Villains' Tally

Number of cases reviewed: 21
Number of Villains: 6

Wednesday, August 20, 2014

Andrews v. Reading BC: The Case of the Noisy Road

Andrews v. Reading BC
[2004] EWHC 970 (Admin)
Queen's Bench Division (Administrative Court)
29 April 2004
 
NOTE: An Excellent Summary of this case can be found at: http://www.1cor.com/1315/?form_1155.replyids=362
 
Brief Summary:
The claimant sued his local authority under Article 8 of the European Convention on Human Rights because his local authority had changed the nearby highways so that the claimant was subjected to excess traffic noise outside of his house.  Under current regulations, he could receive no recompense.  The claimant sought £4,200 to compensate him for his noise mitigation efforts and was awarded £2000 by the court for the inconvenience he suffered and because the defendant local council had failed to take any steps to mitigate the noise damage when it altered the highways.
 
The Facts:

The claimant had spent £4,200 insulating his home in order to mitigate excessive traffic noise created by a traffic regulation order made by the local Council. If the Regulations applied, there would have been a discretion to make a grant for noise insulation provided that the increase caused by the relevant highway alteration made an effective contribution to the existing noise level of at least 1dB(A) and that that level was at least 68dB(A) averaged over a period between 6am and midnight on a normal working day. A, who was a retired engineer, had carried out measurements which he contended to demonstrate an average increase of 3.17dB(A) over the 6am to midnight period and that the relevant level was 71.78dB(A). A's figures showed that even at night between 9pm and 10pm the levels reached 69dB(A). Although A was interested only in obtaining the £4,200 he had to pay for noise  insulation, for the Reading local authority there was the prospect that the cost of traffic regulation orders would escalate if the claim was successful. 

The claimant was not entitled to a grant under the Noise Insulation Regulations 1975 and he was unsuccessful in his proceedings for damages to defray his expenses before the county court judge. Before the Divisional Court, the claimant maintained his argument that the traffic regulation order interfered with his rights under the  Article 8(1) of the Convention (right to a private life) and that the absence of any possibility of compensation made that interference disproportionate. The Reading local authority argued that it was clear that the traffic order was justified because that the order's benefits outweighed the adverse impact on the claimant; and that the Regulations showed that Parliament had considered the scope of grant schemes in relation to road traffic noise and had not extended it to the sort of order with which claimant's claim was concerned.


The Holding:
 
The claimant was successful because the noise interfered with the claimant's Article 8 rights.  Moreover, the defendant had failed to take or to consider taking any steps to mitigate the extra noise created by the scheme; it also refused to pay any compensation for the interference, nor did it consider doing so. Hence there was no justification for this interference. The appropriate level of damages was £2,000. This represented (a) the sum which it would have been reasonable for the defendant to offer in the light of the claimant's complaints plus (b) a sum to reflect the unreasonable way in which claimant's requests were responded to.
 
Villain? 
 
The claimant just wanted recompense for the noise insulation he had to pay for when the Council created a busier road outside his house.  Not a villain.

Tuesday, August 12, 2014

Marlon Miller v. Director of Public Prosecutions: The Case of the Speedy Driver and the Slow Warrant

Marlon Miller v. Director of Public Prosecutions
[2004] EWHC 595 (Admin)
High Court of Justice Queens Bench Division Administrative Court
25 March 2004
 
Brief Summary:
The applicant was given three speeding tickets in February 1999 and a warrant was issued for him to attend a hearing to potentially have his license revoked.  The warrant was not executed for two years and the applicant argued that the delay violated his right to a speedy trial under Article 6 of the European Convention on Human Rights.  The High Court agreed and reduced his license disqualification period from 12 to 5 months.
 
The Facts:


The applicant was given three speeding tickets in February 1999.  The applicant pled guilty to these offenses by post and did not attend the initial hearing on 6 May 1999.  The justices issued a warrant for the applicant to force him to attend the next hearing since they were considering taking away his driving license.  It was illegal for the court to issue this warrant, however, since the court did not first give written notice to the applicant.  The warrant was not executed for two years due to police error, which meant that the applicant was first telephoned by the police in May 2001 and informed there was a warrant for his arrest.  At the 14 May 2001 hearing, the applicant complained of the delay and the case was adjourned and delayed several times for several different reasons until 2 August 2001.

