The Court of Appeal dismissed a set of claims for psychiatric injury on the basis of prior binding authority, but indicated that the issue is suitable for consideration by the Supreme Court.
The judgment concerns three linked appeals regarding the circumstances in which relative(s) of somebody injured or killed by alleged clinical negligence (the secondary victim(s)) can claim damages in respect of a psychiatric disorder caused by having witnessed the death or suffering of their loved one (the primary victim).
the secondary victim is in a marital/parental relationship with the primary victim;
the psychiatric illness for which damages are claimed arises from a sudden and unexpected shock to the secondary victim’s nervous system;
the secondary victim was personally present at the scene of the accident or was in more or less the immediate vicinity and witnessed the aftermath shortly afterwards;
the psychiatric illness arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim; and
there was not only an element of physical proximity to the event but a close temporal connection between the event and the secondary victim’s perception of it.
These elements were applied in Crystal Taylor v A. Novo (UK) Ltd  EWCA Civ 194. The secondary victim claim of a daughter who witnessed her mother’s death three weeks after an accident at work in which negligently stacked racking boards fell on her failed despite her death having been caused by the accident. The Court of Appeal held that as she was not present at the accident, she lacked the necessary legal proximity.
In 2015, the Court of Appeal found that the fast-track procedure rules for appeals against the refusal of some types of asylum claim (the FTR) was “structurally unfair, unjust and ultra vires” (R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber)  EWCA Civ 840;  1 WLR 5341, known as DA6). The Court of Appeal quashed the FTR because this structural unfairness “created a risk that the applicants would have inadequate time to obtain advice, marshall their evidence and properly present their cases”, which “created an unacceptable risk of unfairness in a significant number of cases”.
Six years later, the question in R (on the application of TN (Vietnam)) v Secretary of State for the Home Department UKSC 41 was straightforward: where a decision had been taken under the FTR, should it also be quashed, or must the person who was subject to the decision demonstrate that the decision itself was unfair, rather than merely issuing from an unfair system?
The High Court, Court of Appeal and Supreme Court all answered unequivocally that structural unfairness was not enough to quash an individual decision. Unfairness on the facts had to be found, or the decision would stand.
Background and Decisions Below
TN had, as the court acknowledged, a complicated procedural history, involving a number of applications for asylum, all of which (of those which had been determined at the time of trial) had been rejected. In hearings in those applications, TN had been represented by counsel. However, successive decisionmakers found TN’s claim not to be credible, and on 22 August 2014, the First-tier Tribunal (FTT) rejected her appeal. It was this rejection, decided as it was by a tribunal following the procedural rules in the FTR, which TN sought to challenge in this case.
One reason TN’s evidence was not believed was that it was inconsistent, giving different dates at different times for her mother’s death, and changing the basis of her application for asylum without explaining fully the reasons for the changes. This raised a question plainly discussed, but in the end not legally consequential, of the approach taken to evidence of trafficking, given that trafficking victims frequently change their stories, partly because they will often not know (in terms) that this is what they are (see paragraphs -).
In a detailed judgment, Ouseley J rejected TN’s application, upholding the Tribunal’s decision. His judgment involved a detailed review of the history of TN’s case, after which he concluded that the Tribunal’s decision was not tainted by the structural unfairness of the FTR.
In the Court of Appeal, Singh LJ gave the leading judgment (with whom Sharp and Peter Jackson LLJ agreed), holding that the “fundamental reason” that the application had to fail was that there was “a conceptual distinction between holding that the procedural rules were ultra vires and the question whether the procedure in an individual appeal decision was unfair”.
The legal lens through which this fundamental conceptual distinction found expression was the principle of jurisdiction. Singh LJ considered two bases on which the FTT could fail to have jurisdiction, rejecting both. First, he held that the ultra vires nature of the FTR did not divest the FTT of jurisdiction in the “pure and narrow sense” of having “the legal authority to decide a question”. The Tribunal’s jurisdiction was not created by the FTR but rather by statute; the FTR was “merely a rule which regulates procedure and form”.
The second basis on which the Tribunal might have lost jurisdiction was in the “post-Anisminic understanding of jurisdiction … that a body has acted in a way which is unlawful, including (for this purpose) in a way which is procedurally unfair”. This too was rejected: the Tribunal had not acted in such a way; even though the FTR had created a structural risk that it might, that risk had not eventuated.
Singh LJ went on to set out four factors which the court should take into account when the fairness of an individual decision made under the FTR was challenged on the basis of unfairness. These were, paraphrasing: (1) a high degree of fairness is required in the context of asylum applications; (2) the FTR created an unacceptable risk of unfairness in a significant number of cases; (3) there is no presumption that the procedure in any one case was fair or unfair and what is necessary is a causal link between the risk of unfairness created by the FTR and what happened in a particular case; and (4) the finality of litigation is important, and as such delay is relevant, as are questions as to what steps were taken, and how quickly, to adduce evidence later relied on.
