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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 focused on the flawed decision making process as opposed to the substantive conclusion reached by prison authorities.
by Fraser Simpson
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.
R (ClientEarth No.2) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 2 November 2016, judgment here
This is all about nitrogen dioxide in air, an unwanted byproduct of the internal combustion engine. Its effect on UK mortality has been estimated at 23,500 deaths per year.
The long way of telling the story involves circling around 6 hearings, to the Supreme Court, twice, to the CJEU in 2014 (C404-13, my post here), and now to a trenchant judgment from Garnham J.
The short version is this.
The UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) over the last 6 years. Art.23 of the Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”.
The UK Air Quality Plan (AQP) produced in 2015 (and responding to the 2nd Supreme Court judgment here) was simply not up to ensuring that urgently required result.
In so concluding, Garnham J started with the construction of Art.23, in response to a Defra argument that it imports an element of discretion and judgment.
R (o.t.a Soma Oil & Gas) v. Director of the Serious Fraud Office [2016] EWHC 2471 (Admin) 12 October 2016 – read judgment
Soma are investing heavily ($40m spent on seismic work) in looking at oil and gas extraction in Somalia, so it was a bit of a set-back, to say the least, when their “capacity-building” efforts – funding infrastructure in the relevant Ministry – were alleged to fall under the Bribery Act 2010, and this led to a fraud investigation by the UK SFO. The investigations, as investigations do, dragged on, and Soma brought these, somewhat ambitious, proceedings to get an order telling the SFO to stop them.
As you may have guessed, the claim failed, though, as we will see, it may have achieved rather different benefits.
The judgment of the Administrative Court is a concise account of when the private challenger can and cannot seek orders in respect of investigations and prosecutions – whether to stop or start them. Here Soma wanted to stop the investigation. In other circumstances, a victim may want the authorities to start an investigation or prosecution into another party: see, e.g. Chaudhry, decided earlier this week.
Almost six years ago, not long after this blog started, we published a lovely post by Tom Blackmore, the grandson of David Maxwell Fyfe. Maxwell Fyfe was a Conservative lawyer and politician who went from being the British Deputy Chief Prosecutor at the Nuremberg War Crimes trials to being instrumental in drafting the European Convention on Human Rights.
Since then, I have been trying to find an opportunity to bring this fascinating story to life. So I am delighted to share this short film which RightsInfo, along with the Met Film School, have just released to mark the 70th anniversary of the end of the Nuremberg Trials. Please share widely and enjoy! If you are looking for a subtitled version, click here.
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.
Simon 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.
by Fraser Simpson
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 →
R (o.t.a. CPRE Kent) v. Dover District Council [2016] EWCA Civ 936, 14 September 2016, read judgment
The Court of Appeal has just given us a robust vindication of the importance of giving proper reasons when granting planning permission, by way of a healthy antidote to any suggestion that this is not really needed as part of fairness.
It is, as we shall see, very context-specific, and Laws LJ, giving the main judgment, was careful not to give the green light to floods of reasons challenges – common enough as they are in planning judicial reviews. Nonetheless it is a decision of significance.
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 →
Many readers will know that I have banged on, long and hard, via this blog about the constant problem we have in the UK trying to ensure that the cost of planning and environmental litigation is not prohibitively expensive for ordinary people. The UK system has been held repeatedly to be in breach ofArticle 9 of the Aarhus Convention, which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. For Aarhus beginners, have a look at my bluffers guide – here
So I was delighted to be asked recently to chair the Environmental Law Foundation whose main role is to help out people, for free, with their planning and environmental problems. ELF is going to have its 25th birthday next year, and this short post is an unashamed plug for the job that it does – together with an invitation to contact it (see below) if you have a problem you think they may be able to help with, or if you want to volunteer to assist on someone else’s problem.
The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland) [2016] UKSC 51 – read judgment here
The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).
Theresa May has been sworn in as Prime Minister of the United Kingdom, prompting speculation about the impact her leadership will have on human rights.
