Issue 35 December 2006 - Current Awareness

ECHR ARTICLES INDEX

Article 3-Case 1

Article 6(1)-Case 2, 3

Article 8-Case 1

ADMINISTRATIVE LAW

(1) Somerville v Scottish Ministers [2006] C.S.I.H. 52

Facts: In this reclaiming motion, S and three other prisoners had been made the subject of orders under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 at various prisons. The periods of segregation had been renewed by the Scottish Ministers beyond the initial 28 day period permitted. The prisoners raised judicial review proceedings in relation to the orders contending that they had breached their rights under Arts 3 and 8 and that the orders had in any event been disproportionate at common law on the basis that the right not to be segregated was a fundamental common law right. At first instance, Lady Smith had dismissed the averments relating to proportionality and allowed the petitions to proceed on the remaining arguments. In doing so, she held that the petitions were not time barred under the one year period in s.7 (5) of the Human Rights Act 1998 on the basis that, as the claims were brought under the Scotland Act, the one year period did not apply. The Scottish Ministers cross-appealed on that point.

Held: Allowing the cross-appeal, dismissing the reclaiming motion, and remitting the case to the Lord Ordinary to hear the remaining claims which were not time barred: (1) proportionality was not yet recognized as a ground of judicial review at common law and R. v Secretary of State for the Home Department, ex p Brind [1990] 1 A.C. 696 and Regina (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] Q.B. 1397, CA, followed. Any change in position would require either a decision by the House of Lords reversing Brind or legislative intervention; (2) there was no fundamental common law right not to be segregated in any event; (3) the obiter comments in R v HM Advocate and Advocate (2003) S.C. (PC) 21 from Lord Hope of Craighead and Lord Rodger of Earlsferry to the effect that where there is a devolution issue, damages fell to be claimed under the Scotland Act rather than the Human Rights Act, their observations were obiter, and erroneous. It followed that the one year time bar did apply; (4) as for the running of time the court was satisfied that, in the absence of any argument to the contrary and of the citation of other relevant authority, they were satisfied that proceedings were interrupted only upon the service of the relevant petition. As to the date from which time begins to run, the relevant consideration is, in the circumstances, not only the decision complained of, but also the practical effect of that decision on the complainer. Accordingly, time began to run only on the expiry of the relevant period of segregation.

Comment: Clearly an important decision on what it has to say in relation to time bar in human rights cases and as regards the availability of proportionality as a ground of review at common law. In essence, on time bar the Inner House held that the flaw in the petitioners' approach was that they insisted that proceedings in respect of an act which is incompatible with Convention rights must be made either under the Human Rights Act (to the exclusion of the Scotland Act) or under the Scotland Act (to the exclusion of the Human Rights Act). The true position is that the Human Rights Act and the Scotland Act are both on the statute book, and a decision must be made, not as to which of them is applicable to a given claim, but rather as to whether there are provisions made by one or other or both of them which are applicable to a particular claim. An act of the Scottish Ministers which is incompatible with the Convention rights of an individual is simultaneously: (1) ultra vires of the Scottish Ministers by virtue of s.57 (2) of the Scotland Act; and (2) an unlawful act by virtue of s.6 of the Human Rights Act. It followed that the procedure laid down for devolution issues must be followed in any case raising such an issue, but it did not follow that the entirety of the claimant's remedies must be sought under the Scotland Act; so to hold involves ignoring the fact that the Convention-incompatible act is also, for that reason, unlawful under s.6 of the Human Rights Act. It also involves ignoring the remedies which the Human Rights Act provides for such unlawful acts. There was nothing unacceptable about the same act being both (1) ultra vires in terms of s.57 (2) of the Scotland Act; and (2) unlawful under s.6 of the Human Rights Act. There was nothing unacceptable about a claimant seeking to raise proceedings under s.7 of the Human Rights Act, and seeking the remedies, including just satisfaction damages, provided for in s.8, provided at the same time he also follows the procedural requirements applicable to a devolution issue. There was no need to look for a basis for a claim for damages in the Scotland Act. Section 100 can be given its natural negative meaning, rather than be distorted into an implied positive assertion of a right to claim damages. Its purpose is the limited one of making clear that the Scotland Act cannot be used as a way of getting round the Human Rights Act requirements (1) that claimants should demonstrate victim status (subs.(l)); and (2) that damages be confined to just satisfaction (subs.(3)). An ultra vires act does not per se give rise to a claim for damages. It may remove a defence to a common law claim for damages in delict or the like, which would have been available if the act had been intra vires. The proper basis for a claim for damages for an act in breach of Convention rights is, however, that such an act is unlawful and that a claim for damages (limited to just satisfaction) is made available under s.8 of the Human Rights Act. It followed that such a claim is properly subject to the time-bar imposed by s.7 (5) of the Human Rights Act.

