Category: Case comments

Roll up roll up? Human rights group’s challenge to Israeli arms supply proceeds at speed

14 May 2025 by Leo Kirby

Chamberlain J has provided new guidance on when the court may order a rolled-up hearing. The procedural point arose in the context of an ongoing piece of strategic litigation, and resulted in an interlocutory judgment in R (Al-Haq) v SSBT [2025] EWHC 173 (Admin).

Al-Haq is an independent Palestinian human rights organisation. It brought a judicial review claim to challenge various decisions of the UK government in the licensing of exports of military and dual-use goods destined for Israel for potential use in Gaza. The decisions were taken by the Secretary of State for Business and Trade. Oxfam, Amnesty International and Human Rights Watch were granted permission to intervene.

The BIOT Supreme Court Rules Asylum Seekers  Detained Unlawfully

27 March 2025 by Tehreem Sultan

The Supreme Court in British Indian Ocean Territory ruled in December on an important issue concerning the detention of asylum seekers in Diego Garcia. While their cause has progressed (including in a settlement reached on behalf of many, and in this judgment).

Ms Justice Obi, Acting Justice of the Supreme Court of the British Indian Ocean Territory, determined that the Claimants had been unlawfully detained since their arrival in October 2021.

Supreme Court rules Appellants were British all along

12 March 2025 by Shaheen Rahman

N3 & ZA v Secretary of State for the Home Department [2025] UKSC 6 concerned orders depriving two British people of their citizenship on national security grounds. The Defendant (initially) contended that to do so would not render them stateless, because they were dual British Bangladeshi nationals.

The use of deprivation orders in this context has been controversial, with critics across the political spectrum. Notably, writing in the Spectator, Jacob Rees-Mogg said of the Shamima Begum case:

“The ability to deprive people, who have a claim to another citizenship, of their British passport, creates two categories of Briton. Those with no right to another nationality are in the first-class carriage. Whatever they do, they cannot be made an exile or outlaw and expelled from the country. On the other hand, those who themselves came to the UK or whose parents did so are in the second-class carriage. They may be stripped of their citizenship even if they have never claimed another foreign nationality or even visited the country. This is a fundamentally racist policy as it denies the absolute Britishness of all those who are either recent immigrants themselves or their children.”

In the instant case, the deprivation orders were subsequently withdrawn. The Supreme Court has held that the effect of that withdrawal is that the Appellants are to be treated as having been British Citizens throughout.

Judicial Anonymity? Not this time.

17 February 2025 by Anogika Souresh

In Tickle & Anor v The BBC & Ors [2025] EWCA Civ 4, the Court of Appeal considered the High Court’s decision to anonymise the names of several judges who had made decisions in historic care proceedings and private family law proceedings (“the historic proceedings”).

The historic proceedings related to Sara Sharif, who was murdered by her father and stepmother in August 2023. On 18 August 2023, the Local Authority made an application for a wardship in respect of Sara Sharif’s five siblings. On 8 September 2023, the journalists requested disclosure of documents relating to the historic proceedings.

Mr Justice Williams made the following order, which was appealed by the claimant journalists:

… no person may publish any information arising from the disclosure of the documents from these proceedings to the public, or a section of it, which includes: …

g. The name of any third parties referred to in the historic proceedings for the avoidance of doubt including social worker, guardian other named professionals and experts instructed in the proceedings and any Judge who heard the historic proceedings (save for Mr Justice Williams). …

including not repeating such information by reference to the disclosed documents even if it is already in the public domain

[emphasis added]

Notably, when Mr Justice Williams pronounced the Order in court, no party had asked for the names of the three circuit judges who had been involved in the historic proceedings (“the historic judges”) to be anonymised. The judge had heard no submissions on the point. He had not mentioned to the parties that he had in mind to make the order he did [5].

The grounds of appeal were as follows:

i) It was a serious procedural irregularity for the judge not to have given reasons before anonymising the historic judges.

ii) The judge adopted an unfair, biased and inappropriate approach to the journalists and the media generally (including relying on his own erroneous analysis of alleged media irresponsibility), thereby unacceptably encroaching on their rights under article 10 of the European Convention on Human Rights (ECHR). This ground was added by amendment and permission has not yet been granted to allow it to be pursued.

iii) The judge ought to have held that the demands of open justice meant that anonymity for a judge could not be justified within the framework of balancing article 8 and article 10 of the ECHR.

iv) The part of the Order anonymising the historic judges could not be justified in the absence of any specific application or evidential foundation, and was inimical to the proper administration of justice.

