The Round-up: criminal justice close to breaking point

scales of justice Old BaileyIn the news

The criminal justice system is “close to breaking point”, according to a report released by the House of Commons Public Accounts Committee (PAC) last week, Efficiency in the Criminal Justice System. The report finds that the criminal justice system is “bedevilled by long standing poor performance” including delays and inefficiencies, where costs are shunted from one part of the system to another.

Last year there was a backlog of 51,830 cases awaiting a hearing at the Crown Court. The average wait between a case leaving the Magistrates’ Court and reaching the Crown Court is 134 days, compared with 99 days two years ago. The “disjointed” nature of the system – which is administered by different parts of government with different budgets – results in decisions taken by one part increasing inefficiencies in another area. The service received by victims and witnesses is not good enough, and there are “unacceptable variations” in the length of time victims have to wait  for access to justice in different areas of the country.

The report unequivocally concludes that the Ministry of Justice has been “too slow” to recognise that the system is under stress and to do anything about it. The MoJ has exhausted the scope to cut costs without pushing the system beyond breaking point – since 2010-11, the criminal justice system has suffered a massive 26% cut. Even if courts sit on all days in their allowance, there are still not enough judges to hear all the cases. Since the criminal bar has reduced in size as a result of reductions in legal aid spending, the CPS struggle to find counsel to prosecute cases.

Though the MoJ have developed an “ambitious” reform programme which aims to address the inefficiencies in the system, partly through digitising paper records and enabling flexible digital working, the PAC were told it would take four years to see the benefits. Court users should “not have to wait this long to see real change”, they say, noting that “Government does not have a good track record of delivering projects that involve significant changes to IT”. They recommend that the MoJ do more in the meantime by better sharing the small practical improvements introduced by hard-working staff in individual courts.

The Bar Council have said in response to the report that while it sends an “important message” to the Government, the proposed digitisation reforms are not enough to address the challenges faced by the system. The “precious asset” of Justice should be ring-fenced from cuts.

Other News

  • The Supreme Court last week upheld the decision of the Court of Appeal in finding that British expatriates of more than 15 years are not eligible to vote in the EU referendum on 23 June. Harry Shindler, 95, who has resided in Italy for 35 years, and Jacquelyn MacLennan, 54, who has lived in Belgium since 1987, had argued unsuccessfully that the 15-year rule contained in Section 2 of the EU Referendum Act 2015 was an unjustified restriction on their freedom of movement, in that it penalised them for exercising their right to move and reside in another Member State. Lady Hale, Deputy President of the Supreme Court, emphasised that the relevant question was not whether the voting exclusion was justifiable as a proportionate means of achieving a legitimate aim, but rather whether European Law applied at all, since only if it did was there any possibility of attacking an Act of Parliament. Assuming for the sake of argument that it did apply, the Supreme Court decided that it was not arguable that there was an interference with the right of free movement, for the reasons given by the Court of Appeal and Divisional Court. See David Hart QC’s previous post on the Court of Appeal decision here.
  • An inquest has found that police unlawfully detained a 22-year-old man with mental health issues who was later found hanged. Logan Peters had been held in an unauthorised headlock and illegally strip-searched by police who stopped him on suspicion of criminal damage at a takeaway. The inquest heard that whilst in his cell Mr Peters had battered the walls with his head and tried to strangle himself, but was considered “attention-seeking” rather than suicidal. There was no plan put in place for his care following his release. The panel concluded there were “errors, omissions, failures” in the way Mr Peters was seized on the street, finding that it was “extremely likely” that the events and the “unreasonable, disproportionate and unnecessary force used… had a negative impact on Logan’s physical and psychological well-being”. This follows several high profile failings by police to look after people with mental health issues whilst in custody, such as the death Sarah Reed at Holloway prison earlier this year and Sheldon Woodford at HMP Winchester in 2015.

