MA (Eritrea) v Secretary of State for the Home Department: The Case of the Draft Dodger

MA (Eritrea) v Secretary of State for the Home Department
[2004] UKIAT 00098
Immigration Appeal Tribunal
4 May 2004 

Brief Summary:
The Applicant, from Eritrea, sought asylum for failing to complete military service and escaping to the UK.  The Adjudicator held that because she had merely failed to complete military service, she would, at most be subjected to 3 years in prison, which did not violate Article 3 (right to life) of the European Convention on Human Rights.  On Appeal, the Tribunal held that the Applicant could also be considered a draft evader and, as such, could be subjected to imprisonment in unsanitary conditions and without adequate medical treatment.  The Applicant might also be subjected to torture.  Because of this possibility, the appeal was allowed under Article 3.

The Facts:
The Appellant, who was born on 12th March 1985 and is now nineteen, is a citizen of Eritrea. The Secretary of State refused her claim for asylum and gave directions for her removal on 7th August 2002.   The Appellant claimed to have left Eritrea in September 2001 when she was required, as a sixteen year old, to report for her compulsory military training. She feared that she would be made to fight, to complete her military service and claimed also to be in fear because she had left Eritrea illegally. At her appeal, she also alleged that military service was against her religious beliefs as a Muslim, a claim which the Adjudicator rejected as not credible. The Adjudicator also rejected her claim to have been persecuted on account of her father's involvement with the ELF; he had been killed when she was three.

The Adjudicator also rejected her claim that she had received her call-up papers when she was sixteen; children were not called up now that there was a peace agreement between Eritrea and Ethiopia. However, she said that the Appellant was now over eighteen and on her return to Eritrea would be required to complete her military training. 
Available reports referred to the use of torture and beatings of prisoners and to the severe mistreatment of deserters and draft evaders; this included tying and prolonged sun exposure in high temperatures. A report also referred to 220 Eritreans who had been deported from Malta in late 2002 and who were believed to have fled Eritrea to avoid military service. They were detained upon arrival and held in secret locations, incommunicado and without charge. There were reports that some had tried to escape and had been killed. The Appellant argued that she would be seen as a draft evader and could be exposed  to these conditions.  

After rejecting the claim that the Appellant was a conscientious objector or that the fact that she would have to do military service itself amounted to a Convention reason for persecution, the Adjudicator said that the Appellant would be treated as someone who had failed to complete military service, not a draft evader.  The Adjudicator believed that the Appellant would only be subjected to  a three-year prison term for failure to complete military service, which was not contrary to Article 3 of the ECHR.  The Applicant appealed.

The Holding: 
According to the Tribunal, draft evaders, particularly those returned from Malta, appeared to be held incommunicado, without charge or visits in poor conditions. Although the UN High Commissioner for Refugees Report refers to “ dwellings ” where they are detained, the conditions which are described include forced labour, beatings, torture, and a lack of medical care, food or sanitation leading to disease and in some cases death. According to the Tribunal, those conditions were quite likely to involve a breach of Article 3 and the Applicant's human rights appeal was allowed.

Villain?          
A 19-year-old draft evader who was likely to be subjected to torture?  There was no evidence of criminal activity or associations with terrorists in the UK.  Not a villain.

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.

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. 

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 of 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.

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.

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.

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.

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.

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.

 

Villain?

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

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.

 

Villain?

 

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.

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.

Villain?

 

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.

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).

Villain?

 

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.