The Judgment

The Court of Appeal considered that there were three main issues to determine:

i) Whether the court had jurisdiction to prohibit the publication of the names of judges, and if so how and in what circumstances.

ii) Whether the part of the Order anonymising the historic judges was irregular for lack of submissions, evidence or reasons.

iii) Whether the judge’s comments in his judgment demonstrated inappropriate bias against or unfairness towards the media.

The Court of Appeal considered that the statutory limitations contained in section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989 do not displace the open justice principle or create any separate “shielded justice” environment. They provide a degree of privacy for certain proceedings relating to children according to their terms [45]. Further, section 12 of the Administration of Justice 1960 makes clear that its provisions do not apply to judges hearing the case: “Court orders always name the judge, so, in that way, section 12 of the AJA 1960 expressly excludes anonymity for the judge” [51].

The Court of Appeal notably stated that:

In accepting office, all judges will or should be aware that that is the expectation, because public scrutiny of judges and the justice process is essential to the rule of law [55].

Issue 1: Was there jurisdiction to prohibit the publication of the names of judges?

The Court of Appeal considered whether Mr Justice Williams had jurisdiction to order the anonymity of the historic judges. In resolving this question, the Court of Appeal considered that, notionally, the names of the historic judges had been in the public domain as (a) the name of the judges appeared on public documents and on each of the orders that they made and (b) the names of the judges would have appeared in the public listings as sitting on the days in question at the courts in question.

The Court of Appeal considered the relevant rights under Articles 2, 3, and 8, which apply as much to judges as to any other person. However, there was no evidential basis on which the threshold for the application of Articles 2, 3, or 8 had been reached [64]. There was no need to undertake any balancing exercise between Articles 8 and 10 as there was no evidence about the risks to the historic judges [69].

The Court of Appeal concluded that there was no jurisdictional foundation for making the anonymity order.

The following comment from the Court of Appeal (at [66] will have wider application beyond the facts of this case:

The authorities that I have cited demonstrate that judges are in a special position as regards open justice. The integrity of the justice system depends on the judge sitting in public and being named, even if they sit in private. The justice system cannot otherwise be fully transparent and open to appropriate scrutiny.

Issue 2: Was there irregularity for lack of submissions, evidence or reasons?

The appeal was allowed on this ground, on the basis that the Mr Justice Williams ought to have asked for submissions and evidence prior to making his decision.

In the absence of specific evidence about risks or threats to the ECHR rights of the historic judges, Mr Justice Williams ought not to have taken any steps to anonymise the names of the historic judges.

Issue 3: Was there inappropriate bias against or unfairness towards the media?

The Court of Appeal noted Mr Justice Williams’s language when discussing media reporting as well as his decision to adjourn the journalists’ application for permission to appeal being akin to dismissing the application.

The appeal was also allowed on this ground.

Comment

This decision will have wider application beyond the facts of this case, and beyond family law. The Court of Appeal reiterated the necessity for open justice, and confirmed that transparency requires judges to be named, even if they sit in private.

The Court of Appeal did caveat the decision by clarifying that judges are not obliged to tolerate any form of abuse or threats. The requirements to consider in such cases are:

1. Evidence about the risks to the judges;
2. The court being satisfied that those risks could not be adequately addressed by other security measures;
3. The court concluding that the risks were so grave that they provided a justification for overriding the fundamental principle of open justice.

The historic judges were given 7 days before their names are published, to allow HMCTS to put in place measures to protect them.

Anogika Souresh is a barrister at 1 Crown Office Row, Brighton

No Recourse to Public Funds and Article 3: Proving Systems Duty Breaches

4 December 2024 by Matthew Leitch

Background

In SAG & Ors v Secretary of State for the Home Department [2024] EWHC 2984 (Admin), the High Court considered challenges to the Secretary of State’s determination of applications to remove no recourse to public funds (“NRPF”) conditions placed on the Claimants’ leave to remain. Each Claimant’s position was that they were at imminent risk of destitution. Several grounds of challenge were advanced:

1. The approach to the NRPF conditions was unlawful under common law

2. The approach to the NRPF conditions was a breach of s.55 of the Borders, Citizenship and Immigration Act 2009.

3. The approach to the NRPF conditions was incompatible with the Human Rights Act 1998 read with Article 3 of the European Convention of Human Rights.

This article considers the third ground of challenge under the Human Rights Act 1998.

Nursing home held not to be a public authority for the purposes of an Article 2 claim

24 September 2024 by Dominic Ruck Keene

UK Government loses latest round in long-running Diego Garcia litigation

10 September 2024 by Edward Waldegrave

In The Commissioner for the British Indian Ocean Territory v. The King (on the application of VT and Others), the UK Government has lost the latest round in long-running litigation concerning a group of individuals accommodated in basic facilities on the remote British Indian Ocean Territory (the “BIOT”).

