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Following our recent Law Pod UK episode on judicial review, this case contains some useful guidelines to the differences between the kinds of remedy available via judicial review versus statutory appeal, private civil actions, private prosecutions and other avenues for compensation.
It involved an application for judicial review of decision-making by the regulator of landfill maintenance, where the regulator argued that the claimant had an adequate alternative remedy such that judicial review should be refused.
The applicant, Noeleen McAleenon, had claimed that the regulator had not taken appropriate action to prevent harmful chemical gases and noxious smells escaping from a neighbouring landfill site. But the public bodies maintained that judicial review should be refused because Ms McAleenon had adequate alternative remedies, in that she could herself launch a private prosecution against the owner of the site: Section 70 of the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 (“the 2011 Act”) provides that a person aggrieved by the existence of a statutory nuisance may make a complaint to the magistrates’ court for an order requiring abatement of the nuisance and prohibiting its recurrence and the imposition of a fine.) Alternatively, the defendants said, she could bring a nuisance claim against them in private law.
The first instance judge dismissed the alternative remedies defence. He observed (para 92) that the case concerned the public law issues of regulation and enforcement, whereas any private prosecution in the magistrates’ court under section 70 would centre on the issue of whether a nuisance had been caused. Whilst there is of course an overlap between the two questions, the two kinds of litigation have quite different purposes:
“a member of the public with sufficient interest is entitled to hold regulators to account by pursuing any public law wrongdoing. It would be an unfortunate and unattractive position if a regulator could effectively be immune from suit in this sphere by reference to alternative proceedings in the magistrates’ court”.
In this guest post, Rajiv Shah argues that the provision of assisted suicide in the England and Wales via the NHS would constitute a substantive breach of the negative obligation imposed on the State under Article 2 of the ECHR.
Introduction
Article 2 of the ECHR protects the right to life. That article contains two distinct substantive obligations: “the general obligation to protect by law the right to life, and the prohibition of intentional deprivation of life, delimited by a list of exceptions.” (Boso v Italy, at [1])
That first obligation is a positive one and requires States to take steps to protect life from third parties and even from individuals themselves. The precise content of that obligation is necessarily nebulous and the Court affords States a margin of appreciation in deciding what that obligation requires, and how it is to be fulfilled. So, in two recent Chamber decisions – Mortier v Belgiumand Karsai v Hungary – the Strasbourg Court held that this positive obligation does not require States to forbid assisted suicide and euthanasia, but that if it does want to allow it, it must create legal safeguards to ensure that the decision of individuals to end their own life/or be killed by third parties is freely taken.
Over 30 years ago, the Pergau Dam affair, linking aid to trade with Malaysia burst into the papers as one of Britain’s biggest aid scandals. The government promised to supply aid to build a hydroelectric plant at Pergau in exchange for a major arms deal with Malaysia. The trouble was that the Pergau Dam project was deemed hopelessly uneconomic by officials in both Britain and Malaysia. In late 1994, the deal was declared unlawful in a landmark case in the High Court. In Episode 206 Liz Fisher, Professor of Environmental Law at Oxford University joins Sir Tim Lancaster, who was Permanent Secretary to the aid department at the time the Pergau Dam story broke. The case that followed – R v Secretary of State for Foreign Affairs ex parte The World Development Movement Ltd [1995] marked a change in judges’ approach to government policy, and we’ll be discussing the much more interventionist role of judges as they participate in lawmaking today, including the recent climate change judgements in R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County Council and others (Respondents) – see my post on that case here – and more recently in Friends of the Earth v Secretary of State for Levelling Up.
A presumption of anonymity for firearms officers facing criminal proceedings following police shootings, up until the point of conviction.
Raising the threshold for the Independent Office for Police Conduct (IOPC) to refer police officers to the Crown Prosecution Service (CPS) so that only cases with a reasonable prospect of conviction are referred.
A rapid independent review to consider the legal test for use of force in misconduct proceedings and the threshold for unlawful killing in inquests.
An examination of CPS guidance and processing in charging police officers for offences committed in the course of their duties.
Creating a national database of deaths or serious injuries following police contact or pursuits to incorporate the findings into training and guidance.
IOPC victims’ right to review to be placed on a statutory footing.
The Supreme Court has considered what alternative remedies claimants should seek instead of launching judicial review proceedings. Noeleen McAleenon claimed that she suffered physical symptoms and a deterioration in her mental health due to the odours emanating from a landfill site close to her home. She complained to her local council, Lisburn & Castlereagh City Council, and subsequently launched judicial review proceedings alleging that the council failed to conduct a proper investigation of the nuisance odour, as well as making an article 8 ECHR claim. The council argued that Mrs McAleenon should have sought alternative remedies such as a private prosecution or a nuisance claim against the manager of the landfill. The Supreme Court stated that judicial review is less time consuming and expensive than either a private prosecution or a nuisance claim. Either of those options would not provide Mrs McAleenon with remedies as extensive as her judicial review or article 8 claim, with regard to availability and the quantum. Furthermore, it is not appropriate for a public authority to seek to avoid liability by pointing to an alternative defendant, in this case the manager of the landfill.
These proceedings concerned the forfeiture rule under section 2(2) of the Forfeiture Act 1982 as it applies to the estates of people who travel to Switzerland for assisted dying (the 1982 Act). Mrs Myra Morris had ended her own life with the assistance of the staff at the Swiss clinic and the assistance of her husband Philip. She had been suffering from Multiple System Atrophy, a rare and degenerative neurological disorder with no known cure.
