Issue 40 February 2008 - Current Awareness

ECHR ARTICLES INDEX

Article 2-Case 2

Article 3-Case 3

Article 6(1) - Case1, 4, 6, 7

Article 8-Case 1, 5, 8

Article 9-Case 5

Article10-Case 5

Article 11-Case 5

Article 14-Case 1, 5

Article 17-Case 5

Article 53-Case 5

ADMINISTRATIVE LAW

(1) A v Scottish Ministers and Advocate General for Scotland (2007)CSOH 189

A argued that the continued imposition on him of the notification requirements of Part 1 of the Sex Offenders Act 1997 in respect of two attempted rapes and for which he was convicted in 1994 violated his rights under Arts 6, 8 and 14. He sought judicial review of the provisions of that Act. The offences had occurred when he was a minor. He was regarded as being a low risk and yet remained subject to a high level of supervision via the reporting requirements. The legislation adopted a blanket approach and was not sensitive to the facts of particular cases and it breached Art 8. The absence of a means of a review by a court of the requirement breached Art.6, and Art.14 was breached because A had been fourteen when he committed the offences but he was treated as if he had been an adult.

Held: petition dismissed. (1) There was no breach of Art.8. Although Art.8 was engaged the measure was a proportionate one. The aim of the legislation went beyond risk assessment and was related to the protection of the public. (2) Contrary to the argument for A that had always been the aim of the legislation and the legislation had been the subject of careful consideration when it was passed by Parliament. There had been discussion of whether the provisions should be applied to child offenders and so it could not be said that Parliament had failed to address that issue. (3) The reporting requirements were not part of a sentence and were administrative and not punitive in nature. (4) The scheme was discriminating as regards the types of offence to which it applied and the way it was linked to the severity of the crime. It did not therefore operate in a blanket manner properly understood. (5) Viewed in light of the legitimate aim of the legislation, and that it did not apply in the blanket manner contended, the scheme as it stood struck a proportionate balance. (6) In view of these findings the claim under Art.14 also failed, and it was agreed that the claim under Art.14 stood or fell with the Art.8 claim.

(2) Alice Emmas v Lord Advocate [2007] CSOH 184

The mother of a man with learning disabilities who died in hospital sought judicial review of the decision of the Lord Advocate not to hold a Fatal Accident Inquiry into his death. He had a pre-existing diabetic condition. Under reference to cases under Art.2, it was argued that the Lord Advocate ought to have asked for an inquiry as there was an obligation to have an inquiry which was prompt, comprehensive, which allowed for the participation of the next of kin, that was prepared on a proper evidential basis and that was effective in result. It was argued that the investigations carried out in this case were not sufficient. The opinion of the doctor who had carried out a post mortem was not good enough, it was not public and it had not "involved the family". It was argued that there was no need for an allegation of medical negligence for the obligation to hold an inquiry to be triggered. It was more logical to require it wherever an issue of public interest arose from a death. In this case, there was a public interest in respect of the possible failure in record keeping, the failure to give insulin and failures in antibiotic therapy. There was also public interest in whether high professional standards were achieved in the nursing of adult patients with learning disabilities. It was not, however, suggested that any of these factors were causative of the death.

Held: petition dismissed. (1) From the terms of Art.2 and a reading of the authorities, the obligation to hold a public inquiry does not arise in every case where a person dies whilst under medical care. Nor will fulfilment of the obligation necessarily require there to be a judicial inquiry. (2) The position of the petitioner was in effect that there was an obligation to hold a judicial inquiry even in cases where there is no reasonable possibility of the death having been caused by breach of the criminal or civil law or of relevant disciplinary rules. (3) An obligation of such magnitude could not be deduced from either a plain reading of Art.2 or of the relevant authorities. So to hold would be to impose an enormous burden on the state and to impose it in the absence of any concern that the domestic laws which are designed to protect life have not been observed. (4) Following Keenan v United Kingdom (App.no.27229195, April 3, 2001) and Calvelli v Italy (App. no.32967/96,January 17, 2002) and the Court of Appeal in R (Takoushis) v Inner North London Coroner [2006]1 WL.R. 461, the obligation to hold an inquiry arose where there is a need for those responsible for the death to be made accountable.That could arise only in circumstances where there is a reasonable possibility that the death has been caused by an act or omission for which some person or persons ought, by means of such an inquiry, to be held to account. Following Calvelli and R (Takoushis) an act or omission could include medical negligence. (5) Although the petitioner had argued that she would not pursue a civil case of negligence to have the death investigated in a public court that did not mean that the state was under a duty to hold an inquiry.

