Coroner’s conundrums: born alive or still-birth, and mother’s anonymity

R (o.t.a T)  v. HM Senior Coroner for West Yorkshire [2017] EWCA 187 (Civ), 28 April 2017 read judgment

A sad story of human frailty posed two difficult problems for the Coroner, and the Court of Appeal.

A 19-year old mother went into hospital, with a shoebox. In the shoebox was the 6-days dead body of her daughter. She told the hospital and the police that she had been raped, hence the shame about reporting the death. She had given birth in her bedroom at home, and she said that the baby had been cold when born. Continue reading

Defying convention: Supreme Court puts Sewel on the sidelines

unknownIn the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.

Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.

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Scottish prisoner successfully challenges decision refusing permission to own a laptop

Email on computer

Photo credit: The Guardian

Beggs, Re Judicial Review, [2016] CSOH 153 – read judgment.  

The refusal to allow a Scottish prisoner to purchase a laptop for use in prison has been successfully challenged in the Outer House of the Court of Session. However, the Outer House decision focussed on the flawed decision making process as opposed to the substantive conclusion reached by prison authorities.

Background

In 2001, the petitioner was convicted of murder and sentenced to life imprisonment. Whilst in prison, the petitioner, Mr Beggs, made a number of requests to be allowed to purchase a laptop. Mr Beggs intended for this laptop to be used to prepare responses to his lawyers in connection to a number of civil and criminal court actions in which he was involved. Additionally, Mr Beggs intended for the laptop to be used for educational purposes. However, each request made by Mr Beggs was refused.

This issue had been raised as early as 2002. The Scottish Prison Complaints Commissioner had stated that Mr Beggs “is a highly educated, intelligent man whose literacy is excellent”. The formal recommendations stemming from the Commissioner’s consideration of the matter was that Mr Beggs should be provided with a word processor and a printer to assist with his legal casework. However, no such access was forthcoming. As a result, Mr Beggs raised a first set of judicial review proceedings. Such proceedings were halted prior to the first hearing after the authorities agreed to provide computer facilities and a printer. This arrangement between Mr Beggs and the authorities at HMP Peterhead did not operate smoothly. Mr Beggs was allowed to access a communal laptop provided by the prison. However, another prisoner was often using this laptop. As a result, Mr Beggs made a request for permissions to have his own personal laptop.

Scottish Policy on personal laptops

The Governors and Managers Action Notices 84A of 1998 and 15A of 1999 (“GMA 1998” and “GMA 1999”) are the relevant policy documents covering prisoner ownership of computers/word processors. Under GMA 1998 there was a prohibition on prisoners in closed establishments from owning such devices (which would include laptops). However, GMA 1999 relaxed this position and allowed a prisoner to own a laptop in “exceptional cases” if “compelling reasons” had been shown. Additionally, there was the need to demonstrate that any security concerns could be adequately addressed.

This scheme for ownership of laptops operated separately from the various schemes allowing prisoners to access prison-owned laptops. The relevant protocol was most recently updated in March 2013. It only afforded prisoners access for legal work and required completion of a written application form. Access would not be provided unless the individual could show “real prejudice to his case” if access were restricted. Additionally, resources were limited as prisons only owned a certain number of laptops (which cost £1,000 to purchase). All in all, the scheme for accessing prison owned laptops was very restrictive and of little practical use.

Requests for a laptop

Mr Beggs initial request to the governor of HMP Peterhead was refused. Whilst recognising that “compelling circumstances” under GMA 1999 existed to depart from the general ban of laptops contained in GMA 1998, the governor refused the request due to the fact that the protocol for accessing communal computer equipment adequately met Mr Beggs’ needs.

Mr Beggs made a number of similar requests following this initial refusal. All requests were unsuccessful and often referenced the fact that the ability to access a communal laptop was sufficient.