It was accepted between the parties that the role played by Philip engaged Section 2(1) of the Suicide Act 1961, which makes the assistance of suicide a criminal offence. The forfeiture rule under Section 1 of the 1982 Act precludes a person who has unlawful acted in the killing of another from acquiring a benefit from that killing. Section 2 of the 1982 Act allows for the modification of that rule if the justice of the case calls for such mercy.
Before Myra died, her solicitor assessed her as having the mental capacity to make an informed and voluntary decision to end her own life according to the Mental Capacity Act 2005. She said that she was satisfied that Myra was able to understand the decisions she was making and was under no undue influence, pressure or encouragement when she did so.
Her husband Philip sought advice from solicitors regarding his position should he accede to Myra’s wish for him to accompany her to Switzerland and he was reassured that, in the light of the DPP’s guidance on Section 2 of the Suicide Act, he would not be prosecuted, and indeed the Police Constable who interviewed Philip on his return from Switzerland told him that there was nothing to report and confirmed the position in writing.
Then there arose the question of the forfeiture rule. There are very few reported decisions on the approach the court should take on an application to modify the forfeiture rule, but the 1982 Act requires the court to have particular regard to the conduct of both the deceased and the person assisting the death when determining the justice of the case. In Dunbar v Plant [1998] Ch 412, Philips LJ explained that there were clear indications in the Act that there were circumstances in which the public interest did not require the imposition of any penal sanction, a consideration which he linked directly to the proper application of the forfeiture rule:
“Where the public interest required no penal sanction, it seems to me that strong grounds are likely to exist for relieving the person who has committed the offence from all effects of the forfeiture rule.” [para 437]
Last week, the Government published the new Employment Rights Bill – a bill Deputy PM Angela Raynor has said seeks to “turn the page on an economy riven with insecurity, ravaged by dire productivity and blighted by low pay”. Among the measures included are steps towards ending “exploitative” zero-hour contracts, the introduction of a statutory probation period for new hires, and the removal of the two-year qualifying period for claims to unfair dismissal. The bill places significant emphasis on flexible working as the future of employment, stating that it will be “default for all, unless the employer can prove it is unreasonable”. With various aspects of the bill strengthening protections to women in the workplace, Jemima Olchawski, CEO of the Fawcett Society, has called the bill “a win for women”. However, the bill is not without its critics. Sharon Graham, the general secretary of Unite union, claimed in a post on X (formerly Twitter) that the bill has “more holes than Swiss cheese”, leaving loopholes for employers to evade the provisions on zero-hour contracts and fire & rehire. Whistleblowing charity Protect have also expressed regret that the bill does not go far enough to strengthen protections for whistleblowers.
The Tory leadership race continued last week as the candidates were whittled down to a final two: Kemi Badenoch and Robert Jenrick, both considered to be on the right of the party. Membership of the ECHR has become an increasingly central issue in the race. While Jenrick has promised to leave the ECHR immediately if ever elected PM – calling the issue one of “leave or remain” – Badenoch told Sky News she believes that focusing on the ECHR “shuts down the conversation we need to have with the entire country” about migration. Both candidates have been the subject of criticism for comments made during the party conference. Jenrick, in support of his campaign to leave the ECHR, has controversially claimed that special forces are opting to kill instead of catch terrorists as otherwise the “European Court will set them free”. The charity Action on Armed Violence have stated that Jenrick’s comments “do a disservice to the serious allegations at hand” in the inquiry into SAS killings in Afghanistan, which must be “allowed to proceed without political interference”. Badenoch has come under fire for comments insinuating that maternity pay is “excessive” and that “about 5 to 10%” of civil servants are so bad that they “should be in prison”. She has backtracked on both fronts, claiming her comments were “misrepresented”.
In Other News
A UN report published last Thursday – three days after the one-year anniversary of the October 7th attacks – contains findings that “Israel has perpetrated a concerted policy to destroy Gaza’s healthcare system”, committing war crimes in doing so. The report further states that Israeli security forces have “deliberately killed, detained and tortured medical personnel”, with children having “borne the brunt” of the health system’s “collapse”. It was further found that the “institutionalised mistreatment” of Palestinian detainees had taken place under direct orders from Itamar Ben-Gvir, Israeli National Security Minister. On Friday, in a statement from its mission in Geneva, Israel took strong objection to the report, calling its conclusions “outrageous” and a “blatant attempt to delegitimise the very existence of the State of Israel and obstruct its right to protect its population, while covering up the crimes of terrorist organisations”. Israeli representatives have accused the commission behind the report, the UN Independent International Commission of Inquiry on the Occupied Palestinian Territories, of creating an “alternate reality” and refused to cooperate with the investigations preceding the report’s compilation.
On Wednesday, the United Nations Human Rights Council in their 57thsession adopted a resolution on Afghanistan in response to the escalating crisis in the country, extending the mandate of the UN Special Rapporteur on Afghanistan. The report resulting from resolution 54/1 to carry out a “stocktaking” of accountability options on Afghanistan was also presented at the session. The report detailed a variety of recommendations to Afghan de facto authorities, including the establishment of a moratorium on executions and the implementation of victim-centred transitional justice measures. While Amnesty International celebrated that the stocktaking marked the “first time in recent years that the UN is debating how to address serious accountability gaps”, the measure was nevertheless “inadequate” in the face of the crimes under international law being committed in Afghanistan. Amnesty also criticised the resolution adopted this week, claiming the council have “shied away from sufficiently supporting justice for the people of Afghanistan who have placed their hopes in the international community” by failing to establish an independent international accountability mechanism.