Background

The BIOT is an archipelago consisting of over 50 islands located roughly half way between East Africa and Indonesia. It is a British Overseas Territory and is formally administered from London by a Commissioner, who performs both legislative and executive functions.

Diego Garcia is the largest island in the archipelago. It has no settled population but accommodates a substantial US/UK military facility. The facility employs a transient population of about 4,000.

In 2021 a group of individuals of Tamil ethnicity left India by boat, apparently with the goal of reaching Canada. On 3 October 2021 their vessel encountered difficulties in the Indian Ocean and was escorted by the Royal Navy to Diego Garcia. Following their arrival in the BIOT, the individuals made claims for asylum. These claims remain un-determined, and some 61 individuals (including children) have now been living on Diego Garcia for nearly three years. There they have been housed in what have been described as “hellish” conditions. The majority live in tents in Thunder Cove (referred to as the “Camp”). Initially they were confined to the Camp itself, but as a result of an order made on 21 December 2023 they gained access to a nearby beach. They also have limited access to buildings outside the Camp for the purposes of consultations with lawyers, medical treatment and, for children, education. A few individuals who with medical complaints which could not be addressed on Diego Garcia have been flown to Rwanda for treatment.

In May 2024 eleven individuals were granted “bail” on terms which allowed them (in summary) to leave the Camp and walk along highway DG1, and to access beaches from the road. These arrangements appear to have been uncontroversial. When they were put in place, it was envisaged that the limited freedoms granted to the eleven individuals would be extended to the other migrants on Diego Garcia. In any event, it was also expected that the position of all of the individuals would be finally resolved at a hearing scheduled for July 2024. This substantive hearing has, however, been indefinitely adjourned.

The July 2024 Bail Application

In July 2024 a number of the individuals applied for extended bail. Specifically, they sought access to a “nature trail”, and also sought changes to the terms on which their bail could be exercised.

In response to this application (the “July Application”) the Commissioner sought the views of the US authorities responsible for the operation of the military facilities on Diego Garcia. The US authorities provided their views on the July Application a few hours before it was due to be heard (on 23 July 2024). The US position was stark: it opposed any extension of bail on the basis that the proposals posed “operational, security, health and safety risks [to the military facilities on Diego Garcia]… which cannot be mitigated or would be unduly burdensome to mitigate”.

The Commissioner applied for an adjournment of the hearing of the July Application to give him more time to consider the response of the US. This was rejected.

Very shortly after the hearing on 23 July, the Commissioner received letters from (i) the Director General for Africa and the Americas at the Foreign, Commonwealth and Development Office; and (ii) the Minister of State for Europe, North America and the UK Overseas Territories. Both emphasised the respect which should be accorded to the US’ concerns. These letters were provided to the Court.

On 26 July Judge Obi of the Supreme Court of the BIOT granted the July Application, subject to some relatively minor caveats. In particular, she extended bail to all the relevant individuals and permitted access to the Nature Trail.

The Commissioner appealed, and the Court of Appeal of the BIOT heard the appeal on 9 August. It handed down its decision, dismissing the appeal, on 20 August.

The Commissioner’s Grounds of Appeal

The Commissioner appealed against the Judge’s order on four grounds:

• It was procedurally unfair for the Judge to have proceeded with the hearing of the July Application on 23 July (i.e. not to have granted the Commissioner’s application for an adjournment to allow more time to consider the US response).
• The Judge exercised her discretion unreasonably because she failed properly to consider the impact of extending bail on US/UK relations.
• The Judge exercised her discretion unreasonably because she failed to attribute due weight to the assessment by the US authorities of the security implications of extending bail.
• The Judge exercised her discretion unreasonably because the July Order necessarily impacted upon decisions by the Commissioner concerning the allocation of resources.

The Court of Appeal’s Determination

The Court of Appeal dismissed the Commissioner’s appeal on all grounds.

Ground 1: Procedural Unfairness

The Court rejected the Commissioner’s contention that it was procedurally unfair for the Judge to refuse to adjourn the hearing of the July Application for two reasons.

First, the Court agreed with the Respondents that there was nothing “new” in the US’ response to the July Application. In summary it took the view that the US’ position had long been clear, and had amounted to “consistent and unvarying opposition” to any bail arrangements. Its response to the July Application was wholly consistent with this. Accordingly the Judge had been entitled to take the view that it was not necessary for the hearing to be adjourned for the Commissioner to have a fair opportunity to present his case.

Secondly, the Court noted that the Judge permitted oral submissions to be made on the two letters which the Commissioner received just after the hearing of the July Application. That further oral hearing constituted an obvious opportunity for the Commissioner to make any additional submissions on the US’ response to the July Application. The fact that he had not sought to make any such submissions undermined the contention that it had been unfair for the Judge not to adjourn the first hearing.

