Round Up 10/6/19: New guidance on the liability of local authorities and trials without jury for historical allegations in Northern Ireland…

10 June 2019 by Thomas Hayes

Dennis Hutchings outside the Supreme Court. Credit: The Guardian.

In a week where the Prime Minister’s departure seemed to make barely a ripple, sifting out the key developments could be considered something of an unenviable task. Luckily, establishing the importance of the weeks events was made considerably simpler on Thursday, after judgement was handed down in the case of Poole Borough Council (Respondent) v GN (through his litigation friend “The Official Solicitor”) and another (Appellants) [2019] UKSC 25. The case concerned alleged negligence on behalf of Poole Council in placing a family in social housing on an estate next to neighbours known to persistently engage in antisocial behaviour, and the council’s liability for subsequent harm suffered by the vulnerable children in that family. Elizabeth-Anne Gumbel QC, Iain O’Donnell, Duncan Fairgrieve and Jim Duffy of 1 Crown Office Row represented the family, with Philip Havers QC and Hannah Noyce appearing on behalf of the AIRE Centre and Martin Downs making written submissions for the Coram Children’s Legal Centre.

In the Court of Appeal, the council’s application to strike out the family’s claim that they were owed a duty under the common law given the statutory backdrop of the Children Act 1989 was allowed. In that judgement, the court identified two issues as being of chief importance. Firstly, as articulated in X (Minors) v Bedfordshire County Council and Hill v Chief Constable of West Yorkshire [1989] AC 53, the court recognised the risk that allowing liability in negligence would serve to complicate decision-making in a difficult field and potentially drive social workers towards defensive decision-making. Secondly, the court held that there was no liability for the wrongdoing of a third party, even where such behaviour is foreseeable. This reflected the decisions in Mitchell v Glasgow City Council and Michael v Chief Constable of South Wales.

The Supreme Court undertook a rigorous analysis of the case law pertaining to the liability of local authorities for harm caused by failure to perform their functions under statute, in particular in relation to the exercise of statutory duties owed to children. Of principle importance was the nature of any assumption of responsibility for the claimant’s plight accepted by the local authority or pubic body.

The court concluded that the public policy defence illustrated in X v Bedfordshire, which dismissed on pure policy grounds the existence of a duty of care owed by local authorities towards children with whom they came into contact in the performance of their functions under the Children Act 1989, was no longer good law. The existence of any duty instead required examination of the specific facts of the case applied to the general principles outlined in Robinson v Chief Constable West Yorkshire Police. These were summarised as:

• The law should adopt an incremental approach to novel situations, guided by established categories of liability, rather than basing decisions on their assessment of the requirements of public policy.
• Consideration ought to be given to the distinction between harming the claimant and failing to protect the claimant from harm.
• Public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except as specified to the contrary in legislation.

The court concluded that although the local authority could be liable, the necessary grounds were not satisfied in the present case. In particular, it was held there was no evidence to suggest the council had accepted responsibility for the claimants, statutory obligations being insufficient in themselves to create a duty of care. Furthermore, the council’s failings did not amount to a breach of duty. Consequently, although the family’s case may serve to protect the rights of individuals in similar circumstances, their individual case failed on the facts.

In a further Supreme Court decision this week, a retired British soldier’s appeal against the decision of the Northern Ireland courts that he should be tried by a judge rather than a jury was unanimously rejected – In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26. The case concerns the fatal shooting in 1974 of John Pat Cunningham by soldiers of the Life Guards after the Legacy Investigation Branch concluded Mr Hutchings should face prosecution over the incident. The court held that trial by jury should not be assumed to be the only means of achieving fairness in the criminal justice process. The decision is likely to further fuel the developing controversy surrounding the prosecution of soldiers for historical actions in Northern Ireland.

In the Court of Appeal, judgement was handed down in the case of KA (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 914. KA claimed asylum after describing threats made against his safety by the Taliban due to his father’s service in the Afghan Army. However, the circumstances of his fleeing Afghanistan were rejected by the Upper Tribunal as lacking credibility. Allowing his appeal, McCombe LJ held it would be unsafe to reject the appeal of a vulnerable minor on such grounds when the Respondent and the First Tier Tribunal based their assessment on a flawed interpretation of the test set out in s. 8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

In the news this week…

The Prime Minister officially stood down on Friday, remaining only in post until a new Conservative leader is appointed. The first days of what might become a lively campaign to replace her saw former Linklaters associate Dominic Raab suggest Parliament could be prorogued to prevent the House of Commons attempting to thwart a no-deal Brexit, former Foreign Secretary Boris Johnson represented by a QC in the High Court in relation to (now dismissed) charges of misconduct in public office, and the Secretary of State for Environment, Food and Rural Affairs admit to class A drug use two decades ago.

The week also saw Donald Trump undertake a state visit to the United Kingdom, part of which was devoted to remembrance services for the 75^th anniversary of the D-day landings. The Peterborough by-election saw Labour narrowly keep the seat vacated after the conviction of Fiona Onasanya, defeating the challenge of the Brexit Party candidate by under 700 votes.

Finally, concerns about the rule of law in the Middle East came to the fore again after the main witness in the case of a Russian businesswoman convicted of embezzlement in Kuwait was jailed for forging documents crucial to the verdict. Maria Marsha Lazareva was previously sentenced to 10 years hard labour by a Kuwaiti court on charges of embezzlement which are widely considered spurious.

Hamad Al-Allayan, the auditor of the Kuwaiti State Audit (Chamber of Accounts) was sentenced this week to six months’ imprisonment by the Kuwaiti Court of Appeal. He was found guilty of forging documents decisive to the conviction of Lazareva.

The Kuwaiti Criminal Court has quashed Lazareva’s initial conviction and set a new trial date for June 9th. However, she remains in detention pending her re-trial. As the mother of a US citizen, her plight has attracted international concern and the interest of prominent Americans, including the brother of former President George W Bush, who was quoted as saying:

“I’d hate to see U.S.-Kuwait relations damaged by this incident. But there are forces within the government that are creating this horrible situation.”

The case joins an increasing number of detentions of western nationals in middle eastern states on charges often considered to be motivated by domestic concerns. These include those of West Hampsted mother Nazanin Zaghari-Ratcliffe and former British Council worker Aras Amiri in Iran, and now released British academic Matthew Hedges in the United Arab Emirates.

On the UKHRB:

• Rajkiran Barhey gave a detailed account of the decision in Poole Borough Council v GN and another
• Rosalind English reported on Jonathan Sumption’s recent Reith Lectures and reviewed Jamie Metzl’s new book “Hacking Darwin”
• Sapan Maini-Thompson discussed the ongoing protests concerning LGBT teaching in a Birmingham School.

On LawPod UK:

• Episode 81: Brexit & the EU elections – 29th May 2019

Events:

• Brexit’s effects on citizens, human rights and immigration, 11th June at City University. See here.
• The Prosecution of International Crimes in the UK, 18th June with the Human Rights Lawyers Association. See here.
• Foundational Concepts in Constitutional Theory, 10th-12th July with the UCL Faculty of Law. See here.