In the Courts
Last week, the European Court of Justice ruled that European Member States are obligated to recognise legal gender identity changes conducted in other Member States. The Court held that Romania’s refusal to recognise the applicant’s UK Gender Recognition Certificate constituted a violation of his right to move and reside freely within the Member States of the European Union. In a press release accompanying the ruling, the CJEU stated that “gender, like a first name, is a fundamental element of personal identity; […] a divergence between identities resulting from such a refusal of recognition creates difficulties for a person in proving his or her identity in daily life as well as serious professional, administrative and private inconvenience”. The applicant’s legal counsel, human rights lawyer Iustina Ionescu, told charity Transgender Europe that the “verdict has shown that trans people are equal citizens of the European Union”.
The European Court of Human Rights has ruled that Cyprus’ immediate return to Lebanon of Syrian asylum seekers intercepted at sea constituted a violation of their human rights – in particular, the prohibition of inhuman or degrading treatment. There had also been a violation of Article 4 of Protocol No. 4 (prohibition of the collective expulsion of aliens). Cyprus had failed to consider the risk of lack of access to asylum in Lebanon, the risk of refoulement, and the individual situations of the asylum seekers. The Court paid significant attention to a Human Rights Watch report published in September 2020 which revealed systematic mistreatment of asylum seekers by Cypriot authorities. The report had been referenced in the applicants’ arguments and was not challenged by counsel for the Government. Cypriot Government spokesman Konstantinos Letymbiotis has stressed that the events concerned occurred in 2020, under the previous administration, and has denied the allegation that the government has been carrying out further refugee pushbacks since the ruling.
The name ‘Chris Pincher’ has become synonymous with Boris Johnson’s downfall, but it was the case of Owen Paterson that precipitated the unrest in the Conservative Party that ultimately led to the former Prime Minister’s resignation.
Owen Paterson stepped down as an MP in November 2021, following a report by the House of Commons Select Committee on Standards that found he had breached the MPs’ Code of Conduct by engaging in paid advocacy and recommended that he be suspended from the House for thirty sitting days. After initially whipping MPs in an attempt to support Mr Paterson and to avoid a possible by-election in North Shropshire, Boris Johnson eventually conceded that the parliamentary party was not with him. Mr Paterson resigned before MPs could vote on the sanction.
The European Court of Human Rights (‘ECtHR’) has dismissed a complaint by Mr Paterson (Patterson v UK App no. 23570 (ECtHR, 19 September 2024)) that the proceedings and/or the finding breached his rights under Article 8 of the Convention to respect for his private and family life.
In Sammut v Next Steps Mental Healthcare Ltd and Greater Manchester Mental Health Foundation Trust[2024] EWHC 2265(KB), HHJ Bird sitting as a judge of the High Court gave summary judgment in favour of the first defendant in a claim against a care home brought on behalf of the estate of a mental health patient for breach of ECHR Article 2. HHJ Bird held that the care home was not engaged in public functions for the purposes of section 6 of the Human Rights Act 1998 and was not a public authority. Further, the alleged breach of Article 2 was in reality no more than an allegation of clinical negligence outwith the scope of Article 2.
At least 39 people were killed and over 3000 injured last week following a series of attacks in Lebanon and Syria in which electronic pagers and radios were remotely programmed to explode. The devices targeted appear to be those belonging to Hezbollah-affiliated individuals. The military group has claimed Israel was behind the attacks which UN experts have termed “terrifying” violations of international law. Amnesty International has called for the establishment of an immediate international investigation – arguing that the attacks “should be investigated as war crimes” should Israel be determined to be responsible. However, Israeli President Isaac Herzog has stated that the nation “rejects out of hand any connection” to the explosions. The attacks are deepening concerns about the risk of full-scale regional war breaking out in the Middle East, resulting in the calling of an emergency Security Council meeting on Thursday. Matthew Miller, spokesperson for the US Department of State, suggests that it is “too early to say” how this week’s events will impact Gaza ceasefire talks.
Former BBC News presenter Huw Edwards has been given a six-month suspended sentence following his pleading guilty in July to the making of 41 indecent images of children. The ‘making’ of images can include the opening of attachments or downloading from the internet. Following the sentence, Claire Brinton, Specialist Prosecutor at the CPS, stated: ‘This prosecution sends a clear message that the CPS, working alongside the police, will work to bring to justice those who seek to exploit children, wherever that abuse takes place.” However, the sentence has been widely criticised as overly lenient, including by Reform UK Deputy Leader Richard Tice who has written to the Attorney General willing him to appeal the sentence. Various reports have featured lawyers explaining that such a sentence is not unusual given the offence and Edwards’ lack of priors, emphasising that “Mr Edwards fared no better and no worse in this sentencing exercise than he would have done were he not a well-known news presenter”. Opinions are surfacing that the public outrage in response to what is a regular sentence exposes deeper issues within the criminal justice system.
Proposed amendments to the Iraqi Personal Status Law, rowing back several aspects of women’s rights, passed a second parliamentary reading on Monday. The law will soon be put to a final vote. The amendments seek to lower the legal age of marriage for girls to nine years, remove important rights of women in divorce and inheritance settings, and grant religious authorities further command over family matters. Human Rights Watch have noted that “Article 14 of the Iraqi constitution, as well as international human rights law, guarantee all Iraqis the right to legal equality. This amendment would not just undermine this right; it would erase it”. Iraqi women are leading the charge against the amendments, including Noor al-Jilaihawi – an Iraqi MP who has revealed that the parliament’s president refused to acknowledge a request by 124 MPs (over a third of parliament) to remove the reading from Monday’s agenda. On Sunday, the Supreme Judicial Council of Iraq came out in support of the proposed amendments and stressed their view that the amendments would not infringe upon women’s rights.