Ground 2: US/UK Relations

The Commissioner’s next ground of appeal relied on a contention that the Judge had failed to attach due significance to the impact that extending bail would have on US/UK relations.

The Commissioner’s case on this ground seems to have been somewhat confused. It appears to have been uncontroversial that “questions relating to international relations… are not generally justiciable”. However, it was also common ground that international relations considerations could not necessarily “dictate the outcome of the court’s enquiry”. The Commissioner’s argument before the Court of Appeal on this ground (at least in part) was that, because the grant of bail “had the potential to have a profound impact on international relations between the UK and [the US]”, the Judge should have exercised extreme caution before granting the July Application. As the Court of Appeal recognised, however, this was inconsistent with the Commissioner’s acceptance that the impact on the UK’s international relationships was just one factor to be considered in the overall balancing exercise. On that basis, the only question was whether the Judge had in fact properly evaluated the security concerns raised by the US. The Court of Appeal concluded that she had, and that there was no warrant for interfering in the evaluative conclusion which she had reached.

Ground 3: US Security Assessment

The Commissioner next argued that the Judge had failed, in summary, to accord sufficient respect to the US’ assessment that the grant of the July Application would interfere with security considerations.

Again, the Court dismissed this Ground. It accepted that it was for the relevant US authorities, rather than the Judge, to take a view on whether the grant of the July Application would have adverse security implications. However, this is not what the Judge had done. She had not questioned the US view of the relevant security implications but had, quite properly, taken that into account as a factor to be weighed alongside other relevant considerations. Her overall evaluation was that the July Application should (broadly) be granted. There was no warrant for interfering with that evaluation. In deciding that the Judge had accorded due respect to the US assessment of the security implications, the Court of Appeal seems to have relied in part on the fact that the Judge rejected aspects of the July Application (such as permitting the individuals to access a social club on Diego Garcia) because of the burdens those aspects would give rise to for the Commissioner.

Ground 4: Resource Allocation

Finally, the Commissioner argued that the Judge had strayed into another non-justiciable area because granting the July Application necessarily had implications for the allocation of resources by the Commissioner (in that there would be costs for the Commissioner associated with the extended bail arrangements).

Again, the Court found little difficulty in rejecting this Ground. It concluded that the Judge had not purported “to tell the Commissioner how to spend the funds available to the BIOT”. Rather she had explicitly recognised that this was a matter for the Commissioner. As was pointed out in argument, decisions as to bail conditions regularly have cost implications for the authorities; it would be surprising indeed if judges making such decisions were unlawfully straying into non-justiciable resource allocation territory.

Comment

It has been suggested (in particular by Joshua Rozenberg: see https://rozenberg.substack.com/p/uk-loses-diego-garcia-appeal) that the Commissioner must have recognised that he was likely to lose the appeal to the Court of Appeal, and that the appeal was only pursued in an attempt to show others (such as the US Government) that the UK was exhausting all its options in seeking to prevent bail being extended. On this view, the Court of Appeal’s decision was, from a legal perspective, “obvious”.

It is true that aspects of the Commissioner’s case before the Court of Appeal seem to have been very weak. In particular, it is difficult to see how the Commissioner could reasonably have hoped to succeed on Grounds 1 or 4.

However, the Court of Appeal’s decision does give rise to some points of genuine legal interest. In discussing Ground 2, the Court of Appeal accepted that the conduct of the UK’s foreign relations is non-justiciable in itself, but that the Crown’s foreign policy priorities can be weighed in the balance against other factors in determining a bail application. Presumably the same is true in other contexts. Similarly, in relation to Ground 3, the Court accepted that it is for the executive (in this case, in effect, the US Government) to form a view as to the state’s security interests, but that its view can be weighed among other factors in an appropriate case. This distinction is one which surely merits further academic, legal and political scrutiny. Put briefly, it is difficult to see how judges can on the one hand be expected to “keep out” of foreign policy and national security questions if the executive’s views on such matters are susceptible to being balanced against other factors (such as, in this case, the interests of individuals in being able to move more freely than has hitherto been the case). The Court’s approach to this issue seems to have been largely a result of the Commissioner’s acceptance that foreign policy and national security considerations did not constitute “trump cards” but were merely factors to be weighed in the balance. The Commissioner might have stood a better chance of success, and his case would certainly have been more intellectually coherent, had that concession not been made.

The second point arising from the Court’s judgment which is of significant interest concerns the way in which the parties and the Court all viewed the July Application through the prism of “bail”. As the Court itself recognised, this case falls far from the ordinary context in which bail principles are applied. One might see this case as demonstrating the admirable ability of English legal principles to address novel factual circumstances. Others might regret that such a unique set of facts could only be addressed by an analytical framework developed in very different cases.

