23 December 2017
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.
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20 December 2017
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?
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26 January 2017
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.
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23 May 2016
I and Diarmuid Laffan are giving a breakfast briefing this Wednesday 25 May from 8:30am to 9:30am on the aftermath in R v Jogee, the Supreme Court case on the law of joint enterprise in which we both acted as juniors.
The briefing is aimed at solicitors. We have a very few spaces left – if you would like to attend please email Lisa.Pavlovsky@1cor.com as soon as possible.
The briefing will:
- Explain key parts of the judgment, including the human rights arguments
- Discuss how the case is likely to affect future cases and out of time appeals
1 Crown Office Row’s public law breakfast briefings are informal discussions of topical areas of public law. The briefings are short and to the point and discussion and questions are encouraged. The briefing will be chaired by 1 Crown Office Row’s Amy Mannion.
18 December 2015
Macklin v Her Majesty’s Advocate  UKSC 77, 16th December 2015 – read judgment
The Supreme Court has unanimously dismissed an appeal against a decision of Scotland’s High Court of Justiciary (available here) in which it refused to overturn a criminal conviction on the basis that the non-disclosure of evidence breached the appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).
On 26th September 2003, Paul Macklin was convicted of possessing a handgun in contravention of section 17 of the Firearms Act 1968 and of assaulting two police officers by repeatedly presenting the handgun at them. At trial, the key issue was the identification of the gunman, with both police officers identifying the appellant in the dock. Two witnesses testified that the man in the dock was not the gunman, however, their evidence was undermined for various reasons including discrepancies in police statements and unreliable alibis.
Several years later, following a change in practice regarding the disclosure of evidence, the Crown disclosed the fact that a fingerprint from another individual with a serious criminal record had been found in a car abandoned at the scene of the crime. The Crown also disclosed statements from six further individuals who had seen the incident.
The High Court’s Decision
Macklin appealed against his conviction on the grounds that the Crown had failed to disclose material evidence, and that by leading and relying on dock identifications without having disclosed that evidence and without an identification parade, the Lord Advocate had infringed his rights under Article 6 ECHR.
The Appeal Court of the High Court of Justiciary dismissed his appeal. The court held that the fingerprint evidence and three of the undisclosed statements neither materially weakened the Crown case nor materially strengthened the defence. Whilst the other three statements should have been disclosed, there was not a real possibility of a different verdict had there been disclosure. Finally, leading dock identifications from the two police officers without an identification parade did not infringe Article 6.
The Supreme Court
The Supreme Court first dealt with the issue of its jurisdiction. Under section 124(2) of the Criminal Procedure Scotland Act 1995, every interlocutor (decision) and sentence of the High Court of Justiciary is final, conclusive, and not subject to review by any court. However, under section 288ZB of the 1995 Act, as inserted by section 35 of the Scotland Act 2012, the Supreme Court has jurisdiction to hear an appeal concerning the question of whether a public authority has acted compatibly with the ECHR. As the question raised by the appellant was whether the conduct of the prosecution was compatible with Article 6 the Supreme Court had jurisdiction to hear the matter.
As the European Court of Human Rights explained in Edwards v United Kingdom the question of whether a failure of disclosure breached Article 6 had to be considered in light of the proceedings as a whole. Translating the Strasbourg approach into domestic law in McInnes v HM Advocate (available here), Lord Hope set out two stages to the analysis. First, should the material which had been withheld from the defence have been disclosed? The test here was whether the undisclosed evidence might have materially weakened the Crown case or materially strengthened the defence. Second, taking into account all of the circumstances, was there a real possibility that the jury would have arrived at a different verdict in the event of disclosure?
The appellant challenged the High Court’s conclusion that some of the undisclosed material did not have to be disclosed under Article 6 on the basis that under current Crown practice the evidence would be disclosed. The Supreme Court dismissed this argument. For Lord Reed the argument was a “non sequitur” and Lord Gill described it as “specious”. The fact that the evidence would now be disclosed did not mean that non-disclosure breached Article 6.
Regarding the evidence which should have been disclosed, the appellant argued that the High Court had failed to apply the second part of the test from McInnes. The Supreme Court also rejected this argument. As it was confined to compatibility issues, the Supreme Court could only ask whether the High Court had applied the correct test, not whether it had applied the test correctly. The Crown’s submission to the High Court was expressly founded on the McInnes test and, by reciting the words of the test, the court made clear that it had applied it. The appellant tried to argue that the High Court’s conclusions on the second part of the McInnes test were so manifestly wrong that it had not in reality applied that test. However, this was essentially an argument that the High Court had applied the test incorrectly and the Supreme Court was not prepared to entertain it. The High Court had applied the correct tests for the purposes of Article 6 and found that the appellant’s trial was fair.