In the Courts
Last week, the Northern Ireland Court of Appeal upheld the finding that the Northern Ireland Troubles reconciliation law breaches human rights. The controversial first instance judgment in Dillon and others v Secretary of State for Northern Ireland disapplied large portions of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 for contravening the Article 2 of the Windsor Framework, a post-Brexit measure ensuring that the UK does not erode the human rights protected within the Good Friday Agreement. While the Act had intended to facilitate the end of legal proceedings relating to the Troubles, it has been met with consistent opposition from victims. The Court of Appeal held the Act to be unlawful on various grounds, including that it seeks to create an immunity for criminal activity related to the Troubles and that it fails to sufficiently safeguard victims. The new Labour Government have suggested they intend to repeal several key features of the Act.
Former Tory MP Owen Paterson has lost his appeal to the European Court of Human Rights. The Court declined to grant the declaration sought that the parliamentary investigation into Paterson’s conduct whilst MP was unfair and procedurally flawed. The former MP resigned in 2021 following an investigation and final report which recommended his suspension for an ‘egregious’ breach of lobbying rules. The Court found that the inquiry had been “fair, rigorous and thorough” and emphasised it was not for courts to interfere with the “business of Parliament” – such as how standards are enforced. The Court were further unable to attribute Paterson’s claimed £120k per annum financial losses to the investigation since “as he himself resigned from the House of Commons before the house could consider whether or not to apply the recommended sanction [of suspension], neither the loss of his seat nor the loss of income from his position as an MP were a necessary consequence of the investigation”.
The European Court of Human Rights also handed down judgment last week in Pindo Mulla v Spain, holding that the administration of blood transfusions to a Jehovah’s Witness against her will “breached her right to autonomy”. There had consequently been a violation of her Article 8 (right to respect for private and family life) of the European Convention on Human Rights when read in the light of Article 9 (freedom of thought, conscience and religion). Although it was found that the situation had arisen out of improper documenting of Ms Pindo Mulla’s wishes not to receive blood, the Court emphasised that in all cases, “a patient’s autonomy was to be reconciled with their right to life”. As to the documentation, it was underlined that “where a State [has] decided to put in place a system of advance medical directives relied on by patients, it [is] important that the system functions effectively”. Speaking to AFP, Pindo Mulla said she was “very happy that justice has been done” and seemed hopeful that the ruling would “allow the rights of other people to be respected in the future.”
His Honor Judge Mark Lucraft KC, Chief Coroner of England & Wales from 2016-2020 endorsed the guide saying the following:
“This important guide equips practitioners and coroners to recognise, raise and investigate issues of race or racism when they arise, sensitively and without reticence. It is an invaluable resource, not only for promoting racial justice, but for improving fact finding, increasing racial awareness, and providing better representation to families.”
The Courts and Tribunals Judiciary has just published the newest edition of the Administrative Court Judicial Review Guide. The guide covers all the stages of judicial review proceedings, and is available here, for the perusal of practising and aspiring lawyers (as well as interested others).
In international news
Tedros Adhanom Ghebreyesus, the director-general of the World Health Organisation has criticised the inadequate international response to the conflict in Sudan. Since April 2023, over 20,000 have been killed and over 10 million people are displaced, while 25.6 million people (around half of Sudan’s population) are facing high levels of food insecurity. Ghebreyesus has called for an immediate ceasefire with a lasting political solution as well as a scale up in the delivery of humanitarian aid. Human Rights Watch have published a report about the flow of foreign arms which are sustaining the fighting. Human Rights Watch have traced the weapons to China, Russia, Iran, Serbia and the United Arab Emirates, and argue that weapons such as armed drones, rocket launchers and anti-tank missiles have been used in attacks against civilians. Human Rights Watch is calling for an arms embargo for the entirety of Sudan, and a sanction regime to punish those violating the existing arms embargo on Darfur.
The High Court has quashed the grant of planning permission for a new coal mine at Whitehaven, Cumbria. The Secretary of State had previously admitted an error of law as the downstream emissions caused by the inevitable burning of the extracted coal were not factored into the Environmental Impact Assessment, thus the appeal was litigated by the mine owner West Cumbria Mining. The High Court did not accept the argument that coal mined in Cumbria would substitute coal extracted elsewhere to meet market demand, or the argument that the mine would have a “net zero” impact because West Cumbria Mining pledged to purchase carbon credits.
A contractual dispute between Tesco, the Union of Shop Distributive and Allied Workers, and a small group of Tesco’s employees has shone a new light on controversial “fire and rehire” practices. In 2007, Tesco closed down some of its distribution centres and opened new ones in new locations. To persuade staff to relocate they offered enhanced pay referred to as “retained pay”. Employees were told that the retained pay was permanent. In January 2021, Tesco decided to “phase out” the retained pay in exchange for a lump sum, and told employees that if they did not did not accept this change their contracts of employment would be terminated and they would be rehired on new contracts with the retained pay removed. The Supreme Court held that there was an implied term, required for business efficacy, that Tesco could not terminate the employees’ contracts to rehire them without the retained pay. The mutual intention of the parties was that the retained pay would serve as an inducement for experienced workers to relocate and this would be undermined if Tesco had the right to unilaterally remove the retained pay at any time for its business purposes.
The BIOT is an archipelago consisting of over 50 islands located roughly half way between East Africa and Indonesia. It is a British Overseas Territory and is formally administered from London by a Commissioner, who performs both legislative and executive functions.
Diego Garcia is the largest island in the archipelago. It has no settled population but accommodates a substantial US/UK military facility. The facility employs a transient population of about 4,000.
