Villains' Tally

Number of cases reviewed: 22
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.

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

Sunday, June 8, 2014

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

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

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

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

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


The Holding:

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

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

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

Monday, June 2, 2014

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

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

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

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

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

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


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

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

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