was public or excluded.
When a request for information was specifically made under the Act to a hybrid authority it was axiomatic that the maker of the request was making it to the hybrid authority in its capacity as a public authority. That was because the obligations under the Act only applied to public authorities.
So far as Mr Sugar was concerned, the terms of his letter of request made it quite clear that he was asserting that the BBC owed him a duty to provide the Balen Report in its capacity as a holder of public documents. He was well aware that the BBC would be under no duty to provide him with the information if it did not hold it as a public document and thus in its capacity as a public authority.
It followed that, on the facts of the case, it was quite wrong to treat Mr Sugar as having made a request to the BBC other than in its capacity as a public authority simply because of the nature of the information that he was requesting.
The response given by the BBC was more detailed than necessary if, as it claimed, the Balen Report was excluded information. On that premise, the response more than satisfied the BBC’s obligation under section 1 to confirm or deny whether or not it held information of the description specified in the request.
The issue raised by Mr Sugar was, however, whether that premise was correct. That was an issue that he was entitled to raise by his complaint to the commissioner under section 50 and the commissioner had jurisdiction to entertain that complaint.
The issue that the commissioner was asked to resolve by Mr Sugar by his letter of complaint was whether the BBC was correct to contend that the Balen Report was held for the purpose of journalism.
The commissioner decided that question. He found that the BBC was not under an obligation to release the contents of the report. That was a decision that Mr Sugar was entitled to challenge before the tribunal, provided that the commissioner had conveyed it to him in a decision notice.
Section 50 of the Act did not prescribe the form of a decision notice. His Lordship considered that that phrase simply described a letter setting out the commissioner’s decision. That was precisely the letter that the commissioner wrote to Mr Sugar.
For those reasons the tribunal had jurisdiction to make the decision that it did and the appeal would be allowed. It followed that the governing decision on the journalism issue was that of the tribunal, and that the only possible appeal from that decision lay to the High Court on a point of law.
The judge had, of course, already ruled on the journalism issue, but he approached that issue as one raised in a judicial review challenge by Mr Sugar of the commissioner’s decision on the point. He asked himself whether the decision of the commissioner was a lawful and rational one, properly open to him on the material before him.
That was not the test that he should have applied had he concluded, as he should have done, that the tribunal’s decision was made with jurisdiction and that the BBC’s only right to challenge it was on the ground that it was wrong in law. It followed that the result of allowing this appeal would be to restore the tribunal’s decision.
Lord Hope and Lord Neuberger delivered concurring opinions. Lord Hoffmann and Lady Hale delivered dissenting opinions.
Solicitors: Ms Sarah Jones, White City; Forsters LLP.
Considering further submissions in renewed asylum claim
From Times OnlineFebruary 8, 2009
Considering further submissions in renewed asylum claim
House of Lords
Published February 9, 2009
ZT (Kosovo) v Secretary of State for the Home Department
Before Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
Speeches February 4, 2009
When a claim for asylum had been rejected as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002, and the claimant made further submissions, the Secretary of State for the Home Department had to consider whether those further submissions created a realistic prospect of success under rule 353 of the Immigration Rules (HC 395) and not whether they were clearly unfounded under section 94 of the 2002 Act.
However, since the test under section 94(2) was more generous than the test under rule 353, whichever test was adopted, the claim would have failed.
The House of Lords so held, Lord Hope dissenting in part, when allowing the appeal of the Home Secretary from the Court of Appeal ([2008] EWCA Civ 14) (Lord Justice Buxton and Lord Justice Sedley; Lord Justice Pumfrey agreed with his fellow judges but died before judgment was delivered) who granted an application for judicial review by the applicant, ZT, and quashed the decision of the secretary of state to maintain refusal of the applicant’s claim for asylum and to certify the claim under section 94(2) of the 2002 Act as clearly unfounded.
Rule 353 provides that when an asylum claim had been refused and “any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
Mr Steven Kovats for the secretary of state;
Mr Satvinder Juss for ZT.
LORD PHILLIPS said that in 2003, ZT, a Kosovan Ashkali, a sub-group of the Roma, arrived clandestinely in the UK from Kosovo, then part of Serbia, and claimed asylum and protection on human rights grounds.
He claimed that the Roma constituted a minority that was widely persecuted in Eastern Europe, including Serbia; that 17 years earlier he had married a lady who was not of his ethnicity; that he had concealed his ethnicity from her family until 2002, when they discovered he was Ashkali; that his wife’s brothers then beat him up and took his wife and children away from him; and that they had however managed to follow him to England. He said he feared that if he returned to Kosovo his wife’s brothers would find him and would kill him.
The secretary of state rejected his application on the grounds that the authorities in Kosovo would afford ZT sufficient protection, that if he was fearful of attack from his wife’s family he could reasonably be expected to live in another part of Kosovo and that there was nothing about ZT’s appearance or speech which would lead anyone who was not aware of his ethnicity to suspect that he was anything other than Albanian.
The secretary of state certified pursuant to section 94(2) of the 2002 Act that ZT’s claims were clearly unfounded. The effect of the certification was that ZT could only exercise an out-of-country appeal once he had left the jurisdiction.
ZT then made further submissions to the secretary of state on asylum and human rights grounds, accompanied by additional material. The secretary of state rejected those submissions and maintained the certification of the claims as clearly unfounded.
ZT sought judicial review to challenge the secretary of state’s certification. Mr Justice Collins refused permission to seek judicial review ([2006] EWHC (Admin)) but Sir Henry Brooke granted permission to appeal against that refusal. The secretary of state applied to set aside the grant of leave to appeal. The Court of Appeal refused to set aside the order of Sir Henry Brooke and decided itself to hear the application for judicial review.
The Court of Appeal had held that the secretary of state should have approached ZT’s further submissions on the basis that rule 353 applied to them, and if she had it might have made a difference to her decision.
His Lordship concluded that the Court of Appeal was correct to proceed upon the basis that rule 353 applied to the further submissions made by ZT to the secretary of state. The question then was whether it might have made a difference to her decision if she had proceeded in accordance with rule 353.
The secretary of state carried out the section 94 reconsideration and concluded that ZT’s claim remained clearly unfounded. The rule 353 procedure would first have required her to decide whether she accepted or rejected the further submissions.
That was precisely what she would have done under the section 94 reconsideration. Thus the first stage of the rule 353 procedure would have produced the same result. ZT’s further submissions would have been rejected.
The secretary of state would then have been required to determine whether the further submissions would amount to a fresh claim. The rule 353 procedure thus would have required her to consider ZT’s claim as a whole, just as she would have done under the section 94 reconsideration.
The section 94 reconsideration led the secretary of state to conclude that ZT’s claim remained clearly unfounded.
Might she have concluded that it had a realistic prospect of success had she applied the rule 353 procedure?
Only if the test of whether or not a claim had a realistic prospect of success was more generous than the test of whether or not a claim was clearly unfounded. Plainly it was not. A claim that was clearly unfounded could not possibly have a reasonable prospect of success.
Arguably a claim that had no realistic prospect of success might not be so hopeless as to be deemed clearly unfounded. If so, in carrying out the section 94 reconsideration the secretary of state was more generous to ZT than she would have been had she applied the rule 353 procedure. Whichever course was adopted, she would have rejected ZT’s further submissions and denied him a right to an in-country appeal.
Since ZT was seeking judicial review, as a matter of principle the correct approach was the familiar one of judicial review that involved the anxious scrutiny that was required where human rights were in issue.