In the Courts

  • IC v Romania – the inadequacy of the investigation into a young girl’s allegation of rape was a violation of Article 3 (prohibition of inhuman or degrading treatment). A 14-year old girl with an intellectual disability had alleged that whilst at a wake she had been grabbed by three teenage boys who took her to a man, MC, waiting in the garden of a deserted building, who then raped her. Two other men were also present. During the police investigation the six men involved claimed the girl had consented to the intercourse. The prosecutor accepted this explanation, indicting MC only for sexual intercourse with a minor. The Court held that the authorities had put undue emphasis on the lack of proof that the girl had shown resistance during the incident. The prosecutors had based their conclusions on the statements given by the alleged rapists along with the fact that the girl’s body did not show any signs of violence and she had not called for help. The Romanian authorities had failed to give particular attention to IC’s intellectual disability, in light of which her ‘consent’ to the acts should have been analysed.
  • Biao v Denmark – The Court held in this case that Danish legislation on family reunion is discriminatory, finding a violation of Article 14 in conjunction with Article 8 (right to respect for private and family life). The applicant was a naturalised Danish citizen of Togolese origin who complained that he and his Ghanaian wife could not settle in Denmark. The Danish authorities had refused to grant them family reunion on the basis that they did not fulfil the “attachment” requirement that they did not have stronger ties with another country – Ghana, in this case. They complained that an amendment to the legislation which lifted the “attachment requirement” for those who had held Danish citizenship for at least 28 years resulted in difference in treatment between those born Danish nationals and those who had acquired Danish citizenship later in life. The Court held that this rule favoured Danish nationals of Danish ethnic origin, and placed those who had acquired Danish citizenship later in life at a disadvantage.

Previous Posts

Father should be allowed to apply for parental responsibility following surrogacy

surro imageZ (A Child) (No 2) [2016] EWHC 1191 (Fam) 20 May 2016 – read judgment.

The Court of Protection has granted an order for a declaration of incompatibility with Convention rights of a section in the Human Fertilisation and Embryology Act on grounds of discrimination.

This case concerned a child, Z, who was born in August 2014 in the State of Minnesota in the United States of America. Z was conceived with the applicant father’s sperm and a third party donor’s egg implanted in an experienced unmarried American surrogate mother. The surrogacy arrangements were made through the agency of an Illinois company and in accordance with Illinois law.

Following Z’s birth, the father obtained a declaratory judgment from the appropriate court in Minnesota, relieving the surrogate mother of any legal rights or responsibilities for Z and establishing the father’s sole parentage of Z. Following that court order he was registered as Z’s father in Minnesota. The father has since returned to this country, bringing Z with him.

The legal effect of this is that the surrogate mother, although she no longer has any legal rights in relation to Z under Minnesota law, is treated in the UK as being his mother. By the same token, whatever his legal rights in Minnesota, the father has no parental responsibility for Z in this country. The only two ways in which the court could secure the permanent transfer of parental responsibility from the surrogate mother to the father is by way of a parental order or an adoption order. The father would obviously far prefer a parental order. Continue reading

Censorship or justified Concern?

Southampton_1912501bIR(Ben-Dor & Ors) v The University of Southampton [2016] EWHC 953 (Admin) (read judgment)

Mrs Justice Whipple dismissed one claim for judicial review, and refused permission to bring a further claim, in respect of decisions made by Southampton University regarding a proposed conference on the legality of the existence of Israel under international law. She held that the University had lawfully withdrawn its permission to hold the conference in April 2015, and refused permission to challenge the University’s subsequent decision to require the conference organisers to meet the conference’s security costs as a condition of allowing the conference to take place at a later date. The conference organisers had claimed that both decisions represented an unlawful interference with their Article 10 right to free expression and Article 11 right to free assembly. Continue reading

Article 5 ECHR does not require time limits for detention pending deportation

J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 – read judgment.

Image result for guardian yarl wood

Photo credit: The Guardian

The European Court of Human Rights has ruled that the general system for detention of individuals prior to deportation in the United Kingdom, which lacks specific maximum time-limits, complies with Article 5, ECHR (Right to liberty and security of the person). However, in the proceedings involving J.N., the authorities had not acted with sufficient “due diligence”, which resulted in a violation of Article 5.

Background

The applicant, known as J.N., arrived in the UK in early 2003 and unsuccessfully sought asylum soon after. In February 2004 he was convicted of indecent assault and sentenced to 12 months imprisonment. Following his release he was subjected to a number of conditions which he failed to comply with. This led the Secretary of State to issue an order deporting J.N. back to Iran. On 31 March 2005 the applicant was detained pending deportation.

