Issue 39 November 2007 - Current Awareness
ECHR ARTICLES INDEX
Article 3-Cases 1, 2, 4
Article 6-Case 5
Article 8-Cases 1, 3
ADMINISTRATIVE LAW
(1) Somerville & Others v Scottish Ministers [2007] UKHL 44
In this appeal and cross appeal to the House of Lords relating to decisions to segregate the petitioners whilst in prison and alleged violations of Arts.3 and 8, the Inner House had held (( 2007) S.C. 140) that the one year time bar in s.7(5) of the Human Rights Act 1998 ("HRA") applied to claims brought as devolution issues under the Scotland Act 1998 ("SA"), that proportionality was not a ground of judicial review at common law, that decisions on segregation were decisions of the Scottish Executive and that the Lord Ordinary had been correct to decline to inspect the documents covered by a Public Interest Immunity Certificate in relation to the reasons behind why the prisoners had been segregated.
Held: Their Lordships held (1) (Lords Scott and Mance dissenting) and reversing the Inner House on this point, that a person who claimed that the ministers had exercised their statutory functions in a way that was incompatible with any of his Convention rights could raise proceedings under the HRA or the SA. As s.l00 of the SA did not mention the s.7 (5) HRA time bar, that limitation did not apply to the instant proceedings, as the petitioners' case was that the Ministers' acts were outside devolved competence within the meaning of s.54(3) of the Scotland Act. (2) A governor exercising powers under the Prisons and Young Offenders Institutions (Scotland) Rules 1994 was discharging an independent function given to him as governor and therefore was not to be regarded as a member of the Scottish Executive for the purposes of s.57(2) of the SA. (3) The issue of when time began to run for the purposes of s.7 (5) HRA had been rendered academic by the conclusion on the first issue. (4) The issue of whether proportionality should now be treated a ground of judicial review at common law did not require to be considered. The issue of proportionality could only be considered when the facts had been established. It was in any event unclear if the basis of the common law complaint was any different from their claims under Art.8 where proportionality was clearly a live issue. (5) The Lord Ordinary ought to have acceded to the application to inspect the documents herself as the issue was whether sufficient reasons had been given by the Minister for Justice in her PII certificates in the public interest for withholding the redacted material.
ASYLUM AND IMMIGRATION
(2) NAK v Secretary of State for the Home Department [2007] CSIH 69
NAK, an Afghan national, appealed the decision of an Immigration Judge that he should not be afforded protection under Art.3. The appellant claimed that he had been a commander of an Islamic group, Hizbi-Islami. He claimed that he was liable to be harmed by the opposing Taliban and Afghan government forces, both of which his group were opposed to. The Immigration Judge rejected the claim for protection on a basis that apart from membership of Hizbi-Islami, there was no basis for thinking that the appellant might be at real risk of ill-treatment from the new government. As respects risk from the Taliban, the Immigration Judge recognised their presence in the south and east of Afghanistan but thought that there was no evidence to suggest any real risk to the appellant were he to be returned to, and at least by inference, remain in Kabul. The appellant argued that the Immigration Judge had been wrong not to take into account expert evidence on risk provided to the Asylum and Immigration Tribunal in the case of RS (Hezebe Is/ami-expert evidence) Afghanistan [2004] UKIAT 00278. The Immigration Judge did not consider that the facts of the instant case were close to the facts in RS.
Held: appeal allowed and case remitted for reconsideration by the Tribunal. (1) The evidence of the expert in RS was not-as the Immigration Judge had decided-wholly "fact specific" to the position of the appellant in RS but contained expert guidance of general utility in considering the position of former members of the Hizbi-Islami. (2) Self-evidently cases involving Hizbi-Islami applicants will have factual differences. In RS the appellant had been simply a member of Hizbi-Islami (although his brother had been a commander) and both had abandoned all political activity following the Taliban's assumption of power. By contrast, the present appellant's evidence of having been a commander, with the prominence which that involves, was accepted by the Immigration Judge. His flight was preceded by the death of his father and brother, who had also been members of the Hizbi-Islami, and the bomb attack on the house in which he had been staying. (3) However those differences of factual detail did not elide the need to give consideration to what was said by the expert as to the situation, in general, of members past and present of the Hizbi-Islami. (4) Further in so far as the appellant fears that he is at risk not only from agencies acting for the current regime, but also from the Taliban, the Immigration Judge appears to have made no reference to the views of the expert on the lack of an internal relocation option.