Where, as in the present case, there was no dispute of primary fact, the question of whether or not the claim was clearly unfounded was only susceptible of one rational answer. If reasonable doubt existed as to whether the claim might succeed, then it was not clearly unfounded. It followed that a challenge to the secretary of state’s conclusion was a rationality challenge.
There was no way a court could consider whether her conclusion was rational other than by asking itself the same question that she considered. On the evidence before her and the reasoning in her decision letters, she was right to conclude that ZT’s claim was clearly unfounded since an appeal to the Asylum and Immigration Tribunal had no realistic prospect of success.
LORD HOPE, agreeing that the appeal be allowed, said that the Court of Appeal was not correct to find that secretary of state should have approached ZT’s further submissions on the basis that rule 353 applied.
Lord Carswell, Lord Brown and Lord Neuberger delivered speeches agreeing with Lord Phillips.
Solicitors: Treasury Solicitor; Riaz Khan & Co, Barnsley.
Housing authority is not bound by family court residence order
From The TimesFebruary 5, 2009
Housing authority is not bound by family court residence order
House of Lords
Published February 5, 2009
Holmes-Moorhouse v Richmond-upon-Thames London Borough Council
Before Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Speeches February 4, 2009
When a court in family proceedings made a shared residence order providing for children to spend alternate weeks with each parent, and one parent was homeless, a housing authority was not obliged, on account of that order, to regard the homeless parent as having priority need on the ground that he was a person with whom dependent children might reasonably expected to reside.
The House of Lords so held allowing an appeal by Richmond-upon-Thames London Borough Council from the Court of Appeal (Lord Justice Auld, Lord Justice Rix and Lord Justice Moses) (The Times November 19 2007; [2008] 1 WLR 1289) who had allowed an appeal by the father, Edward Holmes-Moorhouse, from the dismissal dated May 3, 2006, of Judge Oppenheimer, at Brentford County Court, of his appeal from the council’s decision on his application for assistance as a homeless person, that he did not have priority status as a homeless person with whom dependent children might reasonably be expected to reside.
Mr Andrew Arden, QC and Mr Matthew Hutchings for Richmond; Mr Jan Luba, QC and Mr Nicholas Nicol for Mr Holmes-Moorhouse.
LORD HOFFMANN said that the court, with the consent of the parents, ordered the father to leave the family home in Richmond-upon-Thames and provided that both parents were to have shared residence of three of their children. The order said the children should spend alternate weeks and half of their school holidays with each parent.
The father applied to the council’s housing services for assistance under Part VII of the Housing Act 1996, which imposed duties on housing authorities in respect of accommodation for people who were homeless or threatened with homelessness.
The council accepted that the father was threatened with homelessness but not that he had priority need. Section 189(1) of the 1996 Act listed the categories of persons who had priority need. Section 189(1)(b) included “a person with whom dependent children reside or might reasonably be expected to reside”.
The council said that the children could not reasonably be expected to reside with the father if that required the council to provide a second home for them, and the fact that the court thought it was in the interests of the children to have two homes did not bind the council.
His Lordship said that when a court determined any question with respect to the up-bringing of a child, the child’s welfare was paramount: see section 1(1) of the Children Act 1989. The court’s decision as to what would be in the interests of the welfare of children had to be taken in the light of circumstances as they were or might reasonably be expected to be.
The question for the housing authority under Part VII of the 1996 Act was not the same. In deciding whether children could reasonably be expected to reside with a homeless parent, it was not making the decision on the assumption that the parent had or would have suitable accommodation available.
On the contrary, it was deciding whether it should secure that such accommodation was provided. That brought in considerations wider than whether it would be in the interests of the welfare of children to do so.
The fact that both the court and the housing authority applied criteria which looked superficially similar did not mean that the questions were the same.
The contexts were quite different. The housing authority, applying the provisions of the Housing Act not the Children Act, had to answer the question whether the children could reasonably be expected to reside with the father in the context of a scheme for housing the homeless.
The phrase “might reasonably be expected” clearly referred to an impersonal objective standard. It clearly appealed to an objective social norm which had to be applied in the context of a scheme for allocating scarce resources. It was impossible to consider only what would be desirable in the interests of the family if resources were unlimited.
Part VII provided a safety net or last resort for people who would otherwise be homeless. But the 1996 Act also had to be interpreted with liberality, having regard to its social purposes, with recognition of the claims of others and the nature and scale of a housing authority’s responsibilities.
The question which the housing authority therefore had to ask itself was whether it was reasonably to be expected, in the context of a scheme for housing the homeless, that children who already had a home with their mother should be able also to reside with the father.
In answering that question, it would be entitled to decide that it was not reasonable to expect children who were not in any sense homeless to be able to live with both mother and father in separate accommodation.
The Court of Appeal had said that the fact that housing was a scarce resource should be regarded as irrelevant to the question of whether it was reasonable to expect the children to live with the father.
His Lordship disagreed with that proposition, whether as a matter of law, logic or social policy.
There was no reason in logic why the fact that Parliament had made the question of priority need turn upon whether a dependent child might reasonably be expected to reside with the father should require that question to be answered without regard to the purpose for which it was being asked, namely, to determine priority in the allocation of a scarce resource. To ignore that purpose would not be a rational social policy.
It did not mean that a housing authority could say it did not have the resources to comply with its obligations under the Act. But so far as the priorities to be applied involved questions of judgment, it must surely take into account the overall purpose of the scheme.
The Court of Appeal was also wrong to suggest that a housing authority should intervene in family proceedings to argue against the court making a shared residence order. It was relevant for the housing authority to know that the court considered that the children should live with both parents.
But the housing authority was not concerned to argue that the court should not make an order to that effect. The order, if made, would only be part of the material which the authority took into account in coming to its decision. The two procedures for deciding different questions must not be allowed to become entangled with each other.
The father and mother went back to the court to complain that the council had been uncooperative in implementing the shared residence order. The court then made a further order recording its concern that due to no fault of either party the shared residence order had not been implemented by reason of the father‘s inability to obtain suitable accommodation.
His Lordship said that the council’s reviewing officer was quite right to take no notice of that order. It was not the business of the court exercising its jurisdiction under the 1989 Act to try to exert pressure upon a housing authority to provide resources for one or other of the parties.
The reviewing officer had ample grounds upon which he was entitled to give a negative answer to the question whether in the context of the housing authority’s duty to make provision for the homeless, the children might reasonably be expected to live with the father as well as the mother.
Lord Scott and Lord Walker agreed. Lady Hale and Lord Neuberger delivered concurring speeches.
Solicitors: Mr Richard Mellor, Twickenham; Scully & Sowerbutts, Brentford.
Landlords not entitled to ‘hope value’ element
From The TimesDecember 17, 2008
Landlords not entitled to ‘hope value’ element
House of Lords
Published December 17, 2008
Earl Cadogan and Another v Sportelli and Another and Other Appeals
Before Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Mance and Lord Neuberger of Abbotsbury
Speeches December 10, 2008
Landlords and freeholders were generally not entitled to so-called “hope value” as an element in the value of their interest in determining the price payable by the tenants for leasehold enfranchisement.
The House of Lords dismissed three appeals by landlords and allowed in part (Lord Hoffmann dissenting in part) two further appeals from decisions of the Court of Appeal in Earl Cadogan v Sportelli (Lord Justice Ward, Lord Justice Carnwath and Sir Peter Gibson) ([2008] 1 WLR 2142) and Earl Cadogan v Pitts (Lord Justice Carnwath) ([2007] EWCA Civ 1280).
