Villains' Tally

Number of cases reviewed: 18
Number of Villains: 6

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.

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.
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.  

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.

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

Thursday, May 22, 2014

R. (on the application of Bernard) v Enfield LBC: The Case of the Unaccomdating Housing

R. (on the application of Bernard) v Enfield LBC
[2003] H.R.L.R. 4
Queen's Bench Division (Administrative Court)

Brief Summary:

The claimants sued after the Social Services Department failed for two years to provide appropriate housing to accommodate the second claimant's physical disability.  The court held that the failure to provide adequate accommodations for the second claimant, who was wheel-chair bound, was not a violation of Article 3 of the European Convention on Human Rights (inhuman and degrading treatment), but was a violation of Article 8 (right to private and family life).  The claimants were awarded damages of GBP 10,000.
The Facts:

The second claimant was severely disabled following a stroke, had very limited mobility and was dependant on an electronically operated wheelchair. She was doubly incontinent and suffered from diabetes. She was cared for by her husband, the first claimant, who also looked after their six children, aged between 3 and 20 years old.

On June 13, 2000 the defendant's Housing Department accommodated the family at a home and defendant's Social Services Department undertook a number of assessments of the claimants' needs. These assessments indicated that the property was unsuitable for the second claimant because, among other things, the second claimant was unable to use her wheelchair in the property and was confined to the lounge room. The Social Services Department recommended that suitable accommodation be provided for the second claimant. At the hearing the defendant accepted that, it the light of those assessments, it had been under a duty to make arrangements for, among other things, the provision of suitably adapted accommodation for the second claimant under s.21(1)(a) of the National Assistance Act 1948.

The recommendation of the Social Services Department was not acted on by the defendant's Housing Department. The defendant also failed to act and respond to a series of letters from the claimants' solicitors, who also sent the defendant an independent report confirming the defendant's own assessment. It was only at a hearing on March 21, 2002 that the defendant first conceded that it did owe a duty to the claimants under s.21 . Eventually, the claimants were offered and accepted appropriate accommodation into which they moved on October 14, 2002, more than two years after the September 2000 assessments.

The Holding:

First, there was no breach of the claimants' Art.3 rights (right to be free from inhuman and degrading treatment). Although deplorable, the conditions in the house did not cross the necessary threshold of severity so as to amount to a breach of Article 3.  The fact that there was no intention to humiliate or debase the claimants was an important consideration. Instead, the claimants' suffering was due to a failure to act, namely the defendant's corporate neglect, and not to a positive decision by the defendant that the claimants should be subjected to such conditions.

On the other hand, there was a breach of Article 8 (right to private family life).  The court first noted that the European Court of Human Rights has recognised that Art.8 may require public authorities to take positive measures to secure respect for private or family life.  However, not every breach of duty under s.21 of the National Assistance Act 1948 would result in a breach of Art.8: the state was not required to provide every one of its citizens with a house. Instead, whether Art.8 rights were infringed would depend on all the circumstances of the case.

According to the court, following the assessments in September 2000, it was clear that the provision of suitable accommodation was necessary not merely to facilitate the normal incidents of family life, but to secure the physical and psychological integrity of the second claimant. The defendant's failure to act on those assessments was incompatible with Art.8 as it condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life.

Finally, the claimants were entitled to damages because the defendant had committed a serious breach of the claimants' rights under Art.8. They and their family had had to live in deplorable conditions, wholly inimical to any normal family life, and to the physical and psychological integrity of the second claimant for a considerable period of time. Further, the defendant had repeatedly ignored requests by the claimants' solicitors for it to take action, not acknowledged that it was in error or provided any explanation or apology, and done nothing to indicate that its procedures had been improved so as to avoid the same kind of mistake in the future.

To determine damages, the court looked at the awards recommended by the Local Government Ombudsman for various failures by public bodies in the field of social services.  The appropriate figure was £10,000, with £8,000 apportioned to the second claimant and £2,000 to the first claimant.

A disabled woman, her husband, and children seeking housing that accommodates the woman's disability?  An easy case of non-villains.

