Round Up 22.07.19 – A series of interesting cases decided as the government prepares to depart…

22 July 2019 by

gauke

Outgoing Secretary of State for Justice David Gauke. Credit: The Guardian.

The week ahead will, barring some extreme political drama, give us a new Prime Minister, and with it, the inevitable cabinet reshuffle. Some ministers have already made clear they believe they are unlikely to remain in post after the new PM’s appointment on Wednesday, in particular the Chancellor Phillip Hammond, and the Secretary of State for Justice David Gauke.

Whoever takes over at the Ministry of Justice will have a significant inbox. Cuts to legal aid were brought to the fore this week after it emerged a relative of those killed in the 2017 terrorist attacks at London Bridge was represented pro-bono by lawyers from international corporate law firm Hogan Lovells (see The Independent here). Mr Gauke used his forthcoming departure from post to propose scrapping short custodial sentences in a bid to reduce re-offending rates. However, the incoming Lord Chancellor will still be considerably better off than their new boss, for whom the “to do” list includes getting an oil tanker back from Iran and concluding Brexit.

In the courts, it was a busy week for human rights observers in the Court of Appeal. The court rejected an appeal bought by a Pakistani gentleman against the decision of the Upper Tribunal to deport him after he was imprisoned for manslaughter – MA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 1252. After his conviction, the Secretary of State had written to him and advised that the department would not, at that time, seek to deport him. The appellant had argued, amongst other grounds of appeal, that this had given rise to a legitimate expectation that he would be allowed to remain in the country, subject to him not being brought to the authorities’ adverse notice. All grounds were rejected by the court, including that deportation would infringe his Article 8 rights.

In other cases…

MAB (Iraq) v The Secretary of State for the Home Department [2019] EWCA Civ 1253 – An Iraqi doctor who worked for Saddam Hussein’s military intelligence agency succeeded in his appeal against the conclusions of the First Tier Tribunal that he was excluded from protection by the Refugee Convention by virtue of Article 1F of that convention. Article 1F disqualifies from the provisions of the Convention those considered to have committed war crimes or crimes against humanity. The court had heard evidence that the appellant, in his medical role, had provided treatment to torture victims and in doing so had facilitated their ongoing torture by the security services. In granting his appeal, the court held that the consequences of Article 1F required its application to be undertaken with caution, involving “a close examination of the facts” and “a carefully reasoned decision as to precisely why the person is excluded from protection under the Convention”. The First Tier Tribunal had failed to perform a sufficiently “detailed and individualised examination of the facts” to support the conclusion arrived at of the appellant’s complicity in human rights abuses.

An application to appeal brought by displaced inhabitants of the Chagos Islands succeeded on some of the grounds advanced – Hoareau & Anor v The Secretary of State for Foreign and Commonwealth Affairs [2019] EWCA Civ 1254 . The Court held that the recently published advisory opinion of the International Court of Justice, ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’, contained arguments with a real prospect of success which ought to be heard. The appellants also succeeded in contesting the approach taken by the Divisional Court to the appropriate degree of intensity of review of the Foreign Office’s decision making in the matter, and successfully challenged whether or not Ministers were mislead about the basis on which the quantum of existing compensation was arrived at.

ASK, R (On the Application Of) v The Secretary of State for the Home Department [2019] EWCA Civ 1239 – In a lengthy judgement, the Court gave a detailed examination of the powers of the Home Secretary to detain those suffering from mental health conditions prior to their removal from country. The individuals concerned submitted that by virtue of their diagnosis they were either unfit to be removed and/or be detained in an immigration removal centre, or lacked the mental capacity to challenge their detention. The appeals failed on grounds concerning alleged breaches of Articles 3 and 8 of the ECHR and the application of applicable immigration policy. However, the appellants succeeded in respect of claims for damages brought under the Equality Act 2010.

The long-term partner of a senior RAF officer succeeded in her appeal against the decision of the Upper Tribunal that her claim for benefits under the Armed Forces (Compensation Scheme) Order 2011 be disallowed because she remained married to another man, notwithstanding her long term committed relationship with the deceased – Langford v The Secretary of State for Defence [2019] EWCA Civ 1271. The appellant successfully relied upon Article 14 of the European Convention on Human Rights and the recent decision in Re Brewster to show that a person in an exclusive relationship with a scheme member who would otherwise qualify for the benefit could not be excluded simply by reason of having failed to secure the formality of divorce. The court held that to do so would be discriminatory.

In other news, the Ministry of Justice reduced the discount rate on compensation in personal injury cases from -0.75% to -0.25%. The continuation of a negative rate surprised many, particularly defendants and insurers.

Finally on Episode 87 of LawPod UK,  Catriona Murdoch speaks to Rosalind English about a new app designed to help professionals in the investigation of international crimes.

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