Villains' Tally

Number of cases reviewed: 11
Number of Villains: 3

Saturday, April 19, 2014

International Transport Roth GmbH v Secretary of State for the Home Department: The Case of the Penalized Transporters

International Transport Roth GmbH v Secretary of State for the Home Department
[2002] H.R.L.R. 31
Court of Appeal (Civil Division)
22 February 2002

Brief Summary:

The respondents were four groups of lorry drivers and haulage companies. They sought judicial review of the penalty scheme enacted under Part II of the Immigration and Asylum Act 1999. Under the scheme owners, hirers, drivers or operators of vehicles were subject to a fixed penalty of £2,000 if they intentionally or negligently allowed a person to gain illicit entry into the United Kingdom by concealing him or herself in a vehicle of theirs. Furthermore, the scheme gave a senior immigration officer the power to detain a vehicle if he considered that there was a serious risk that the penalty would not be paid and satisfactory alternative security had not been given. The carrier could escape liability if he could show that he had been acting under duress ( section 34(2) of the Act) or that he had had neither actual nor constructive knowledge of the presence of the clandestine entrant, that an effective system for preventing the carriage of clandestine entrants had been in place and that that system had been operating properly at the relevant time ( section 34(3) of the Act).  

The court held that the statute should be regarded as criminal for Article 6 purposes because it was targeted at those seen as culpable and it imposed a high fixed penalty without the possibility of mitigation. Further, the statute was incompatible with Article 6 because the strict liability nature of the penalties meant that the penalty was not determined by an independent tribunal. Moreover, the statute also imposed an excessive burden on the carriers in breach of Protocol 1 Article 1.  The court therefore issued a declaration of incompatibility under section 4 of the Human Rights Act.
The Facts:

Part II of the Immigration and Asylum Act, 1999 was passed and a new penalty regime created to deter those intentionally or negligently allowing clandestine entrants into the U.K.
Under the statute, a clandestine entrant is someone who arrives illicitly in the United Kingdom by means of concealment in a vehicle, and those responsible, generally the owner, hirer or driver, are liable for each such entrant to a fixed penalty of £2,000 unless they can establish: (i) that they were acting under duress; or (ii)  (a) that they had neither actual nor constructive knowledge of the clandestine entrant; and (b) that there was an effective system for preventing the carriage of clandestine entrants, which (c) was operated properly on the occasion in question.

Moreover, once the Secretary of State has issued a penalty notice a senior immigration officer may detain the vehicle if he considers there is a serious risk that the penalty will not be paid and no satisfactory alternative security has been given. In that event the owner or driver may apply to the court which has power to release the transporter if: (a) satisfactory security has been tendered; (b) there is no real risk of the penalty not being paid; or (c) there is a real doubt as to whether the penalty is payable and the applicant has a compelling need to have the transporter released.

Respondents, who were four groups of lorry drivers and haulage companies (about 50 total), challenged the lawfulness of the scheme and the Home Secretary's decisions that they are liable for penalties under it.  These respondents had all had penalty notices and some of their vehicles had been impounded.  In these cases, the clandestine entrants were detected sometimes by immigration officers, sometimes by members of the public, and sometimes by the drivers themselves who then co-operated with the police in apprehending the culprits. In three of the cases before us, where the drivers only discovered that clandestine entrants were on board when already travelling up the motorway to London, they would never have been penalised had they not themselves alerted the police.

The Holding:

The court held that the statute's penalty scheme was criminal and not civil in nature because
it was focused on deterrence of dishonesty and carelessness.  Although the scheme also placed the burden of proof on the carriers to prove they were not dishonest or negligent, the reversed burden of proof was only to be taken into consideration under Article 6 - it was not an automatic violation of Article 6.  In fact, this reversed burden of proof when combined with the inflexible and substantial financial penalties required by the scheme, made the scheme unfair and in violation of Article 6.
More specifically, the court found that the penalty, which it was impossible to mitigate, far exceeded what any individual ought reasonably to be required to sacrifice in the interests of achieving improved immigration control.  Consequently, the scheme deprived respondents of the right to have their penalty determined by an independent tribunal.  The scheme's penalties also violated Protocol 1, Article 1 (right to one's possessions).

The inflexibility of the scheme meant that it penalized even those who unintentionally transported illegal immigrants into the UK.  Even the most strident believers in strict border control would find that unfair.  No villains here.

