Issue 22 August 2006 - Current Awareness: Administrative Law, Asylum, Extradition, Mental Health, Proceeds of Crime

ADMINISTRATIVE LAW - (l) John McNicol (Farmers) Limited v Scottish Ministers [2006] CSIH 25

The appellants, M and S, appealed to the Court of Session. They owned farmland on either side of the A85. Vehicles could cross from one side of the farm to the other through a gap in the central reservation. The Ministers made an order closing the gap in terms of s.l (1) of the Road Traffic Regulation Act 1984. They did not propose to pay compensation. M and S argued that the Scottish Ministers had acted ultra vires in making the order, as they alleged that the gap amounted to a private road as between the subjects used by farm traffic. That being so, under the Act they were entitled to compensation. Further the lack of compensation violated the right to peaceful enjoyment of possessions secured by Art.1 of Protocol 1.

Held: appeal dismissed (1) the Order was intra vires the Scottish Ministers. As the gap area in question was one which was public and did not amount to a private road lying between the subjects the Order was intra vires. There was no obligation to pay compensation under the Act;

(2) the claim of a violation of Art.1 of Protocol 1 was not well founded. The gap area was not a private possession, and therefore, no right to compensation under ECHR arose.

 

ASYLUM AND IMMIGRATION- (2) Torabi v Secretary of State for the Home Department, 2006 S.L. T. 459

In this appeal to the Inner House from the old Immigration Appeal Tribunal it was accepted that T was being prosecuted for adultery in Iran. The penalty is death by stoning. T denies the charge. She came to the United Kingdom and claimed that to return her would violate Art.3. The Tribunal held that she was not at a real risk of a breach of Art.3. It did not accept that there was a real risk of her being convicted of adultery. It held that the test was whether there was a real risk of a "perverse decision" rather than a real risk of stoning. The Tribunal took into account the fact that she denied adultery. The Tribunal had rejected the argument that the trial would be unfair. The Inner House allowed the appeal and remitted the appeal back to the new Asylum and Immigration Tribunal for reconsideration in light of the evidence on risk.

Held: (1) On the case based on fair trial rights under Art.6, the Court accepted that Art.6 could be engaged in removal to a country which was not a signatory to the ECHR. Following R (Ullah) v Special Adjudicator [2004] 2 A.C. 323, T had to show that there was a real risk of a flagrant breach of Art.6 before the United Kingdom would be in breach;

(2) the court held that the Tribunal had failed to provide proper reasons on the evidence for the finding that the court procedures in Iran in criminal trials would not be unfair. There was evidence that the word of a woman was worth half that of a man, that possibly judges also acted as prosecutors in the same case and that proceedings might be conducted on camera;

(3) the Tribunal also erred in not taking into account the seriousness of the penalty in the assessment of whether there would be a flagrant breach of Art.6. On the Art.3 issue the Tribunal had also gone wrong. The question of the fairness of the trial was relevant to the assessment of the reality of risk of a breach of that Article. It follows that on a pure Art.3 point any unfairness at trial does not have to reach the high test of a flagrant breach of Art.6 for it to be relevant to risk under Art.3. Whilst a flagrant breach of Art.6 will always be a bar to return, lesser forms of unfairness may still be relevant to the question of risk under Art.3. The Tribunal had not taken consideration into account;

(4) the court held that the Tribunal had been wrong to distinguish Jabari v Turkey [2001] I.N.I.R. 136. In that case the Strasbourg court held that the decision to expel an Iranian woman who had admitted adultery and who was being prosecuted in Iran violated Art.3. The Tribunal had sought to distinguish Jabari on the basis that T denied adultery;

(5) the Court accepted that her denial was a factor in the assessment of risk and that it went too far to say that because the Tribunal accepted the denial of adultery that an Iranian court would do likewise, or that any finding of guilt would necessarily be perverse. The correct test was whether there was a real risk of treatment contrary to Art.3.

 

EXTRADITION - (3) La Torre v Scottish Ministers and others [2006] HCJAC 56

T was the subject of an extradition request to Italy under the Extradition Act 2003. He was from Italy but was now a UK national and had home and family here. T was said to have been involved in organised crime there. He resisted extradition on the grounds that:

(i) the Crown Agent had acted incompatibly with Convention rights;

(ii) the Scottish Ministers and Lord Advocate had also so acted in acting to further the extradition process.