Edward Waldegrave is a barrsiter at 1 Crown Office Row.

The Illegal Migration Act and its inevitable fate in Northern Ireland: Re NIHRC & JR295’s applications for judicial review

28 May 2024 by anuragdeb

Let us turn to NIHRC and JR295’s applications for judicial review [2024] NIKB 35, in which the High Court disapplied sections of the Illegal Migration Act 2023 (IMA) – the Government’s flagship statute to tackle illegal migration – in Northern Ireland. It is important to understand why, despite some alarming reactions to the judgment, it was both foreseen and avoidable – and why the alarm should be sounded in the Houses of Parliament instead.

Termination of pregnancy and wishes and feelings in the Court of Protection

25 April 2024 by Esme Cairns

Introduction

The decision of the Court of Protection in Rotherham and Doncaster and South Humber NHS Foundation Trust and NR [2024] EWCOP 17 is the latest in a line of cases where the Court has been asked to determine whether a termination of pregnancy is in a woman’s best interests. Any case about a termination engages the pregnant woman’s Article 8 rights. But where the woman also lacks capacity to decide for herself whether to have a termination, there must be a particularly careful analysis to ensure that her rights are respected. While previous decisions have frequently accorded weight to the wishes and feelings of the pregnant woman at the heart of the case, Mr Justice Hayden’s decision goes further in handing the decision over to the pregnant woman herself.

Double Feature: Article 6 and extradition in Bertino and Merticariu

4 April 2024 by Benjamin Seifert

Introduction

On 6 March 2024 the Supreme Court handed down two separate judgments in the cases of Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9 and Merticariu v Judecatoria Arad, Romania [2024] UKSC 10. The constitution of the Court for both cases was the same with the judgments written by Lord Stephens and Lord Burnett. Lords Hodge, Sales and Burrows completed the panel.

These two appeals both concern Section 20 of the Extradition Act 2003 (“the Act”) which deals with convicted individuals who are subject to convictions in their absence. Trials in absentia are extremely common in civil law jurisdictions and it is sometimes said that there is the possibility of unfairness arising from a trial with an absent defendant

Section 20(3) requires an extradition judge to decide whether or not a person has deliberately absented themselves from their trial. In those circumstances they can be extradited to serve a sentence without an entitlement to a retrial.

If the Court determines that the person was not deliberately absent Section 20(5) must be addressed and it is necessary to decide if they would be entitled to a retrial or (on appeal) a review amounting to a retrial. The case of Bertino considered deliberate absence within Section 20(3) and Merticariu the right to a retrial within Section 20(5).

These issues are integral to the protection of Article 6 of the ECHR. It is plain that deliberately absenting oneself from a trial would not subject someone to a violation of Article 6 but the two basic principles of that Article are the right to be present and the right to be represented (Bertino §27).

Bertino: the facts

The Appellant’s extradition was sought pursuant to a European Arrest Warrant (“EAW”) issued for his extradition to serve a year’s imprisonment after trial in his absence at the Italian Court of Pordenone. He was convicted for the offence of sexual activity with an under-age person.

The Appellant signed a document confirming that he was under investigation and he “elected domicile” in Italy. The document stipulated that he was obliged to notify the authorities of any change of address. Without such a notification service of any document would be executed by delivery to his lawyer. Mr Bertino elected his domicile by giving an address in Venetico, Messina and also indicated that he would be assisted by a court-appointed lawyer.

However he then left the country in November 2015 and came to the UK where he began to work. Meanwhile the prosecution in Italy commenced on 8 June 2017, a writ of summons for the court hearing was issued on 12 June 2017 and he was summoned to appeal at the Pordenone Court on 28 September 2017. The summons included a warning that his non-attendance without “lawful impediment” would lead to judgment in his absence. However he had never received the summons and by then the judicial authority knew that he was no longer at the address in Venetico. He had also failed to notify the authorities of any change of address.

There were then many unsuccessful attempts to trace him in Italy between 2016 and 2019. The Appellant did tell Westminster Magistrates’ Court that he had informed the authorities of his departure to the UK for family law purposes because, by then, his marriage was failing and arrangements were to be made for the children, but not the police in connection with the investigation.

The Council Framework Decision

EAWs must be drafted in a prescribed form according to the Council Framework Decision of 26 February 2009 2009/299/JHA, and there are various options which the issuing judicial authority is required to tick. In this case the EAW indicated that he was absent from his trial. There are a range of boxes for indicating, roughly, why this was; in Mr Bertino’s case none of those boxes was ticked and the evidence was that he was unaware of the date and place of his trial and even that there had been a decision to prosecute him.