Mr Kenneth Munro and Mr Philip Rainey for Earl Cadogan and Cadogan Estates Ltd; Mr Andrew Walker for Stephen L. Pitts and Yue Wang; Mr Edwin Johnson, QC, for Atlantic Telecasters Ltd; Mr Stephen Jourdan for Michele Francisco Sportelli, Lara-Lynn Victoria Lamont Sportelli and 27/29 Sloane Gardens Ltd; Mr Thomas Jefferies for Grandeden Property Management Ltd.
LORD NEUBERGER said that tenants under long leases were first given the right to acquire new leases or buy their freeholds under the Leasehold Reform Act 1967, which applied only to houses. In determining the price payable under section 9, in almost every case the aggregate of the investment value of the landlord’s interest and the market value of the tenant’s interest would be significantly less than the value of the two interests if combined in a single ownership.
Combining the two interests released a so-called “marriage value”. By section 9(1D) of the 1967 Act, added by section 145 of the Com-monhold and Leasehold Reform Act 2002, the marriage value was to be split equally between landlord and tenant. If a landlord was selling his freehold interest subject to a lease when the tenant was not interested in purchasing the freehold, there was no immediate prospect of releasing the marriage value.
However, a potential purchaser might well think that, in addition to its investment value, the freehold interest carried with it the potential benefit of a possible future sale of the freehold to the present tenant or a successor in title, or, indeed, the acquisition of the leasehold interest, thereby enabling a release of the marriage value in the future.
In such a case, it could be said that the value of the freehold subject to the lease was greater than the aggregate of the capitalised rental stream and the deferred right to possession at the end of the term and that something should be added for the possibility of a purchaser benefiting from a release of the marriage value. That was “hope value”.
Whereas the 1967 Act had benefited long leaseholders of houses, the Leasehold Reform, Housing and Urban Development Act 1993 had benefited long leaseholders of flats.
The appeals required their Lordships to consider whether, when determining the prices to be paid by the tenant under sections 9(1) and (1A) of the 1967 Act, added by section 118(4) of the Housing Act 1974, and paragraph 3 of Schedules 6 and 13 to the 1993 Act, hope value could, as a matter of principle, be taken into account as a component of the price to be paid to the landlord.
None of the instant appeals concerned section 9(1) of the 1967 Act, applicable to lower value houses, but it was sensible to consider that provision as it had been the first of the statutory valuation hypotheses in the field and the issues raised were connected.
The issue under section 9(1) was whether the words “(with the tenant and members of his family … not buying or seeking to buy)”, added by section 82 of the Housing Act 1969, excluded hope value.
In his Lordship’s opinion, the words meant that not only marriage value but also hope value were excluded from being taken into account. Their natural meaning, and common sense, justified the conclusion that it was inherently improbable that Parliament, when enacting section 82, had intended the landlord to be able to seek hope value.
As to section 9(1A), on higher value houses, the tenants’ argument, accepted by the Court of Appeal, was that the landlord could not claim hope value in addition to marriage value because it was subsumed by it.
At first, that contention had seemed to his Lordship to be unanswerable, particularly now that the landlord was entitled to half the marriage value under section 9(1D). As Lord Justice Carnwath had put it, at paragraph 48, to include a further element of hope value would involve double counting.
His Lordship had come to the conclusion that that was correct, though he had found the point more difficult than it had originally seemed. There was considerable force in the point that hope value was not the same as marriage value.
If it could be shown that the valuation of the tenant’s interest included hope value and that that was illogical and unfair on the landlord, an adjustment would have to be made.
The arguments about marriage value and hope value where a tenant was seeking a new lease of his flat under Schedule 13 to the 1993 Act were similar, in valuation terms, to those that could be raised under section 9 of the 1967 Act, though the calculation was a little more complex.
There was no doubt that the words “(with the tenant … not buying or seeking to buy)” in paragraph 3(2), as in the case of the very similar words inserted into section 9(1) by section 82 of the 1969 Act, barred marriage value from being included in the valuation of the landlord’s interest, and for the same reasons his Lordship considered that they also barred the inclusion of hope value.
As to Schedule 6, the Court of Appeal had concluded that hope value could not be taken into account under the paragraph 3 valuation, whether it was attributable to the ability of either participating or nonparticipating tenants to acquire new leases.
That conclusion had been primarily based on their view that the exclusion of all such tenants, whether participating or not, from the market under paragraph 3(1) and (1A)(b), added by section 109(3) of the Housing Act 1996, meant that they were excluded for the purposes of any hope value, consistently with their conclusion in relation to Schedule 13.
In his Lordship’s judgment, it would be both arbitrary and unfair if a landlord, who could recover marriage value in relation to the participating tenants’ flats, could not recover hope value in respect of the nonparticipating tenants’ flats.
Given that it had been thought fair to make the participating tenants pay a true market price for the reversions to their own flats, it would be surprising if they did not have to pay a true market price for the investment part of their purchase.,That would include paying for any hope value for the prospect of negotiating new leases of their flats with nonparticipating tenants. By the same token, it would be unfair on the landlord.
On a fair reading of paragraph 3 of Schedule 6, hope value could be taken into account in so far as it was attributable to the possibility of nonparticipating tenants seeking new leases of their respective flats by negotiation, not as of right under Chapter II of the Act.
If the bracketed words in the opening part of paragraph 3(1) did not exclude the possibility of taking into account hope value arising from nonparticipating tenants seeking new leases, the same conclusion must apply to participating tenants.
However, the effect of paragraph 4 meant that, for the reasons given in relation to section 9(1A) of the 1967 Act, it was not possible to include hope value in relation to participating tenants’ flats under paragraph 3 as it had already been subsumed into the marriage value exercise mandated by paragraph 4.
Accordingly, the appeals in Grandeden and Sloane Gardens must to that extent be allowed. The other appeals were dismissed.
LORD HOFFMANN, dismissing all the appeals, that it was not possible to distinguish between participating and nonparticipating tenants when the statutory assumption applied to tenants generally.
Lord Hope delivered an opinion agreeing with Lord Walker and Lord Neuberger. Lord Walker delivered an opinion agreeing with Lord Neuberger. Lord Mance agreed with Lord Walker and Lord Neuberger.
Solicitors: Pemberton Greenish; Bircham Dyson Bell LLP; Terence St John Millett; Forsters LLP and Rokeby Johnson Baars LLP; Maxwell Winward LLP.
Burden of proof when an employee is killed
From The TimesDecember 16, 2008
Burden of proof when an employee is killed
House of Lords
Published December 16, 2008
Regina v Chargot and Others
Before Lord Hoffman, Lord Hope of Craighead, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
Speeches December 10, 2008
In criminal proceedings against an employer after an accident ot work, it was sufficient for the prosecution to prove merely a risk of injury arising from a state of affairs at work, without identifying and proving specific breaches of duty by the employer. Once that was done, a prima facie case of breach was established. The onus then passed to the employer to make good the defence of reasonable practicability.
The House of Lords so held, dismissing an appeal by the defendants, Chargot Ltd (trading as Contract Services), Ruttle Contracting Ltd and George Henry Ruttle, from the dismissal by the Court of Appeal, Criminal Division (Lord Justice Latham, Mr Justice Gibbs and Mr Justice Lloyd Jones) ([2008[ ICR 517) of their appeals against conviction on November 19, 2006, in Preston Crown Court (Judge Russell, QC and a jury) of contravening the Health and Safety at Work, etc Act 1974.