In the end, the role of the Supreme Court was limited. As Lord Reed made clear, the court was not sitting as a criminal appeal court exercising a general power of review. The Article 6 issues had been authoritatively determined by the High Court of Justiciary when it dismissed Macklin’s appeal against his conviction. All the Supreme Court could do was ensure that in exercising its appellate function, the High Court had applied the appropriate Article 6 tests as set out in McInnes.
by Thomas Raine
15 October 2015
Shahid v. Scottish Ministers (Scotland),  UKSC 58 – read judgment.
The Supreme Court has held that the continuation of a prisoner’s solitary confinement for safety reasons was not authorised under domestic rules and incompatible with the right to private life under Article 8 of the European Convention on Human Rights (“ECHR”).
by Fraser Simpson
The appellant, Imran Shahid, was first placed in solitary confinement in October 2005. His confinement was continued following his conviction for the racially motivated murder of a 15-year-old boy. The decision was based on threats made against the appellant. This period of solitary confinement continued until his eventual reintegration into the general prison population in August 2010.
The appellant had originally challenged his continued segregation in both the Outer and Inner Houses of the Court of Session (see this previous post for a discussion of the Inner House’s opinion). The Scottish courts refused his complaints and held that his prolonged solitary confinement accorded with both domestic law and Articles 3 and 8, ECHR.
The Supreme Court, in a unanimous decision delivered by Lord Reed, held that not only was the continued segregation invalid according to domestic law, but it also amounted to a violation of Article 8.
Compliance with domestic law?
The relevant rules concerning the power to place a prisoner in solitary confinement were, at the relevant time, contained in the Prisons and Young Offenders Institutions (Scotland) Rules 1994 and 2006. Despite the amendment of the Rules during the relevant period, the core provisions relating to the grounds for segregation and the time limits imposed remained the same. The purpose of Shahid’s segregation – to maintain good order and protect him – was not in question. Shahid instead contended that certain time limits contained within the Prison Rules relating to the continuation of a period of segregation had not been complied with. The relevant provision, Rule 94(5), states:
“A prisoner who has been removed from association … shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority … prior to the expiry of the said period of 72 hours.”
Three of the orders made authorising prolongation of Shahid’s segregation were made by the Scottish Ministers after the expiration of this 72-hour limit.
The lower courts considered that such delays did not impact upon the validity of the orders that authorised continued segregation. Importance was placed upon the relatively limited extent to which the orders were late (17, 44 and 47 hours) and the fact that the purpose of the reviews, to ensure that segregation was maintained for only as long as necessary, was not frustrated by such limited delays.
Lord Reed, adopting an alternative construction of the Prison Rules, held that any order made after the expiration of the 72-hour period was automatically invalid (see paragraphs 15-18 of the judgment). His conclusion that the late orders authorising continued segregation of the appellant were invalid, and that a period of 14 months of segregation therefore had no legal basis, is important in the context of the Article 8 challenge.
The Scottish Ministers accepted that the placement of the appellant in solitary confinement was an interference with his right to respect for private life under Article 8. Consequently, it was for them to show that the measure was in accordance with the law, in pursuance of a legitimate aim, and a proportionate interference in light of the pursued aim.
Lord Reed was quick to point out that his previous conclusion, that the late authorisations had rendered invalid the subsequent segregation, would result in certain periods of the segregation not being “in accordance with the law”. Accordingly, such periods of segregation could not be justified under Article 8(2).
Lord Reed went on to consider that the appropriate prison authorities had not always been independently making the decisions to continue the segregation of the appellant but instead, on some occasions, had been unduly influenced by the decisions and recommendations of a non-statutory advisory body. The need for a statutory decision making power to be exercised by the individual, or body, that has been conferred such a power had not been satisfied (see R v. Deputy Governor of Parkhurst Prison Ex p Hague,  1 AC 58). Accordingly, there was a failure to satisfy the lawfulness criterion within Article 8(2).