In 2021 a group of individuals of Tamil ethnicity left India by boat, apparently with the goal of reaching Canada. On 3 October 2021 their vessel encountered difficulties in the Indian Ocean and was escorted by the Royal Navy to Diego Garcia. Following their arrival in the BIOT, the individuals made claims for asylum. These claims remain un-determined, and some 61 individuals (including children) have now been living on Diego Garcia for nearly three years. There they have been housed in what have been described as “hellish” conditions. The majority live in tents in Thunder Cove (referred to as the “Camp”). Initially they were confined to the Camp itself, but as a result of an order made on 21 December 2023 they gained access to a nearby beach. They also have limited access to buildings outside the Camp for the purposes of consultations with lawyers, medical treatment and, for children, education. A few individuals who with medical complaints which could not be addressed on Diego Garcia have been flown to Rwanda for treatment.
In May 2024 eleven individuals were granted “bail” on terms which allowed them (in summary) to leave the Camp and walk along highway DG1, and to access beaches from the road. These arrangements appear to have been uncontroversial. When they were put in place, it was envisaged that the limited freedoms granted to the eleven individuals would be extended to the other migrants on Diego Garcia. In any event, it was also expected that the position of all of the individuals would be finally resolved at a hearing scheduled for July 2024. This substantive hearing has, however, been indefinitely adjourned.
The July 2024 Bail Application
In July 2024 a number of the individuals applied for extended bail. Specifically, they sought access to a “nature trail”, and also sought changes to the terms on which their bail could be exercised.
In response to this application (the “July Application”) the Commissioner sought the views of the US authorities responsible for the operation of the military facilities on Diego Garcia. The US authorities provided their views on the July Application a few hours before it was due to be heard (on 23 July 2024). The US position was stark: it opposed any extension of bail on the basis that the proposals posed “operational, security, health and safety risks [to the military facilities on Diego Garcia]… which cannot be mitigated or would be unduly burdensome to mitigate”.
The Commissioner applied for an adjournment of the hearing of the July Application to give him more time to consider the response of the US. This was rejected.
Very shortly after the hearing on 23 July, the Commissioner received letters from (i) the Director General for Africa and the Americas at the Foreign, Commonwealth and Development Office; and (ii) the Minister of State for Europe, North America and the UK Overseas Territories. Both emphasised the respect which should be accorded to the US’ concerns. These letters were provided to the Court.
On 26 July Judge Obi of the Supreme Court of the BIOT granted the July Application, subject to some relatively minor caveats. In particular, she extended bail to all the relevant individuals and permitted access to the Nature Trail.
The Commissioner appealed, and the Court of Appeal of the BIOT heard the appeal on 9 August. It handed down its decision, dismissing the appeal, on 20 August.
The Commissioner’s Grounds of Appeal
The Commissioner appealed against the Judge’s order on four grounds:
It was procedurally unfair for the Judge to have proceeded with the hearing of the July Application on 23 July (i.e. not to have granted the Commissioner’s application for an adjournment to allow more time to consider the US response).
The Judge exercised her discretion unreasonably because she failed properly to consider the impact of extending bail on US/UK relations.
The Judge exercised her discretion unreasonably because she failed to attribute due weight to the assessment by the US authorities of the security implications of extending bail.
The Judge exercised her discretion unreasonably because the July Order necessarily impacted upon decisions by the Commissioner concerning the allocation of resources.
The Court of Appeal’s Determination
The Court of Appeal dismissed the Commissioner’s appeal on all grounds.
Ground 1: Procedural Unfairness
The Court rejected the Commissioner’s contention that it was procedurally unfair for the Judge to refuse to adjourn the hearing of the July Application for two reasons.
First, the Court agreed with the Respondents that there was nothing “new” in the US’ response to the July Application. In summary it took the view that the US’ position had long been clear, and had amounted to “consistent and unvarying opposition” to any bail arrangements. Its response to the July Application was wholly consistent with this. Accordingly the Judge had been entitled to take the view that it was not necessary for the hearing to be adjourned for the Commissioner to have a fair opportunity to present his case.
Secondly, the Court noted that the Judge permitted oral submissions to be made on the two letters which the Commissioner received just after the hearing of the July Application. That further oral hearing constituted an obvious opportunity for the Commissioner to make any additional submissions on the US’ response to the July Application. The fact that he had not sought to make any such submissions undermined the contention that it had been unfair for the Judge not to adjourn the first hearing.
Ground 2: US/UK Relations
The Commissioner’s next ground of appeal relied on a contention that the Judge had failed to attach due significance to the impact that extending bail would have on US/UK relations.
The Commissioner’s case on this ground seems to have been somewhat confused. It appears to have been uncontroversial that “questions relating to international relations… are not generally justiciable”. However, it was also common ground that international relations considerations could not necessarily “dictate the outcome of the court’s enquiry”. The Commissioner’s argument before the Court of Appeal on this ground (at least in part) was that, because the grant of bail “had the potential to have a profound impact on international relations between the UK and [the US]”, the Judge should have exercised extreme caution before granting the July Application. As the Court of Appeal recognised, however, this was inconsistent with the Commissioner’s acceptance that the impact on the UK’s international relationships was just one factor to be considered in the overall balancing exercise. On that basis, the only question was whether the Judge had in fact properly evaluated the security concerns raised by the US. The Court of Appeal concluded that she had, and that there was no warrant for interfering in the evaluative conclusion which she had reached.
Ground 3: US Security Assessment
The Commissioner next argued that the Judge had failed, in summary, to accord sufficient respect to the US’ assessment that the grant of the July Application would interfere with security considerations.
Again, the Court dismissed this Ground. It accepted that it was for the relevant US authorities, rather than the Judge, to take a view on whether the grant of the July Application would have adverse security implications. However, this is not what the Judge had done. She had not questioned the US view of the relevant security implications but had, quite properly, taken that into account as a factor to be weighed alongside other relevant considerations. Her overall evaluation was that the July Application should (broadly) be granted. There was no warrant for interfering with that evaluation. In deciding that the Judge had accorded due respect to the US assessment of the security implications, the Court of Appeal seems to have relied in part on the fact that the Judge rejected aspects of the July Application (such as permitting the individuals to access a social club on Diego Garcia) because of the burdens those aspects would give rise to for the Commissioner.
