West Law Report

THE CORE OF AN UNEASY CASE FOR JUDICIAL REVIEW

Posted in Harvard Law Review (Article), judicial review, Richard Fallon by mrkooenglish on June 11, 2008

Richard H. Fallon, Jr.’s article in Harvard Law Review (May 2008) (.pdf) (44 pages):

The best case for judicial review in politically and morally healthy societies does not depend (as is commonly believed) on the idea that courts are more likely than legislatures to define vague rights correctly. It rests instead on the subtly different ground that legislatures and courts should both be enlisted to protect fundamental rights and, accordingly, that both should have veto powers over legislation that might reasonably be thought to violate such rights.

In developing this case for judicial review, Professor Fallon proceeds by confronting recent, influential, philosophically probing arguments against judicial review by Professor Jeremy Waldron. Professor Fallon concedes arguendo that, as Professor Waldron argues, courts are no better than legislatures at defining rights correctly, but maintains that the crucial question is not whether courts or legislatures are less likely to err, but which kinds of errors are most important to avoid ?those that result in rights being overprotected or those that result in rights being infringed. Insofar as judicial review can be designed to prevent errors in just one direction, involving failures to protect rights adequately, then judicial review may be supportable even if courts are no better than legislatures at identifying rights correctly. Professor Fallon also argues, contra Professor Waldron, that judicial review can actually contribute to the political legitimacy of an otherwise democratic scheme of government when the demands of political legitimacy are understood correctly.

Professor Fallon revised justification for judicial review, which does not presume courts to be better than legislatures at identifying fundamental rights, has important implications for how judicial review should be practiced. It implies a diminished role for courts in cases in which fundamental rights are pitted against one another, such that the overenforcement of one entails the underenforcement of the other. It also implies that courts should withhold review when legislatures conscientiously seek to protect one fundamental right without plausibly threatening another.

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X v NHS TRUST

Posted in judicial review, Westlaw Reports by mrkooenglish on May 23, 2008

Last Updated: 11:27AM BST 22/05/2008
Queen’s Bench Division (Admin)

Foskett J

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

Detention – Expiry – Hospital orders – Lawfulness of detention – Compliance with hospital order after expiry of compliance period – Effect of late compliance on lawfulness of detention – s. 37 Mental Health Act 1983 – s. 155 Powers of Criminal Courts (Sentencing) Act 2000 – s. 37(4) Mental Health Act 1983

FACTS

The claimant (X) applied for judicial review of a decision of the defendant NHS Trust (T) to detain him under a hospital order pursuant to the Mental Health Act 1983 s. 37. X had committed a number of comparatively minor offences. He was subsequently diagnosed as suffering from paranoid schizophrenia and a request was made to the court for an order under s. 37 to detain and treat him in an appropriate medical unit. That order was originally granted on December 17, 2004 and varied on December 21. The December 21 order stated that X should be admitted to the relevant unit within 28 days from the date of the order, but recorded December 17 as the commencement date. X was admitted to the relevant unit on January 17, 2005. The court was asked to determine the lawfulness of that detention. If the true effect of the order was that the 28-day period ran from December 21, T would have fulfilled its obligations to provide X with the specified placement within the requisite period. However, if the amended order took retrospective effect from the date of its original creation on December 17, then T would have failed to secure X’s placement within the required time period. X submitted that the authority to detain him under the hospital order expired on January 14, 2005 and his detention thereafter was unlawful. T submitted that, provided the order was validly made in the first instance, then failure to comply with the 28-day time period did not mean that it ceased to have effect.

ISSUE

Whether the authority to detain X under the hospital order expired on January 14, 2005 and his detention thereafter was unlawful.