The former Home Secretary has been a vocal and long-standing critic of the Human Rights Act. In a 2011 speech she insisted that the legislation “needs to go”, making controversial reference to what legal commentators argued was a “mythical example” of an immigrant who could not be deported because “he had a pet cat”. Her appointment of Liz Truss as Justice Secretary, who has previously spoken out against the HRA, suggests that the Government will continue with plans to replace the Act with a British Bill of Rights.
Nonetheless, it appears that the UK will remain a signatory to the European Convention on Human Rights, at least in the near future. During her campaign to be Prime Minister, Theresa May stated that she would not pursue pulling out of the ECHR, describing the issue as divisive and lacking majority support in Parliament. Amnesty International have said that they “warmly welcome” this commitment, and have called on the Prime Minister to “turn the corner on human rights” in the UK.
In an examination of “Theresa May’s Eight Human Rights Highs and Lows”, RightsInfo has noted that in 2012 May “came out strongly in support of the proposal to change the law so people of the same sex could marry”. Pink News charts her evolution on LGBT rights to become the “unsung hero” of equal marriage, while pointing out criticisms that conditions for LGBT asylum-seekers have worsened under her tenure as Home Secretary.
On the issue of freedom of religion, commentators have similarly looked to Teresa May’s actions as Home Secretary for an indication of her position. David Pocklington provides an overview for Law & Religion UK, noting her recent launch of an independent review into the operation of sharia law in England and Wales.
Meanwhile, the Government’s review into whether victims of trafficking have effective access to legal advice has yet to be published. Writing in the Justice Gap, Juliette Nash has called on Theresa May to deliver on her promise to tackle modern slavery and implement any recommendations of the review as soon as possible: “the spotlight is now on …the Prime Minister…to ensure that justice is done”.
In other news:
The Guardian: Lawyers acting on behalf of a British citizen are seeking to challenge the lawfulness of the Government triggering Article 50 of the Treaty on the European Union without parliamentary approval. We have posted on the “divorce” process here. The UK Constitutional Law Association Blog provides extensive academic discussion of the constitutional issues surrounding the UK’s withdrawal from the EU.
Law Society’s Gazette: In a report on the impact of tribunal fees published on 20 June, the House of Commons Justice Committee made a number of recommendations, including that the fees charged in the employment tribunal should be ‘substantially reduced’. In the meantime, Unison has continued to pursue its quest for judicial review of the lawfulness of the fees, with an appeal to the Supreme Court set for December 2016.
BBC: An investigation is under way following the death of 18 year-old Mzee Mohammed in police custody, who had been detained by security staff at a shopping centre. The charity Inquest has called for “the most thorough and robust scrutiny of the actions of the security guards and the police” who were in contact with Mr Mohammed before his death.
Daily Telegraph: Figures released by the CPS show that the number of prosecutions for hate crimes against disabled people has increased by 41.3% in the last year, while prosecutions for homophobic and transphobic crime have risen by 15% over the same period.
This case concerned the refusal of Italian authorities to grant a residence permit to a gay couple, on the basis that they did not constitute family members. The Court found that the restrictive interpretation of the notion of family member applied by the authorities did not take into account the fact that under Italian law the couple were unable to marry. In deciding to treat homosexual couples in the same manner as unmarried heterosexual couples, Italy was in breach of article 14 (freedom from discrimination) taken together with article 8 (right to respect for private and family life).
This case concerned the detention of a businessman for ten months, pending trial on an allegation of attempted fraud. The Court affirmed that judicial authorities were required to give relevant and sufficient reasons for detention, in addition to having a “reasonable suspicion” that the relevant individual had committed an offence. Importantly, this requirement was held to apply already at the time of the first decision ordering detention, and “promptly” after the arrest.
On the particular facts, the Court found that the reasons given for detention had been stereotyped, abstract and inconsistent. As such there had been a violation of article 5 (the right to liberty).