The first defendant was fined £75,000 and ordered to pay £37,500 costs; the second was fined £100,000 with £75,000 costs; the third was fined £75,000 with £103,000 costs.
Section 2 of the 1974 Act provides: “(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”
Section 3 provides: “(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.”
Mr Richard Lissack, QC, Mr Ben Compton, Miss Maya Lester and Miss Kate Edwards for the defendants; Mr Tim Horlock, QC, Mr Richard Matthews and Mr Jamas Hodivala for the prosecution.
LORD HOPE said that on January 10, 2003, Shaun Riley was working in the course of his employment with the first defendant at Heskin Hall Farm in Lancashire where extensive works were being carried out.
The second defendant, a member of the Ruttle group of companies which owned the farm, was the principal contractor. The third defendant was a director of the first defendant and managing director of the second defendant.
The works required the excavation of a quantity of top soil from the site. A dumper truck was then used to move the spoil over about 500 yards to a depression in the field, beside which a ramp had been created to give the dumper truck a means of access.
Mr Riley was asked by the foreman to take over the driving of the dumper truck. While he was making a trip that afternoon the truck tipped over on its side and he was buried by the load of spoil that he was transporting. It was sometime before he could be pulled out, and attempts to revive him were unsuccessful. He died the following day in hospital.
The investigation which followed the accident revealed that there were various shortcomings in the heath and safety organisation at the farm. But there were no witnesses to the accident, and the precise cause of it was never established. The dumper truck itself had no defects and it was fitted with a seat belt which Mr Riley was not wearing at the time of his accident.
The principal issues in the appeal were directed to the way in which the case for the prosecution was presented to the jury. The prosecution based its case on the proposition that it was sufficient for it to identify and prove a risk of injury arising from a state of affairs at work.
His Lordship rejected the defendants’ primary submission that sections 2(1) and 3(1) required the prosecution to identify and prove the acts and omissions by which it was alleged that there was a breach of duty to achieve or prevent the result that they described.
What the prosecution had to prove was that the result that those provisions described was not achieved or prevented. Once that was done a prima facie case was established. The onus then passed to the defendant to make good the defence which section 40 provided on grounds of reasonable practicability.
In cases such as the present, where a person sustained injury at work, the facts would speak for themselves. Prima facie, his employer or the person by whose undertaking he was liable to be affected, had failed to ensure his health and safety. Otherwise there would have been no accident.
LORD BROWN said that in a case summary provided to the defendants before trial the prosecution had in fact outlined what they contended was a whole series of failures on the defendants’ part, such as failures: to train employees in the safe use of dumper trucks, to identify hazards in the use of such trucks, to plan safe routes, to instruct employees in the use of safety belts, and to carry out risk assessments.
It was argued for the defendants that some such allegations had to be specifically pleaded and proved and that the jury should have been directed that they could only convict if they were unanimous as to which, if any, of the various specific allegations were made out to the criminal standard of proof: see R v Brown ((1984) 79 Cr App R 115).
Sections 2 and 3 of the Act did not impose a duty merely to take reasonable care; rather they imposed a duty to ensure health and safety, leaving it to the employers to establish if they could, on the balance of probabilities, that it was not reasonable to expect them to do more than they did do to achieve the required objectives of health and safety.
It was not necessary for the prosecutor to identify, allege and prove specific failures on the employer’s part, as if those were necessary ingredients of the offence charged.
Lord Hoffmann and Lord Scott agreed with Lord Hope and Lord Neuberger agreed with Lord Hope and Lord Brown.
Solicitors: Keoghs LLP, Bolton; Holdens, Lancaster.
Tenancy ends only on delivery of possession
From The TimesDecember 15, 2008
Tenancy ends only on delivery of possession
House of Lords
Published December 15, 2008
Knowsley Housing Trust v White
Shepherds Bush Housing Association v Porter
Islington London Borough Council v Honeygan-Green
Before Lord Hoffmann, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance and Lord Neuberger of Abbotsbury
Speeches December 10, 2008
An assured tenancy subject to a possession order ended only when possession was delivered up.
A tenant who did not comply strictly with the terms of a suspended possession order but paid off all arrears and costs, so that the landlord could not enforce the order, was not prevented from returning to the court for a further order.
A secure tenant’s right to rely on a notice exercising her right to buy was suspended when a possession order was made and revived when the order was discharged.
The House of Lords so held when: (i) allowing Julie White’s appeal from the dismissal by the Court of Appeal (Lord Justice Buxton, Lord Justice Longmore and Sir Martin Nourse) ( The Times May 15, 2007; [2007] 1 WLR 2897) of her appeal from Judge Mackay, who, at Liverpool County Court on September 14, 2006, refused her application for a declaration that she remained an assured tenant pending execution of a suspended possession order, in circumstances where she sought to exercise her ostensible right, preserved under the Housing Act 1985, to buy the premises from the landlord, Knowsley Housing Trust; (ii) allowing Oslo Porter’s appeal from the Court of Appeal (Lord Justice Pill, Lord Justice Sedley and Lord Justice Longmore) ( The Times April 2, 2008) affirming Judge Simpson, at West London County Court, who, on December 22, 2006, upheld the district judge’s refusal to discharge the suspended possession order obtained by Shepherds Bush Housing Association in circumstances where Mr Porter did not comply with its terms but subsequently made full payment; (iii) dismissing Islington London Borough Council’s appeal from the Court of Appeal (Lord Justice Pill, Lord Justice Keene and Lord Justice Maurice Kay) ( The Times April, 28, 2008; [2008] 1 WLR 1350) which allowed Manelva Honeygan-Green’s appeal from Mr Justice Nelson ( The Times June 29, 2007; [2007] 4 All ER 818), who held that her right to buy ceased to be exercisable when the council obtained a suspended possession order and was not reinstated when, on full payment of arrears, her secure tenancy revived.
Mr Jan Luba, QC and Mr Adam Fullwood for Mrs White; Mr Edward Bartley Jones, QC and Mr Michael Singleton for Knowsley. Mr Ashley Underwood, QC and Ms Catherine Rowlands for Shepherds Bush; Mr Richard Drabble, QC and Mr Miles Croally for Mr Porter. Mr Andrew Arden, QC and Mr Iain Colville for Islington; Mr Richard Drabble, QC and Mr Adrian Jack for Ms Honeygan-Green. Mr Christopher Baker for the Secretary of State for Communities and Local Government, intervening.
LORD NEUBERGER referred to section 100 of the Rent Act 1977, section 85 of the Housing Act 1985, section 9 of the Housing Act 1988 and the provisions giving a secure tenant the right to buy under the 1985 Act.
A tenancy under the 1977 Act did not determine when the court made a possession order; so long as the tenant was in occupation, it continued until the order was executed: see section 2(1)(a).
Thompson v Elmbridge Borough Council ([1987] 1 WLR 1425) suggested a different position in relation to secure tenants under the 1985 Act, based on section 82(2): that the tenancy ended when the tenant breached the terms of the order.
Unlike those Acts, the 1988 Act gave no express indication with regard to an assured tenancy. Considering Part I of the 1988 Act and in particular section 9, which closely followed section 100 of the 1977 Act, his Lordship concluded that it ended only when possession was delivered up.
The invention of the tolerated trespasser under the 1985 Act led to difficulties and uncertainties as to his rights and obligations which would not arise on his Lordship’s construction of the 1988 Act.