In March 2014, having been moved to HMP Edinburgh, the petitioner made another request to be allowed a laptop. Again, he emphasised that a laptop was necessary to allow him manage the vast amount of legal documents that had amassed from various legal actions and also to allow him to further his academic interests. The governor of HMP Edinburgh refused this request. This time, Mr Beggs’ request was refused due to a failure to show that “exceptional circumstances” justifying the provision of a laptop existed as required under GMA 1999. The governor also noted that there were other individuals in the prison who were able to manage their cases without utilising a laptop.

It is this decision of March 2014 that the petitioner sought to have judicially reviewed.

Outer House Decision

Lord Malcolm began his decision by considering the relevant policy documents. As discussed above, GMA 1998 and 1999 established a system that required the individual to show “compelling circumstances” to justify departing from the general ban on prisoners in closed establishments owning laptops and that the relevant security concerns could be addressed. Lord Malcolm noted that only one individual had previously applied for a personal laptop, namely the man convicted of the Lockerbie bombings, Abdelbaset Ali Mohmed al-Megrahi.  he had been allowed a laptop. Accordingly, it was clear that the relevant security concerns could be addressed.

Further, the existence of prison-owned laptops was irrelevant. The protocol allowing access to communal laptops existed independently of the scheme for personal laptops under GMA 1998 and 1999. The “very restrictive” prison laptop protocol could not be relied upon as a justification for refusing a personal laptop (despite the fact that such reasoning had been adopted by numerous decision makers in response to Mr Beggs’ previous requests prior to March 2014).

In considering the specific refusal reviewed by Mr Beggs, that of March 2014, Lord Malcolm noted that the governor of HMP Edinburgh merely stated that the petitioner’s circumstances were not “exceptional” and therefore there was no need to provide a personal laptop. But Lord Malcolm, whilst not explicitly disagreeing with the conclusion, empathised with Mr Beggs. Due to a number of factors, including the early positive response of the Scottish Prisons Complaints Commissioner, the undertaking agreed in the context of the first judicial review proceedings, and the initial decision of the governor of HMP Peterhead that “compelling circumstances” existed, Mr Beggs could reasonably expect his position to be considered “exceptional”. A decision that all of the above, amongst other considerations, did not amount to “compelling circumstances” should be be afforded “a more considered, detailed, and reasoned response than anything provided [to Mr Beggs] so far”.

As a result, Lord Malcolm reduced the decision of March 2014 and all subsequent decisions.

Comment

Ultimately, this decision of the Outer House relates purely to the decision making process adopted by the prison authorities. It’s easy to have sympathy with Mr Beggs. Despite previous assurances and, at first glance, clear “exceptional circumstances” he was repeatedly refused permission to buy his own personal laptop. These refusals included no reasons which effectively prevented Mr Beggs from being able to assess the height of the hurdle he had to clear in order to be successful.

The result of this judgment is that the governor of HMP Edinburgh will have to consider Mr Begg’s request afresh. In considering the substantive question of whether Mr Begg’s should be allowed a laptop there appears a number of factors in favour of granting permission. First, Mr Beggs has always offered to pay for the laptop himself. Instead of costing the authorities money, this would actually result in less reliance being placed on the limited number of communal laptops provided by the prison. Secondly, there is clearly no insurmountable issues regarding security; Mr al-Megrahi was provided a laptop, and numerous prisoners use communal laptops under the relevant protocol whilst in closed establishments. Finally, it may appear inconsistent to allow prisoners to enjoy Xboxes and PlayStations, which can also potentially access wifi and are explicitly permitted, whilst refusing to allow Mr Beggs to purchase a laptop for legal and educational purposes.

A cyber scene of crime – in everybody’s home

cybercrime-100534917-primary-idgeThis blog has covered a number of claims for damages arising out of the misuse of private information. The Mirror Group phone hacking case is one example (see my post here and the appeal decision here), and the fall-out from the hapless Home Office official who put private information about asylum-seekers on the Internet, being another – (Gideon Barth’s post on TLT here). See also below for related posts.