Complications arose when attempts were made to obtain the necessary travel documents from the Iranian Embassy. Eventually, in November 2007, the Embassy agreed to issue the documents if the applicant signed a “disclaimer” consenting to his return. The applicant refused to sign this disclaimer.

Despite being released for one month following review of his detention by the Administrative Court in December 2007, the applicant was once again detained in January 2008. He continued to refuse to sign the disclaimer that was necessary to obtain the travel documents and to effect the deportation. During this second period of detention the authorities considered prosecuting the applicant for failing to comply with the Secretary of State’s request to take specific action to obtain a travel document (under s. 35, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004). But no prosecution was forthcoming. Additionally, J.N. agreed to sign the disclaimer if he was compensated for the periods of detention. However, the UK Border Agency refused to do so.

Domestic Proceedings

J.N.’s refusal to sign the disclaimer continued until late-2009 when J.N.’s solicitors began judicial review proceedings challenging the lawfulness of his detention. In considering the lawfulness of the detention pending deportation, the judge considered the four principles established in R v. Governor of Durham Prison, ex parte Hardial Singh, [1984] WLR 704:

  1. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
  2. The deportee may only be detained for a period that is reasonable in all the circumstances;
  3. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
  4. The Secretary of State should act with reasonable diligence and expedition to effect removal.

The judge considered that the authorities responsible for the deportation had acted with a “woeful lack of energy and impetus”. They had failed to change their approach to the situation, they refused to bring a prosecution under the relevant legislation. Further, they had not approached the Iranian authorities to see if they would change their position regarding the need for a disclaimer. The Secretary of State had fallen short of the fourth requirement established in Hardial Singh. Accordingly, the judge found that the applicant’s detention had been unlawful from 14 September 2009 onwards.

The Strasbourg Court

Article 5 protects the right to liberty and security of persons. Restrictions of liberty are permissible if they fall within one of the specific grounds highlighted in Article 5(1). Article 5(1)(f) relates to detention “of a person against whom action is being taken with a view to deportation or extradition”. Any detention in pursuance of this objective must be prescribed by, and comply with, domestic law. Additionally, the domestic law must be “sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness”. To satisfy this “quality of law” requirement, domestic law should include clear provisions on the ordering and extension of detention as well as effective remedies that can be used by the individual to challenge the lawfulness of their detention. These requirements act as safeguards against arbitrary detention.

The applicant complained that the UK system for detention pending deportation did not specify maximum time limits for such detention and that this led to a violation of Article 5(1). Additionally, there was a need for automatic judicial scrutiny of any detention as opposed to requiring the individual to initiate judicial review proceedings themselves. Finally, the applicant submitted that if the UK’s system was said to satisfy the “quality of law” requirement, then the entirety of his detention had been unlawful, and in violation of Article 5, as at no point had there been a realistic prospect of removal (see paras. 59-63).

Lack of time-limits within the UK system (paras. 90-93)

The ECtHR had previously held that Article 5(1)(f) does not impose maximum time limits for detention pending deportation. However, the absence of such time-limits will be a factor in assessing whether domestic law satisfies the “quality of law” requirement. But other protections against arbitrariness, including the ability to review the lawfulness of the detention, are equally important.

The “EU Returns Directive” (see Article 15 here) does set down a maximum time limit of 18 months for detention pending deportation. However, the UK has opted out of this Directive and it is therefore not binding. The ECtHR considered that despite this Directive creating a uniform approach over the majority of Council of Europe States, it could not be considered that such a position was required by Article 5(1)(f) or that this is the only position compatible with such a provision. Additionally, two Council of Europe instruments had addressed detention pending deportation and refrained from imposing time limits (see Twenty Guidelines on Forced Return, 2005 and Parliamentary Assembly Resolution 1707 on the detention of asylum seekers and irregular migrants in Europe, 2010).

The ECtHR held that Article 5(1)(f) does not require states to establish time-limits for detention pending deportation. The UK has sufficient procedures to allow the lawfulness of detention to be tested. Accordingly, the failure of the UK system to establish such limits, in light of the other procedural safeguards against arbitrariness, was not in violation of Article 5(1).