The appellant contended that the delay in the disposal of the case was an infringement of Article 6 and that in those circumstances he should be permitted to change his plea to not guilty and to have the case against him dismissed for breach of the Convention right as to a trial within a reasonable time. The justices rejected those arguments, holding that whilst the delay was excessive for a case of this type it did not warrant either a finding of abuse of process or dismissal of the charges on the grounds of an infringement of Article 6.

On 6 September the justices dealt with all outstanding matters. As to sentence, they fined the appellant £150 in respect of each offence. His licence was endorsed with 4 penalty points in respect of each offence. It was already subject to two endorsements for speeding offences in July 2000. The total number of penalty points was such that the justices disqualified him for 12 months under the totting up provisions of s.35 of the Road Traffic Offenders Act 1988.

The applicant completed six months of his suspension until the suspension was suspended by the appeals court.  The case eventually made it to the High Court.



The Holding:
 
The appellant's case in brief is that there was a breach of Article 6 since, in relation to issues as simple as those raised by the three informations against the appellant, a delay of over 2 years in the determination of the case against him was unreasonable. No complaint is made about the delay from the laying of the information to the return date on the summonses. It is said that a reasonable period from then until the sentencing hearing would have been about 1 month. The whole of the additional time that the claimant had to wait until sentencing was unreasonable delay. That includes the period of almost 2 years until the matter came back before the court in May 2001, none of which was the fault of the appellant. It also includes the period of over 3 months from then until the final hearing on 6 September 2001, which again was not the fault of the appellant.

The respondent conceded that there was an unreasonable delay and the High Court agreed: “a total period of over 2 years in the magistrates' court and a further year or so in time wasted over the appeal, in such a simple case with guilty pleas, was excessive and in breach of Article 6.”  As a result, the High Court reduced the disqualification to five months to ensure that the applicant faced no more days of driving disqualification.
 
Villain? 
 
Speeding tickets do not a villain make. 

Sunday, August 10, 2014

R. (On the Application of Middleton) v. HM Coroner for Western Somerset: The Case of Public Neglect

R. (On the Application of Middleton) v. HM Coroner for Western Somerset
[2004] UKHL 10
11 March 2004
House of Lords
Brief Summary:

The applicant was the mother if a prisoner who committed suicide while in prison for murder.  The applicant sought to make public the note from the jury at the inquest that said that the prison had been negligent in failing to prevent the suicide.  The House of Lords held that the current regime was in violation of Article 2 of the ECHR and that the Coroners Act 1988 and Coroners Rules should be interpreted broadly to allow the coroner to report on all material issues that led to the victim's death, including prison neglect.
The Facts:

The applicant's son committed suicide in January 1999 whilst in prison for murder. He had been in custody since his conviction at the age of 14 for the murder of his 18-month-old niece, and was aged 30 when he died. He had a history of self-harm and was receiving medication for depression at the time of his death.

The verdict reached at a first coroner's inquest was quashed for want of sufficient enquiry and a second inquest was held in October 2002. At the end of the evidence the coroner ruled that the issue of “neglect” should not be left to the jury. However, he told the jury that, if they wished, they could give him a note regarding any specific areas of evidence, which he would consider in relation to his power under r.43 of the Coroners Rules 1984 (power to report to the relevant authority in order to prevent recurrence of similar fatalities). The jury returned a verdict that the deceased had taken his own life when the balance of his mind was disturbed, and stated in a note to the coroner that the Prison Service had failed in its duty of care for the deceased. The coroner declined the family's request to append the jury's note to the inquisition, but wrote to the Chief Inspector of Prisons drawing attention to the contents of the note.