The Deputy Senior District Judge ordering extradition found that, because the Appellant left his address without notifying a forwarding address and then came to the UK he had demonstrated a “manifest lack of diligence” [§10], a phrase echoing Court of Justice of the European Union case law.

On appeal Swift J found that there was no reason in principle to distinguish between a requested person’s awareness of the date and place of trial and the knowledge that if he does not attend trial he could be tried in absentia. This, he observed, is in accordance with Article 6 ECHR which guarantees a person’s right to be present at trial but that right, so he said, could be waived expressly or by inference.

Swift J certified the following point of law of general public importance:

For a requested person to have deliberately absented himself from trial for the purpose of Section 20(3) of the Extradition Act 2003 must the requesting authority prove that he has actual knowledge that he could be convicted and sentenced in absentia?

The Court’s conclusions on the law

If the EAW is used to convey information which demonstrates that one of the criteria from the 2009 Framework Decision is met that is normally determinative of whether or not the extraditee can be considered deliberately absent (§44). However the Framework Decision (§45) acknowledges that the question of whether or not to extradite is a matter of domestic law when none of the criteria has been satisfied. Consequently Section 20 falls to be analysed.

The phrase “deliberately absented himself from his trial” is the same, under Strasbourg jurisprudence, as the suggestion that an accused has unequivocally waived his right to be present at trial. If those circumstances lead to a finding of a breach of Article 6 then the judge must be required to consider retrial rights under Section 20(5).  However if the trial in absentia did not lead to a breach of Article 6 then the person will have deliberately absented himself from his trial.

It is also for the requesting judicial authority to prove to the criminal standard that an appellant has unequivocally waived his right to be present at his trial.

Application of the facts to the law

The Appellant was never arrested, charged or questioned. He was never informed that he was to be prosecuted and was never notified of the time and place of his trial (§50). He knew that he was suspected of a crime which was being investigated but there was no certainty that he would subsequently be prosecuted. When he left Italy, without giving the judicial police a new address, there were no criminal proceedings of which he could have been aware and definitely no trial from which he could have deliberately absented himself. This was the basis upon which the Supreme Court ruled that the Courts below had erred in finding that he had deliberately absented himself.

At paragraph 52 the Court stated that the Magistrates’ Court and the High Court had inferred that he had unequivocally and intentionally waived his right to be present at his trial by finding that he could reasonably foresee that the trial would proceed in his absence. The Supreme Court noted that the concepts of waiver and reasonable foreseeability were from Strasbourg case law and were not synonymous with the same concepts in English private law. The Strasbourg standard is that, in order for a waiver to be unequivocal and effective, knowing and intelligent, the accused must ordinarily be shown to have appreciated the consequences of their own behaviour and will usually require them to have been warned (§54).

The District Judge had described the Appellant’s “manifest lack of diligence” but the Supreme Court concluded (§55) that this would not have been a waiver by the fact that he could have avoided the situation which led to an impairment of his rights. It was on that basis that the Supreme Court found that the courts had previously overly broadened the definition by finding that deliberate absence is found where the person’s conduct led to him becoming unaware of the date and time of trial. However (§58) these cases are clearly to be considered on their individual facts and there may be circumstances where accused people knowingly and intelligently place themselves beyond the jurisdiction of the prosecuting and judicial authorities  so that a trial in their presence is impossible and they could be considered to appreciate that a trial in absentia is the only option.

The Court therefore ruled that Mr Bertino did not unequivocally waive his right to be present at his trial and was not deliberately absent. The appeal was therefore allowed.

Merticariu: the facts

The EAW was issued in 2019. District Judge Ezzat gave judgment on 26 August 2020 and found that Mr Merticariu had not deliberately absented himself from his trial but did have a right to a retrial in Romania and therefore, with this apparent guarantee, extradition was ordered.

On appeal (§6) to the High Court Chamberlain J dismissed the appeal, having found that he was bound by the authority of BP v Romania [2015] EWHC 3417 where the Divisional Court held that Section 20(5) of the Act will be satisfied even if the right to a retrial is conditional on a finding in the requesting state that the person was not deliberately absent from their trial.

The certified question

Chamberlain J certified the following question of general public importance arising from his decision. He refused leave to appeal.

In a case where the appropriate judge has decided the questions in section 20(1) and (3) of the Extradition Act 2003 in the negative, can the appropriate judge answer the question in section 20(5) in the affirmative if (a) the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority of that state as to whether the requested person was deliberately absent from his trial; and (b) it is not possible to say that a finding of deliberate absence is ‘theoretical’ or ‘so remote that it can be discounted’? If so, in what circumstances?