The claimants in the case were victims of human trafficking with unspent convictions in Lithuania. The Criminal Injuries Compensation Scheme (CICS) provides compensation to victims of crime, apart from where they have unspent criminal convictions (“the exclusionary rule”). The question for the Supreme Court was whether the exclusionary rule breached the claimants’ rights under Articles 4 and 14 of the European Convention on Human Rights. The Court found that the rule did not breach these rights.
The CICS is a statutory scheme established by the Secretary of State for Justice which permits compensation to be given to a person “if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence”. But this is subject to the exclusionary rule for a person with an unspent conviction for an offence with a custodial sentence.
The appellants, A and B, were Lithuanian nationals and twin brothers. They were convicted of burglary and theft respectively in 2010 and 2011. They were then trafficked to the United Kingdom in 2013, where they were abused and subjected to labour exploitation. The traffickers were convicted for these criminal offences in January 2016.
On 16 June 2016, the appellants applied for compensation under the CICS. A’s conviction for burglary only became spent in June 2020, while B’s conviction for theft became spent on 11 November 2016. Because at the time of their application to the CICS they both had unspent convictions, they were disqualified from receiving compensation. They brought a claim for judicial review against the Criminal Injuries Compensation Authority (CICA) and the Secretary of State for Justice.
Legislatures in London and Cardiff have long ago established the most detailed safeguards and systems of registration to protect young people placed in children’s homes – most especially where that involves depriving them of their liberty. At the same time, the administrations in both capitals have presided over a situation whereby there is a significant shortage of such registered accommodation. This has tended to provoke expressions of outrage by the Judiciary.
enduring well-known scandal of the disgraceful and utterly shaming lack of proper provision for children who require approved secure accommodation. These unfortunate children, who have been traumatised in so many ways, are frequently a major risk to themselves and to others. Those risks are of the gravest kind, and include risks to life, risks of grievous injuries, or risks of very serious damage to property. This scandalous lack of provision leads to applications to the court under its inherent jurisdiction to authorise the deprivation of a child’s liberty in a children’s home which has not been registered, there being no other available or suitable accommodation.
The case of Re T itself is curious in that the Appellants (acting on behalf of the young person who was the subject of a High Court authorisation under the inherent jurisdiction) appear to have pursued an appeal on arguments that were not live at the relevant points below. Nevertheless, the Supreme Court was prepared to entertain argument as to whether it is a permissible exercise of the High Court’s inherent jurisdiction to authorise a local authority to deprive a child of his or her liberty despite the restrictions placed on such applications in the Children Act 1989 and the fact that that the Act created a detailed scheme for secure accommodation orders in Section 25.
How startling the problem is can be gleaned from the fact that the Supreme Court concluded that the inherent jurisdiction could be used to approve the placement of a young person in an unregistered children’s home – despite the fact that those who are running the home may be committing a criminal offence (contrary to section 11 of the Care Standards Act 2000). The Court concluded that this did not relieve the Court from taking the positive operational step of placing a child in such a placement in order to discharge its positive duties under Article 2 & 3 where “there is absolutely no alternative” (a quote that may lead to future difficulties of its own – as with the similarly telling phrase by Baroness Hale, “nothing else will do” in the field of non-consensual adoption).
It is undeniable that the Human Rights Act has had a significant impact on the work of the Supreme Court. Just under a quarter (14 of 61) of cases decided during the Court’s 2018-19 term featured a determination on at least one issue relating to the Act or the European Convention on Human Rights. The UK Supreme Court is soon to begin Hilary Term 2020, and whilst the docket of cases it is set to hear this term seems to largely steer clear of controversial human rights issues we can nonetheless be confident that 2020 will feature its usual share of big human rights cases. What follows is a short preview of some of the more interesting and controversial of those cases, all of which the Court is due to hand down at some point this year.
It is well established that, under Article 3 ECHR, the United Kingdom cannot deport an individual to a country where, there is a “real risk” of them being subjected to torture, inhuman or degrading treatment. This has been extended to include situations where the deportee would be placed in circumstances which might occasion a significant deterioration of health, including where they lack access to life-saving treatment.
The question in this case is whether Article 3 prohibits deportation in AM’s situation. He is an HIV-positive individual, whose condition for many years was being managed by anti-retroviral drugs in the UK. If deported to Zimbabwe, he would be very unlikely to have access to the same treatment. Although some medical options would be available to him, they would likely be significantly less effective for the management of his condition.
Previous authorities had restricted the application of Article 3 to ‘deathbed’ cases only, where the deportee would likely die quickly following their removal from the country.
This week sees Baroness Hale sitting for the final time as President of the Supreme Court. Photo credit: The Guardian.
A brief delay to the publication of this article has helpfully afforded this blogger the opportunity to move beyond the political events of last Thursday and instead focus on much more interesting legal matters (more on those later).
However, it would be remiss not to recognise the consequences of last week’s election, which saw the Prime Minister return newly empowered by a sizeable Conservative majority. At the time of writing, proposals were being made to put the legislation required to withdraw from the European Union back to MPs as early as this Friday.
