HUMAN RIGHTS

The issue by a police force of an enhanced criminal record certificate for a man wishing to work with children, which disclosed disputed allegations that he had made sexual comments in the presence of students aged 17 to 24 when he was supervising them on a college trip, had been disproportionate. Fairness required the disclosure to have referred also to the Independent Safeguarding Authority’s decision not to place him on either of the barred lists.

[2017] EWCA Civ 1838

Magistrates’ courts did not have a discretion to extend the time to state a case after expiration of the 21 days specified in the Magistrates’ Courts Act 1980 s.111(2).

[2017] EWHC 2869 (Admin)

Given that upholding an extradition order against a mother who was the sole carer of two young children would result either in the children being removed from her custody by the local authority, or their being transferred to a Polish prison alongside her, that was a disproportionate interference with the ECHR art.8 rights of all three individuals.

There was no real risk that a requested person’s extradition to Brazil to face trial for two offences of murder would breach his rights under ECHR art.3 or art.6.

[2017] EWHC 2588 (Admin)

A requested person’s appeal against extradition to Poland was allowed on the basis of new information which had not been available at the extradition hearing. The balance required by Poland v Celinski [2015] EWHC 1274 (Admin) would have resulted in a different outcome if the new evidence had been available.

[2017] EWHC 2723 (Admin)

The prohibition on assisting suicide in the Suicide Act 1961 s.2 did not unlawfully breach the ECHR art.8 rights of a terminally ill person with a serious wasting disease who wished to commit suicide so as to be able to exercise control over the time of his death.

[2017] EWHC 2447 (Admin)

In the UK’s first extradition request from Paraguayan authorities, Paraguay’s human rights issues did not cast doubt on whether they would deliver on their assurances that two individuals that had allegedly committed money-laundering would be detained in prison conditions compliant with the ECHR art.3. The authorities had been open and helpful throughout the process and their assurances had been endorsed at every level in government and their administration.

[2017] EWHC 2300 (Admin)

In refusing conjoined applications for permission to appeal against convictions for murder, the court considered a number of issues including the adequacy of joint enterprise directions in the light of R. v Jogee (Ameen Hassan) [2016] UKSC 8, the procedures for trials of young defendants in the Crown Court, and the compatibility of mandatory sentences of detention at Her Majesty’s pleasure with ECHR art.3 and art.5

[2017] EWCA Crim 1228

In circumstances where the prosecution had appealed against the grant of bail pursuant to the Bail (Amendment) Act 1993 s.1, and through no fault of its own personal service had been impossible within the time limit prescribed by the Act, and where the respondent to the bail appeal had been given oral notice and was legally represented by lawyers aware of the written notice and of its terms, a failure to serve the written application was not a bar to a Crown Court having jurisdiction to determine the appeal.

[2017] EWHC 2101 (Admin)

Offences under the Trade Marks Act 1994 s.92(1) applied not only to counterfeit goods but also to “grey goods”, namely goods manufactured with the permission of the trade mark proprietor, but not authorised for sale.

[2017] UKSC 58

Prisoners whose death sentences for murder had been commuted to long sentences of hard labour by way of presidential pardon had received lawful sentences. However, as some of those pardons had been granted in batches without any opportunity for individual representations, they required remission to the President for reconsideration.

[2017] UKPC 25

The requirement for a defendant in a criminal trial to serve a defence statement was consistent with the Constitution of St Lucia and the right to a fair trial.

[2017] UKPC 26

A person whose extradition had been requested by the Belgian authorities failed to prove that a longstanding problem of strikes in Belgian prisons would lead to a real risk of a violation of his rights under ECHR art.3 in the event of his extradition. There was no reason to doubt the Belgian government’s statement that there had been no strikes adversely affecting the inmates’ rights in the prison in which it was proposed the requested person be held, and therefore nothing to displace the presumption that Belgium would comply with its international obligations.

[2017] EWHC 1981 (Admin)

The secretary of state was not obliged to exercise his power under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.128 as a means of relaxing the Parole Board’s test for releasing prisoners serving existing sentences of imprisonment for public protection, following the abolition prospectively of such sentences from December 2012. Given the difficulties in finding a suitable alternative release test, the secretary of state was entitled to instead improve the operation of those sentences to enable more prisoners to meet the conditions for release.