The decision

As a Romanian extradition case the High Court considered Article 466 of the Code of Criminal Procedure which provided that the person has a “right to ask for a retrial of the case”(§34). However this was not sufficient for the Supreme Court. The “natural and ordinary” meaning of the words in Section 20(5) were clear. It is not solely a question of being entitled to apply for a retrial. The answer to the question in Section 20(5) should not be “perhaps” or “in certain circumstances” (§51). The entitlement to a retrial therefore cannot be contingent on the court making a factual finding that the person was not present at or was not deliberately absent from their trial. The question is clear: are they entitled to a retrial or (on appeal) to a review amounting to a retrial?

The decision in BP was therefore wrong at paragraph 44 where it stated that an application for a retrial was a procedural step contingent on the court determining whether the person had or had not instructed a lawyer to represent her at her trial (§52). The 2009 Framework Decision replaced “an opportunity to apply for a retrial” with “a right to a retrial.”

The Supreme Court also agreed that the right to a retrial was consistent with Strasbourg principles where there is a “duty to guarantee the right of a criminal defendant to be present in the courtroom” (§54). It is consistent with Article 6 obligations.

Furthermore the principle of mutual trust and confidence, which pervades extradition arrangements between the UK and EU (§60) runs both ways because the issuing judicial authority takes part and is represented in the proceedings in the UK court and it would be entirely in accordance with this principle that courts in requesting states respect the executing courts’ decisions in this country.

The answers to the certified questions

The Supreme Court found that an appropriate judge cannot answer Section 20(5) in the affirmative if the law confers a right to a retrial which depends on a finding by a judicial authority as to whether the person was deliberately absent from their trial.

In relation to (b) of the question the Court found that it is for the issuing judicial authority to provide information in the EAW or in response to a request for further information. The executing court should not take part in a “mini trial” as to whether, on the facts and law of the requesting state, a finding is theoretical or so remote that it can be discounted. The evidence should be clear. (§64)

The application to the case

Given that the judicial authority in this case was unable to confirm whether or not the Appellant had a right to a retrial and Article 466 of the Romanian Code of Criminal Procedure demonstrated that he would not be regarded as having been tried in absentia he had no right to a retrial (§67).

Comments

In Bertino, This decision represents a pendulum swing from the past ten years of High Court authority where the concept of “manifest lack of diligence” had imposed a significant level of responsibility on a person who may not have fully understood the consequences of their decision to leave the country after they may have only been partly aware of a criminal prosecution. It provides a greater protection to those lay persons who assume that the authorities will contact them. It also now requires District Judges to exercise greater inquiry into the circumstances of an individuals departure from the country which requests their extradition.

In Merticariu, the Supreme Court has finally resolved what is a very short point. If the Court is required to consider Section 20(5) there can be no assumptions in these cases, in the absence of any clear evidence, that a right to a retrial exists. There was always a doubt that the requesting state’s s findings about deliberate absence would chime with those of the executing state and now they need to be considered together. These questions are fundamental to the fair carriage of extradition cases between the UK and EU. Whilst the earlier cases assumed compliance with Article 6 on the basis of mutual trust and confidence the UK courts now do not need to be so quick to reach the same conclusions and they will also offer greater protections to those who find themselves in our extradition courts.

Benjamin Seifert is a barrister at 1 Crown Office Row Chambers.

Freedom of expression and offensive political Emails: an important assertion of a fundamental right

8 February 2024 by Guest Contributor

In a significant ruling, the Court of Appeal has quashed the conviction of the appellant for an offence contrary to Section 1 of the Malicious Communications Act 1988 based on an email written to local councillors in a political dispute. In R v Casserly [2024] EWCA Crim 25, The Court gave guidance on – and placed emphasis on the importance of – directing juries on the right to free speech under Article 10 ECHR. The appeal considered the interaction between s 1 of the Malicious Communications Act 1988 and Article 10.

The mirror crack’d from side to side: Dalton’s application for judicial review [2023] UKSC 36

5 January 2024 by anuragdeb

In Lord Tennyson’s Arthurian ballad ‘The Lady of Shalott’, the eponymous heroine is stranded in her island castle. Continually weaving a web in her loom of the reflections of the outside world she sees in her mirror, she knows she will be cursed if she stops and looks out to nearby Camelot. But one day, Sir Lancelot rides by her castle and she abandons her loom and looks outside. Her mirror cracks “from side to side” and she is cursed. She leaves her castle and floats down to Camelot in a boat, dying before she reaches it.