HELD (application refused)

(1) On the evidence it was clear that T interpreted the relevant time period as commencing on December 21, 2004, and expiring on January 18, 2005. However, such an interpretation was clearly not the interpretation that the judge intended when he left the commencement date intact. It would have been necessary for a specific and unequivocal direction to have been incorporated on the face of the order in order to discharge the natural effect of the Powers of Criminal Courts (Sentencing) Act 2000 s. 155. Accordingly, the amended order did, by its own terms, require X to be removed to the specified unit by January 14, R v Birch (Beulah) [1990] 90 Cr App R 78 CA (Crim Div), R v Galfetti (Plinio) [2002] EWCA Crim 1916, [2002] MHLR 418 considered.

(2) Having so concluded, it was necessary to consider the legality of X’s subsequent detention from January 14 until January 17. In the usual course of events, T should have sought a place-of-safety direction from the court, pursuant to s. 37(4) of the 1983 Act: that was not done and strictly speaking, X’s detention was therefore unlawful. However, in reality X was no worse off for that short period of detention. T had fully explained the reasons why it had been forced to delay placing X within the unit and it was inconceivable that a court, being appraised of those facts, would not have authorised X’s continued detention in any event. Furthermore, it was generally accepted that court orders remained valid until set aside, and there was nothing in the instant case to suggest the displacement of that general rule. Accordingly, the authorisation for X’s admission to the relevant unit subsisted after January 14, 2005 as did the obligation to comply with it; the fact that that compliance was late, did not deprive the order of its purpose or its intended effect. Accordingly, X’s detention from January 2005 was lawfully justified.

Alexander Ruck Keene (instructed by Cartwright King, Nottingham) for the claimant. David Lock and Nageena Khalique (instructed by Mills & Reeve) for the defendant.

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.

R (EDWARDS-SAYER) v HOME SECRETARY

Posted in Guilty pleas, judicial review, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 7:12 PM BST 09/04/2008
Divisional Court
Richards LJ, Swift J
March 13, 2008

Convictions – Guilty pleas – Prisoners – Remand – Meaning of “convicted prisoner” in R. 2(1) Prison Rules 1999 – R. 2(1) Prison Rules 1999

FACTS

The claimant prisoner (S) applied for judicial review of his treatment as a convicted prisoner whilst held on remand awaiting sentence. S had been remanded in custody charged with offences of dishonesty. Over a year later he pleaded guilty to the offences and sentencing was adjourned. From that date S was treated within the prison system as a convicted prisoner, with the result he lost the rights and privileges enjoyed by unconvicted prisoners. Sentencing took place over two years later when he was sentenced to ten years’ imprisonment. S submitted that

  1. (1) on the true construction of the definition of “convicted prisoner” in the Prison Rules 1999 r. 2(1), he remained an unconvicted prisoner after he had entered his pleas of guilty and was on remand awaiting sentence and became a convicted prisoner only when he was sentenced;
  2. (2) the loss of rights and privileges associated with the change of status from unconvicted to convicted prisoner might operate as a deterrent to submitting an early plea of guilty.

ISSUE

Whether S was a “convicted prisoner” for the purposes of the Prison Rules 1999 r. 2(1).

HELD (application refused)

(1) S had been lawfully treated as a convicted prisoner following his pleas of guilty. The definition of convicted prisoner in r. 2(1) of the Rules referred to a conviction in the narrow sense, namely a verdict of guilty or acceptance of a plea of guilty. The words used in r. 2(1) focused on the actual finding of guilt rather than on the final disposal of the case, S (An Infant) v Recorder of Manchester [1971] AC 481 HL applied.

(2) Whilst the loss of status as an unconvicted prisoner might discourage early pleas of guilty, that was likely in practice to be outweighed by the credit that was given to an early plea in the sentencing process. There was no suggestion that S was discouraged from entering guilty pleas. The disadvantages of the regime to which S was subjected were expressly taken into account by the sentencing judge, who reduced the sentence imposed accordingly. That was a further way in which any disincentive that arose from the change in a prisoner’s status, following a plea of guilty, might be counteracted.

Flo Krause (instructed by Cartwright King, Nottingham) for the claimant. Ian Hutton (instructed by Treasury Solicitor) for the defendant.