Article 50 of the Treaty on European Union (TEU) is the red button for the nuclear option of withdrawal from the EU, and in its design, it was never really, truly envisioned to be pressed. Without testing, and without precedent, we are left with no idea of the potential fallout of pressing that red button. Compared to the quasi-constitutionism of Article 2 TEU evoking the values ‘common to the Member States’ of ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women’; or the brutal legalism of Title VII of the Treaty of the Functioning of the European Union (TFEU) on competition, tax and the approximation of laws; Article 50 TEU is anaemic. It is, essentially, a button triggering a countdown clock, which is on a comparable level of advancement to the 1980s floppy disk.
The two-year countdown
Triggering Article 50 TEU will begin a two-year countdown to the end of UK Membership of the Union. Within that two-year period an agreement determining the withdrawal arrangements and the future relationship with the Union must be made. Barring a unanimous decision to extend the period, at the end of two years from the point of notification, the UK will no longer be a Member. The Treaties, and all rights and duties therein, cease to apply.
But now, as the British political establishment play a game of “pass the red button”, we are faced with some confounding, and concerning questions from a rights’ perspective. Likely to be lost in the two-year scramble for a political and trade agreement between the UK and EU, which will attempt at all costs to avoid the fall-back position of the application of WTO trade rules, are the very rights and values held as common between the (ex-)Member State(s). During that two-year period, EU law and (pertinently) EU rights will continue to apply in the UK. Free movement will still be (from a legal perspective) free, and claimants may still rely on their EU rights in the Courts. But then what? What happens when the clock strikes zero? Continue reading →
O’Neill and Lauchlan v. United Kingdom, nos. 41516/10 and 75702/13, 28 June 2016 – read judgment.
The European Court of Human Rights has ruled that criminal proceedings concerning two Scottish individuals ran beyond the “reasonable” period of time permitted under Article 6, ECHR. Despite considering that the individual stages of the proceedings were all reasonable in length, the cumulative time was excessive and in violation of Article 6(1).
by Fraser Simpson
Background
In August 1998, the applicants were sentenced to periods of imprisonment of eight and six years following convictions for various sex offences. During their incarceration, the police wished to question the applicants about the disappearance, and suspected murder, of their ex-housemate (AM) after she had been reported missing six months earlier. On 17 September 1998 the applicants were detained by police and interviewed separately for over five hours. During these interviews they were directly accused of the murder of AM but, subsequently, neither applicant was arrested or formally charged.
Following release from prison, and subsequent re-arrest and recall to prison due to the apparent abduction of a fourteen year old boy, the applicants were again convicted of various sex offences and sentenced to a further three years in prison. During this period of incarceration the applicants were also placed on petition in relation to the murder of AM in early April 2005. Formal charges were brought on 5 April 2005 whilst the police continued with their investigations. However, in late 2005, Crown Counsel raised concerns about the sufficiency of evidence. Accordingly, a decision to take “no proceedings meantime” was made in December 2005 and subjected to continuous review as investigations continued. Continue reading →
Hunter, Re Judicial Review, [2016] CSOH 71 – read judgment.
The Outer House of the Court of Session has held that the restriction of student loans to individuals under 55 years old in Scotland is unjustifiably discriminatory. Additionally, the Scottish Ministers breached their public sector equality duty under the Equality Act 2010 by failing to assess the discriminatory effects that the regulation imposing this age restriction would have.
by Fraser Simpson
Background
The petitioner, Elizabeth Hunter, applied for a student loan from the Students Awards Agency for Scotland (“SAAS”) in order to allow her to pursue a course in Hospitality Management. At the time of applying for this loan, in 2014, the petitioner was aged 55. In line with Regulation 3(2)(b)(ii), Education (Student Loans) (Scotland) Regulations 2007, she was refused the loan. Regulation 3(2)(b)(ii) limits eligibility for student loans to individuals under 55.
The petitioner claimed that this decision, and the relevant regulation, unlawfully discriminated against her in violation of Article 14, ECHR. Additionally, she also claimed that the Scottish Ministers had failed to consider the potentially discriminatory effect that these regulations could have and, therefore, failed to satisfy their public sector equality duty (“PSED”) imposed by section 149, Equality Act 2010.
