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.