R (YAZAR) v SOUTHWARK LBC

Posted in judicial review, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 7:12 PM BST 09/04/2008
Queen’s Bench Division (Admin)
Simon J
March 19, 2008

Housing allocation – Housing policy – Social services – Property allocation scheme – Social services nominations – s. 167(1) Housing Act 1996

FACTS

The claimant (Y) applied for judicial review of a decision of the defendant local authority on the basis that it had failed to make a lawful determination of her application for accommodation under the Housing Act 1996 Pt VI. Y had applied to the local authority for a transfer of accommodation on the basis that her current fourth-floor flat failed to satisfy the needs of her family. Consequently, Y was assessed, on medical grounds, as requiring ground-floor accommodation with a garden. The local authority then switched to a choice-based letting policy that prioritised the allocation of properties using a hierarchy of bands. Initially, Y was placed in band three but was upgraded to band two on the basis that her family had medical needs and that her existing property was overcrowded. In order to acquire an appropriate property quickly, Y asked the social services department to make a formal nomination to the local authority recommending that she be upgraded to a band one priority. Although the department did send a letter supporting Y’s promotion application, it did not make a formal nomination on her behalf. There were no written procedures for the making of formal nominations and Y received an explanatory letter stating that the department reserved the issuing of formal nominations to cases where there was a significant crisis or life and limb situations. Y submitted that (1) the absence of any written procedure for the making of formal nominations was contrary to the statutory requirement of a clear and transparent allocation scheme; (2) the department failed to give adequate reasons why it had refused to make a formal nomination on Y’s behalf and had failed to demonstrate a proper assessment of her application in accordance with its published policy. Furthermore, the explanatory letter purported to fetter the discretion of the decision-maker by reducing the number of nominations it could make and adding a requirement that there had to be a significant crisis or life-and-limb situation; (3) the system by which property was allocated under the choice-based letting policy was fatally flawed since it failed to provide a rational mechanism for ensuring that genuinely needy applicants were given a head-start over applicants who had no assessed needs.

ISSUE

Whether the local authority had failed to make a lawful determination of Y’s application for accommodation under the Housing Act 1996 Pt VI.

HELD (application refused)

(1) Inclusion in the category of social service nominations depended on the acceptance of the nomination by the housing options manager and this was a sufficient compliance with the requirement to have a procedure for the purposes of s. 167(1) of the 1996 Act. However, the basis on which the social service nominations were made and by whom they were made were unclear to the point of obscurity. The local authority’s allocation scheme was partially flawed. However, the department had since explained how it had made its decision in the instant case and the proper way by which it would generally make nomination decisions. Accordingly, no useful purpose would be served in granting the relief sought by Y.

(2) The department was not bound to express its reasons for refusing to make a formal nomination in every case. Such a requirement would have placed an additional and undesirable burden on an already overburdened department. However, if the department had been asked to provide its reasons, then it would have been obligated to provide them. In the instant case, the department had correctly conceded that the explanatory letter disclosed the application of a policy that was plainly flawed, since it had purported to place a fetter on the discretion of the decision-maker by the application of uncertain criteria. However, the department had since properly explained its reasons for refusing to nominate and there was no evidence to suggest that Y would be any better off following reconsideration.

(3) Parliament had given responsibility to the local authority in order to decide how best to allocate accommodation. The local authority had opted to use a policy of choice-based letting and it was entitled to do so. Whilst it was true that the system clearly favoured some applicants and disadvantaged others, a court would be slow to accept an invitation to intervene; not least because it might adversely affect the wider exercise of the scheme, R (on the application of Lindsay) v Lambeth LBC [2002] EWCA Civ 1084, [2002] HLR 57 applied. In any event, a system that catered for promotion within a banding system following a nomination made on the basis of criteria set out in a lettings policy was neither contrary to the law nor irrational. Accordingly, a claim premised on an attack of that system was destined to fail.

Robert Latham (instructed by Anthony Gold) for the claimant. Donald Broatch (instructed by in-house Solicitor) for the defendant.