(3) CW v Secretary of State for the Home Department [2007] CSIH 54
CW was subject to a deportation order. His appeal to the Asylum and Immigration Tribunal was refused. The appellant is a citizen of Jamaica and was given six months leave to enter the United Kingdom in 1994 and thereafter in June 1995 he was granted an indefinite leave to remain in this country on the basis of his marriage to a British citizen. In June 1997 he was convicted in the High Court of Justiciary of rape committed in 1995, and sentenced to four years' imprisonment. Following his conviction the marriage broke down. There are two children of the marriage. The appellant maintains a relationship with his children. At the time of the hearing the appellant had a new partner, who was expecting his child. In March 2003 he was convicted in the Sheriff Court of being concerned in the supply of a Class A drug and sentenced to four months' imprisonment.
Held: appeal allowed. (1) On the reasoning of the Tribunal in relation to the issue of the effect of the convictions and in particular their finding that there was a high risk of the appellant committing further offences in relation to sex, drugs or both the Court was satisfied that their conclusion in this respect was not justified by a reasonable view of the evidence. The appellant's record contained only one sex offence, committed in 1995. While rape was a serious offence, the fact was that this conviction stood alone, with no suggestion to any other offence of a sexual nature having been committed. (2) The drugs conviction was also a single event relating to a single day. The Tribunal's description of it as a "serious" drugs offence did not sit happily with the penalty imposed, which was below the upper limit of the sheriffs powers in a prosecution on summary complaint. (3) The first social enquiry report's reference to the outcome of a risk assessment had to be taken with the limitations flowing from the assessment method used, and with the appellant's subsequent conduct, known to the author of the report which did not suggest any risk of re-offending. When properly examined the evidence did not provide a basis upon which one could properly make a finding that there was a high risk of the appellant committing further sexual or drug offences. (4) Whilst that was sufficient for disposal of this appeal to the extent of requiring it to be reconsidered by the Asylum and Immigration Tribunal, the Court had considerable concerns as to whether the Tribunal properly considered the issue of reasonableness in respect of the partner of the appellant who had given evidence that she could not return to Jamaica with him, and the bearing that had on his appeal under Art.8 based on his right to respect for family life.
(4) AM v Secretary of State for the Home Department [2007] CSIH 173
The appellant appealed to the Inner House from a decision of the Asylum and Immigration Tribunal dismissing his asylum appeal and appeal under Art.3. He is a Sudanese national and had served in the Sudanese army. He claimed that he had escaped from military custody after a disagreement with superiors and that he would face serious ill treatment on return. The Immigration Judge did not accept any aspect of his account of escape and ill treatment to be credible or that he was a student activist of interest to the authorities and had been singled out by the army for that reason. The appellant argued that the Immigration Judge had not given anxious consideration to the claims and had failed to give adequate reasons for his findings.
Held: appeal allowed. (1) Given the extent of the adverse credibility findings it was essential that the Immigration Judge gave clear reasons as to why he reached such a conclusion on credibility. He had totally failed to do so. (2) He left out of account the factors based on student activism as to why the appellant had been singled out by the authorities. He gave no rational basis for the assertion that it was inherently unlikely that a soldier would remonstrate with a decision of an officer in the army and therefore his conclusion as to the credibility of that issue could not be sustained. (3) Further, the Immigration Judge did not embrace the notion that the appellant was ever in custody, but nevertheless dismissed as incredible his explanation as to how he managed to escape. Whilst it was not for the Court to determine credibility it inclined to the view that it was not inherently unlikely that a person who refused to accept an order given within the army might be sent to custody. (4) Equally, the bizarre explanation from the appellant as to how he managed to escape would suggest that it was more likely to be true than not. Either way, it was sufficient that the Immigration Judge did not appear to have approached the matter from the point of view of the need to take great care. (4) The Court was also concerned as to what appeared to be a wholly irrelevant statement where the Judge stated, "I conclude the appellant is hiding the true details and any record of his arrival because this would contradict his claim".