Despite the different position of secure tenants, the correctness of Thompson should not now be reconsidered. In the face of discouragement from highly experienced counsel, it would be wrong to go back on the House’s previous approval of a long-standing decision, acted on in many cases, when amending legislation, under the Housing and Regeneration Act 2008, would prospectively have the same effect as a reversal.
In Bristol City Council v Hassan ([2006] 1 WLR 2582) a form of suspended possession order against a secure tenant was approved which would normally avoid the tenancy determining unless and until the court made a further order.
Contrary to the decision in Marshall v Bradford Metropolitan District Council ([2002] HLR 428), his Lordship concluded that it was open to the court, under section 85, to include a proleptic discharge provision in a suspended possession order.
Section 85(4), if read with the practicalities in mind, did not preclude the court from committing itself in advance to discharge, provided certain conditions were complied with, and neither the landlord, by applying for a possession warrant, nor the tenant, by an application under section 85(2), sought, in the meantime, reconsideration of the terms of the discharge provision.
That view was supported by Payne v Cooper ([1958] 1 QB 174) and Sherrin v Brand ([1956] 1 QB 403), apparently not before the court in Marshall. His Lordship rejected the conclusion in Marshall that discharge under section 85(4) could only be directed if the conditions of suspension, as referred to in section 85(3), were complied with.
Section 85, taken as a whole, common sense and the reasoning in Payne and Sherrin, supported the proposition that the court could also decide the extent to which compliance with the strict terms of the conditions would not be required in order for the order to be discharged.
The terms of a suspended order were to be literally applied and precisely complied with. If a tenant failed to do so, the landlord could apply for a warrant. But if the tenant then applied to the court for relief, the court might suspend or discharge the warrant, and might vary the order.
The order in Mr Porter’s case did not expressly direct proleptic discharge when all payment was made but it provided that the order could not be enforced once full payment was made. The effect of Marshall was that the tenant could not apply under section 85(4) for a discharge unless the terms of suspension had been strictly complied with.
The effect of Swindon Borough Council v Aston ([2003] HLR 610) was that a tenant in such a case could not apply for a variation under section 85(2) either. His Lordship considered Marshall wrong on that issue. So was Swindon; there was nothing in the 1985 Act to prevent a tenant in Mr Porter’s position making an application under section 85(2).
His Lordship rejected Islington’s argument that the right to buy pursuant to a notice served under section 122 of the 1985 Act was lost once a secure tenancy was determined under a possession order and that it could not be retrospectively reinstated when the secure tenancy retrospectively revived by subsequent discharge of the order.
Section 121 suspended a tenant’s ability to exercise or pursue the right to buy while any of the situations identified in that section obtained: but did not remove the right permanently.
Accordingly, the right to buy pursuant to a notice already served under section 122 was not permanently lost once the tenant was obliged to deliver up possession. It revived retrospectively once the possession order was discharged.
Lord Hoffmann and Lord Brown agreed; Lord Walker delivered a concurring opinion; Lord Mance delivered an opinion concurring in the result.
Solicitors: Keoghs & Nicholls, Lindsell & Harris, Altringham; Anthony Collins Solicitors LLP, Birmingham. Prince Evans, Ealing; Sharpe Pritchard, for Oliver Fisher. Louise Round, Islington; Wilson Barca, Upper Holloway. Treasury Solicitor.
Whole-life sentence not inhuman punishment
From The Times
December 12, 2008
Whole-life sentence not inhuman punishment
House of Lords
Published December 12, 2008
Regina (Wellington) v Secretary of State for the Home Department
Before Lord Hoffmann, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood
Speeches December 10, 2008
A mandatory sentence of life imprisonment without eligibility for parole which would be imposed on a prisoner convicted of two offences of murder in the first degree did not amount to inhuman or degrading punishment so as to justify a refusal to extradite him to stand trial in the United States of America.
House of Lords so held, dismissing the appeal of the applicant, Ralston Wellington, from the refusal by the Queen’s Bench Divisional Court (Lord Justice Laws and Mr Justice Davis) ([2007] EWHC 1109) of an application for judicial review of the decision on June 13, 2006, by the Secretary of State for the Home Department to order his return to the United States of America at the request of the US Government for his extradition to stand trial in the State of Missouri on several criminal charges including two counts of murder in the first degree alleged to have been committed on February 13, 1997.
Miss Clare Montgomery, QC and Mr Gareth Paterson for the applicant; Mr David Perry, QC and Mr Ben Watson for the Home Secretary.
LORD HOFFMANN said that according to the evidence submitted on behalf of the prosecutor, the applicant was a Jamaican drug dealer carrying on substantial business in Jamaica, the USA and the United Kingdom.
While staying with a woman in Kansas City, a member of her family took about US$70,000 from his room. The applicant made the woman drive him and two others to the house where the thief had been staying.
They entered with guns firing, killed two of the occupants, one of them a pregnant young woman, and injured another. The victims did not appear to have been concerned in the theft and the money was afterwards returned by the thief.
The applicant was charged with murder in the first degree, defined as knowingly causing the death of another after deliberation upon the matter. The prescribed penalties were death or imprisonment for life without eligibility for parole or probation or release except by act of the State Governor. The prosecutor in Missouri gave an undertaking that he would not seek the death penalty.
The sole ground of challenge was that the secretary of state, as a public authority had acted in a way which was incompatible with the applicant’s right under article 3 of the European Convention on Human Rights not to be subjected to inhuman or degrading punishment. A sentence of life imprisonment without eligibility for parole was alleged to constitute such punishment.
Opposition to the death penalty might be based on the pragmatic grounds that it was irreversible, that there was little evidence that its deterrent effect was greater than other forms of punishment and that the ghastly ceremony of execution was degrading to the participants and the society on whose behalf it was performed. The preservation of a whole life sentence for the extreme cases which would previously have attracted the death penalty was part of the price of agreeing to its abolition.
In Kafkaris v Cyprus (Application No 21906/04) (February 12, 2008) the European Court of Human Rights in Strasbourg said that a life sentence was not in itself prohibited or incompatible with article 3 but that the imposition of an irreducible life sentence might raise an issue under article 3.
It went on to say that the existence of a system for release was a factor to be taken into account in assessing the compatibility of article 3 with a life sentence and that an irreducible life sentence would not necessarily infringe it. The fact that the possibility of release existed de facto was shown by evidence that some prisoners had been released.
The Criminal Justice Act 2003 gave a judge in the UK power to order that a prisoner be imprisoned for life without eligibility for parole, but under the Crime (Sentences) Act 1997 the secretary of state had power to order the prisoner’s release if there were exceptional circumstances. Those provisions had clear parallels with the sentence of life imprisonment without parole and release only by order of the State Governor under the statutes of Missouri.
In R v Bieber (The Times August 11, 2008) the Court of Appeal considered that the existence of the Home Secretary’s power of release, even though used sparingly, meant that the whole life sentence was not in Strasbourg terms irreducible, so that a complaint under article 3 could not be made simply because such a sentence had been imposed, but should be made, if at all, when the prisoner contended that his further detention would be inhuman or degrading treatment.
In his Lordship’s opinion, those conclusions were correct. It followed that the imposition of a whole life sentence in the UK would not ipso facto infringe article 3.
The next issue was the application of that construction of article 3 to cases in which the whole life sentence was not imposed in the UK but was likely to be imposed in a country to which the prisoner was extradited.