Victorian poetry scholar Erik Gray analyses the Lady of Shalott as Tennyson’s exploration of the role of an artist: knowing what is better (staying inside and looking at reflections of the real world) and choosing to do what is worse (going outside into the real world). Just as the Lady of Shalott’s mirror cracked, the Supreme Court in Dalton’s application for judicial review marked possibly one of the largest cracks yet in the mirror principle: that the rights provided under the Human Rights Act 1998 (HRA) should mirror those under the ECHR. But this analogy with the Lady of Shalott raises two important questions: was the jurisprudence flowing from the mirror principle better and is the turn away from it worse?

At the outset, I acknowledge my involvement in the Dalton litigation. This post is not an exploration of that litigation. Instead, I look at the possible impact of the Supreme Court’s judgment on the mirror principle and what it may tell us more broadly about the HRA.

Griffiths v. TUI UK Limited: Evidence, Challenge and Fairness

3 January 2024 by Edward Waldegrave

Overview

The central question facing the Supreme Court in Griffiths v TUI UK Limited [2023] UKSC 48 concerned the extent to which a party must put criticisms of a witness’ evidence to him in cross-examination. The Supreme Court made clear that the general rule in civil cases is that a party is required to challenge by cross-examination the evidence of any witness (whether factual or expert) if he wishes to submit that the evidence should not be accepted by the court. Importantly, this rule is not confined to allegations that the witness is dishonest. The rule is, however, a flexible one; it will not always be necessary for every point of challenge to be put to a witness, and in some cases (such as where evidence is “manifestly incredible”) it may not apply at all. Although the Supreme Court gave a conceptually clear answer to the question before it, difficult practical issues are likely to continue to arise for trial advocates who wish to challenge factual or expert witness evidence.

The Supreme Court provides authoritative guidance on the application of Article 2 to Coronial investigations and inquests

28 June 2023 by Peter Skelton KC

Introduction

The advent of the Human Rights Act 1998, and the incorporation into domestic law of the Article 2 right to life, has transformed coronial investigations and inquests over the last two decades. Lord Bingham’s magisterial creation of the ‘enhanced’ investigation and conclusion in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 (later adopted by Parliament) gave coroners greater responsibility to hold the state to account for deaths. That, in turn, has significantly improved the ways in which all inquests are conducted, not just those where Article 2 is found to be engaged. Inquests are no longer haphazard affairs. They are (ordinarily) carefully planned and structured processes; and their participants, the ‘interested persons’, are far more involved in assisting coroners with the task of identifying the proper scope of their investigations and the lawful ambit of their conclusions.

Article 2, then, has already conquered and occupied the terrain of the coroners’ courts and it is only at the frontiers of its application that legal skirmishes still occur. One such fight is the case of R (Maguire) v HM Senior Coroner for Blackpool & Fylde and another [2023] UKSC 20, which was argued before the Supreme Court on 22^nd and 23^rd November 2022, and in which judgment was given on 21^st June 2023.

The central issue in the case was whether Article 2 required an enhanced inquest into the death of highly vulnerable woman, Jackie Maguire, who had become seriously unwell while in a private residential care home and had later died in hospital. The Supreme Court held unanimously that it did not. More importantly, in doing so, it took the opportunity to provide a detailed and authoritative account of how Article 2 applies to coronial investigations and inquests. 

Good enough for jazz: how well does the government need to understand its Paris Agreement obligations? A case of emissions and omissions

24 January 2023 by Lance Baynham

In R (Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance (UKEF) [2023] EWCA Civ 14, the Court of Appeal considered the implications of the Paris Agreement on climate change for governmental decision-making in relation to investing in a liquified natural gas project in Mozambique (the “Project”). Sir Geoffrey Vos MR, with whom Lord Justice Bean and Sir Keith Lindblom SPT agreed, dismissed Friends of the Earth’s appeal against the Divisional Court’s decision to dismiss their application for judicial review.

The judgment sets out the approach which is to be taken where the government declares itself to be acting in accordance with the UK’s obligations under an unincorporated international treaty. The Court of Appeal also considered the well-established duty that a decision-maker must “ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 at 1065, known as the “Tameside duty”). Put briefly, the Court of Appeal held that:

1. the question of whether funding the Project was consistent with the UK’s international obligations under the Paris Agreement was accepted by the parties to be justiciable;
2. however, the Paris Agreement, as an unincorporated international treaty, did not give rise to domestic legal obligations;
3. having decided to have regard to the Paris Agreement, the respondents did not need to be right that funding the Project was consistent with it, so long as that view was “tenable”; and
4. failing to quantify the indirect greenhouse gas emissions from the downstream distribution, storage and use of the gas produced (known as “Scope 3” emissions) – which would undoubtedly be by far the greatest part of the emissions caused by the Project – before deciding to finance the Project, was not a breach of the Tameside duty.