[2017] EWHC 1948 (Admin)

Five individuals could not be extradited to Rwanda to face charges arising from the 1994 genocide. There was a real risk of a flagrant denial of justice, in violation of their ECHR art.6 right to a fair trial, because even if the rest of the Rwandan criminal justice system had been adequate, arrangements for their defence in Rwandan trials were clearly inadequate to protect against the concerns regarding judicial independence and the protection and availability of defence witnesses.

[2017] EWHC 1912 (Admin)

Where three requested persons had resisted extradition on the basis of unsatisfactory prison conditions in Bulgaria, the Bulgarian judicial authorities had provided sufficient information to satisfy the court that they would uphold their assurances that the requested persons would be kept in conditions that complied with international standards.

The claimant, who had been the subject of research by the Extremism Analysis Unit, had not made out his challenge to the lawfulness of the Prevent Duty Guidance for England and Wales and the Higher Education Prevent Duty Guidance, which were aimed at preventing people from being drawn into terrorism. Further, the collection, storage and dissemination by the Extremism Analysis Unit of his data had not breached his privacy rights under ECHR art.8.

[2017] EWHC 1930 (Admin)

The imposition of a sentence of imprisonment for public protection on the appellant shortly before the introduction of new legislation which prevented the passing of such a sentence on offenders in his position had not given rise to a breach of ECHR art.7 or the lex mitior principle.

[2017] EWCA Crim 1052

The ECHR art.3 and art.5(1) rights of an offender serving a sentence of imprisonment for public protection had not been breached by the length of detention as compared to the gravity of his original offending. Nor was the anti-discrimination provision of art.14 engaged because those sentenced in respect of identical offences after a change in the law which took effect shortly after the offender’s sentencing would not still be in custody.

[2017] EWCA Civ 1053

The policy contained in Prison Service Instruction 52/2011 did not unlawfully discriminate on the ground of nationality by requiring that where a foreign prisoner had been notified of liability to deportation but no decision to deport had been made, the prisoner should be deemed unsuitable to be considered for release on home detention curfew unless there were exceptional circumstances. The difference in treatment between such a prisoner and a prisoner who was not liable to be deported was not based on nationality, but on liability to be deported.

[2017] EWCA Civ 989

The secretary of state had been entitled to conclude that extraditing a requested person to Kenya to face charges of child stealing would not violate ECHR art.3. There was no evidence of bad faith on the part of the Kenyan government, and conditions in the prison in which the requested person would be held on remand were not such as to give rise to a risk of treatment contrary to art.3.

[2017] EWHC 1728 (Admin)

A district judge had not erred in concluding pursuant to the Extradition Act 2003 s.20 that a requested person who had been convicted of offences in his absence had deliberately absented himself from his trial. She had been entitled to conclude, in the circumstances, that the requested person had gone to considerable lengths to avoid the service of proceedings and that his conduct amounted to a manifest lack of diligence.

[2017] EWHC 1892 (Admin)

A prisoner had not suffered procedural unfairness where the prison governor upgraded his security category and status based on information that the prisoner was potentially involved in trafficking illegal substances and products into the prison. Although the governor had not fully disclosed the reasons for his decision, such non-disclosure could be justified on the basis of protecting sources of information, intelligence methods and the integrity of an ongoing investigation, and was statutorily recognised by the Data Protection Act 1998 s.29.

[2017] NIQB 65

In a terrorist investigation, the application for and issue of a search warrant, the subsequent search of an individual’s property and the seizure of goods had not been unlawful. The court gave guidance on the procedures in Northern Ireland for search warrant applications and the disclosure of information supporting applications for search warrants: an application by a property owner for disclosure of the information that had led to the granting of a warrant by a lay magistrate should be made to the magistrates’ court and heard by a district judge.

[2017] NIQB 61

In two joined cases where requested persons were resisting extradition on the basis of unsatisfactory prison conditions in Belgium, the court made a request for the Belgian judicial authorities to provide information as to the conditions in which the requested persons would be held.