But this post is to give a bit of context, via the wider and scarier cyber crime which is going on all around us. It threatens the livelihoods of individuals and businesses the globe over – and has given and will undoubtedly give rise to complex spin-off litigation.

So let’s just start with the other week. On 21 October 2016, it seems nearly half the Internet was hit by a massive DDoS attack affecting a company, Dyn, which provides internet services infrastructure for a host of  websites. Twitter, Reddit, Netflix, WIRED, Spotify and the New York Times were affected. DDoS, for cyber virgins, is Distributed Denial of Service, i.e. an overloading of servers via a flood of malicious requests, in this case from tens of millions of IP addresses. No firm culprits so far, but a botnet called Mirai seems to be in the frame. It is thought that non-secure items like cars, fridges and cameras connected to the Internet (the Internet of Things) may be the conscripted foot soldiers in such attacks.

And now to the sorts of cases which have hit the headlines in this country to date.

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Developments in the oversight of British Troops abroad – the Roundup

 

https://i.guim.co.uk/img/media/d19fc6a2d0ce552588dcf4b500c2116063496673/0_0_2048_1229/master/2048.jpg?w=620&q=55&auto=format&usm=12&fit=max&s=2218b555706e0d1886885f1f8dc47f0e

In the news

The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.

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Strasbourg again favouring safety of conviction over cross-examination of witnesses?

Strasbourg_ECHR-300x297Simon Price v. the United Kingdom, Application no. 15602/07, 15 September 2016 – read judgment.

In a unanimous decision, the European Court of Human Rights has held that the proceedings that lead to the conviction of an individual for drug trafficking charges were entirely compliant with Article 6, ECHR. Despite the inability to cross-examine a key prosecution witness, the Court considered that in light of the existence of supporting incriminating evidence (amongst other factors) the proceedings as a whole were fair.

Background

In June 2004 a ship, entering the port of Rotterdam, was searched by customs officials and found to contain a quantity of cocaine worth £35 million. The applicant, Simon Price, was arrested after he made enquiries into the container shortly after. He was subsequently charged with an offence under s.20, Misuse of Drugs Act 1971, and with the attempted importation of drugs from Guyana to the United Kingdom via the Netherlands and Belgium. Continue reading

Strasbourg finds that UK authorities again fail to show “due diligence” in deportation proceedings

Yarl’s Wood immigration detention centre in Bedfordshire.

Photo credit: the Guardian

V.M. v. the United Kingdom, Application no. 49734/12, 1 September 2016: read judgment

The European Court of Human Rights has ruled that part of an individual’s detention pending deportation violated the right to liberty protected by Article 5, ECHR. This judgment is the second recent ruling to find a lack of “due diligence” on behalf of UK authorities following the Court’s judgment in J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 (see my previous UKHRB post here).

Background

The applicant, VM, entered the UK illegally on 18 November 2003 with her son (S). Soon after, her son became the subject of an interim care order and the applicant was charged with child cruelty under the relevant legislation. Following an unsuccessful application for asylum due to fears for her life back in Nigeria, VM pleaded guilty to the child cruelty charges in August 2004. However, following the granting of bail pending the next hearing in February 2005, VM absconded for a period of over two years.

In September 2007 the applicant was again arrested, this time on charges relating to possession of false documentation with intent to commit fraud. Following conviction she was sentenced to nine months in prison. The applicant was also eventually convicted of the child cruelty charges in April 2008. Before sentencing, a psychological report was produced that indicated the applicant suffered from depressive and psychotic symptoms. However, such symptoms were being adequately managed through therapy and medication. Accordingly, there was no need to consider specialised treatment in a hospital or prison healthcare wing under the Mental Health Act 1983. The applicant was therefore sentenced to twelve months imprisonment, with an additional three months due to the failure to surrender to bail, in July 2008. At this point, due to the severity of the offences, the domestic judge recommended that the applicant be deported. Continue reading