The leading authority was Soering v UK (Application No 14038/88) ((1989) 11 EHRR 439) concerning the Home Secretary’s decision to extradite a German citizen to Virginia to face charges of capital murder for which the penalty was death. It was not submitted that the death penalty itself was a violation of article 3 but it was complained that the manner in which it was implemented in Virginia, namely after long delays, was inhuman or degrading.
The Strasbourg court made it clear that the desirability of extradition was a factor to be taken into account in deciding whether the punishment in the receiving state attained the minimum level of severity which would make it inhuman and degrading. Punishment which counted as inhuman and degrading in the domestic context would not necessarily be so regarded when the extradition factor had been taken into account.
A relativist approach to the scope of article 3 was essential if extradition was to continue to function. Treating article 3 as applicable only in an attenuated form if the question arose in the context of extradition or other forms of removal to a foreign state was consistent with Strasbourg jurisprudence on the applicability of other Convention articles in a foreign context.
There was a practical need to construe any human rights instrument in a way which did not make extradition dependent upon compliance by the receiving country with the full panoply of rights enjoyed in the extraditing country.
Applying those principles to the present case, it was necessary to decide whether the mandatory sentence for first degree murder in Missouri was irreducible.
The Governor’s power showed that it was reducible de jure. The requirement that the sentence must be reducible de facto could not mean that the prisoner in question must have a real prospect of release. Otherwise the more horrendous the crime, the stronger would be the claim not to be extradited.
It must mean that the system for review and release must actually operate in practice and not be merely theoretical. By that standard the sentence in Missouri was just as much reducible as the sentence in the Kafkaris case.
Both depended upon the exercise of executive clemency without judicial control. Any prisoner was able to petition the Governor of Missouri and there was nothing to show that such petitions were not properly considered.
Even if the sentence was irreducible and might therefore contravene article 3 if imposed in the UK, it would contravene article 3 only if, on the facts of the case, the likely sentence would be clearly disproportionate.
On the facts of this case it could not be said that a sentence of life without parole would be so disproportionate to the offence as to meet the heightened standard for contravention of article 3 in its application to extradition cases.
Lady Hale and Lord Carswell delivered concurring speeches. Lord Scott and Lord Brown delivered speeches concurring in the result.
Solicitors: Russell-Cooke; Treasury Solicitor.
Duty to prevent suicidal patients from succeeding
From The Times
December 11, 2008
Duty to prevent suicidal patients from succeeding
House of Lords
Published December 11, 2008
Savage v South Essex Partnership NHS Foundation Trust
Before Lord Scott of Foscote, Lord Rodger of Earslferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Speeches December 10, 2008
The right to life protected by article 2 of the European Convention on Human Rights imposed an operational obligation on medical authorities to do all that could reasonably be expected of them to prevent a patient detained in a mental hospital who was known to be at a real and immediate risk of committing suicide from doing so.
The House of Lords so held in dismissing an appeal by the defendant, South Essex Partnership NHS Foundation Trust, from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Waller and Lord Justice Sedley) (The Times January 9, 2008; [2008] 1 WLR 1667) who allowed an appeal by the claimant, Anna Savage, from Mrs Justice Swift (The Times February 16, 2007) who had given summary judgment for the defendant.
Mr Edward Faulks, QC and Mr Angus McCullough for the defendant; Mr Nigel Giffin, QC and Ms Cecilia Ivimy for the Secretary of State for Health, intervening; Mr Philip Havers, QC and Ms Jenni Richards for Ms Savage; Ms Dinah Rose, QC, Mr Richard Hermer and Mr Paul Bowen for Inquest, Justice, Liberty and MIND, intervening.
LORD RODGER said that the decisions of the European Court of Justice in Powell v United Kingdom (Application No 45305/99) ((2000) 30 EHRR CD 362) and Osman v United Kingdom (Application No 23452/94) ((1998) 29 EHRR 245) related to different aspects of the article 2 obligations of health authorities and their staff to protect life. The obligations were not alternative but complementary.
In terms of article 2, health authorities were under an overarching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they might require to fulfil a number of complementary obligations.
In the first place, health authorities were required to ensure that the hospitals for which they were responsible employed competent staff and that they were trained to a high professional standard. In addition, the authorities had to ensure that the hospitals adopted systems of work which would protect the lives of patients. Failure to perform those general obligations might result in a violation of article 2.
If, for example, a health authority failed to ensure that a hospital put in place a proper system for supervising mentally ill patients and, as a result, a patient was able to commit suicide, the health authority would have violated the patient’s right to life under article 2.
Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient’s life.
Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. That was the situation envisaged by Powell.
The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide.
There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too. Again, that was just an application of Powell.
Finally, article 2 imposed a further operational obligation on health authorities and their hospital staff. That obligation was distinct from, and additional to the authorities’ more general obligations.
The operational obligation arose only if members of staff knew or ought to have known that a particular patient presented a real and immediate risk of suicide. In those circumstances article 2 required them to do all that could reasonably be expected to prevent the patient from committing suicide.
If they failed to do that, not only would they and the health authorities be liable in negligence, but there would be a violation of the operational obligation under article 2 to protect the patient’s life. That was comparable to the position in Osman.
Lord Scott and Baroness Hale delivered concurring opinions. Lord Walker and Lord Neuberger agreed.
Solicitors: Bevan Brittan LLP; Solicitor, Department of Works and Pensions; Bindmans LLP; Bhatt Murphy.
Near-suicide in custody requires open inquiry
From The Times
December 1, 2008
Near-suicide in custody requires open inquiry
House of Lords
Published December 2, 2008
Regina (JL) (a Youth) v Secretary of State for Justice
Before Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood and Lord Mance
Judgment November 26, 2008
A near-suicide in custody which resulted in the prisoner’s mental incapacity triggered the state’s obligation to institute an independent initial investigation which complied with article 2 of the European Convention on Human Rights, protecting the right to life.
The House of Lords so held when dismissing an appeal by the Secretary of State for Justice from the dismissal by the Court of Appeal (Lord Justice Waller, Lord Justice Maurice Kay and Lord Justice Wilson) (The Times October 2, 2007; \ 1 WLR 158) of his appeal from Mr Justice Langstaff (\ EWHC 2558 (Admin)) who, on JL’s judicial review claim, brought by the Official Solicitor acting as his litigation friend, granted declaratory relief that the secretary of state was obliged to hold an investigation into JL’s attempted suicide, while in custody at Feltham Young Offender Institution. The Prison Service initiated an internal investigation.
Mr Nigel Giffin, QC and Ms Cecilia Ivimy for the secretary of state; Mr Ben Emmerson, QC and Ms Kristina Stern for JL; Ms Heather Williams, QC and Mr Raza Husain for the Equality and Human Rights Commission, intervening.
LORD PHILLIPS said that the resource implications of the issues were considerable but certain principles that would normally apply could be identified. He would confine his remarks to where the prisoner’s suicide attempt came close to success and left him with the possibility of serious long-term injury. He was thus considering the case where there was a victim whose interests had to be considered.
It was fundamental to the secretary of state’s case that the reason why article 2 required an investigation into a near-suicide in prison was to secure the accountability of state agents in respect of possible breaches of the substantive obligations imposed by that article. Thus, he argued, if the state could show that there was no arguable case of such a breach, there was no requirement for an investigation.
Referring to the human rights and domestic jurisprudence, his Lordship said that the article 2 duty to investigate covered a wide spectrum. Different circumstances would trigger the need for different types of investigation with different characteristics.
The European Court of Human Rights at Strasbourg emphasised the need for flexibility and the fact that it was for the individual state to decide how to give effect to the positive obligations imposed by article 2.
