RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

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

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.

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)

The extradition of a Czech Republic national who had been convicted of serious fraud offences in his absence was not unjust or oppressive, nor did it constitute an interference with his ECHR art.8 rights or those of his partner, notwithstanding the nine-year delay between the date of sentence and certification of the European arrest warrant. The district judge had correctly identified the factors favouring and militating against extradition.

[2017] EWHC 2360 (Admin)

Where there were concurrent extradition and family proceedings in cases involving requested persons who had children who would be adversely impacted by their surrender to custody, it should be the exception, not the norm, for the extradition proceedings to await the outcome of the family proceedings. It would also be very rare for the Official Solicitor to intervene in extradition cases on behalf of a child.

[2017] EWHC 1978 (Admin)

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)

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

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)

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

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.

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 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)

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

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)

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 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 public interest in extradition was outweighed by other factors in the case of a 55-year-old man who was in poor health and who was required to return to Poland to serve a custodial term for non-payment of a £600 compensation order. It was possible that the man had been unaware of the requirement to pay compensation, and it would be disproportionate to extradite him given that the sum was small, he could not have paid it at the relevant time, and was only able to pay it now because of his employment in the UK.

[2017] EWHC 168 (Admin)

When deciding whether extradition would be disproportionate, judges were obliged to consider whether the foreign authority could take measures that would be less coercive than extradition. An interview with the accused through mutual legal assistance could not amount to a less coercive measure under the Extradition Act 2003 s.21A(3)(c).

[2017] EWHC 156 (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

A local authority’s byelaws limiting the period for which a boat could be moored against its land had been made for a proper purpose, namely preventing the nuisance of limited river access for others, and were not irrational or invalid. A houseboat owner convicted for breach of the byelaws had failed to show that they breached ECHR art.8 rights in principle or on the particular facts of his case.

[2017] EWHC 84 (Admin)

The court upheld an extradition order in respect of a Polish national convicted of involvement in drug trafficking. Although he suffered from a chronic rheumatologic disease, there was evidence that his medication would be available in Poland and that the Polish court could order his release from prison if the circumstances warranted it.

A number of properties and a bank account owned by family members allegedly part of an organised crime network were found to have been procured by unlawful conduct and were recoverable property for the purposes of the Proceeds of Crime Act 2002. The defendants did not provide credible explanations for how they acquired the holdings and did not have a legitimate source of income that explained the purchases.

[2017] EWHC 27 (QB)

Where European arrest warrants were based on aggregate sentences imposed under the Polish penal code on offenders who had re-offended before judgment was pronounced on an earlier offence, there was no breach of the principle of double jeopardy because the calculation of the aggregate sentences recognised and gave credit for sentences which had already been served in full.

[2017] EWHC 311 (Admin)

An offender was extradited to Poland to serve two outstanding sentences imposed over 12 years earlier despite evidence that his son had behavioural problems and that his partner might suffer mental illness as a result of caring for him alone. The public interest in the UK complying with its international extradition obligations and not being regarded as a haven for those fleeing foreign jurisdictions, the fact that the offender was a fugitive with substantial sentences still to be served, and that his son would continue to be cared for by his mother outweighed the factors militating against extradition.

[2016] EWHC 3755 (Admin)

Reasonable and proportionate damages were awarded for the significant damage caused by a local authority and a police authority that had breached the ECHR art.6 and art.8 rights of a mother and her two children in the context of public law proceedings under the Children Act 1989 Pt IV. The children were separated from their mother against whom allegations of the most serious form of abuse were levelled, when all the while evidence was available to exonerate her.

[2016] EWHC 3312 (Fam)

The court granted a permanent injunction restraining the press and all other persons from publishing the names or identities of two individuals who, as children, had pleaded guilty to very serious offences committed against two young victims. The case had caused almost unparalleled public outrage directed at the individuals, and the real risk to their ECHR art.2, art.3 and art.8 rights made the interference with the art.10 right to freedom of expression an absolute necessity.

[2016] EWHC 3295 (Ch)

In sending to the secretary of state a request that the appellant should be extradited to the USA to face prosecution for distributing child pornography, a district judge had not erred in concluding that there was no real risk that the appellant would be subject to the civil commitment procedure at the end of his sentence.

[2016] EWHC 2649 (Admin)

An individual’s extradition to Poland was ordered to face prosecution for gang-related drug offence conspiracies where there were no reasonable grounds to believe that a decision to charge or try had not been taken, and extradition would not be oppressive, unjust or a disproportionate interference with his ECHR art.8 rights.

The statutory provisions concerning the disclosure in an enhanced disclosure certificate of conviction information (and the parallel requirement for self-disclosure to an employer) where there was more than one conviction, irrespective of the age or subject-matter of the convictions in question, were in breach of ECHR art.8.

