Issue 36 March 2007 - Current Awareness

ECHR ARTICLES INDEX

Article 3-Case 1

Article 6-Case 2, 3

Article 7-Case 5

Article 3, Protocol -Case 4 

ASYLUM AND IMMIGRATION

(1) Harbachou v Secretary of State for the Home Department [2007] CSOH 18

H, a national of Belarus, claimed asylum on grounds of political opinion and religious belief. He also claimed that his return would violate Art.3 of the ECHR as he would be liable to serious harm at the hands of the State. His claim was refused by the Home Secretary and on appeal to the adjudicator. The adjudicator had doubted whether B faced trial in Belarus as claimed in pursuit of a policy of oppressing political opposition and in any event that B would still be of interest to the authorities. B then made further representations to the Home Secretary and asked that this be treated as a "fresh claim" within para.353 of the Immigration Rules ("HC 395''). In those representations, he included a police summons addressed to his mother requiring her to attend a police interview to answer questions regarding his whereabouts. The Home Secretary refused to treat the claim as a fresh one. B raised judicial review proceedings.

Held: petition allowed and the decision of the Home Secretary reduced. (1) In assessing whether further representations amounted to a fresh claim, the Home Secretary had to consider; (i) whether the new material is significantly different from the material previously considered; and (ii) if it is significantly different, whether it, taken together with the previously considered material, creates a realistic prospect of success in a further asylum claim before an adjudicator. This is a relatively modest test for an applicant to pass. It amounts to little more than there being a reasonable chance that the claim might succeed (R ex parte Rahmi v SSHD [2005] EWHC 2838 (Admin) November 21,2005 Collins J. at para.12).

(2) In the circumstances of this case the Home Secretary had not applied the correct test. The material cast doubt on the finding of the adjudicator that it was unlikely that B remained of interest to the authorities. Further, the Home Secretary had erred in considering the merits of the new material for himself. That was not his role. Assuming that the Home Secretary did not agree that the fresh claim should succeed on the merits, it was a matter for a new adjudicator to determine whether the fresh claim should succeed. Finally, the Home Secretary had erred in failing to provide adequate reasons as to why he considered that HC 395 was not met. In particular, it was not clear why he had determined that the new material, taken together with the material already considered, did not create a realistic prospect of success.

CRIMINAL PROCEDURE

(2) Baillie v HM Advocate (2006] HCJAC 75

B appealed against his conviction and sentence of five years for fraud. B argued that following Eckle v Germany (1982) 5 E.H.R.R. 1, he had been charged for Art.6(1) purposes on March 28, 1992 when he had attended the police station and had been told by an officer that he was one of a number of suspects. B had attended with his solicitor, S.

Held: the Art.6(1) argument was dismissed and the appeal was continued on other grounds. (1) B had not been charged on March 28, 1992. He had not been questioned then nor had any express or implied accusation of criminal conduct been made to him. (2) It had been made clear to Band S that the police had not been in a position to address specific questions to B. (3) Additionally, the position of B was not "substantially affected" in terms of the test in Eckle v Germany. He had not been "charged" until he appeared on petition in January 1997. (4) On that basis the passing of twenty one and a half months until his trial did not give grounds for real concern given the width of inquiries which the defence had to undertake during that period and given that B had been at liberty throughout.

(3) Britz vHM Advocate (2006] HCJAC 90

B appealed the decision of the sheriff to repel her minute under s.72(1) of the Criminal Procedure (Scotland) Act 1995 objecting to the admission of evidence of identification from an identity parade and her devolution minute which alleged that it would be ultra vires of the Crown to lead evidence of a dock identification because of the alleged inevitability of it being tainted by alleged unfairness at the parade. This was incompatible

with Art.6(1).

Held: appeals allowed. (1) The sheriff had erred in repelling the s.72(1) minute as he had failed to consider the preliminary issue raised at the First Diet. (2) Although the devolution issue related to fairness of the trial as a whole, the correct approach was for the sheriff to have determined the fairness issue as a preliminary issue, considering any factual issues that had to be determined at that stage. He should then have determined the question of admissibility. If admissible it would be for the jury to determine what weight they would place on an alleged unfairness. Thompson v Crowe [1999] S.L.T. 1434 followed.

ELECTORAL LAW

(4) Smith v Scott (2007] CSIH 9

S, a convicted prisoner, appealed to the Inner House sitting as the Electoral Registration Appeal Court against a decision of the Sheriff holding that the Electoral Registration Officer had been correct to refuse the appeal brought by S against the decision of that Officer not to register him as being eligible to vote. The Officer relied upon the provisions in s.3(1) of the Representation of the People Act 1983 ("the 1983 Act") which prevented the registration of convicted prisoners. S relied on the decision of the Grand Chamber in Hirst v United Kingdom (No. 2) (2005) 42 E.H.R.R. 41 which had held that the prohibition violated Art.3 of Protocol 1.

Held: refusing the appeal but making a Declaration of Incompatibility in terms of s.3(1) of the Human Rights Act 1998 ("the 1998 Act'') that: (1) Section 3(1) could not be "read down" in a manner which would make it compatible. It clearly provided for a blanket ban on all convicted prisoners serving custodial sentences and could not be read in such a way as to allow some prisoners, including S, to be eligible for registration. (2) It was competent for the court to make a Declaration of Incompatibility under s.4(2) of the 1998 Act where no sound reasons had been advanced for the view that Parliament did not intend the Electoral Registration Appeal Court to have that power. The expression, "Court of Session" in s.5 of the 1998 Act had to be construed to cover any court in Scotland, the judges of which were judges of the Court of Session and where they sat in their capacity as such. (3) As it was accepted that Hirst had been correct, it followed that no election in the United Kingdom would be compatible with the Convention, and given that the Scottish elections were to take place in May, the court should not merely observe that s.3(1) of the 1983 Act was incompatible but should make a formal Declaration of Incompatibility.

PROCEEDS OF CRIME

(5) McGuffie v Scottish Ministers (2006] CSIH 54

M reclaimed against the interlocutor of the Lord Ordinary repelling his plea that an interim administration order sought by the Ministers under Pt V of the Proceeds of Crime Act 2002 ("the 2002 Act"), violated Art.7. The Ministers contended that M had benefited from the proceeds of crime. M contended that the order represented the imposition of a retrospective criminal penalty.

Held: refusing the reclaiming motion. (1) There was now a large body of authority to the effect that such orders did not amount to the retrospective imposition of a criminal penalty. It would be undesirable if the Court reached a conclusion contrary to the decisions of the higher courts in England, Wales and Northern Ireland. (2) Section 244(1) of the 2002 Act reinforced the view that such recovery proceedings are concerned with the recovery of property unlawfully obtained and not with the infliction of a penalty. (3) It was evident from s.244(1) and s.305 that the wrongdoer who had obtained a benefit by unlawful means was treated no differently and no more harshly than any other person into whose hands the property might have come, even if the latter were entirely guiltless and that was inconsistent with any notion that Pt V was concerned with criminal penalties.