Under the domestic regime, death required a spectrum of different types of investigation, depending on the particular circumstances. But the regime made no provision for nearsuicide.
Nature of the initial investigation
The secretary of state contended that the initial investigation, in circumstances such as the present, could be internal and that, unless it showed an arguable case that the prison authorities were at fault, there would be no need for any further investigation.
Lord Justice Waller considered the Strasbourg and domestic jurisprudence to be applicable to a near-suicide in custody, so as to impose an automatic requirement for an enhanced type of investigation.
His Lordship summarised its essential ingredients: it had to be initiated by the state itself, to be prompt and carried out with reasonable expedition, it had to be effective and conducted by a person who was independent of those implicated in the events under investigation.
There had to be a sufficient element of public scrutiny of the investigation or its results and the victim’s next of kin had to be involved to the extent necessary to safeguard his legitimate interests.
He concluded that a near-suicide in custody that left the prisoner with the possibility of a serious long-term injury automatically triggered an article 2 obligation on the state to institute such an investigation; that obligation could not be discharged or removed by an internal investigation. In some circumstances, an initial investigation would satisfy article 2; in others a further investigation would be necessary, which might well require a public inquiry: see R (D) v Secretary of State for the Home Department (The Times March 21, 2006; \ 3 All ER 946). That was because the state’s positive duty to protect life had particular application in relation to suicide risk by prisoners.
Article 2 placed on prison authorities a positive duty to take reasonable care for prisoners’ safety and to take reasonable steps to ensure that they did not commit suicide. Discharge of that duty required systemic precautions to be put in place.
The purpose of an investigation into a prison suicide was to open up the circumstances to public scrutiny, thereby ensuring accountability for fault, but also to correct mistakes and search for improvements: see R (Sacker) v West Yorkshire Coroner (The Times March 12, 2004; \ 1 WLR 796, paragraph 11).
A suicide attempt that resulted in serious injury was a matter of public concern, albeit not usually of such serious concern as a suicide. The reasons why a suicide required an investigation also applied here. They required an enhanced investigation, albeit not necessarily a public inquiry.
An internal investigation that did not disclose an arguable case of fault by the state authorities did not preclude the need for an enhanced investigation because: first, the object of the investigation went beyond determination of whether the authorities were at fault; second, the scope of the investigation would normally be considerable, involving consideration of what was known, or should have been known of the suicide risk the prisoner presented and an investigation of whether prison procedures against that risk were appropriate and properly implemented.
One object of the investigation would be to require the prison service to account for something that appeared to have gone seriously wrong. If impartiality was to be achieved, it was essential that a person who was independent of those involved conducted the investigation.
Need for further investigation
Whether a further investigation was necessary would depend not merely on whether the initial investigation was independent, but on whether it satisfied all the requirements of an enhanced investigation.
If witnesses gave their evidence readily, the course of events appeared clear and the circumstances of the attempted suicide were shown to involve neither a possible systemic defect nor possible operational shortcoming, the initial investigation might satisfy the requirement of efficacy without the need for further inquiry.
In that event, if the prisoner or his representatives were appropriately involved in the investigation and its report was published, the other requirements of an enhanced investigation might be satisfied.
The initial investigation should be sufficiently rigorous to satisfy those requirements where possible. A D-type investigation would necessarily be more protracted and expensive. But where the initial investigation would not be adequate to satisfy article 2, it was required. It would not be appropriate for their Lordships to attempt to prescribe where that would be so.
Deficiencies
Prison Service Order PSO 1300, giving directions for investigations into untoward incidents, should be amended so as to require, at the least, an independent investigation in the case of a near-suicide resulting in serious injury.
In JL’s case the investigation accorded with PSO 1300 but did not satisfy article 2. In particular: the investigator did not have the requisite independence; neither JL nor anyone representing his interests took any part in the investigation or was aware that it was taking place; no investigator’s report was published.
Other aspects of the internal inquiry called for further investigation.
After the Court of Appeal’s decision, the secretary of state decided to conduct a D-type investigation without awaiting the result of this appeal. He was right to do so.
Lord Rodger, Lord Walker, Lord Brown and Lord Mance delivered opinions concurring in the result.
Solicitors: Treasury Solicitor; Bindman & Partners; Mr John Wadham, Southwark.
State’s positive obligation to prevent inhuman treatment is not absolute
From The Times
November 19, 2008
State’s positive obligation to prevent inhuman treatment is not absolute
House of Lords
Published November 19, 2008
E v Chief Constable of the Royal Ulster Constabulary and Another
Before Lord Hoffmann, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood
Speeches November 12, 2008
The positive obligation imposed on the state by article 3 of the European Convention on Human Rights to prevent the infliction by third parties of inhuman or degrading treatment was not unqualified and absolute. It was an obligation to do all that was reasonably to be expected to avoid a real or immediate risk to an individual once the existence of that risk was known or ought to have been known.
The House of Lords so held, dismissing the appeal of the mother, E, from the dismissal by the Court of Appeal of Northern Ireland (Lord Justice Campbell, Lord Justice Sheil and Mr Justice Gillen) ([2006] NI CA 37) of her appeal from the refusal by Mr Justice Kerr ([2004] NI QB 35) of her application for judicial review by way of declarations that the Chief Constable of the Royal Ulster Constabulary and the Secretary of State for Northern Ireland had acted unlawfully in, inter alia, failing to secure the effective implementation of the criminal law and to secure the prevention, suppression and punishment of breaches of the criminal law, in failing to secure the safety of E and her child’s safe access to school and in failing to protect them from inhuman and degrading treatment.
Miss Karen Quinlivan and Miss Jessica Simor for E; Mr Bernard McCloskey, QC and Mr Paul Maguire, QC, for the chief constable and the secretary of state; Mr Barry Macdonald, QC and Miss Fiona Doherty for the Northern Ireland Human Rights Commission, intervening.
LORD CARSWELL said that Holy Cross Girls Primary School had 230 pupils aged between three and 11 years from the Catholic community in north Belfast. It was situated on Ardoyne Road, along which it was the custom of some parents to walk their daughters to and from school.
The district was largely Catholic, but the Glen Bryn estate formed an enclave bordering part of Ardoyne Road on both sides. It was inhabited by loyalist Protestant families.
In the afternoon of June 19, 2001, there was an outbreak of disorder on Ardoyne Road which had been in a state of increasing tension. Loyalist residents were intent on preventing Catholic parents and children from walking to school on Ardoyne Road through the Glen Bryn estate. Until the end of the school term at the end of June the situation was such that the police decided not to permit the use of Ardoyne Road for the children’s passage to school and provided an alternative longer route.
When the new term commenced in September, the police had been able to consider what strategy to follow. The expedient adopted was to station police and military vehicles along both sides of Ardoyne Road, creating a corridor through which the group of children and parents could walk. Police officers and soldiers were deployed on the protesters’ side and escorting police officers carrying long shields accompanied the group to protect them from missiles.
No injuries were sustained by any children, but the police and Army came under attack with gunfire, blast bombs, petrol bombs, acid bombs and missiles. Vehicles were hijacked, set on fire and rolled into police lines. Several soldiers and police officers were injured, some very seriously.
Critics complained that the police should have taken more robust action in forcing protesters off the street and making more widespread arrests, with the object of terminating the protest at an early stage.
The major issue was whether the state, through its emanation the police, was in breach of its positive obligation under article 3 of the Convention to take the steps required of it to prevent the infliction of inhuman and degrading treatment upon E and her daughter.
