DSD and NVB v The Commissioner of Police for the Metropolis  EWHC 2493 (QB), Green J – read judgment
This is an important summary of the principles applicable to HR damages, particularly in circumstances where there have been other payments already made arguably in respect of the acts in question. So it should be first port of call if you have an HR damages problem, not least because it gathers all the learning together.
Green J decided in March 2014 that the police had a duty to conduct investigations into particularly severe violent acts in timely and efficient manner, and that there had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so-called “black cab rapist”, one John Worboys. This amounted to a breach of the of the victims’ rights under Article 3 of the ECHR. See Rosalind English’s post on the liability judgment here
R (On the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) – read judgment
The Supreme Court has unanimously declared that government rules regarding the disclosure of spent convictions are unlawful and incompatible with Article 8 of the Convention.
One of these conjoined appeals involved T, who was prevented from employment involving contact with children when a police caution was disclose in respect of the theft of two bicycles when the respondent was eleven years old (see my previous post on the Court of Appeal judgment in T). In JB, the police issued a caution to a 41 year-old woman in 2001 when she was caught shoplifting (a packet of false fingernails). In 2009 she completed a training course for employment in the care sector. She was required to obtain an “enhanced criminal record certificate” or ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector. Continue reading →
The Court of Appeal has published its decision in Guardian News Media v AB and CD. It is not a judgment, the Court says. Judgments – plural – will be given “in due course.” Still, the 24 paragraph decision contains the order and explanation of the order, and gives an indication of some of the reasons that will follow.
Is this a good decision? It is better than it might have been, but there are still deeply worrying problems.
Paulet v United Kingdom Paulet (application no. 6219/08) – read judgment
The Strasbourg Court has declared, by five votes to one, that the UK authorities had acted unlawfully by seizing the wages of an Ivorian worker who used a false passport to gain employment. The majority ruled that the UK courts should have balanced individual property rights against interests of the general public.
This case on the confiscation of the proceeds of crime raises many difficult legal questions such as the nature of the link between the crime and the proceeds and the distribution of the burden of proof in establishing this link. Mr Paulet complained that the confiscation order against him had been disproportionate as it amounted to the confiscation of his entire savings over nearly four years of genuine work, without any distinction being made between his case and those involving more serious criminal offences such as drug trafficking or organised crime. The Court found that the UK courts’ scope of review of Mr Paulet’s case had been too narrow. The majority objected to the fact that the domestic courts had simply found that the confiscation order against Mr Paulet had been in the public interest, without balancing that conclusion against his right to peaceful enjoyment of his possessions as required under the European Convention. Continue reading →
Tchenguiz v. Director of the Serious Fraud Office  EWCA Civ 472, 15 April 2014 – read judgment
This judgment is a neat illustration of how important it is to keep the concepts of public law and private law unlawfulness separate – they do not necessarily have the same legal consequences.
It arose thus. The Tchenguiz brothers are high-profile businessmen, and they did not take kindly to being arrested and bailed on charges of fraud at the behest of the SFO. They sought judicial review of the search and arrest warrants. In due course, the Divisional Court ( EWHC 2254 (Admin)) held that the SFO had made material non-disclosure and factual misrepresentations to the judge which vitiated the grant of the warrants, and the brothers have brought a substantial follow-on claim for damages – £300 million according to another recent judgement here.
So the Tchenguiz brothers have established unlawfulness, but, as we shall see, this does not automatically entitles them to damages.
DSD and NVB v The Commissioner of Police for the Metropolis  EWHC 436 (QB) – read judgment
The police have a duty to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. There had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so called “black cab rapist” amounting to a breach of the of the victims’ rights under Article 3 of the ECHR.
The claimants were among the victims of the so called “black cab rapist” (W), who over a six year period between 2002 and 2008 had committed more than 100 drug and alcohol assisted rapes and sexual assaults on women whom he had been carrying in his cab. Both DSD and NVB complained to the police, who commenced investigations, but failed to bring W to justice until 2009. Under the common law the police do not owe a duty of care in negligence in relation to the investigation of crime: See Hill v Chief Constable of West Yorkshire AC 53 per Lord Keith at pp. 63A-64A and per Lord Templeman at p. 65C-E; Brooks v Commissioner of Police of the Metropolis 1 WLR 1495; and Smith v Chief Constable of Sussex 1 AC 225.
McLoughlin, R v  EWCA Crim 188 (18 February 2014) – read judgment
The Court of Appeal has today ruled that judges can continue to impose whole life orders in accordance with Schedule 21 of the Criminal Justice Act 2003.
On the facts of two individual cases, the Court increased the sentence of Ian McLaughlin to one of a whole life term for the murder of Graham Buck. The Court dismissed an appeal by Lee Newell against his whole life order for the murder of Subhan Anwar.