The Supreme Court moved on to consider the proportionality of Shahid’s continued segregation. The lower courts, in holding that the continued segregation was proportionate, opined that it was the only practicable way of dealing with the threats made against the appellant. The Supreme Court, on the other hand, listed a number of potential alternatives to solitary confinement that could have achieved the aim of protecting the appellant from attacks, including relocating the appellant to another UK prison. Irrespective of such alternatives, the Supreme Court decided that earlier steps could have been taken to promote Shahid’s reintegration. A plan to reintegrate the prisoner had only been developed after four and a half years of almost continuous segregation. Failure to take such steps resulted in the segregation being disproportionate and a violation of Article 8.
However, the Supreme Court considered that the appellant had not suffered any prejudice. If the Article 8 violations had not occurred then there was no evidence to show he would have been returned to the general population sooner.
Additionally, the extent to which his right to respect for his private life under Article 8 had been infringed was limited considering the negative attitudes other prisoners harboured towards him.
Accordingly, the Supreme Court considered that there was no need to make an award for damages despite the appellant seeking £6,000.
The appellant also complained that the segregation was incompatible with his right not to be subjected to inhuman or degrading treatment under Article 3, ECHR. The European Court of Human Rights has recognised the potentially damaging effect that continued solitary confinement can have upon the mental and social facilities of an individual (see Ahmad v United Kingdom, (2013) 56 EHRR 1, paragraph 207).
However, the use of such measures for disciplinary, security, or protective reasons does not automatically contravene Article 3. In assessing whether the measure was compatible with Article 3, the Supreme Court considered the conditions and duration of the detention as well as the motivation for such a measure and its impact on the appellant.
The Court concluded that the measure did not attain the minimum level of severity to engage Article 3. The appellant was kept in suitable accommodation and the ability to exercise, receive visitors and associate with other prisoners pointed towards the treatment falling short of the Article 3 threshold. Despite the length of the segregation extending beyond four years, the fact it was imposed in the interests of the appellant’s safety were also of relevance.
The use of segregation in prisons should always be considered as a serious measure. Indeed, the Council of Europe’s Committee on the Prevention of Torture advises that for punitive purposes any stint should be limited to 14 days (see the CPT’s 21st General Report, (2011), page 40).
The strict interpretation of the 72-hour limitation within the Prison Rules by Lord Reed results in appropriate weight being attributed to the decision to segregate. As Lord Reed pointed out, this allows early consideration of the necessity of the segregation by officials external to the prison. This provides an important procedural safeguard, even at an early stage of segregation.
However, if the 72-hour limit were strictly applied in this instance, there could be negative practical repercussions. When continued segregation was without legal basis, would the prison officials be under a duty to return the appellant to general population even if this would endanger his safety? An analogous situation was raised by the Inner House in support of their interpretation of the Prison Rules (paragraph 24 of the Inner House Judgment). Lord Reed answered these concerns by outlining that the officials would also be subject to a duty under s.6(1) of the Human Rights Act to secure the safety of the prisoner in accordance with Article 2 and 3, ECHR. If there was a serious risk to life then the prisoner could remain in segregation in accordance with domestic law using such protections as justification.
Interestingly, such an argument was not substantively raised on behalf of the Scottish Ministers in order to justify the periods for which there was a lack of authorisation.
8 July 2015
In the matter of an application by JR38 for Judicial Review (Northern Ireland)  UKSC 42
Does the publication of photographs of a child taken during a riot fall within the scope of Article 8 ECHR?
It depends, says a Supreme Court majority, specifically on whether there was a reasonable expectation of privacy. Either way, the Court in J38 agreed that whether or not the 14 year-old Appellant’s right to respect for private life was in play, the publication of police photographs of him was justified in the circumstances.
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1 June 2015
With our new team of Scots law researchers in place, the time has come for the briefest of introductions to the Scottish legal system. David Scott is our tour guide.
The Court system
The Scottish court system is divided into five tiers:
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22 May 2015
Guardian: James Rhodes and friends including Benedict Cumberbatch outside Court
James Rhodes v OPO (by his Litigation Friend BHM) and another,  UKSC 32
The Supreme Court has handed down its judgment in an appeal by the celebrated concert pianist, James Rhodes. You can read the judgment here and watch Lord Toulson’s summary here.
The case considered whether Mr Rhodes could be prevented from publishing his memoir on the basis that to do so would constitute the tort of intentionally causing harm. Those acting on behalf of Mr Rhodes’ son were particularly concerned about the effect upon him of learning of details of his father’s sexual abuse as a child.