PROCEEDS OF CRIME
(5) McLarty, Minuter [2007] HCJ 09
The Minuter pled guilty to a contravention of s.4 (3) (b) of the Misuse of Drugs Act 1971 which was to the effect that he had been concerned in the supply of cocaine between June 23, 2006 and August 4, 2006. An agreed narrative of facts was put before the Court and it recorded that, at police interview, the accused had said that his role was that he allowed his home to be used for the mixing of cocaine with other agents for a period of six weeks, once or twice a week, in return for payment of £500 on each occasion. He had also said that he was present when the drug "manufacturing" had thus taken place. The Crown served a copy of a statement in terms of s.101 of the Proceeds of Crime Act 2002 ("the 2002 Act") on the Minuter. The statement included a statement of belief that the Minuter has a criminal lifestyle on the basis that he has been convicted of an offence defined as criminal lifestyle under s.142 of the 2002 Act. It then set out a calculation of the extent to which he has benefited from that lifestyle under reference to his financial circumstances dating back for a period of six years. The Minuter argued that he had been convicted of involvement for a period of six weeks and that it had been accepted that he had only made a profit of £4000. The statement made reference to a period of six years. The Minuter raised a Devolution Minute and claimed that it would be unfair, and in breach of his rights under Art.6, to allow a claim based on that longer period to be considered. He argued that s.57 (2) of the Scotland Act prevented Lord Advocate from asking the Court to act under s.92 of the 2002 Act in respect of any application for confiscation that extended to any criminal benefit going beyond that relating directly to the matter in respect of which she had accepted a plea of guilty.
Held: Devolution Minute dismissed. (1) Firstly, what the Lord Advocate has to think about is the accused's right to a fair hearing of the issue that has arisen, namely whether the accused has benefited financially from a criminal lifestyle. That is not a matter of asking whether it is fair that that issue be addressed at all. The issue arises as a matter of substantive law emanating from a democratically elected Parliament and Art.6 is relevant only in the context of the way in which the issue is addressed and resolved. Otherwise, whilst there are circumstances in which the Lord Advocate ought to refrain from asking the court to act, that will be a matter of conforming to the fundamental principles of the law of Scotland that require her to refrain from proceeding if to do so would be an abuse of process. (2) In Brown v HM Advocate [2004] SCCR 105, Lord Clarke recognised the principle that there should be no abuse of process and that that is a principle which is separate and independent from the Art.6 need to ensure a fair trial. Properly analysed, the issue is not whether Art.6 will be breached, but is whether or not to do so would be an abuse of process. It was not suggested by the Minuter that it would be an abuse of process for the Lord Advocate to ask the Court to act in this case. (3) Turning to the, other authority relied on to argue that Art.6 protection extended beyond procedural matters to substantive ones, the case of Teixeira de Castro v Portugal [1998] EHRR 101, an entrapment case in which police officers had instigated the commission of an offence which would otherwise not have been committed. Art.6 was found to have been violated because of the "use" at trial of the objectionable police evidence. The context was quite different from the present case. Whilst the decision may be supportive of the view that there can be occasions when it is appropriate to regard a trial as incapable of being fair on the basis that it involves relying on evidence that has been unfairly obtained- such as taking account of something that has occurred prior to trial-that seemed to be no different from acknowledging that Art.6 was concerned with fair procedure at trial. But reliance on improperly obtained evidence was quite different and distinct from reliance on the substantive law of the state which was the case here.