Murder, toil and trouble – three new Supreme Court judgments

25 May 2011 by Adam Wagner

The Supreme Court has delivered three judgments this morning, all of which are of interest from a human rights perspective. We will cover them in more detail soon, but for now, a brief summary. 

First, murder. In 2003 Nat Fraser was convicted of murdering his wife and sentenced to 25 years in prison. In Fraser (Appellant) v Her Majesty’s Advocate (Respondent) [2011] UKSC 24, the court unanimously decided to quash his conviction send back to a Scottish appeal court the question of whether a new prosecution should be brought.

The court first had to decide whether it had jurisdiction to hear the case at all, given that unless a case involves a “devolution issue”, it must be decided by Scottish courts. But since the central question was whether the Scottish appeal court had complied with Article 6 European Convention on Human Rights (the right to a fair trial), it was indeed a devolution issue.

The second question was whether the Scottish court had applied the right test to decide whether non-disclosure of information by the Crown had resulted in an unfair trial, contrary to Article 6 ECHR. It hadn’t. That test was set down by the 2010 case of McInnes v HM Advocate, where the court held that the trial was unfair and the verdict a miscarriage of justice if there is a real possibility that the jury would have arrived at a different verdict if the withheld material had been disclosed to the defence.

The full background can be found in this BBC News report as well as the Supreme Court press summary.

Next, toil. In FA (Iraq) (FC) (Respondent) v Secretary of State for the Home Department (Appellant) court felt that it could not rule on a particularly tricky question of whether because a right of appeal exists against a refusal of an asylum application, European law requires that a right of appeal also be available against a refusal of an application for humanitarian protection  (see the UK Supreme Court Blog’s case preview).

Appeal rights in immigration cases are constantly before the courts, as they are founded on a complex and interlocking system of European and domestic law. The Supreme Court unanimously ruled not to rule on the issue until it had heard what the Court of Justice of the European Union thought on the issue. It therefore asked for a preliminary ruling.

Finally, trouble. The Home Office is in trouble again for failing to follow its own policy in respect of the detention of foreign national prisoners, in this case relating to a convicted sex offender. In Shepherd Masimba Kambadzi v Secretary of State for the Home Department (Respondent) [2011] UKSC 23 the court held by a majority that a foreign national prisoner’s detention was unlawful for the periods in respect of which no review was carried out, contrary to Home Office policy, and that he does have a claim in tort for false imprisonment in respect of those periods.

This judgment comes weeks after another – Lumba – where the court held that failure to follow its published policy (although in that case the failure was deliberate) was unlawful. It appears that both cases are likely to lead to damages claims. For more, see the Supreme Court press summary and this Guardian.co.uk report.

We will cover the cases in more detail soon. In the meantime, you can watch the current hearings at the court on Supreme Court Live, although at the time of writing there appears to be nothing showing.

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