In her application for judicial review, the applicant sought an order that the findings set out in the jury's note be publicly recorded, so that there should be a formal public determination of the Prison Service's responsibility for her son's death. The Judge declined the order on the basis that the coroner had acted unlawfully in suggesting production of the note, but declared that, due to the unavailability of a verdict of neglect, the inquest was inadequate to meet the procedural obligation in Art.2 ECHR. On appeal by the Secretary of  State, the Court of Appeal declared that where a coroner knew that an inquest was the way in which the state's Art.2 obligation was to be fulfilled, and a finding of neglect could reduce the risk of repetition of the circumstances leading to the death in question, it was necessary to construe r.42 of the Coroners Rules 1984 as allowing a finding of neglect, providing no individual was named therein. The Secretary of State appealed to their Lordships' House, seeking to have the Court of Appeal's declaration set aside.


The Holding:
According to the Law Lords, the European Court of Human Rights had interpreted Art.2 of the ECHR as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which would, to the greatest extent reasonably practicable, protect life. It had also interpreted Art.2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appeared that one or other of the foregoing substantive obligations had been, or may have been, violated and it appeared that agents of the state were, or may have been, in some way implicated.
Further, in order to meet the procedural requirement of Art.2 an inquest ought ordinarily to culminate in an expression, however, brief, of the jury's conclusion on the disputed factual issues at the heart of the case. This requirement applied, not only to cases involving the use of lethal force by agents of the state, but also to a broader category of cases such as cases of negligence. The Law Lords noted that a verdict of an inquest jury which did not express the jury's conclusion on a major issue canvassed in the evidence at the inquest (such as whether the prison had been negligent) could not satisfy or meet the expectations of the deceased's family or next-of-kin. Secondly, it would not promote the objects of the ECHR if domestic law were to distinguish between cases where an agent of the state may have used lethal force without justification and cases in which a defective system operated by the state may have failed to afford adequate protection to human life.
Accordingly, the current regime did not meet the requirements of Art. 2 in some cases, such as the present case.  The current regime could be revised so as to meet these requirements by interpreting “how” in s.11(5)(b)(ii) of the Coroners Act 1988 and r.36(1)(b) of the Coroners Rules 1984  as meaning not simply “by what means” but “by what means and in what circumstances.” In cases where this called for a change of approach it was for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury's conclusion on the central issue or issues and his decision should not be disturbed by the courts unless strong grounds were shown.
Villain? 
The victim was a convicted murderer but his mother was merely trying to publicize the neglect in the prison system that led to his suicide.  A harder case than Sacker but still, not a villain.

Tuesday, June 24, 2014

R. (on the application of Sacker) v HM Coroner for West Yorkshire: The Case of the Incomplete Inquest

R. (on the application of Sacker) v HM Coroner for West Yorkshire
[2004] H.R.L.R. 30
House of Lords
11 March 2004
 
Brief Summary:

This case concerns Coroners Rules 1984 r.36(1)(b) and whether there is right to life-positive obligation on the State to take effective operational measures to safeguard life.  In an inquest following the suicide of prisoner where the correct prison procedures were not followed, the House of Lords held that the coroner's refusal to allow jury to add rider to verdict stating “contributed to by neglect” was incompatible with Art.2 of the European Convention on Human Rights (Right to Life).  Under Article 3 of the Human Rights Act, the House of Lords held that the Coroners Rules requirement that the inquest determine "how" the prisoner died should include  “in what circumstances” as well as “by what means.”
 
The Facts:

The respondent's daughter (“C”) had committed suicide while in prison. C had been charged with an offence of dishonesty and remanded in custody, where she had been placed on an opiate withdrawal programme. At a subsequent court hearing, upon being refused bail, C had reacted aggressively. In view of her distressed state, a “self-harm at risk” form had been opened by the court custody officer. On the following day, the Governor, who had not been made aware of the “self-harm at risk” form, found C guilty of a disciplinary offence related to her conduct at court and ordered a penalty that included loss of association. The locum medical officer who examined C concluded that she was not suicidal. He was not familiar with the procedure associated with the form, referred C back from the prison health centre to the residential wing, and did not complete the “discharge report” panel of the form. C hanged herself from a ligature in her cell.