Sunday, May 11, 2014

Mills (Kenneth Anthony) v HM Advocate (No.2): The Case of the Appeal Hearing Delay

Mills (Kenneth Anthony) v HM Advocate (No.2)
2001 S.L.T. 1359
High Court of Justiciary (Appeal)
Brief Summary:

The appellant was convicted of theft and assault on October 17, 1996 following a trial in the High Court of Justiciary, and sentenced on November 7, 1996, to a total of eight years and six months' imprisonment. After an unsuccessful appeal on other grounds, which the court dismissed on August 10, 2001, the appellant lodged a new ground of appeal that certain delays in the hearing of the appeal had breached his right to a trial within a reasonable time. The court held that the appellant's right to a trial within a reasonable time had been breached, and reduced his sentence by nine months.
The Facts:
The appellant was convicted of assault inter alia by driving at a police officer and causing him to be thrown from the car, to his injury and danger of life, raised as a devolution issue that his rights under Article 6 of the European Convention on Human Rights had been breached in relation to the subsequent appeal proceedings on the grounds that the proceedings had not been completed within a reasonable time. The accused initially appealed against sentence of eight and a half years' detention in December 1996. In 1997 the appeal was continued to allow fresh evidence to be investigated. In January 1999 the court allowed the new evidence to be heard, and a hearing was fixed for 6 May 1999 when the Crown was granted a continuation. The appellant was then released on bail. Transcripts of the evidence at trial were received at the Justiciary Office in August 1999, and of the speeches in December, but no further hearing took place until 9 May 2001 when the fresh evidence was heard. The following day the appeal was refused. It was on this delay, for which no reason was given, that the appellant challenged.

The Holding:

There was an unexplained delay of over a year between the time the court allowed the appellant's new evidence to be heard and the hearing to decide whether the appellant's appeal would be allowed.  The court held that , given the circumstances of the case, including the time which had already passed, was unreasonable.  The court noted that in considering whether proceedings have been completed within a reasonable time, regard has to be had to the whole period of the proceedings, including any period required for the hearing of an appeal. It is also well established that in considering whether there has been unreasonable delay, any period of unexplained delay may be particularly significant. 
An issue arose that, when the appellant appealed. the Lord Advocate was no longer in charge of the case because the appellant had already been convicted.  However, the Crown was still in charge of the case, as evidenced by the fact that it had obtained a discharge of a hearing for further preparation but had failed to intimate when its preparations were complete or to monitor the appeal's progress.  Accordingly, the appellant's Article 6 right to a trial without unnecessary delay had been violated.  However, the appellant's conviction was not quashed as per his request. Instead, his sentence was reduced by nine months, leaving the appellant six months to serve before becoming entitled to parole.
The appellant was convicted of driving a car at a police officer and then tried to have his conviction quashed because of the delay in hearing his appeal, which was substantively rejected.  Villain.

Wednesday, April 30, 2014

R. (on the application of Noorkoiv) v Secretary of State for the Home Department (No.2) - The Case of the Parole Delay

R. (on the application of Noorkoiv) v Secretary of State for the Home Department (No.2)
[2002] H.R.L.R. 36
Court of Appeal (Civil Division)
Brief Summary:

The appellant is a repeat offender who was given an automatic life sentence, consisting of a mandatory term in prison ("a tarriff"), after which the he was eligible for parole.  The parole board intentionally scheduled his first parole hearing for two months after his tariff expired.  The court held that this unnecessary delay violated the appellant's rights under Article 5 of the European Convention on Human Rights (ECHR).  The parole board was required to consider these cases before the expiry of the prisoner’s tariff rather than waiting until the tariff period had expired. 
The Facts:

The appellant was convicted of two offences in 1998 and given an automatic life sentence pursuant to section 2 of the Crime (Sentences) Act 1997.   His tariff period, the mandatory part of his sentence, was fixed by the court at 30 months and expired on April 21, 2001. His first hearing before the Parole Board to determine whether he should continue to be detained under sections 28(5) and 28(6) of the Crime (Sentences) Act 1997 was scheduled to take place over the period of June 20 to 21, 2001. The appellant issued proceedings in March 2001 seeking to have the hearing date brought forward. The appellant alleged that the delay of two months before the Parole Board determined the lawfulness of his detention was in breach of Articles 5(1) and 5(4) of the ECHR .

The Holding:

The Court held that the period of detention between the expiry of the appellant's tariff period and the decision of the Parole Board was compatible with Article 5(1) because there was a sufficient causal connection between the conviction and the deprivation of liberty.  However, given the imperative need to release from prison any post-tariff prisoner who no longer remained a danger, any system tending to delay such release required the most compelling justification.  The government's argument that the delay was caused by a lack of resources was not a valid excuse under Article 5(4) ("Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.").  Finally, the delay in the appellant's case violated his rights under Article 5(4) because the delay was automatic without any consideration of the unique features of the appellant's case and the appellant was subjected to the full penal regime (i.e., not treated as a remand prisoner) while he waited.
Although a repeat offender, the appellant did not appear to be a violent criminal and was only requesting a parole hearing before his mandatory sentence expired.  Not a villain.