[2016] NICA 42

The court granted a request from the US for the extradition of a UK citizen accused of unlawfully accessing computers used by US Federal agencies and private companies and of misusing the data obtained. Although the subject of the request suffered from Asperger Syndrome and his ECHR art.8 rights were clearly engaged, extradition was proportionate and compatible with his Convention rights given the extremely serious charges and the fact that US prison medical facilities were such that his needs would be comprehensively met.

It was not a breach of ECHR art.8 to impose an immediate 18-month custodial sentence on a mother of three who had been found guilty of money laundering, without first ordering a pre-sentence report which would have contained information about the children’s welfare. The sentence pursued a legitimate aim, was proportionate and the children were being looked after by their father or grandparents.

A district judge had not erred in ordering the extradition of an acknowledged fugitive to Poland to face prosecution for an offence of blackmail. Despite there being a lengthy delay in seeking the extradition due to the suspension of the prosecution case, the bar to extradition in the Extradition Act 2003 s.14 was not satisfied as the fugitive had known throughout that the prosecution was merely suspended and not concluded.

[2016] EWHC 3244 (Admin)

When a designated person appealed against an asset-freezing order under the Terrorist Asset-Freezing etc. Act 2010 s.26, the Treasury had to justify the order it had made. The court concluded that designation had been justified to prevent the appellant providing financial assistance to a proscribed organisation, but the renewal of the designation was not justified when, by the time of renewal, different circumstances applied.

[2016] EWHC 2039 (Admin)

Transport for London’s policy of revoking a private hire driver’s licence following a caution for touting served the legitimate aim of increasing public safety by deterring touting and was in accordance with the ECHR. The Rehabilitation of Offenders Act 1974 Sch.2 para.1, requiring a caution to be regarded as spent at the time that it was given, was irrelevant to the lawfulness of that policy since the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 art.2 excepted private hire licences from the scope of the rehabilitation provisions.

[2016] EWHC 2597 (Admin)

A requesting state’s failure to inform the court that an individual in extradition proceedings was entitled to a retrial, such that his extradition was initially refused but then subsequently ordered, was not an abuse of process. However, it was a breach of the public policy rule requiring all parties to bring their whole case before the court to be finally decided and was a factor that should be taken into account when considering the statutory bars to extradition.

[2016] EWHC 1766 (Admin)

A district judge had not been wrong to find that the extradition of a mother of a three-year-old child to serve a two-year sentence for fraud would not be disproportionate. The offending was serious, the mother had re-offended during the suspension period and she had not paid all the required compensation when the sentence had been deferred.

Former police officers who had participated in a murder investigation in which three men were wrongly convicted failed to establish that they had been victims of misfeasance in public office, false imprisonment, and malicious prosecution when they were, themselves, arrested on suspicion of having committed criminal or disciplinary offences. Although none had ultimately been convicted, there was ample evidence at the time of their arrest that they might have been guilty, so that all the arrests, except two, had been reasonable.

[2016] EWHC 1367 (QB)

There was nothing materially inconsistent in the approaches of the Supreme Court and the European Court of Human Rights when determining whether the right to the presumption of innocence in ECHR art.6(2) had been breached by the reference to an acquittal in later proceedings. The inclusion in an enhanced criminal record certificate of details of a taxi driver’s acquittal on a rape charge had not undermined the correctness of the acquittal

[2016] EWCA Civ 490

The statutory schemes for self-disclosure of convictions under the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 and for disclosure certificates under the Police Act 1997 Pt V both infringed ECHR art.8 because they went further than was necessary to achieve their aims and because they produced arbitrary results.

[2016] NIQB 43

A district judge had been entitled to conclude that an individual was fit to plead and to stand trial in Sweden, even though a psychiatrist’s report had concluded otherwise. The judge had not been bound to accept the report’s conclusion, but could take into account evidence of how the individual was living his life and how he had coped in other recent criminal proceedings against him.

When reviewing a police decision about information to be disclosed in an enhanced criminal record bureau certificate the independent monitor of the Home Office had failed to conduct a reasonable, statutorily compliant, independent review of the reliability of the material that was the foundation of the information said to be relevant and ought to be disclosed.

[2016] EWHC 655 (Admin)

The judge below had been correct to conclude that the appellant’s treatment while in police custody did not give rise to a breach of ECHR art.3 or art.8. The strip search and cell move (while unclothed) to which he had been subjected had resulted from his own failure to engage with officers at the police station and their legitimate concern that he might harm himself.

[2016] EWCA Civ 364

When upholding a deportation order issued by the secretary of state on the basis that the deportation of a foreign criminal was conducive to the public good, the Upper Tribunal considered the meaning of “persistent offender” for the purposes of the Nationality, Immigration and Asylum Act 2002 s.117D(2)(c).

[2016] UKUT 187 (IAC)