A prison service report on C's death contained numerous criticisms of the systems that were in operation on the night of C's death. At the inquest, the appellant coroner, following the Court of Appeal's guidance in R. v Coroner for North Humberside and Scunthorpe, Ex p. Jamieson [1995] Q.B. 1 , refused to give the jury the opportunity to include in their verdict a finding that the death had been “contributed to by neglect”. Section 11(5)(b)(ii) of the Coroners Act 1988 and r.36(1)(b) of the Coroners Rules 1984 provided that an inquisition should set out how the deceased came to her death, which in Ex p. Jamieson had been held to mean “by what means” and not “in what circumstances”. The respondent sought judicial review of the coroner's refusal. The Court of Appeal quashed the inquisition and ordered a new inquest. The coroner appealed to the House of Lords.


The Holding:

The House of Lords upheld the order for a new inquest.  According to the court, the public investigation of deaths in prison had long been a requirement under domestic law, but that requirement had been given added importance by the HRA. Article 2 of the European Convention on Human Rights required that deaths in custody be investigated, and a coroner's inquest was the usual means by which that obligation was complied with in the United Kingdom. Further, the purpose of the investigation was to open up the circumstances of the death to public scrutiny. According to the court, a rigorous examination in public of the operation at every level of the systems and procedures which had been designed to prevent self-harm and to save lives was required.

The key issue was the word “how” in s.11(5)(b)(ii) of the Coroners Act 1988 and r.36(1)(b) of the Coroners Rules 1984, and whether this word could be interpreted to mean not simply “by what means” but rather “by what means and in what circumstances”.   Section 3 HRA 1998 required that the word be given the broader meaning.  Because the original inquest had limited the investigation to "by what means" the prisoner died, it had not been permitted to identify the cause or causes of C's suicide, the steps that could have been taken but were not taken to prevent it, and the precautions that ought in future to be taken to avoid or reduce the risk to other prisoners. Consequently, the inquest had been deprived of its ability to address the positive obligation that Art.2 placed on the State to take effective operational measures to safeguard life.

 
Villain? 
 
The claimant is the mother of a woman who committed suicide while in prison for a minor drug offense.  The prisoner is arguably not a villain and her mother is definitely not a villain.

Sunday, June 8, 2014

R. (on the application of Sim) v Parole Board: The Case of the Parole Presumption

R. (on the application of Sim) v Parole Board
[2004] H.R.L.R. 15
Court of Appeal (Civil Division)
December 19, 2003
 
Brief Summary:

The principal issue raised by this appeal is how Art.5 of the European Convention on Human Rights affects the detention of an offender who has been recalled to prison while on licence (parole) under an extended sentence passed under s.85 of the Powers of Criminal Courts (Sentencing) Act 2000 (“PCCA”). Article 5 embodies the right to liberty and security of person. Section 85 of the PCCA enables a court to impose in cases of a sexual or violent offence a sentence which consists of a custodial term and an “extension period” during which the offender will be on licence beyond the normal licence period.  When determining whether to revoke the offender's license, the Parole Board used the same standard as it uses when determining whether to release someone on license, with the presumption in cases of doubt being in favor of detention.  The court found that presumption violated Article 5 and held that, when the offender has already been on parole, the presumption should be in favor of continued release in cases of doubt.
 
The Facts:

A man was convicted of a sexual offence and sentenced to two and a half years in prison with an extension period of five years, pursuant to s.58 of the Criminal Justice Act 1991 . Following his release after the expiry of half his prison sentence, he was recalled to prison on account of having breached the conditions of his licence (parole) by not returning to his residence on time, arriving to his residence under the influence of alcohol, and being arrested by the police with regard to an alleged indecent exposure to teenage girls.