Government of the Republic of South Africa v Dewani  EWHC 153 (Admin) 31 January 2014 – read judgment
Shrien Dewani, the British man facing charges of murdering his wife on honeymoon in South Africa, has lost his appeal to block extradition there (so far three men have been convicted in South Africa over Mrs Dewani’s death). The Court ruled that it would not be “unjust and oppressive” to extradite him, on condition that the South African government agreed to return him to the UK after one year if his depressive illness and mental health problems still prevented a trial from taking place. Continue reading →
LH Ltd v The Legal Ombudsman  EWHC 4137 (QB) – Read judgment
Adam Wagner represented the Legal Ombudsman in this case. He is not the writer of this post
Does the Legal Ombudsman have teeth? That was, in effect, the question before the High Court in this judicial review brought by a former solicitor against a decision by the Ombudsman to reduce his fees following a complaint by one of his clients. The Court’s answer was a very clear yes. Where the Ombudsman has made her decision properly, taking relevant factors into account, it is likely to withstand judicial review challenge.
In this case, the solicitor in question had been convicted of a count of fraud following an investigation into his involvement in money laundering and had been imprisoned and struck off the roll of solicitors. His prison sentence served, he was now pursuing his former clients through the courts for unpaid invoices. He appeared on behalf of his firm with the court’s permission, arguing that the Ombudsman’s decision to reduce his fees from £5,000 including VAT to £1,500 plus VAT (in a case which had nothing to do with the money laundering allegations) was in excess of jurisdiction and was irrational.
National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre (485/2012)  ZASCA 168 (27 November 2013) – read judgment.
In what appears to be the first case where the Supreme Court of Appeal (SCA) has had to consider the investigation of crimes committed extraterritorially, the Court has made it clear that the perpetrators of systematic torture – as was alleged in this case – can be held accountable in South Africa regardless of where the offending acts took place.
It had been alleged that Zimbabwean officials had on a widespread scale tortured opponents of the ruling party. The Gauteng high court had ordered the SAPS to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act) into the alleged offences (see my previous post on that ruling). Continue reading →
There’s a crisis in South Africa’s mortuaries – in the investigation of death.
This is due to a number of problems – incompetent staff who fail to gather forensic evidence, creaking and inadequate facilities, and the sheer number of dead bodies waiting to be processed. In a gripping but bleak documentary about Salt River Mortuary, which is responsible for processing cadavers in the Western Cape, the figures will make you gasp and stretch your eyes:
For the Western Cape alone, 3,000 bodies are handled by this Mortuary each year. Of this number, 65% are unnatural deaths (accidents, suicides, homicides). Of that number (approx 2,000) a staggering 80% are homicides – in other words, Salt River is responsible for providing the forensic evidence for reconstructing the crime scenes leading to 1,600 murders a year.
Janowiec and Others v Russia (Applications nos. 55508/07 and 29520/09) – read judgment
The European Court of Human Rights (ECtHR) has held that it had no competence to examine complaints relating to the adequacy of Russia’s criminal investigation into events that had occurred prior to the adoption of the European Convention on Human Rights (ECHR) in 1950: namely the Katyń Massacre of 1940.
The applicants were relations of 12 victims of the Katyń Massacre. They had been executed by the NKVD together with over 20,000 other former Polish Army officers, government officials, and landowners. A criminal investigation into the deaths ran from 1990 until 2004 when the Chief Military Prosecutor decided to discontinue ‘Criminal Case no. 159’ on the grounds that any alleged suspects were dead.
It is a platitude that one man’s terrorist is another man’s freedom fighter. It is for precisely this reason that the international community has not been able to agree on a definition of terrorism to be embedded in international law.
The issue in this appeal was whether the definition of ‘terrorism’ in the UK Terrorism Act 2000 includes military attacks by non-state armed groups against national or international armed forces in a non-international armed conflict.
1 Crown Office Row’s David Manknell acted as junior counsel to the Parole Board in this case. He had no involvement in the writing of this post.
Writing in his magisterial new work, Human Rights and the UK Supreme Court, Professor Brice Dickson noted that the Human Rights Act had created ‘an internationalized system of human rights protection rather than a constitutional one.’ Indeed, there had been a marked resistance on the part of the Supreme Court to use the common law to achieve the same goal of human rights protection. In Osborn v The Parole Board the Supreme Court seemed to resile from this position.
Osborn, and the co-joined appeals, concerned the circumstances in which the Parole Board is required to hold oral hearings. Osborn had been recalled to prison after an immediate breach of his licence conditions. Booth and Reilly had been sentenced to life imprisonment, and in both cases the minimum term had expired. The appellants sought early release and had been denied an oral hearing by the Parole Board under the operation of the statutory regime (detailed in paras 3-17). Instead their cases had been decided on paper by a single anonymous member of the Board.
MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192 – read judgment
In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A were introduced into the Immigration Rules HC 395. I have posted previously on the interpretation of these rules here and here.
The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and the individual right to family life:
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