ASYLUM AND IMMIGRATION

(3) BG v Secretary of State for the Home Department [2007] CSOH 182

BG, a Turkish Kurd, sought judicial review of the decision of the former Immigration Appeal Tribunal to refuse leave to appeal from the decision of an adjudicator refusing his claim for asylum and for protection under Art.3. The petitioner had claimed to have supported PKK guerillas and had been detained and tortured by the Turkish security forces. He argued that the treatment of passages in objective evidence as to the stance of the security forces to suspected supporters of the PKK had been unreasonable, and that the IAT should have granted leave to appeal. The adjudicator did not accept the claims made because in her view at the relevant time the Turkish security forces would not have been interested in someone in the position of the petitioner.

Held: petition granted. (1)The adjudicator, in an unreasonable way, understated the degree of activity that might still have been taking place involving the PKK and the Turkish Armed Forces when testing the possible reliability of the petitioner's claims. It could not be said that the concerns of the Turkish authorities would have decreased to the extent that they would not continue to retain sufficient concern about the activities of certain members of the PKK (2) Whilst hostilities may have ceased at a formal level it was difficult to conclude that the Turkish Government's interest in dissident PKK groups who remained active would not still extend to those who provided them with food and shelter. (3)The adjudicator had overstated the information provided in the CIPU country assessment when she concluded that the police and Jandarma would "henceforth" take over the security arrangements. She used that conclusion to find as not credible the petitioner's account that it was soldiers who arrested him in December 2000 and who subsequently came to his village after his release. The CIPU country assessment did not say in terms that the police and Jandarma had, in fact, taken over from soldiers as at December 2000, and it is worth noting that the CIPU country assessment in paragraph 4.46 discloses that for the purposes of combating the PKK some 200,000 troops were stationed in the south east of Turkey. (4)The adjudicator placed significant reliance on the petitioner's failure to explain why PKK guerrillas would come to his village looking for support "when they had ceased military operations". However, the premise for the question put to the petitioner was not an absolute one as the CIPU country assessment did disclose that some PKK members in fact did remain active after the ceasefire had been announced.

CONSTITUTIONAL LAW

(4) Dickson and McNaughton v HM Advocate [2007] HCJAC 65 (Five Judges)

D and M appealed to the High Court against their convictions by Temporary Sheriffs in March 1999. The convictions predated the decision in Starrs v Ruxton, 2000 J.C 208, which had held that the system of temporary sheriffs violated Art.6(1) because they could be removed under s.11 (4)of the Sheriff Courts Scotland) Act 1971 by the Secretary of State. They also predated the coming into effect of the Human Rights Act 1998 and the Scotland Act 1998.They argued that the Acts were retrospective in effect in criminal matters and that, in any event, the guarantees enjoyed under Art.6(1) to trial by an independent and impartial tribunal were also enjoyed at common law. In that regard reliance was placed on Singh v Secretary of State for the Home Department 2004 SC 416, an earlier decision of the Inner House.

Held appeals refused. (1)On a survey of the case law from the House of Lords R v. Lambert [2002] 2 A.C 545 and R v. Kansal (No.2) [2002]2 A.C 69 it was apparent that the Human Rights Act was not retrospective. Whilst decisions of the House of Lords in an English criminal context were not of course binding on the High Court of Justiciary, they were entitled to great respect given that, in particular the Human Rights Act, was a United Kingdom statute. It was undesirable that the High Court should take a different approach and the arguments that the majority view in Lambert was wrong and that the dissenting view of Lord Steyn should be preferred was correct, was not persuasive. The same result obtained for arguments under s.57(2)of the Scotland Act on whether the act of prosecution before a temporary sheriff was ultra vires the prosecutor. (2)At common law the principle of security of tenure for the judiciary was recognised and had also been enshrined in statute as regards Supreme Court judges in the Claim of Right. (3) However, the principle was subject to statutory encroachment and the effect of s.11(4)was to allow for the removal of a Temporary Sheriff by the Executive. (4) In Singh, an immigration adjudicator could be recalled "under the terms of his appointment". It was therefore implied at least that the common law principle of security of tenure applied to an adjudicator. (5) Per Lord Macfadyen (Lord Nimmo Smith and Lord Osborne concurring) the procurators fiscal, in calling the cases against the appellants before temporary sheriffs, were giving effect to the provisions of s.11(6) of the 1971 Act. This was because s.57(3)(a) of the Scotland Act 1998 provides inter alia that s.57(2)does not apply to an act of the Lord Advocate in prosecuting any offence which, because of subs.(2) of s.6 of the Human Rights Act 1998, was not unlawful under subs.(l) of that section. That in turn created a defence to an alleged breach of human rights where the act in question was lawful under primary legislation. Under s.11(6) of the 1971 Act a temporary sheriff was entitled to exercise jurisdiction and there was nothing unlawful or ultra vires the procurator fiscal in calling the case before the temporary sheriff for that additional reason.