He had his recall referred to the Parole Board, who refused to direct his release. He applied for judicial review of that refusal, but his application was dismissed. In the course of dismissing the application, Elias J. held that Art.5 of the European Convention on Human Rights (right to liberty) applied to the decision to recall a person to prison during an extended licence period.  Elias, J also held that the detention had to be consistent with the aims of the original sentence and subject to regular reviews compliant with Art.5(4).  Finally, Elias, J held that s.44A(4) of the Criminal Justice Act 1991 had to be interpreted as meaning that the Parole Board were obliged to conclude that it was no longer necessary to detain the person unless positively satisfied that the interests of the public required his confinement. The Secretary of State, who was party to the judicial review proceedings, appealed against these declarations.


The Holding:

Article 5 of the European Convention on Human Rights applied to the Parole Board's decision whether to direct the release of a person recalled during an extended licence period. The essential feature of the person's situation during that time was that no court had ordered his detention during that period. The court had merely authorised the executive to determine that the person should be recalled. This was not the same as the situation where a person had been released on licence prior to the expiry of the period for which the court had ordered him to be actually detained.

In situations where the parole board was determining whether to release someone on parole, the standard under Section 44A(4) of the 1991 Act provided that, “the [Parole] Board shall direct the prisoner's release if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise)”. Applying traditional rules of interpretation, this meant that the Parole Board had to ask itself whether it was satisfied that confinement of the prisoner was no longer necessary to protect the public. In case of any doubt, the Board had to decline to direct release. However, when the person was already on parole, it was a violate of Article 5 for the Board to use the same standard, with the presumption leaning towards detention.  Instead, for prisoners already on license or parole, the Parole Board should interpret s.44A(4) of the 1991 Act so that there was a default position in favour of release in cases of doubt.

Section 3 of the Human Rights Act 1998 enabled the section to be interpreted as requiring the Board to be positively satisfied that continued detention was necessary in the public interest if it was to avoid concluding that it was no longer necessary.
 
Villain? 
 
A repeated sex offender trying to remain on parole.  Villain.

Monday, June 2, 2014

R. (on the application of Amin (Imtiaz)) v Secretary of State for the Home Department: The Case of the Missing Investigation

R. (on the application of Amin (Imtiaz)) v Secretary of State for the Home Department
[2004] H.R.L.R. 3
House of Lords
16 October 2003
 
Brief Summary:

The claimant's nephew was killed by his cellmate while in a young offender institution. The Prison Service admitted fault and began an inquiry.  The police also began an inquest into the death but it was stopped pending the trial of the victim's cellmate and never resumed. The victim's family asked the Secretary of State to begin an independent public inquiry but the Secretary of State refused. The House of Lords held that the Secretary of State's refusal amounted to a breach of Article 2 of the European Convention of Human Rights (right to life).
 
The Facts:

The claimant's nephew, an Asian, was severely beaten by his cellmate in a young offender institution and, subsequently, died of brain damage. The Prison Service immediately admitted full responsibility for the death. The Prison Service subsequently held a wide-ranging internal inquiry in which it made plain its desire to involve the victim's parents. In addition, the police carried out an investigation into whether the Prison Service or any of its employees should be prosecuted. An inquest into the death was opened but was adjourned pending the trial of the victim's cellmate, who was subsequently convicted of murder. The inquest was never resumed.

The Commission for Racial Equality held an investigation of its own into racism in the Prison Service. The terms of reference of that investigation made specific reference to the circumstances of the victim's death. The victim's family requested the Secretary of State to establish an independent public inquiry into the victim's death, which request was refused. In proceedings for judicial review of that decision, Hooper J. decided that the inquiries and investigations which had been conducted did not, singly or cumulatively, satisfy the duty of the United Kingdom under ECHR, Art.2 . Among the requirements imposed by ECHR Art.2 are a sufficient element of public scrutiny and that the next of kin are involved to an appropriate extent. Hooper J. therefore ruled that the Secretary of State's refusal to hold a public inquiry was in breach of ECHR Art. 2 and granted a declaration that an independent public investigation had to be held in order to satisfy the requirements imposed by ECHR Art.2 . The Secretary of State appealed.

The Court of Appeal allowed the Secretary of State's appeal, holding that the duty to investigate could not be defined by reference to fixed rules and that in the instant case the State's duty had been discharged, and set aside Hooper J.'s order that an independent public investigation be held. The appellant challenged the ruling of the Court of Appeal and sought to restore the order of Hooper J.