T relied on Arts 8 and 14. He argued that the removal of a right of appeal in Scotland to the House of Lords in extradition cases but the retention of the right in England was discrimination struck at by Art.14 taken with the right to respect for his Art.8 rights. His arguments failed before the Sheriff. He appealed to the High Court of Justiciary.

Held: (1) the Crown Agent does not fall within the ambit of s.57 (2) of the Scotland Act when he is performing functions under the 2003 Act;

(2) the Scottish Ministers and the Lord Advocate were caught by the Scotland Act and the question was whether there was any incompatible Act on their part,

(3) the starting point was the separate and distinctive identity of the Scottish lega1system preserved by the Treaty of Union of 1707. There never has been a right of appeal from the High Court of Justiciary to the House of Lords or any other court, with or without leave. The introduction of the possibility of a reference or appeal to the Judicial Committee of the Privy Council in respect of a devolution issue under Sch.6 to the Scotland Act 1998 was, therefore, a new departure. Although extradition proceedings before the sheriff and before this court under the 2003 Act are best regarded as being sui generis, they nevertheless are more akin to crimina1 than to civil proceedings;

(4) it was an inescapable consequence of acceptance of the argument that all persons accused of crimina1 offences in Scotland are the victims of discrimination, because there is no appea1 from this court to the House of Lords;

(5) under the 2003 Act, an appeal to the House of Lords in criminal proceedings in England is only available with leave and if there is a point of law of general public importance. The practice in Scotland in an appropriate case is for an appeal to be heard by a court of five or more judges. There was no reason to believe that was an inferior system and the difference between the systems was a difference, and not an inequality;

(6) further, many points of law of genera1 public importance are likely to be capable of treatment as devolution issues and accordingly available for consideration by the Judicial Committee of the Privy Council;

(7) it was impossible to see how T could be described as a "victim." The fact that he is receiving different treatment in Scotland (insofar as there is a difference), compared with what would have happened had he been arrested in England, arises simply because of the accident of his having been arrested in Scotland. This was not because of any personal characteristic caught by Art. 14.

 

MENTAL HEALTH - (4) Duncan Hughes (Curator Litem ofMT) v Mental Health Tribunal, Sheriff Principal Bowen QC

The curator ad litem, a solicitor in private practice, of MT appealed under s.320 of the Mental Health (Care and Treatment) (Scotland) Act 2003 against the decision of the Tribunal when MT was made the subject of a Compulsory Treatment Order in terms of s.63 of the Act. The curator ad litem was advised by the Legal Aid Board that he could have a solicitor act for him under ABWOR but would not himself receive payment for any work he did to prepare for the appeal. The solicitor for the appellant made a preliminary submission that the patient could not have a fair hearing as required by Art.6 because, in the absence of funding, his curator ad litem was unable to carry out any work or be present at the hearing. The Tribunal rejected this contention following which the solicitor for the appellant intimated that he required to withdraw from acting. The Tribunal thereafter heard evidence and proceeded to make a Compulsory Treatment Order. According to the observations by the Tribunal MT was able to understand the proceedings and participated fully with the assistance of an advocacy worker. During the course of the appeal to the Sheriff Principal, MT died. It was argued for MT that the proceedings had been unfair as where a person was liable to be deprived of their liberty and where that individua1 could not be expected to effectively conduct his or her own case it was an unanswerable contention that proper financed legal representation must be made available: see S v Miller 2001 S.C. 977. It was argued for the Tribunal that the central question was what, if any, effect did the difficulty over payment of the curator have on the decision reached by the Tribunal. The situation was clearly distinguishable from that in Miller because in that case there was a "system failure" which led the court to consider a declarator of incompatibility. Representation was available for the patient by means of ABWOR. The curator simply served as the bridge between the patient and the solicitor acting under that scheme. Two courses were open to a person appointed to the office of curator. One was to investigate the position regarding the remuneration and if thought appropriate decline appointment. Having accepted appointment the only course open was to act and instruct a solicitor who would be paid by ABWOR. It was not open to the curator to hold on to his appointment but take no action in relation to safeguarding the position of the patient. Adequate representation was available. In any event the Tribunal could not have acted differently. Article 6 made a general provision regarding right to a fair trial and consequential questions of representation there was special provision in Art.5 relating to the lawful detention of persons of unsound mind. Article 5 involved a different kind of court control. In the jurisprudence of the European Court of Human Rights it had been made clear that whilst legal assistance in relation to such proceedings was generally necessary there were exceptions in special circumstances (see, e.g. Megyeri v Germany (1992) 15 E.H.R.R. 584 at para.23). As the matter presented itself to the Tribunal in the present case there were special circumstances in that:

(1) legal representation was provided;

(2) the Tribunal was not aware of the fundamental difficulty in relation to payment of the curator;

(3) the Tribunal had before it a proper application which had to be determined that day if continued detention was to occur;

(4) there was no suggestion that the patient was not seriously ill;

(5) he was represented by an advocate albeit that individual was not legally qualified;

(6) the patient himself made a contribution to the hearing, and;

(7) the only alternative was to determine the application by refusing it which would not have been in the interests of anyone. In these circumstances the decision of the Tribunal was not vitiated. In view of the death of MT the Sheriff Principal made the following obiter comments.

Comment: (1) The Sheriff Principal agreed with the submission that having accepted office as curator the appellant ought to have proceeded with the duties of his appointment which would have involved instructing representation on behalf of the patient. Funding of such representation was available. The issue of funding of the curator was not one to be explored before the Tribunal,

(2) however the funding position was anomalous. There were plainly certain tasks which a curator requires to undertake on appointment before proceeding to instruct legal representation. In the current state of affairs it is hard to see why anyone who is not in salaried employment should undertake the office of curator to a patient in proceedings under the 2003 Act. The most satisfactory situation in the majority of cases will be for one legally qualified person to be appointed to that role who can represent the patient at a hearing without the need to instruct legal representation. Encouraging representation by way of ABWOR simply means that two individuals will become involved when one would do.

 

PROCEEDS OF CRIME - (5) Scottish Ministers v McGuffie [2006] CSOH

The Ministers presented a petition for an interim administration order in terms of the Proceeds of Crime Act 2002 against M. M argued that such an order would violate Art.7 as it amounted to the imposition of an criminal penalty with retrospective effect. The petition relied on:

(i) convictions of M before the Act was in force, and

(ii) allegations of criminality apart from those convictions.

Held: petition granted: (1) looking to the substance rather than the form the orders sought are part of a regime for the civil recovery of property which is, or represents, property obtained through unlawful conduct rather than a regime of punishment;

(2) the recovery process is not taking place in a criminal setting. The purpose of the present proceedings is to obtain property from the relevant holders rather than to punish the respondents or to establish their guilt or innocence of any particular offence;

(3) the Civil Recovery Unit is the branch of the Scottish Executive responsible for the administration and implementation of the Pt 5 of the Act. It is not, I was informed, part of Crown Office;

(4) the present proceedings are clearly "civil" rather than "criminal" in domestic law but that was not decisive. However, they sought orders relating to civil recovery of property. They are at the instance of the Scottish Ministers, and not the Lord Advocate or prosecuting authority. They were initiated by civil Petition in the Outer House and not by criminal procedures. The procedures involved for making and implementing the order were civil rather than criminal. The rules of evidence and procedure which apply are civil rather than criminal. The proceedings are directed against property rather than against the person of M. The recovery procedures are under the control of a civil court. Guilt is not in issue. There have been some criminal proceedings in the past but the present proceedings were of a different nature and character. The orders sought are separate and distinct from previous criminal proceedings. Those earlier Criminal proceedings have been concluded. They have not been re-opened, the essential focus of Pt 5 of the Act is the civil recovery of property rather than the imposition of a criminal penalty. Even if there is a "penalty" in the sense of detriment it is a "civil" matter and not a "criminal" one. Part 5 seeks to recover property, reduce crime and benefit the community rather than to punish a particular respondent or visit him or her with a criminal sanction.