Lack of automatic judicial review of immigration detention (paras. 94-96)

The ECtHR refused the applicant’s submissions that Article 5(1)(f) required automatic judicial scrutiny of immigration detention. Article 5(4) provides all individuals who have been detained or had their liberty deprived with a right to take proceedings to examine the lawfulness of the detention. An entitlement to take proceedings, as opposed to automatic review, is all that is required by Article 5.

Was J.N.’s detention in accordance with Article 5? (paras. 102-108)

Finally, the ECtHR considered whether J.N.’s second period of detention, from 14 January 2008 to 14 September 2009 (the date on which the domestic court ruled that the detention had become unlawful) was in compliance with Article 5(1)(f) (for the reasons for restricting the scope of review to this period see paras.48-57)

The ECtHR saw no justification for the domestic courts to have restricted the “unlawful detention” to the period following 14 September 2009. Despite the repeated refusal of J.N. to cooperate, this could not be “be seen as a ‘trump card’ capable of justifying any period of detention” (para. 106). The ECtHR considered that the authorities had shown, to use the language of the domestic court, a “woeful lack of energy and impetus” from mid-2008 onwards. As a result, the detention had not been pursued with “reasonable diligence and expedition” from mid-2008 and therefore was not in accordance with domestic law and the principles established in Hardial Singh.

Accordingly, the detention from mid-2008 to 14 September 2009 was in violation of Article 5(1).

Comment

Despite concerns as to the unlimited nature of detention pending deportation being generally raised by a number of UN and European human rights bodies, as well as specific recommendations for the UK to adopt such limits (see UN Human Rights Committee, HM Chief Inspector of Prisons, and a UK All Party Parliamentary Group), the ECtHR refused to recognise that such limits were required by Article 5.

Undoubtedly the EU Returns Directive has resulted in the majority of Council of Europe states having limits for such detention. But as argued by the Government, recognising that Article 5 imposed such time limits may have “subvert[ed] the democratic process” by imposing time limits modelled on the EU Returns Directive from which the UK had lawfully opted out (para. 66).

During parliamentary scrutiny of the recent Immigration Act 2016 (which received Royal Assent on 12 May 2016) amendments were proposed by the House of Lords to limit immigration detention to 28 days  – it should be noted that this would not have covered J.N.’s situation as it was not applicable in the event that the Secretary of State had made a deportation order – see para. 84 here). However, this amendment was rejected. In the final version of the Immigration Act a duty to arrange consideration of bail is placed upon the Secretary of State for all individuals detained pending deportation (which would cover J.N.) after four months (Sch. 10, para. 11, Immigration Act 2016). This would clearly act as a further, important safeguard against arbitrariness.

Unlimited Immigration Detention and the Right to Liberty – the Round-up

Photo credit: RT

In the news

The absence of fixed time limits in the UK system of immigration detention does not breach Article 5 of the Convention (the right to liberty), according to a recent decision of the European Court of Human Rights in JN v United Kingdom.

The applicant was an Iranian national who was refused asylum in the UK and issued with a deportation order. He was detained in an immigration removal centre for more than four and a half years, following completion of a custodial sentence for indecent assault. The applicant complained that in the absence of fixed time limits, domestic law was unclear and did not produce foreseeable consequences for individuals.

This argument was rejected by the Court, which re-iterated that Article 5 does not lay down maximum time limits for detention pending deportation. The issue was said to be whether domestic law contained sufficient procedural safeguards against arbitrariness, and in this regard the UK did not fall short of Convention requirements. However, the Court did find that between January 2008 and September 2009 deportation of the applicant had not been pursued with “due diligence”, and his detention during this period was therefore in breach of his right to liberty.

The decision will come as a disappointment to campaigners, who point out that the UK is the only EU Member State which places no time limit on the detention of foreign nationals. According to the UNHCR, detention can have “a lasting, detrimental impact on the mental and physical health of asylum seekers”, and both a cross-party Parliamentary Inquiry and a recent report of the UN Human Rights Committee have called on the UK to adopt an upper limit.

It remains open to the Government to do so. However, in light of the judgment in JN, the introduction of a statutory time limit would now appear unlikely. A spokeswoman told the Guardian that the Home Office were pleased with the outcome of the case: “We maintain that our immigration detention system is firm but fair”.

