The Round Up: Instagramming claim forms, procedural unfairness, and what happens when ‘pragmatism’ meets human rights.

11 February 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law.

Credit: Wiki Commons

In the News:

Robinson v Chief Constable of West Yorkshire

Covered by the Blog here

There is no general immunity for police officers investigating or preventing crime. In this case, Mrs Robinson suffered injuries when two police officers fell on top of her, along with a suspected drug dealer resisting arrest. The officers had foreseen Williams would attempt to escape but had not noticed Mrs Robinson  (who was represented by 1 Crown Office Row’s academic consultant Duncan Fairgrieve).

The recorder found that, although the officers were negligent, Hill v Chief Constable of West Yorkshire [1989] gave them immunity from negligence claims. The Court of Appeal ruled the police officers owed no duty of care, and even if they did they had not broken it. It also found most claims against the police would fail the third stage of the Caparo test (i.e. it would not be fair, just and reasonable to impose a duty of care upon the police in these situations). The Court found Williams had caused the harm, not the police, so the issue was based on omission rather than a positive act. Finally, even if officers had owed the Appellant a duty of care, they had not breached it.

Mrs Robinson appealed successfully to the Supreme Court.

It held: The Caparo test normally only applies to novel cases, where a line of authority does not provide an answer. This was not such a case. The test strikes a balance between legal certainty and justice.

• Hill v Chief Constable of West Yorkshire [1989] did not give the police general immunity. Rather, the police are liable for negligence or other tortious conduct which results in personal injury, in line with the general law of negligence.
• The case involved a positive act, rather than an omission. This is because the Appellant’s case was that the actions of the police officers resulted in her being injured.
• Lord Mance found policy considerations should shape liability. For Lord Hughes, these policy considerations meant no duty of care should be imposed on the police whilst investigating and preventing crime. Lord Reed, by contrast, emphasised policy considerations are not normally part of negligence cases and were unnecessary where principles can be applied to the situation. The present matter was such a case.

In Other News….

• This week marks 100 years since the Representation of the People Act 1918 was passed. The Act allowed women over 30 with property, and all men over 21, to vote for the first time. Amongst other things, the centenary provoked a debate about pardoning the suffragettes, an idea the Home Secretary described as ‘complicated’ (the BBC reports).
• Two victims were granted permission to judicially review the parole board’s decision to release John Worboys, the ‘black cab rapist’. Worboys was summoned to court by Sir Brian Leveson after problems with the video link. The Telegraph reports Worboys (now called Mr Radford) will be asked whether he objects to wearing an electronic tag upon his release. He may also agree to being banned from London, where most of his victims live.
• Theresa May was complimented by China this week for her ‘pragmatic’ approach to human rights. The state newspaper, Global Times, praised the PM for resisting ‘radical’ public pressure to highlight human rights violations during her visit. Downing Street maintains the prime minister did raise the issue during her visit with President Xi and Premier Li, with a particular focus on human rights in Hong Kong. The Standard reports here.

In the Courts:

• R (on the application of Fayad) v Secretary of State for the Home Department: An application to extend the time available to judicially review the Secretary of State’s refusal to grant a British passport was refused. This followed the approach set out in Denton v TH White Limited [2014]. More importantly for us, the Appellant sought damages from the Secretary of State’s decision to withhold his passport (which he claimed violated article 8 of the ECHR). Singh LJ commented that although s.6(1) of the HRA enabled the court to grant remedies, they must arise from a properly pleaded cause of action. His Lordship stated that the culture of claiming for damages, particularly under the HRA, by throwing them in ‘as an afterthought’ at the end of the claim form ought to be stopped. If claims for damages in JR are not properly raised and pleaded, courts should use their powers to ensure they are. This includes consequences for costs.
• B (Algeria) v Secretary of State for the Home Department: The Immigration Act 1971 does not allow bail conditions to be imposed where an individual can no longer be lawfully detained. The Secretary of State submitted that an individual can be put on bail to keep them from a detention that is, or is about to become, unlawful. It was also submitted the power to exercise control over bail conditions is retained after the period of lawful detention has elapsed. B’s argument was that after the period of lawful detention has elapsed, the individual can no longer be kept on bail. The latter succeeded, on the basis that Parliament is presumed not to interfere with individual liberty without making such an intention clear. In addition, if the individual broke the bail conditions it would not be possible to re-detain that individual, because the period of lawful detention had elapsed.
• VC, R (On the Application Of) v The Secretary of State for the Home Department: Ill-treatment of mentally ill detainees must meet the minimum level of severity for damages to be claimed under the ECHR. There were two main issues in contention. The first was whether the Secretary of State had correctly applied her policy governing the detention of persons who have a mental illness, under the Immigration Act 1971. The appellant claimed his treatment in detention amounted to a breach of Article 3 of the ECHR. In addition, the Equality and Human Rights Commission stated the Secretary of State had failed to make reasonable adjustments to her decision-making process for detainees suffering from mental illness, in line with the Equality Act 2010. The second issue concerned the adequacy of procedures under which mentally ill detainees can make representations in relation to their detention. The Court of Appeal held the Appellant had been unlawfully detained for virtually all of the period in question. On balance, the appeal concerning Article 3 was dismissed because the ill-treatment of the appellant may not have met the minimum level of severity. It also held that, despite concerns about the overall fairness of the procedures for decisions concerning detainees with mental illnesses, a declaration of procedural unfairness could not be granted.

On the UKHRB

Bruno Min explains the recent Divisional Court judgement in Love v USA [2018], the first reported case in which the so-called ‘forum bar’ has been used to block an extradition.

Antonios Kouroutakis has written an article on Henry VIII powers in the EU (Withdrawal) Bill, in which he argues the Bill has failed to make use of adequate political and legal safeguards. And Rosalind English has posted about how claim forms can be served on Instagram.