Friday, April 11, 2014

Dyer v Watson: The Case of the Delayed Trials

Dyer v Watson
[2002] H.R.L.R. 21
Privy Council (Scotland)
29 January 2002

Brief Summary:

This case involves two unrelated appeals where the defendants argued that the to much time had elapsed between the date they were charged with a crime and the date of their trial.  None of the defendants were in custody during this time so the only issue was the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).  The Privy Council found that the amount of elapsed time (20 months) was reasonable in one case (two police officers accused of perjury) and the amount of elapsed time (27 months) was unreasonable in the other (13-year-old boy accused of sexually abusing other, related children). In the second case, the Privy Council dismissed the boy's appeal and allowed his prosecution to be discontinued.
The Facts:

Appellants Watson and Burrows:  On April 22, 1998, two police officers were accused of perjury in open court by the sheriff.  The two officers were charged with perjury in January 1999 with a projected trial trial date of August or September 2000, 20 months later.  The officers argued that, due to the publicity and their status as police officers, their trial should have been expedited.

Appellant JK: On October 31, 1998, JK, a 13-year-old boy was charged with rape, sodomy and other serious indecency charges against his cousins, aged between eight and three.  An indictment was not served upon JK until January 29, 2001, 27 months later.  JK argued that any criminal case against a child shall from the outset be handled expeditiously, without any unnecessary delay.
The Holding:

Because none of the appellants were in custody while awaiting trial, only ECHR Article 6 (right to a fair trial) was implicated.  Part of Article 6 states that defendants are entitled to a hearing "within a reasonable time," which is right independent of the other rights in Article 6 so that satisfaction of the other rights has no bearing on whether the right to a hearing "within a reasonable time" was satisfied. According to the Privy Council, the object of the reasonable time requirement is to ensure that everyone against whom criminal proceedings were brought was guaranteed a final decision within a reasonable time and to prevent a person being left too long in a state of uncertainty about their fate - there is no requirement that the defendant show they were actually "prejudiced" by the delay.  

Moreover, the word "reasonable" means that each case should be decided with regard to its own facts and circumstances.  Once that inquiry has been made, it is up to the state to justify any lapse of time which appeared to be excessive.  Finally, the Privy Council recognized three areas as calling for particular inquiry: (1) the complexity of the case, (2) the conduct of the defendant, and (3) the manner in which the case had been dealt with by the administrative and judicial authorities.

Watson and Burrows: The case was described as simple but involving a serious accusation against police officers.  The Privy Council found that the state had provided sufficient explanation for the prosecutorial delay and there was no Article 6 violation.

JK: The Privy Council found there were large periods of inactivity in the proceedings that the state had not adequately explained.  Further, due to JK's age, these delays were potentially prejudicial and psychologically harmful to JK and his alleged victims.  Accordingly, the Privy Council held that the prosecution against JK should not proceed.

Another difficult case. Watson and Burrows did not succeed in their appeal so only JK should be considered.  JK was accused of sexual abuse of other, younger children in his family but the case never went to trial so it is unclear whether he actually committed those offenses.  The presumption of innocence leaves me with the conclusion that JK is not a villain.

Sunday, April 6, 2014

Millar (David Cameron) v Dickson: The Case of the Impartial Sheriffs

Millar (David Cameron) v Dickson
[2001] H.R.L.R. 59
Privy Council (Scotland)
24 July 2001

Brief Summary:

The four appellants were sentenced for criminal offences by temporary sheriffs between May 20, 1999, and November 11, 1999.  A prior case, Starrs v. Ruxton 2000 J.C. 208, held that the temporary sheriffs were not impartial tribunals under Article 6 of the European Convention on Human Rights (ECHR) and the appellants in this case therefore appealed their convictions.  The High Court of Justiciary, which dismissed the appeals, held that the appellants had tacitly waived their right to a trial before an independent and impartial tribunal by failing to object to the qualification of the respective temporary sheriffs.  The Privy Council allowed the appeals, stating that there was no waiver because the outcome in Starrs was by no means obvious and the appellants in the instant case were entitled to an impartial tribunal under Article 6 just as the appellants in Starrs were.
The Facts:
The four appellants were the subjects of criminal proceedings before a temporary sheriff in Scotland between May 20, 1999, and November 11, 1999.  The appellants had been convicted of drug offences, assault, driving offences, or offensive weapons and assault offences and were sentenced to a term of imprisonment.