Ground 4: Resource Allocation
Finally, the Commissioner argued that the Judge had strayed into another non-justiciable area because granting the July Application necessarily had implications for the allocation of resources by the Commissioner (in that there would be costs for the Commissioner associated with the extended bail arrangements).
Again, the Court found little difficulty in rejecting this Ground. It concluded that the Judge had not purported “to tell the Commissioner how to spend the funds available to the BIOT”. Rather she had explicitly recognised that this was a matter for the Commissioner. As was pointed out in argument, decisions as to bail conditions regularly have cost implications for the authorities; it would be surprising indeed if judges making such decisions were unlawfully straying into non-justiciable resource allocation territory.
Comment
It has been suggested (in particular by Joshua Rozenberg: see https://rozenberg.substack.com/p/uk-loses-diego-garcia-appeal) that the Commissioner must have recognised that he was likely to lose the appeal to the Court of Appeal, and that the appeal was only pursued in an attempt to show others (such as the US Government) that the UK was exhausting all its options in seeking to prevent bail being extended. On this view, the Court of Appeal’s decision was, from a legal perspective, “obvious”.
It is true that aspects of the Commissioner’s case before the Court of Appeal seem to have been very weak. In particular, it is difficult to see how the Commissioner could reasonably have hoped to succeed on Grounds 1 or 4.
However, the Court of Appeal’s decision does give rise to some points of genuine legal interest. In discussing Ground 2, the Court of Appeal accepted that the conduct of the UK’s foreign relations is non-justiciable in itself, but that the Crown’s foreign policy priorities can be weighed in the balance against other factors in determining a bail application. Presumably the same is true in other contexts. Similarly, in relation to Ground 3, the Court accepted that it is for the executive (in this case, in effect, the US Government) to form a view as to the state’s security interests, but that its view can be weighed among other factors in an appropriate case. This distinction is one which surely merits further academic, legal and political scrutiny. Put briefly, it is difficult to see how judges can on the one hand be expected to “keep out” of foreign policy and national security questions if the executive’s views on such matters are susceptible to being balanced against other factors (such as, in this case, the interests of individuals in being able to move more freely than has hitherto been the case). The Court’s approach to this issue seems to have been largely a result of the Commissioner’s acceptance that foreign policy and national security considerations did not constitute “trump cards” but were merely factors to be weighed in the balance. The Commissioner might have stood a better chance of success, and his case would certainly have been more intellectually coherent, had that concession not been made.
The second point arising from the Court’s judgment which is of significant interest concerns the way in which the parties and the Court all viewed the July Application through the prism of “bail”. As the Court itself recognised, this case falls far from the ordinary context in which bail principles are applied. One might see this case as demonstrating the admirable ability of English legal principles to address novel factual circumstances. Others might regret that such a unique set of facts could only be addressed by an analytical framework developed in very different cases.
The road to hell, so the saying goes, is paved with good intentions. While not quite as dire, well-intentioned laws can nevertheless sometimes have severe consequences. In Re Mediahuis and others’ applications for judicial review [2024] NIKB 45, the Northern Ireland High Court declared 5 sections of one such well-intentioned law, the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (the 2022 Act), invalid. This is the first invalidation of devolved Northern Ireland statutory provisions since the present devolution settlement (the Northern Ireland Act 1998) was enacted 26 years ago. On one level, the judgment is fairly unremarkable – courts are empowered to declare invalid any devolved statute (or statutory provision) which is found to be outwith devolved legislative competence (in this case because of incompatibility with Article 10 of the ECHR) and have done so without raising eyebrows since the advent of devolution in the UK. On a deeper level, however, the judgment and the justification for the relevant provisions of the 2022 Act show the limits of formal equality in addressing substantive injustice.
The judgment
The 2022 Act was a partial response to a wide-ranging review into the legal and policy measures around serious sexual offences in Northern Ireland. This review, carried out by retired Court of Appeal judge Sir John Gillen (the Gillen Review) made several recommendations. Among these, the relevant recommendations for this case were (1) an extension of anonymity for complainants of sexual offences beyond their lifetimes, (2) pre-charge anonymity for suspects of sexual offences and (3) a statutory prohibition on the publication of suspects’ identities pre-charge. The 2022 Act implements (1) (by extending complainant anonymity to 25 years after the complainant dies) but goes much further in implementing (2) and (3) than recommended in the Gillen Report. In respect of (2), the 2022 Act allows suspects to remain anonymous pre-charge on almost the same terms as complainants (during their lifetimes and up to 25 years after death), meaning that if a suspect is never charged, no identifying details may be published until after 25 years following their death. The reporting restriction can be lifted by a court on the application of the police, the suspect or (if the suspect has died) the suspect’s close family, personal representative or anyone interested in reporting any prohibited matters relating to the suspect. Importantly, the press may not apply to lift the reporting restriction during the suspect’s lifetime. On (3), the 2022 Act criminalises the unauthorised publication of suspect details and prescribes a custodial sentence or a fine (or both) for the offence.