Article 14, which protects against discrimination on the basis of age, amongst other characteristics, is not a “free-standing” right. Instead, it is only applicable when the facts of the case fall within the scope of one of the Convention’s substantive provisions. Accordingly, the first issue for Lady Scott was to assess whether one of the substantive Convention rights was engaged in this situation. The petitioner submitted that either Article 1, Protocol 1, which includes the right to property and possessions, or, alternatively, Article 2, Protocol 1, which protects the right to education, was of relevance. Continue reading →
J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 – read judgment.
Photo credit: The Guardian
The European Court of Human Rights has ruled that the general system for detention of individuals prior to deportation in the United Kingdom, which lacks specific maximum time-limits, complies with Article 5, ECHR (Right to liberty and security of the person). However, in the proceedings involving J.N., the authorities had not acted with sufficient “due diligence”, which resulted in a violation of Article 5.
by Fraser Simpson
Background
The applicant, known as J.N., arrived in the UK in early 2003 and unsuccessfully sought asylum soon after. In February 2004 he was convicted of indecent assault and sentenced to 12 months imprisonment. Following his release he was subjected to a number of conditions which he failed to comply with. This led the Secretary of State to issue an order deporting J.N. back to Iran. On 31 March 2005 the applicant was detained pending deportation.
Complications arose when attempts were made to obtain the necessary travel documents from the Iranian Embassy. Eventually, in November 2007, the Embassy agreed to issue the documents if the applicant signed a “disclaimer” consenting to his return. The applicant refused to sign this disclaimer.
Despite being released for one month following review of his detention by the Administrative Court in December 2007, the applicant was once again detained in January 2008. He continued to refuse to sign the disclaimer that was necessary to obtain the travel documents and to effect the deportation. During this second period of detention the authorities considered prosecuting the applicant for failing to comply with the Secretary of State’s request to take specific action to obtain a travel document (under s. 35, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004). But no prosecution was forthcoming. Additionally, J.N. agreed to sign the disclaimer if he was compensated for the periods of detention. However, the UK Border Agency refused to do so.
Domestic Proceedings
J.N.’s refusal to sign the disclaimer continued until late-2009 when J.N.’s solicitors began judicial review proceedings challenging the lawfulness of his detention. In considering the lawfulness of the detention pending deportation, the judge considered the four principles established in R v. Governor of Durham Prison, ex parte Hardial Singh, [1984] WLR 704:
The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
The deportee may only be detained for a period that is reasonable in all the circumstances;
If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
The Secretary of State should act with reasonable diligence and expedition to effect removal.
The judge considered that the authorities responsible for the deportation had acted with a “woeful lack of energy and impetus”. They had failed to change their approach to the situation, they refused to bring a prosecution under the relevant legislation. Further, they had not approached the Iranian authorities to see if they would change their position regarding the need for a disclaimer. The Secretary of State had fallen short of the fourth requirement established in Hardial Singh. Accordingly, the judge found that the applicant’s detention had been unlawful from 14 September 2009 onwards.
The Strasbourg Court
Article 5 protects the right to liberty and security of persons. Restrictions of liberty are permissible if they fall within one of the specific grounds highlighted in Article 5(1). Article 5(1)(f) relates to detention “of a person against whom action is being taken with a view to deportation or extradition”. Any detention in pursuance of this objective must be prescribed by, and comply with, domestic law. Additionally, the domestic law must be “sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness”. To satisfy this “quality of law” requirement, domestic law should include clear provisions on the ordering and extension of detention as well as effective remedies that can be used by the individual to challenge the lawfulness of their detention. These requirements act as safeguards against arbitrary detention.
The applicant complained that the UK system for detention pending deportation did not specify maximum time limits for such detention and that this led to a violation of Article 5(1). Additionally, there was a need for automatic judicial scrutiny of any detention as opposed to requiring the individual to initiate judicial review proceedings themselves. Finally, the applicant submitted that if the UK’s system was said to satisfy the “quality of law” requirement, then the entirety of his detention had been unlawful, and in violation of Article 5, as at no point had there been a realistic prospect of removal (see paras. 59-63).