On May 20, 1999 the Human Rights Act came into force in Scotland (before it came into force in England) through section 44(1)(c) of the Scotland Act 1998, which meant that the Lord Advocate no longer had the power to do any act that was incompatible with any of the rights contained in the European Convention on Human Rights.  On November 11, 1999 judgment was given in  Starrs v. Ruxton 2000 J.C. 208, in which it was held that owing to their lack of security of tenure, temporary sheriffs were not an “independent and impartial tribunal” for the purposes of Article 6(1) of the ECHR. Relying on Starrs, the appellants appealed against their convictions and sentences to the High Court of Justiciary, which dismissed the appeals, holding that the appellants had tacitly waived their right to a trial before an independent and impartial tribunal by failing to object to the qualification of the respective temporary sheriffs. The appellants appealed. Opposing the appeals, the Solicitor-General argued that the decision in Starrs should be distinguished because the challenge to the position of the temporary sheriff in that case had been made at an early stage in the proceedings, thereby preventing the court from determining the crucial issue, namely the overall fairness of the proceedings. In the instant cases, it was submitted, the trials of the appellants had been fair in every respect. 

The Holding:

The Privy Council allowed the appeals because while there was nothing to suggest that the outcome of the appellants' cases would have been different had the relevant stages of the prosecutions been conducted before permanent instead of temporary sheriffs, the outcome of Starrs may not have been different if the challenge had come after the trial had concluded.   In short, the appellants had not explicitly and voluntarily waived their challenge to the partiality of the tribunal under Article 6 and no tacit waiver would be allowed. Moreover, even though the ECHR had been incorporated into Scottish law by the time of the appellants' trials, they could not be expected to assume that the temporary sheriffs were not impartial tribunals nor could they be expected to predict the holding of Starrs, which was announced after the appellants' convictions.  Accordingly, appellants had not waived their rights to an impartial tribunal and their Article 6 rights had been violated.

The appellants are all convicted criminals and most were convicted of violent or drug-related crimes.  Despite the impartial tribunal, the court did not find that there was any reason to doubt the convictions in the instant case.  Villains, then.

Thursday, April 3, 2014

Preiss v General Dental Council: The Case of the Disappointing Dentist

Preiss v General Dental Council
[2001] H.R.L.R. 56
Privy Council (United Kingdom)
17 July 2001

Brief Summary:

Mr Preiss had been found guilty of professional misconduct by the Professional Conduct Committee of the General Dental Council (“PCC”) and his registration had been suspended for a period of 12 months as a consequence. He contended that the procedure was in breach of Article 6(1) of the ECHR because the Committee lacked the necessary independence and impartiality. He also alleged that the General Dental Council's procedural rules had also been breached as he had not been given a chance to put forward submissions on the issue of mitigation.
The Facts:
Mr. Preiss was suspended from the practice of dentistry for one year as the result of his poor treatment of one patient.  The patient was missing several back teeth and wanted them replaced but refused to have dentures.  Mr. Preiss began an ambitious plan to attempt to replace her back teeth with crown and bridge work but the plan required the patient to see a hygienist every three months, which the patient failed to do.  Eventually, all of the patient's teeth had to be removed and she now wears full dentures.  Mr. Preiss admitted his fault in enforcing the hygienist appointments and stated that he had been too concerned with not providing the patient with dentures, as she requested.

The Holding:
The Privy Council held that the decision of a professional tribunal affecting the right to practice the profession is a determination of civil rights and obligations for the purpose of the ECHR.  The Privy Council also held that because the President of the General Dental Council acted both as Preliminary Screener and as chairman of the Professional Conduct Committee of the General Dental Council ("PCC") (and there were several other General Dental Council members in the PCC) even thoughn the proceedings against Mr. Preiss were brought by the General Dental Council, the disciplinary proceedings had an appearance that the PCC lacked the necessary independence and impartiality under Article 6 of the European Convention on Human Rights.  The Privy Council also found that the PCC failed to provide Mr. Preiss with the opportunity to provide evidence to mitigate his offense.  Ultimately, the Privy Council held that Mr. Preiss should not have been suspended and should only have been admonished.  

The Privy Council also held that although the PCC hearing took place before the Human Rights Act 1998 came into operation in the United Kingdom, it applied retroactively.
Our well-meaning dentist made a (very large) mistake but even the Privy Council seemed to think that his patient was difficult and that he did not deserve his punishment.  Not a villain.

Han (t/a Murdishaw Supper Bar) v Customs and Excise Commissioners: The Case of the Taxing Evasion Investigation

Han (t/a Murdishaw Supper Bar) v Customs and Excise Commissioners 
[2001] H.R.L.R. 54 Court of Appeal (Civil Division)
(July 3, 2001)

Brief Summary:

Following investigations by the Commissioners, assessments for under-declared Value Added Tax or Gaming Duty were issued against a number of different taxpayers. The same taxpayers were also assessed for penalties under either section 60(1) of the Value Added Tax Act 1994 (VATA) or section 8(1) of the Finance Act 1994 for tax evasion involving "dishonesty". The Court of Appeals affirmed the decision of the Value Added Tax and Duties Tribunal that the imposition by the Commissioners of civil penalties for the alleged dishonest evasion of tax pursuant to VATA section 60(1) gave rise to a "criminal charge" within the meaning of Article 6(1) of the ECHR.