Sneaking in at page 17 of the Conservative manifesto (one page after a commitment to extend the water rebate in the South West) came the party’s offering on law and order. This included commitments to increase the number of police, enhance the use of “fair and proportionate” stop and search, as well as promote longer sentences and the greater use of electronic tags. The manifesto was however silent on some matters which have drawn attention of late, including court closures, legal aid cuts, and previous suggestions from ministers that the Human Rights Act might be amended to protect soldiers from prosecution for acts performed during their time in service. With such a significant majority however, the Government will be in a position to pursue its chosen agenda with enthusiasm, and so these and other mooted at policies, such as reform of the judicial review process, may not be as fanciful as previously thought.
Moving gratefully on from politics, today saw the first day in the case of XX v Whittington Hospital NHS Trust (appealing  EWCA Civ 2832), which also serves as Baroness Hale’s final case as President of the Supreme Court before her replacement on January 11thby Lord Reed. The case provides an interesting example of a scenario in which factual matters combined with absent or inadequate law require the court to consider matters of a deeply public policy nature. Continue reading →
In an appeal brought by the former joint administrators of Rangers Football Club, the Inner House of the Court of Session ruled that the Lord Advocate does not have absolute immunity from suit for malicious prosecution. It marks a significant change in an area of the law that has remained largely untouched for almost sixty years.
The serious financial troubles and subsequent winding up and sale of Rangers Football Club is well documented.
The two pursuers in this case were appointed as the joint administrators of Rangers when the club entered administration in 2012. They reported to the police that the acquisition of Rangers may have involved illegal financial assistance. The police then investigated the acquisition and financial management of Rangers. Whitehouse and Clark ceased to be the administrators later in 2012 when the club entered liquidation after an agreement with the club’s creditors couldn’t be reached. New joint liquidators were then appointed.
In November 2014, the pursuers were detained by Police Scotland on suspicion of being involved in a “fraudulent scheme and attempt to pervert the course of justice”. It was alleged that Craig Whyte, who became the club’s majority shareholder in 2011, had fraudulently bought the club and forced it into administration, which had financially benefitted the pursuers. Over the next year, there were a series of hearings and court proceedings. The pursuers were detained once again and re-arrested and charged with similar offences. They were then charged on a separate occasion with “conspiracy to defraud and attempting to pervert the course of justice”. They objected to the relevancy of these charges.
Whitehouse and Clark aver that they were then told by the Crown in June 2016 that all proceeding against them were finished, and they have not been charged with any offences since.
Even before Lady Hale and her spider brooch rose to national prominence following media coverage of Miller (No 2), she was something of a hero amongst female lawyers. A trailblazer in the profession, she was the first women appointed to the Law Commission, the first female Law Lord and the first female president of the Supreme Court. But it isn’t just Lady Hale’s rise through the ranks of the male-dominated legal profession that is inspirational. It is also the use she has made of the positions she has attained.
While at the Law Commission, Lady Hale played a significant role in the landmark reform that was the Children Act 1989. This placed the “best interests” of the child at the centre of public sector decision-making and represented a huge step forward for children’s rights. Amongst the many progressive and illuminating judgments penned by Lady Hale in the House of Lords and the Supreme Court, one of the most important is arguably the decision in Yemshaw v London Borough of Hounslow. In this case she held that domestic violence is not limited to physical violence. Lady Hale’s contributions provide a shining example of the importance of diversity in positions of power within the legal world. It cannot be doubted that she has brought a new perspective to bear that has enriched law-making in this country.
Gilham (Appellant) v Ministry of Justice (Respondent)  UKSC 44 – read judgment
The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.
In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).
Lady Hale has thrown her wig into the debate on whether the law, represented by the courts, is gaining power while politics in Parliament is losing it. She is not the first to critique Lord Sumption’s Reith Lectures, as they were covered at ALBA’s Annual Conference too (see Law Pod UK episodes 88, 89, and 91).
R (o.t.a. Gallaher et al) v. Competition and Markets Authority  UKSC 25, 16 May 2018, read judgment
UK public law is very curious. You could probably write much of its substantive law on a couple of postcards, and yet it continues to raise problems of analysis and application which tax the system’s finest legal brains.
This much is clear from today’s Supreme Court’s decision that notions of public law unfairness and equal treatment are no more than aspects of irrationality.
The CMA (then the OFT) were investigating tobacco price-fixing. Gallaher et al reached an early settlement with the OFT, at a discount of their fines. Another price-fixer, TMR, did likewise, but extracted an assurance from the OFT that, if there were a successful appeal by others against the OFT decision, the OFT would apply the outcome of any appeal to TMR, and accordingly withdraw or vary its decision against TMR.
6 other parties then appealed successfully. TMR asked and got its money back from the OFT relying on the assurance.
Gallaher et al tried to appeal out of time, and were not allowed to. They then turned round to the OFT and said, by reference to TMR: why can’t we have our money back?
Four Seasons Holdings v. Brownlie  UKSC 80, 19 December 2017, read judgment
Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.
The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.
The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.
On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.
But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.
Let me set the scene for this, before telling you the result.
Dover District Council v. CPRE Kent  UKSC 79, 6 December 2016, read judgment
The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover.
The interest is in the breadth of the decision – how far does it extend?
In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.
Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.
The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland)  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).
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