The Holding:
According to the House of Lords, the scope of ECHR Art.2 (right to life) goes beyond the primary purpose of enjoining the State not only to refrain from the intentional and unlawful taking of life but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This includes the minimum requirement of a mechanism whereby the circumstances of a deprivation of life by the agents of a state may receive public and independent scrutiny.  This obligation exists even if agents of the state did not actually do the killing. In addition, where the facts are largely or wholly within the knowledge of the state authorities there is an onus on the state to provide a satisfactory and convincing explanation of how the death or injury occurred.

More specifically, the ECHR has laid down minimum standards which must be met whatever form the investigation takes.  In this case, all of the investigations into the victim's death were insufficient.  There was no inquest and the police investigation raised many unanswered questions and could not discharge the state's investigative duty. Further, the Prison Service internal inquiry was conducted by an official who did not enjoy institutional or hierarchical independence, was conducted in private and did not enable the family of the victim to play any effective part in it. The CRE inquiry was necessarily confined to race-related issues and this case raised other issues also.  Accordingly, the trial judge, Hooper J. was right to order an independent investigation be held.  

Villain?
 
The claimant was a juvenile offender's uncle.  Not a villain.

Saturday, May 24, 2014

R. (on the application of Anderson) v Secretary of State for the Home Department: The Case of the Impartial Sentencer

R. (on the application of Anderson) v Secretary of State for the Home Department
[2003] H.R.L.R. 7
House of Lords
25 November 2002
 
Brief Summary:

The appellant appealed the Home Secretary's decision to increase his tariff (the amount of time served before the appellant would be eligible for parole) to five years more than recommended by the Lord Chief Justice.  The appellant argued that allowing the Home Secretary, a member of the executive and not the judiciary, to determine his tariff violated Article 6 of the European Convention on Human Rights.  The House of Lords held that the Home Secretary was not impartial and, therefore, Article 6 was violated.  They issued a Declaration of Incompatibility.
 
The Facts:

The appellant was convicted in 1988 of two unrelated murders. In accordance with s.1(1) of the Murder (Abolition of Death Penalty) Act 1965, the trial judge imposed a mandatory sentence of life imprisonment. The trial judge and the Lord Chief Justice recommended a tariff (the amount of time served before the appellant would be eligible for parole) of 15 years to be served by the appellant. Pursuant to his powers under s.29 of the Crime (Sentences) Act 1997, the Home Secretary rejected the judicial advice and fixed the tariff at 20 years. The appellant sought judicial review of the decision of the Home Secretary to increase the judicially recommended tariff and argued that the Home Secretary's role in fixing the tariff was incompatible with Art.6 (right to a fair trial) of the ECHR.

The Holding:

The court first noted that the determination of any criminal charge against a person included the fixing of the term of imprisonment which he would serve after he has been convicted of the charge.  In fixing a convicted murderer's tariff, the Home Secretary, having taken advice from the trial judge, Lord Chief Justice and departmental officials, assessed the term of imprisonment which the convicted murderer should serve as punishment for his crime or crimes. According to the court, the fixing of the tariff of a convicted murderer was legally indistinguishable from the imposition of sentence and, to ensure compatibility with Art.6, should be fixed by an independent and impartial tribunal.

 However, the Home Secretary was not independent of the executive and was not a tribunal. Article 6(1) requires effective separation between the courts and the executive and requires that judicial functions, such as sentencing, may only be discharged by the courts. Therefore it was incompatible with Art.6 for the Home Secretary to fix the tariff of a convicted murderer.

As a result, the court decided that the appropriate course pursuant to s.4 of the Human Rights Act 1998 was to declare s.29 incompatible with the right under Art.6 to have a sentence imposed by an independent and impartial tribunal in that the Home Secretary was acting so as to give effect to s.29 when he himself decided on the minimum period which must be served by a mandatory life sentence prisoner before he was considered for relief on life licence.
 
Villain?





The appellant was convicted of two murders.  Hard to see how he is not a villain.