It was accepted that some of the more extreme forms of conduct in which the loyalist protesters indulged constituted such treatment.
The negative obligation not to inflict inhuman or degrading treatment was unqualified. But the state also had a positive obligation to prevent the infliction of such treatment by third parties. The extent of the positive obligation could not be regarded as absolute as the negative obligation.
It was submitted for E that since the police had available to them the means of stopping the protest and preventing the infliction of inhuman or degrading treatment, their obligation to use the measures at their disposal was absolute, unless they could conclusively demonstrate that if they adopted those measures, worse consequences of risk to life or the infliction of inhuman or degrading treatment would ensue to the children concerned or other persons.
It was argued that no element of proportionality, reasonableness or the needs of the community entered into consideration of the positive obligation to ensure that an individual was not subjected to torture or ill-treatment.
His Lordship could not accept those submissions. It was quite clear from Osman v United Kingdom (Application No 23452/94) (The Times November 5, 1998; (1998) 29 EHRR 245) that the obligation placed upon the authorities in an article 2 case, protecting the right to life, was to do all that could reasonably be expected of them to avoid a real and immediate risk to life, once they had or ought to have had knowledge of the existence of the risk. The obligation under article 3 was no different in kind, and the Strasbourg jurisprudence confirmed that.
To hold otherwise would be to place an intolerable burden upon the state. In the present case it would have required the police to drive back the protesters by main force and make numerous arrests, irrespective of the consequences which would have ensued and which would have given rise to widespread disorder, loss of life and destruction of property.
The police were uniquely placed through their experience and intelligence to make a judgment on the wisest course to take in all the circumstances, and the evidence supported the overall wisdom of the course which they adopted. The assertions that they might have adopted more robust action were quite insufficient to establish that the course adopted was misguided, let alone unreasonable.
LORD HOFFMANN, agreeing, added that in recent years in the House of Lords leave had frequently been given to statutory bodies and nongovernmental institutions to intervene and make submissions, usually in writing but sometimes orally from the Bar, on questions of general public importance, in the expectation that their fund of knowledge or particular point of view would provide a more rounded picture than their Lordships would otherwise obtain.
An intervention was, however, of no assistance if it merely repeated points which the parties had already made. An intervener would have had sight of their printed cases and, if it had nothing to add, should not add anything.
It was not the role of the intervener to be an additional counsel for one of the parties. That was particularly important in the case of an oral intervention.
In the present case, the oral submissions on behalf of the intervener only repeated in rather more emphatic terms the points which had already been quite adequately argued by E’s counsel. In future interveners should avoid unnecessarily taking up their Lordships’ time.
Lady Hale delivered a speech concurring with Lord Carswell; Lord Scott agreed with Lord Carswell and Lord Brown agreed with Lord Carswell and Lady Hale.
Solicitors: Madden & Finucane, Belfast; Crown Solicitors, Belfast; Ms Angela Stevens, Belfast.
New EU workers’ welfare restrictions proportionate
From The Times
November 14, 2008
New EU workers’ welfare restrictions proportionate
House of Lords
Published November 14, 2008
Zalewska v Department for Social Development
Before Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
Speeches November 12, 2008
The United Kingdom’s decision to restrict the payment of welfare benefits for nationals of Poland, Estonia, Latvia, Lithuania, Hungary, Slovenia, Slovakia and the Czech Republic, known collectively as the A8 states, to those who had worked an uninterrupted 12 months in employment registered with the Home Office was not incompatible with European Union law.
The House of Lords so held, Lady Hale and Lord Neuberger dissenting, in dismissing an appeal by a Polish national, Ewa Zalewska, from the Court of Appeal in Northern Ireland (Lord Justice Campbell, Lord Justice Higgins and Lord Justice Girvan) ([2007] NICA 17) upholding a decision to refuse her benefit.
Article 10 of the Treaty of Accession of the A8 states to the European Union, signed in Athens ([2003] OJ L236), allowed member states, inter alia, to derogate from the provisions governing free movement of workers in article 39 of the EC Treaty and Regulation (EEC) No 1612/68 during an initial transitional period.
The United Kingdom, in so derogating, provided by regulation 7 of the Accession (Immigration and Worker Registration) Regulations (SI 2004 No 1219) that an A8 state national was entitled to work in the United Kingdom only if, within one month of starting work for an employer, he applied for an Accession State Worker Registration Scheme Certificate entitling him to work for that employer, who thereby became an authorised employer.
By regulations 4(4) and 5(2) of the 2004 Regulations, such a certificate also gave the worker the right to live in the United Kingdom for so long as he worked for an authorised employer.
Ms Zalewska obtained work in Northern Ireland in July 2004 and obtained a certificate but in January 2005 she left that employment. She then worked until July 2005 for other employers in Northern Ireland but did not apply for certificates in respect of those employments.
Thereafter she applied for income support, which was refused on the ground that she did not have a right to reside in the United Kingdom since she was neither working for an authorised employer nor fell within regulation 2(4)(7) of the Regulations whereby an A8 state national who had worked for an authorised employer for an uninterrupted period of 12 months ceased to be an A8 state worker requiring registration.
The Social Security Appeal Tribunal allowed her appeal but the Social Security Commissioner reversed that decision and her decision was upheld by the Court of Appeal.
Mr John O’Hara, QC and Mr Odhran Stockman, both of the Northern Ireland Bar, for Ms Zalewska; Mr Clive Lewis, QC, Mr Paul Maguire, QC, of the Northern Ireland Bar, and Ms Fionnuala Connolly, of the Northern Ireland Bar, for the Department for Social Development; Mr Richard Drabble, QC and Mr Richard Turney for the Child Poverty Action Group and for the Public Law Project, intervening.
LORD HOPE said that in derogating from article 39, Community law required that the measures selected had to be proportionate. The principle of proportionality required that the means employed to achieve an aim recognised by Community law as legitimate corresponded to the importance of that aim and were necessary for its achievement.
There was no doubt that it had been legitimate for the United Kingdom to exercise the right of derogation that the Accession Treaty provided and to introduce regulations that gave effect to it.
And it could not reasonably be suggested that it was disproportionate for A8 state nationals to be required to apply for a registration certificate for the first employment that they obtained in the United Kingdom.
The debatable ground was whether the requirement that they had to reregister if they changed their employment within the 12-month period was proportionate. In his Lordship’s opinion it was.
The aim of the scheme was to enable the government to monitor the impact of A8 state nationals on the United Kingdom’s labour market and to discourage them from working illegally.
To obtain a complete picture, information about the sectors in which they were employed during the whole of the uninterrupted period of 12 months was likely to be as important as information about the number of arrivals.
Then there was the important question of access to social security benefits. The underlying purpose of the 2004 Regulations, it was said, was to safeguard the UK’s social security system from exploitation by people who wished to come here not to work but to live off benefits.
The terms on which A8 state nationals were to have access to the labour market were critical to achieving that purpose.
The right that the Accession Treaty gave to regulate access to the labour market during the transitional period carried with it the right to ensure that the terms on which access was given were adhered to.
Regulation of the right of access and monitoring its exercise were appropriate and necessary consequences of making that right available. Lord Carswell and Lord Brown agreed. Lady Hale and Lord Neuberger dissented on the question whether the measure adopted were proportionate.
Solicitors: Law Centre (NI), Belfast; Solicitor, Department of Finance and Personnel, Belfast; Ms Sarah Clarke, Islington; Ms Louise Whitfield, Islington.
West Law Report 
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