Plainly, the 2022 Act represents a significant hurdle to public interest reporting. The pre-charge anonymity is just as extensive as complainant anonymity, and may only be lifted on the application of an extremely limited cohort of people. The justification offered by the Northern Ireland Department of Justice (DoJ), to put the matter mildly, lacked much (if any) persuasiveness. The DoJ pointed to the deleterious impact of publishing or reporting on a sexual offence suspect’s details before charge, with consequences ranging from reputational damage to a threat to life (Mediahuis, para 58). But the Act does not provide a general public interest defence to the offence of unauthorised publication. Such a defence would allow a court to carefully scrutinise two competing issues – any public interest in publishing a suspect’s details pre-charge and that suspect’s rights under the ECHR – and balance them. And nor does the process to lift reporting restrictions include the press as applicants. The rationale for this was virtually non-existent, with the DoJ simply saying:
“It was considered necessary to draw a distinction between who can apply before the death of the suspect and who can apply thereafter to reflect the very different circumstances that apply in those varying circumstances.“
But the Court was not provided with the reasons why this distinction was “considered necessary”. The DoJ further claimed that broadening the cohort of people who could apply to lift the reporting restriction (journalists, for example) during a suspect’s lifetime would “run contrary to the aims of key recommendation 10 [of the Gillen Report].” The relevant recommendation (in full) is:
“There should be no change in the current law concerning publication of the identity of the accused post charge. The identity of the accused should be anonymised pre-charge and the accused should have the right to apply for a judge-alone trial in the rare circumstances where the judge considers it to be in the interests of justice.“
Plainly, the DoJ’s claim about the recommendation was unsustainable.
It is therefore unsurprising that the High Court (Mr Justice Humphreys) should have found the relevant provisions to be a disproportionate interference with Article 10 of the ECHR (the freedom of speech and expression), creating a ‘chilling effect’ on public interest journalism (Mediahuis, para 102).
To be clear, laws with categorical exclusions like the 2022 Act are not, by their categorical exclusions alone, inconsistent with the ECHR. Another devolved Northern Ireland statute – the Abortion Services (Safe Access Zones) Act (Northern Ireland) 2023 (which creates areas around abortion services providers for the safety of their users and staff by fining certain conduct within these areas) emerged from the Supreme Court entirely unscathed, despite containing clear categorical exclusions of certain behaviours (in the form of a strict liability offence in respect of those behaviours). But there are important differences between the 2022 Act and the Abortion Services Act. Chief among these is that fact that the former proscribes unauthorised publication with a custodial sentence, whereas the Abortion Services Act provided for a fine. Moreover, the banned behaviours in the Abortion Services Act are spatially limited to the defined safe access zones around abortion services providers; people are free to oppose such services elsewhere, so the limitations on Article 10 rights are themselves limited. By contrast, the pre-charge publication bar in the 2022 Act applies without distinction as to geography or other factor, and continues for a quarter of a century after a suspect’s death if the suspect is not charged. The limitation on Article 10 rights is thus extreme, and could only be justified (if at all) with the clearest and most compelling reasons. In this, the DoJ ultimately failed.
The erroneous focus on formal equality
The largely unsurprising ECHR assessment of the 2022 Act by the High Court aside, it is curious that pre-charge suspect anonymity and complainant anonymity should have been placed on the same formally equal plane. This is especially the case given that formal equality between complainant anonymity and (general) suspect anonymity was categorically rejected as ‘flawed’ by Sir John Gillen (Gillen Report, para 12.90). Sir John identified a number of reasons why complainants are entitled to greater anonymity – not least to encourage their participation in the criminal justice process. In the same vein, publishing or otherwise disclosing the identity of suspects of sexual offences encourages other potential complainants to come forward in a society where the conviction rate for such offences remains, in the words of Sir John ‘troublingly’, low (by the time Sir John had published his findings, the conviction rate for sexual offences in Northern Ireland had also been falling, see Gillen Report pg. 10).
Moreover, the social stigma associated with being a survivor of sexual violence or abuse acts as a further barrier. Within his Report, Sir John recognises the myriad ways in which different groups of survivors – women of colour (para 13.76), people with disabilities (e.g. paras 13.46 and 13.55) and men (para 13.148) – experience stigma.
All of these factors combine to highlight one of the main themes underlying the Gillen Report and the implementation of its recommendations by the DoJ over the years since the Report’s publication: the need to ensure that ‘one of the worst violations of human dignity’ – sexual crime – is not compounded by the very system designed to hold its perpetrators to account. This is not to discount the experiences of those whose details are published despite not being charged, and the indignities they suffer as a result. But fundamental to this complex and highly sensitive area is the recognition that different people experience different indignities. The formal equality which characterised the invalidated provisions of the 2022 Act, however, completely failed to recognise this reality. Instead, it effectively flattened the many accounts of survivors and suspects found in the 700-odd pages of the Gillen Report into a highly simplistic equation: whatever anonymity was conferred on complainants must also (mostly) be conferred on suspects while they remain uncharged.
This flat plane of formal equality ultimately imperilled the very provisions which were intended to protect the dignity of those people who, whether voluntarily or otherwise, come into contact with the criminal justice system for sexual offences. In the aftermath of the High Court’s judgment, the Northern Ireland Minister of Justice initially indicated that she was considering an appeal, before confirming that no appeal would be pursued. The resultant situation is that the relevant provisions of the 2022 Act – sections 12-16 – are invalid, so there is no bespoke statutory pathway to ensure suspect anonymity at the pre-charge stage (the UK Supreme Court judgment in Bloomberg LP v ZXC [2022] UKSC 5 recognises an ECHR-derived reasonable expectation of privacy at the pre-charge stage).
Without impugning the good intentions of the DoJ, the Assembly and the Northern Ireland Executive, Mediahuisand others should give Ministers and Departments pause for thought. Addressing the substantive (and sometimes life-altering) injustices which are experienced as a result of or in relation to sexual crime requires much greater sensitivity than a simple formal equality.
Anurag Deb is a PhD candidate at Queen’s University Belfast and a paralegal at KRW LAW LLP.