Lack of time-limits within the UK system (paras. 90-93)
The ECtHR had previously held that Article 5(1)(f) does not impose maximum time limits for detention pending deportation. However, the absence of such time-limits will be a factor in assessing whether domestic law satisfies the “quality of law” requirement. But other protections against arbitrariness, including the ability to review the lawfulness of the detention, are equally important.
The “EU Returns Directive” (see Article 15 here) does set down a maximum time limit of 18 months for detention pending deportation. However, the UK has opted out of this Directive and it is therefore not binding. The ECtHR considered that despite this Directive creating a uniform approach over the majority of Council of Europe States, it could not be considered that such a position was required by Article 5(1)(f) or that this is the only position compatible with such a provision. Additionally, two Council of Europe instruments had addressed detention pending deportation and refrained from imposing time limits (see Twenty Guidelines on Forced Return, 2005 and Parliamentary Assembly Resolution 1707 on the detention of asylum seekers and irregular migrants in Europe, 2010).
The ECtHR held that Article 5(1)(f) does not require states to establish time-limits for detention pending deportation. The UK has sufficient procedures to allow the lawfulness of detention to be tested. Accordingly, the failure of the UK system to establish such limits, in light of the other procedural safeguards against arbitrariness, was not in violation of Article 5(1).
Lack of automatic judicial review of immigration detention (paras. 94-96)
The ECtHR refused the applicant’s submissions that Article 5(1)(f) required automatic judicial scrutiny of immigration detention. Article 5(4) provides all individuals who have been detained or had their liberty deprived with a right to take proceedings to examine the lawfulness of the detention. An entitlement to take proceedings, as opposed to automatic review, is all that is required by Article 5.
Was J.N.’s detention in accordance with Article 5? (paras. 102-108)
Finally, the ECtHR considered whether J.N.’s second period of detention, from 14 January 2008 to 14 September 2009 (the date on which the domestic court ruled that the detention had become unlawful) was in compliance with Article 5(1)(f) (for the reasons for restricting the scope of review to this period see paras.48-57)
The ECtHR saw no justification for the domestic courts to have restricted the “unlawful detention” to the period following 14 September 2009. Despite the repeated refusal of J.N. to cooperate, this could not be “be seen as a ‘trump card’ capable of justifying any period of detention” (para. 106). The ECtHR considered that the authorities had shown, to use the language of the domestic court, a “woeful lack of energy and impetus” from mid-2008 onwards. As a result, the detention had not been pursued with “reasonable diligence and expedition” from mid-2008 and therefore was not in accordance with domestic law and the principles established in Hardial Singh.
Accordingly, the detention from mid-2008 to 14 September 2009 was in violation of Article 5(1).
Comment
Despite concerns as to the unlimited nature of detention pending deportation being generally raised by a number of UN and European human rights bodies, as well as specific recommendations for the UK to adopt such limits (see UN Human Rights Committee, HM Chief Inspector of Prisons, and a UK All Party Parliamentary Group), the ECtHR refused to recognise that such limits were required by Article 5.
Undoubtedly the EU Returns Directive has resulted in the majority of Council of Europe states having limits for such detention. But as argued by the Government, recognising that Article 5 imposed such time limits may have “subvert[ed] the democratic process” by imposing time limits modelled on the EU Returns Directive from which the UK had lawfully opted out (para. 66).
During parliamentary scrutiny of the recent Immigration Act 2016 (which received Royal Assent on 12 May 2016) amendments were proposed by the House of Lords to limit immigration detention to 28 days – it should be noted that this would not have covered J.N.’s situation as it was not applicable in the event that the Secretary of State had made a deportation order – see para. 84 here). However, this amendment was rejected. In the final version of the Immigration Act a duty to arrange consideration of bail is placed upon the Secretary of State for all individuals detained pending deportation (which would cover J.N.) after four months (Sch. 10, para. 11, Immigration Act 2016). This would clearly act as a further, important safeguard against arbitrariness.
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Simon Price v. the United Kingdom, Application no. 15602/07, 15 September 2016 – 
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Article 50 of the Treaty on European Union (
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