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17 May 2015
In the news
“We can be sure of one thing. A battle is coming.” The future of the Human Rights Act still dominates the news, and this quote comes from UKHRB’s Adam Wagner, who suggests five tactics to ensure that human rights are not eroded. Perhaps the most in-depth analysis to date comes from Jack of Kent, who isolates the “seven hurdles” facing the government, including Scotland, Tory backbench rebels, the House of Lords and the wording of the “British Bill of Rights” itself. He summarises:
So the current situation is: if the UK government can address the immense problems presented by Scottish devolution and the Good Friday Agreement, win-over or defeat Conservative supporters of the Act, shove the legislation through the house of lords, work out which rights are to be protected, somehow come up with a draft Bill of British Rights, and also explain why any of this is really necessary, and can do all this (or to do something dramatic) in “one hundred days” then…the Conservatives can meet their manifesto commitment in accordance with their ambitious timetable. But it seems unlikely.
Jack of Kent´s conclusion is echoed by Matthew Scott in the Telegraph (“Gove…faces almost insurmountable odds”), Mark Elliott in Public Law for Everyone (“the HRA…is far more deeply politically entrenched that the UK Government has so far appreciated”) and the Economist (“getting rid of the HRA will be tough – and almost pointless”).
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7 April 2015
Ms Apata with her partner, Happiness Agboro. Photo credit: The Independent
Hannah Lynes brings us the latest edition of the Human Rights Round-up
In the news
A challenge brought against a Home Office decision to deport LGBT activist Aderonke Apata was this week rejected by the High Court. Ms Apata fears a return to Nigeria would mean “imprisonment and death because of her sexuality”, reports the Independent.
Ms Apata claimed to be engaged to a long-term partner and the paper reports that she was “so desperate to convince the Government she was gay that she submitted a private DVD and photographs of her sex life as evidence.”
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27 March 2015
Photo credit: The Guardian
And so, the long legal saga of the Black Spider Letters finally comes to a close.
I last blogged about this case back in October 2012. At that time, the Attorney General had ignited controversy by invoking a little-known power under section 53 of the Freedom of Information Act 2000 (FOIA).
Under that provision, he issued a certificate which effectively vetoed a decision of the Upper Tribunal that a number of items of correspondence sent by Prince Charles to seven Government Departments (characterised as “advocacy correspondence” as opposed to personal letters) had to be disclosed to Mr Rob Evans of the Guardian newspaper.
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6 March 2015
John Catt. Photo credit: The Guardian
R (Catt) and R (T) v Commissioner of Police of the Metropolis  UKSC 9
A majority of the Supreme Court has held that the retention by police of information on the Domestic Extremism Database about a 91 year-old activist’s presence at political protests was (1) in accordance with the law and (2) a proportionate interference with his right to a private life under Article 8(1) of the ECHR.
However, Lord Toulson’s dissent noted that the information was retained for many years after Mr Catt had attended these mainstream political events, and the police had concluded that he was not known to have acted violently. Accordingly, he thought its retention was unnecessary and disproportionate.
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19 June 2014
Two fascinating speeches to recommend.
Lord Phillips, former Supreme Court President, gave a thoughtful speech at Kings College on whether human rights are a “force for good or a threat to democracy”. He expressed quite significant concerns over some recent Strasbourg decisions on jurisdiction, prisoner votes etc. (you know the drill – see Rosalind’s post on the other senior judges/former judges speaking their minds).
The conclusion he reaches, on balance but also with “no hesitation” is that “Europe needs the Convention and Europe needs the Court. … Strasbourg is a powerful force for good.”
I really must do a chart of the senior judiciary and ex-judiciary’s positions on Strasbourg. They are falling over themselves to express a view.
Meanwhile, over at the Law Society of Ireland, Lady Hale gave a speech on Freedom of Religion and Belief, which readers will know is one of this blog’s pet topics (see our other posts on religion).
13 March 2014
R (on the application of British Sky Broadcasting Limited) (Respondent) v The Commissioner of Police of the Metropolis (Appellant)  UKSC 17 – read judgment
This was an appeal from a ruling by the Administrative Court that it was procedurally unfair, and therefore unlawful, for BSkyB to have had a disclosure order made against it without full access to the evidence on which the police’s case was based and the opportunity to comment on or challenge that evidence. The following report is based partly on the Supreme Court’s press summary (references in square brackets are to paragraphs in the judgment):
Sam Kiley is a journalist who has for many years specialised in covering international affairs and homeland security. In 2008 he was an “embedded” journalist for a period of months within an air assault brigade in Afghanistan, where he was introduced to AB. CD was also serving in Helmand at the same time.
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