Following May’s High Court judgment finding former Home Secretary Suella Braverman’s protest regulations unlawful, human rights organisation Liberty claimed last week that the Home Office has decided to continue its appeal. The case, spearheaded by Liberty, sought to challenge the lowering of the threshold for “serious disruption” during protest from “significant” and “prolonged” to “more than minor” by statutory instrument – which opponents claim is an abuse of secondary legislation. Despite the new Labour government initially pausing the former Tory government’s plans to appeal, Liberty have stated that the Home Office have recommenced the appeal after talks to resolve the dispute failed. The director at Liberty, Akiko Hart, has said she believes the legislation to be “undemocratic, unconstitutional and unacceptable” and that the decision to appeal shows “disregard for the rule of law”. Liberty have stated that the appeal will be heard later this year, with a date yet to be confirmed. A spokesperson for the Home Office has said that “the right to protest is fundamental to our democracy, and all public order legislation must balance this right. However, we disagree with the court’s ruling in this case and have appealed their decision.”
Scotland’s Chief Inspector of Prisons has claimed that the country’s “broken” prison system results in inmates being “set up to fail”. Having stepped down from her role at the end of August, Wendy Sinclair-Giebens expressed concerns about the state of Scottish prisons: “The prison service is underfunded and under-resourced for what the public and judiciary expect of it, yet it’s a very big organisation having to deal with the most marginalised, violent and mentally ill in society”. She revealed there is a pool of inmates unable to move further towards parole due to the “huge” waiting lists for the mandatory behavioural programs. The news follows a 2023 ruling by an Irish judge barring the extradition of a man to Scotland on the basis of a “real and substantial risk of inhuman or degrading treatment”, largely a result of the overcrowding of Scottish prisons. The ruling was, however, later overturned on appeal following express assurances from the Crown Office in Edinburgh that the prison would implement a tailored care plan for the respondent. Last week also saw the release of 477 Scottish prisoners as part of an emergency scheme to ease prison overcrowding as Scotland’s justice secretary revealed the prison population has risen by 13% in the last year.
The annual report of the Committee on Fuel Poverty published last week has revealed that fuel poverty is “flatlining rather than falling”. Despite a reduction in fuel poverty of 40% between 2010 and 2019, the last five years has not seen fuel poverty fall “to any meaningful extent”. The government has identified the groups at highest risk of being unable to afford energy and “living in a cold home” as those living in the private rented sector, ethnic minority households, and households using pre-payment meters – the government has emphasised the importance of aligning fuel poverty mitigation measures with wider equality goals. The report follows the controversial announcement by the new Labour government that universal winter fuel payments to pensioners will be scrapped. The energy minister, Miatta Fahnbulleh, has been conducting meetings to consider support measures for households experiencing fuel poverty. The annual report emphasises that it “is not defeatist. The Committee believes fuel poverty can be beaten. But for too many low-income households, the unaffordability of bills, especially in the coldest months, is all too real. We foresee that targeted financial support, possibly including the use of social tariffs, for vulnerable and low-income households may be needed for some years to come.”
In International News
A new “morality” law introduced by the Taliban last week has been met with condemnation by the UN and various human rights organisations. Titled “The Propagation of Virtue and Prevention of Vice Law”, the law seeks to prevent leading men into “vice” by requiring women to be completely veiled in public. Women are also prevented from singing or reading aloud where they could be heard by a non-family member, as well as looking directly at men to whom they are not related. The laws state that “whenever an adult woman leaves her home out of necessity, she is obliged to conceal her voice, face, and body”. The Chief Spokesperson for the UN Office of the High Commissioner for Human Rights has stated that the law “effectively attempts to render [women] into faceless, voiceless shadows” and called for its immediate repeal. The head of the United Nations mission in Afghanistan, Roza Otunbayeva, said that the law reveals a “distressing vision” of the country’s future by extending “the already intolerable restrictions on the rights of Afghan women and girls”. The law comes in defiance of Security Council Resolution 2681 (2023) which called on the Taliban to “swiftly reverse its policies and practices restricting women and girls’ enjoyment of their human rights and fundamental freedoms”. It has been reported that Afghan women are posting videos online of themselves singing in protest against the new restrictions.
A UN report published on Friday has further exposed the ongoing human rights violations in Libya. The accompanying press release slams the “lack of accountability and years of impunity” by those committing the violations as further fuelling instability in the country. The report investigates unlawful killings, torture, kidnappings, and sexual violence committed by Al-Kaniyat – a local militia who have conducted what has been termed by the UK Government a “reign of terror” in the region of Tarhuna. The report reveals “serious violations of international humanitarian law”, calling for accountability, the delivery of justice, and effective reparations for victims. The report argues that “leaving root causes and drivers of conflict unaddressed […] will serve to fuel toxic cycles of violence and revenge between communities.” The UN High Commissioner for Human Rights, Volker Türk, expressed a similar sentiment, stating that “the impunity must end – there must be accountability in accordance with international due process and fair trial standards.”
The Swiss Federal Council voted last Wednesday to affirm Switzerland’s rejection of the groundbreaking KlimaSeniorinnen ECHR judgment from last April, which found that Switzerland was breaching human rights through climate change inaction. Despite previous calls by the dominant party – the Swiss People’s Party – for Switzerland to leave the Council of Europe, the Swiss Federal Council instead reaffirmed in a press release that “the ECHR and membership of the Council of Europe, whose fundamental values of the protection of human rights, democracy and the rule of law include, remain of great importance to Switzerland”. However, it was added that “the case law must not lead to an extension of the scope of the ECHR”. The move has been criticised by the Center for International Environmental Law as an “embarrassment” for Switzerland, who it claims have missed an opportunity to “strengthen its climate policy in accordance with undisputed science”.
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