In other news

The Queen’s Speech has declared that “proposals will be brought forward for a British Bill of Rights” – wording that is near identical to last year’s commitment to ‘bring forward proposals for a British Bill of Rights”. Speaking to the Huffington Post, Policy Director at Liberty, Bella Sankey remarks that if this “felt like groundhog day, it was because little progress has been made” towards the scrapping of the Human Rights Act. UKHRB founder Adam Wagner provides a useful list of reactions and coverage here.

A report from the European Commission points to evidence that “the migration crisis has been exploited by criminal networks involved in trafficking in human beings”, who target the most vulnerable. According to official figures, in 2013-2014 there were 15,846 registered victims of trafficking in the EU, although the true number is considered to be “substantially higher”. The BBC reports on the findings.

The Supreme Court has upheld an interim injunction in the ‘celebrity threesome’ case, until after the full trial for invasion of privacy. The Court of Appeal had been wrong to enhance the weight attached to freedom of expression (article 10 ECHR) as compared with the right to respect for privacy (article 8 ECHR) – neither article had preference over the other in the balancing exercise. David Hart QC provides an analysis of the decision for the UKHRB – a summary of the main points can be found on RightsInfo

In the courts

The applicants were Hungarian nationals and members of parliament, who had been issued with fines for engaging in protests that were disruptive of parliamentary proceedings. They complained that this had violated their right to freedom of expression (article 10 ECHR).

The Court observed that Parliaments were entitled to react when their members engaged in disorderly conduct disrupting the normal functioning of the legislature. However, on the present facts domestic legislation had not provided for any possibility for the MPs concerned to be involved in the relevant disciplinary procedure. The interference with the applicants’ right to freedom of expression was therefore not proportionate to the legitimate aims pursued, because it was not accompanied by adequate procedural safeguards. Accordingly, the Court found a violation of Article 10.

The applicant’s husband had died in circumstances where there had been a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, although that negligent failure was not necessarily causative. In its Chamber judgment of 15 December 2015, the European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the Convention as to the right to life and, unanimously, that there had been a violation of Article 2.

Analysis of that decision is provided by Jeremy Hyam QC for the UK HRB. On 2 May 2016 the Grand Chamber Panel accepted the Portuguese Government’s request that the case be referred to the Grand Chamber.

Publications

Those in need of some summer reading might consider: Five Ideas to Fight For, by Anthony Lester, recently published. The book describes the development of English law in relation to human rights, equality, free speech, privacy and the rule of law, explaining how our freedom is under threat and why it matters.

UK HRB posts

CA says ex-pats cannot say yes or no to Brexit – David Hart QC

The British Bill of Rights Show: Series 14, Episode 9…*Zzzzzzz* – Adam Wagner

Three Way in the Supreme Court: PJS remains PJS – David Hart QC

The National Preventive Mechanism of the United Kingdom – John Wadham

Bank Mellat’s $4bn claim: CA rules out one element, but the rest to play for – David Hart QC

CA says ex-pats cannot say yes or no to Brexit

feb1957854b3b7ec1c58e7c35c4c4503_LSchindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 469  20 May 2016 – read judgment

Last month, I posted here on this challenge to the rule stopping long-time expatriates from voting on the Brexit proposals. The case went swiftly to the Court of Appeal, who, today, swiftly dismissed the expats’ appeal. 

The challengers said that the 15 year rule on voting was an unjustified restriction of the rights of freedom of movement under EU law, not least because if the UK were to leave the EU, they would end up without rights of abode in their current EU countries.

Continue reading

Very limited availability: Exclusive briefing on Jogee, the landmark Supreme Court Joint Enterprise case

morning-breakfast-croissantI and Diarmuid Laffan are giving a breakfast briefing this Wednesday 25 May from 8:30am to 9:30am on the aftermath in R v Jogee, the Supreme Court case on the law of joint enterprise in which we both acted as juniors.

The briefing is aimed at solicitors. We have a very few spaces left – if you would like to attend please email Lisa.Pavlovsky@1cor.com as soon as possible.

The briefing will:

  • Explain key parts of the judgment, including the human rights arguments
  • Discuss how the case is likely to affect future cases and out of time appeals

1 Crown Office Row’s public law breakfast briefings are informal discussions of topical areas of public law. The briefings are short and to the point and discussion and questions are encouraged. The briefing will be chaired by 1 Crown Office Row’s Amy Mannion.