The Facts:

The Respondents in this case are tax-payers who were charged fees by the Customs and Excise Commission for failure to pay adequate business taxes.  They were also charged penalties under VATA section 73(1) of and additional percentage of the unpaid taxes (50 percent for Respondent Morris, 90 percent for Respondents Han, Yau and Martins).  The three tax payers all ran their own small businesses - a Chinese food takeaway (Respondents Han and Yau), a fish and chip shop (Respondents Mr. and Mrs. Martins) and an off-premises bookmaker (Respondent Morris).  All Respondents  challenged the procedure by which they were assessed their fines under European Convention on Human Rights Article 6 (right to a fair trial) - particularly access to interpreters (for Respondents Han, Yau and Martins) and other procedural safeguards.

The Holding:

To determine whether VATA section 60(1) could be considered to include a "criminal charge," the Court of Appeals used the European Court of Human Rights' three-part test: (1) the domestic classification of the"offence", (2) the nature of the "offence", and (3) the nature and degree of severity of the potential and actual penalty.  The Court of Appeals agreed with the Tribunal that although the domestic proceedings in the present case were classified as civil rather than criminal, "the penalty was intended as a punishment to deter re-offending, its purpose was both deterrent and punitive" and the penalty itself was substantial. Accordingly, the penalty was a "criminal charge" under Article 6 of the European Convention on Human Rights. 


The parties here were all accused of deliberate tax evasion but at two of them denied the charges.  In addition, all three attempted to some degree or another to work with Customs and Excise to lower their penalties.  They were also small business owners and not big, sophisticated companies.  Perhaps they were not completely innocent but I will consider them to not be villains.

Coming back...

Hello any and all readers,

I can't believe it's been over a year since my last post!  A trying pregnancy and newborn will do that to you, I guess.  I am going to do my best, though, to get back on track and start regular posts again.

Wish me luck!

Thursday, March 14, 2013

Napier v Scottish Ministers: The Case of the "Slopped-Out" Cells

Napier v Scottish Ministers
2001 WL 1346975
Court of Session (Outer House)
26 June 2001

Brief Summary:
The petitioner, a prisoner in Barlinnie prison in Scotland, brought a claim under Article 3 of the Convention (prohibition against cruel and inhuman treatment) due to the living conditions of that prison.  Namely, the prison had no running water and inadequate plumbing.  The Court of Sessions held that the conditions of the prison did violate the petitioner's rights and ordered him removed to another prison.  The fact that all the other prisoners in Barlinnie suffered the same inhuman conditions was left for another day.

The Facts:
The petitioner was detained in C Hall of Barlinnie Prison, which is the part of the prison in which remand prisoners are detained, since 18 May 2001. The petitioner complained about the living conditions in his cell,  "particularly since he requires to share the cell with another prisoner; (ii) that the sanitary arrangements, which involve the process known as “slopping out”, i.e. urination and defecation in vessels which are kept in the cell and emptied two or three times a day, are grossly inadequate; and (iii) that the extent to which he is confined in his cell is excessive, and the periods of exercise and recreation outside the cell are inadequate."  The petitioner also suffered from atopic eczema, which a doctor stated requires treatment and was likely exacerbated by his environmental conditions and the stress related to living in those conditions.

The petitioner argued that he had made out a prima facie case that the conditions of his detention in C Hall were in contravention of his rights under Article 3 of the Convention and he requested an interim order to remove him from the prison to another prison.

The Holding:
The court first noted that whether an interim order should be pronounced depended on where the balance of convenience lay.  The respondents argued that although a prima facie case was made out (and the prison conditions were terrible), that the petitioner's Article 3 rights were not violated.  The court noted that the prison conditions had been a long-standing problem that was unlikely to be solved within the next five years.

The court also rejected the respondents' argument that in order to find in the petitioner's favor, the court would have to order that every prisoner be transferred, which would tip the balance of convenience in favor of the respondents.  The court noted that only the petitioner had asserted his Article 3 rights and requested an interim order; the transfer of one prisoner to a prison with better living conditions (that comply with Article 3) was not so onerous, particularly in view of the petitioner's unique medical condition.  The prisoner was ordered to be transferred to such a prison within 72 hours.

Although the petitioner was a convicted criminal, he was only seeking a prison with better living conditions, not release.  Moreover, the prison conditions at Barlinnie, as described, seem horrible.  Moreover, the court noted, despite the fact that the government acknowledged that these living conditions should be remedied several years prior, had not taken steps to do so. Not a villain.