[2017] EWHC 1328 (Admin)

The revised statutory scheme for the disclosure of convictions, introduced under the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 following a finding that the original scheme violated ECHR art.8, remained deficient and in need of further amendment. The concept of the revised scheme did not necessarily offend art.8, but its operation in individual cases might. The provisions relating to disclosure of serious offences and multiple offences were not “in accordance with the law”.

[2017] EWCA Civ 321

The extradition of a Polish man to his native country so that he could serve a short sentence would amount to a disproportionate interference with his rights and those of his family under ECHR art.8. Significantly, his wife was an alcoholic and separation from her husband was likely to cause a marked deterioration in her condition.

[2017] EWHC 995 (Admin)

Although there had been a lengthy unexplained delay in bringing criminal proceedings against an individual for an alleged crime of forgery in 2001, the public interest in honouring the UK’s extradition obligations outweighed his right to family life in the UK, and extradition would not be unjust or oppressive despite the passage of time.

The court considered whether assurances from the Bulgarian authorities about the conditions in which prisoners might be held in Bulgarian prisons following their extradition from the UK to Bulgaria pursuant to European arrest warrants were sufficient to show that there was not a real risk of a breach of ECHR art.3.

[2017] EWHC 827 (Admin)

A decision to prosecute an offence under the Identity Cards Act 2006 s.25(1), made where the prosecutor had reasonable cause to believe the person concerned to be guilty of the offence charged, did not fall within the scope of ECHR art.8.

[2017] UKSC 30

The conclusion of the majority in R. (on the application of Whiston) v Secretary of State for Justice [2014] UKSC 39 that a prisoner lawfully sentenced to a determinate term of imprisonment by a competent court was unable to challenge their loss of liberty during that term on the ground that it infringed ECHR art.5(4) should be regarded as binding on all inferior courts, notwithstanding the fact that it was obiter.

[2017] EWHC 729 (Admin)

A failure to specify at the time of sentence the number of days an offender had spent in detention in Germany prior to his extradition to the UK meant that he was not entitled to credit for time served in respect of those days. The Criminal Justice Act 2003 s.243(2) provided that the calculation of time served under s.240ZA only applied to days spent in detention abroad which had been specified in open court.

[2017] EWHC 658 (Admin)

The Sexual Offences (Scotland) Act 2009 s.39(2)(a)(i), which prevented a person charged with a sexual offence against an older child from relying, in cases where he had “previously been charged by the police with a relevant sexual offence”, on the defence that he reasonably believed that the child had attained the age of 16, was incompatible with the ECHR art.8 rights of the appellant. It was also likely to give rise to breaches of art.8 in many other cases.

[2017] UKSC 25

A man with motor neurone disease was refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961 s.2(1). Parliament had considered the issue following the Supreme Court decision in R. (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38, and it remained institutionally inappropriate for a court to declare that s.2(1) was incompatible with ECHR art.8(1).

[2017] EWHC 640 (Admin)

The court refused an application made by various media organisations for disclosure of video recordings taken by a marine during the killing of a wounded insurgent in Afghanistan. The balance of the principles of open justice and the rights of the media under ECHR art.10 against the circumstances militating against disclosure lay against disclosure.

[2017] EWCA Crim 326

It was arguable that there was a continuing duty on judicial authorities issuing European arrest warrants to review the proportionality of extradition throughout the proceedings.

[2017] EWHC 571 (Admin)

An individual’s extradition to Turkey to face trial for a drugs offence would not breach ECHR art.6. There was no evidence that the emergency laws enacted by Turkey following the attempted coup d’etat there applied to the instant offence, and in any event Turkey had provided assurances that his ECHR rights would be guaranteed.

The imposition by the Probation Service of licence conditions restricting an offender’s contact with his children was lawful and proportionate, and objectively justified, given the facts and circumstances of the case. A local authority’s functions and powers under the Children Act 1989 in care proceedings concerning children could not be used to defeat the Probation Service’s functions and powers under the Criminal Justice Act 2003 and the Criminal Justice (Sentencing) (Licence Conditions) Order 2015.