CRIMINAL PROCEDURE

(2) McHale v PF Dumbarton [2006] H.C.J.A.C. 74

Facts: In each of these three appeals the appellant was convicted by (or by a court presided over by) a temporary sheriff, and thereafter sentenced by a temporary sheriff. The convictions took place, and the sentences were imposed, prior to the commencement of the Scotland Act 1998. It was not disputed that, had the convictions taken place and the sentences been imposed after the commencement of the Scotland Act, they would (subject to any question of waiver or acquiescence) have been invalid on the ground that a temporary sheriff is not an independent and impartial tribunal as guaranteed by Art.6 of the European Convention on Human Rights ("the Convention"), and the prosecutions to conviction and sentence would therefore have been ultra vires of the Lord Advocate in terms of s.57(2) of the Scotland Act (Starrs v Ruxton, 2000 J.C. 208). These appeals raise the as yet undecided question of whether the same result follows in a case where the conviction and sentence took place before the commencement of the Scotland Act, either on the basis that the provisions of the Convention can be applied retrospectively to proceedings that took place before the Lord Advocate's powers were circumscribed by reference to the Convention, or on the basis that at common law a temporary sheriff was not an independent and impartial tribunal, and that trial before and sentence by a temporary sheriff was therefore contrary to the principles of natural justice ("the issues"). The Crown argued that the appeals should be refused on the basis that the appellants had acquiesced in not challenging the role of the temporary sheriffs since, at the relevant time of their trial, the decision in Starr’s v Ruxton had been available.

Held: The plea of acquiescence was repelled and the appeals on the issues were continued for further consideration: (1) Knowledge of the decision in Starrs v Ruxton was not sufficient to found a plea of acquiescence. That case established that a temporary sheriff was not an independent and impartial tribunal, as guaranteed by Art.6 of the Convention. But, the reasoning continued by holding that, once the Scotland Act was in force, s.57(2) of that Act rendered it ultra vires of the Lord Advocate to prosecute an accused person to conviction and sentence before a tribunal that was not Art.6 compliant, and thus before a temporary sheriff; (2) That continued reasoning in Starrs v Ruxton, so far from providing knowledge on the part of the present appellants that they had a basis for challenging their convictions and sentences, pointed strongly to the absence of such knowledge; (3) it was only after the commencement of the Scotland Act that the Lord Advocate's powers were constrained by reference to the Convention, and that was of no assistance to the appellants; (4) Starrs v Ruxton did not provide a basis for inferring that the appellants knew at the material time (i.e. in the period prior to their advancing grounds of appeal relating to the validity of the decisions of the temporary sheriffs) that there was a basis for such a challenge to their convictions and sentences. Nor, in our view, has there been shown to be any other basis for knowledge that a decision by a temporary sheriff, made before the commencement of the Scotland Act, was invalid for want of compliance with Art.6 of the Convention; (5) nor was there any basis for saying that they had knowledge of a possible common law challenge on the basis of the law as it was expressed in the opinion of Lord Prosser in Millar v Dickson 2000 J.C. 648 at paras 40-42.

PLANNING AND BUILDING CONTROL

(3) Bibi v Scottish Ministers [2006] C.S.O.H. 152

Facts: B sought judicial review of a decision of the Scottish Ministers in their determination of an appeal made to them by B. B alleged that the delay breached Art.6(1). In 1997, B had been made the subject of an order under s.49 of the Listed Buildings and Conservation Areas Act 1997 by Glasgow City Council which had the effect of requiring B to repay to the Council the cost of urgent repair works of £53,056.88 carried out by the Council on a fire damaged B listed building owned by B.B appealed this order to the Scottish Ministers in terms of s.50 of the 1997 Act. The relevant period taken to determine the appeal ran from July 16, 1998 to July 3, 1998 when the Scottish Ministers dismissed the appeal and confirmed that B was due to pay the sum sought by the Council.

Held: Petition allowed to the extent of declaring that the decision of July 3, 2003 had been reached in breach of the reasonable time requirement in Art.6 (1). The delay in the determination of the appeal had been unreasonable. There had been long periods of inactivity on the part of the Scottish Ministers. Further, the delay had real impact on B, as another party had purchased the property but had retained £53,056.88 pending the determination of the appeal.