[2017] EWCA Civ 155

Statements in a European arrest warrant that measures were to be taken to protect the criminal investigation, and that the warrant pertained to the seizure of property which might be required as evidence, did not show that it had been issued for the purposes of investigation rather than prosecution. An investigation could continue despite a decision to prosecute having been made.

[2017] EWHC 345 (Admin)

An insurance company was not permitted to bring committal proceedings against two respondents for allegedly pursuing a fraudulent road traffic accident claim. Although the trial judge had found fraud to the balance of probabilities, the evidence had mainly been circumstantial and there was no strong prima facie evidence of fraud. Further, the insurance company had waited 18 months before bringing the proceedings.

The court refused to extend the one-year limitation period for a human rights claim brought against a police force in relation to its alleged failure to adequately investigate complaints of abusive behaviour and harassment. There had been a seven-and-a-half year delay in bringing the claim and the claimants could have sought advice on a potential claim earlier. In any event, it was not a case in which ECHR art.3 or art.8 applied so as to impose a duty to investigate for the purposes of the Convention.

[2017] EWHC 292 (QB)

Although an individual had been a victim of trafficking he had been a fugitive facing a robbery charge when he left Lithuania. Although he developed mental health problems there was no suggestion he was unable to resist the impulse to commit suicide. It was not unjust or oppressive to extradite him.

[2017] EWHC 336 (Admin)

A confiscation order imposed on a woman following her conviction for social security offences was not disproportionate, even though the family home might have to be sold to satisfy it.

[2017] EWCA Crim 57

In an extradition case involving a requested person who had children, the judge, whether at first instance or on appeal, had to pay particular attention to the interests of the children. In appropriate cases, that could only be properly achieved by the production of fresh evidence about and/or from the children.

[2017] EWHC 331 (Admin)

The claim of a prisoner detained in a hospital that the Lord Chancellor’s powers under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 were to be interpreted so as to give effect to a right to free legal representation by a lawyer of his choice in tribunal proceedings under ECHR art.5(4), art.6 or art.8 was unarguable.

[2017] EWHC 410 (Admin)

The arrest and detention of four people at a public event in order to prevent a breach of the peace had been lawful for the purposes of ECHR art.5(1)(c). The court declined to apply the decision in Ostendorf v Germany (15598/08) 34 B.H.R.C. 738. The derogation in art.5(1)(c) was capable of applying to detention for preventative purposes with early release before the person could practicably be brought before a court.

[2017] UKSC 9

The court appointed a receiver to sell the family home of an offender who was subject to a confiscation order. The evidence showed that she had a 50% beneficial interest in the property, there was no prospect of her paying voluntarily, and any interference with her or her family’s rights under ECHR Protocol 1 art.1 and art.6 was proportionate.

The court was bound by the decision in R. (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54, otherwise, it was prepared to conclude that the Criminal Justice Act 2003 s.246A, which limited the eligibility for parole of prisoners serving extended determinate sentences to two-thirds of the way through the nominated determinate term rather than half way as applicable to prisoners serving life sentences, was incompatible with ECHR art.14. The court granted a certificate pursuant to the Administration of Justice Act 1969 s.12 to permit an application to be pursued directly to the Supreme Court for leave to appeal for the decision in Clift to be revisited.

[2017] EWHC 214 (Admin)

There was no domestic law duty on the Government to refrain from recognising the Turkish Republic of Northern Cyprus. Informal mutual legal assistance between UK police and North Cypriot police, for the purpose of assisting in the prosecution in Northern Cyprus of a suspected offender who had fled there, did not amount to implied recognition of Northern Cyprus.

[2017] EWHC 159 (Admin)

By choosing to manage the public disorder caused by a series of illegal parades rather than seeking to prevent the parades themselves, the Police Service of Northern Ireland had misconstrued the extent of its powers. Although it had no specific power under the Public Processions (Northern Ireland) Act 1998 to ban parades in respect of which the required notification had not been given, it had ample other powers to stop them.

[2017] UKSC 7