(5) Whaley v Lord Advocate [2007] UKHL 53

The appellants appealed to the House of Lords against the decision of the Court of Session ([2005] CSIH 65) that the Wild Mammals (Scotland) Act 2002 did not violate their rights under Arts.8, 10, 11, 14, 17, 53. They also placed reliance on other international obligations of the United Kingdom. The appellants were involved in hunting with hounds before the Act came into effect. This appeal was heard along with the parallel appeal brought against the equivalent legislation for England and Wales, the Hunting Act 2004. The appellants also relied on Art.6(1) and alleged that it had been breached because the petition for judicial review had been dismissed by the Court of Session without evidence being heard.

Held: appeal dismissed. (1) Insofar as the appellants placed weight on international obligations of the United Kingdom other than those incorporated under the Scotland Act 1998 and the Human Rights Act 1998, those arguments failed. The vires of an Act of the Scottish Parliament could only be tested by the limits set by s.29 of the Scotland Act. (2) Beliefs about hunting were not matters of conscience protected by Art.9 nor did the Act engage Art.l0 as it did not interfere with the expression of views about hunting or the wearing of dress associated with it. (3) Whilst the appellants argued that Art.8 was violated because hunting was part of their private life, that argument was not sound. First, it was fallacious to argue that, because a certain activity establishes and develops relationships with others, it was on that account within the scope of private life. The issue was not just about how the appellants spent his own time when he wishes to be left alone. Hunting with hounds by its very nature, was carried on in public and it had many social aspects to it which involved the wider community. Further, the prohibition was directed at activities that were carried on in public, not what people who hunt did in private when they were not hunting. Secondly, hunters were not part of a recognised ethnic or national group to whose traditional activities Art.8 extended its protection. (4) In relation to Art.ll, that was not engaged. The situations to which it applies must relate to activities of comparable importance, of which the right to form and join a trade union to which Art.ll refers to is an example. The purpose of the activity provides the key to its application. It covers meetings in private as well as in public, but it does not guarantee a right to assemble for purely social purposes. The right of assembly asserted is really no more than a right to gather together in a public place to take part in an activity which the Strasbourg court has held to be mainly for pleasure and recreation: Chassagnou v France (1999) 29 EHRR 615. (5) The claim of discrimination under Art. 14 was not well founded because none of the substantive Articles relied on were engaged. In any event, the argument also failed because it is the activity of hunting with hounds for sport that has been singled out for differential treatment, not participation in it by a particular sort of people or by people having a particular characteristic. (6) Whilst Art.17 provided that nothing in the Convention may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the limitation of any of the rights and freedoms set forth in the Convention to a greater extent than the Convention itself provides for, s.1(1) of the Human Rights Act 1998 which defines the expression "the Convention rights" provides that the rights and fundamental freedoms set out in the articles listed in that subsection are to be read with, among others, that article. However, Art.17 added nothing to what s.29 of the Scotland Act itself provided. That section does all that the Article seeks to achieve by providing that an Act of the Scottish Parliament is not law so far as any provision of the Act is incompatible with any of the Convention rights. (7) Whilst Art.53 provided that nothing in the Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party, the primary function of Art.53 is to avoid any conflict between the Convention and any of the human rights and fundamental freedoms which are protected by the domestic laws of the Contracting State. In the United Kingdom context this means that it is not to be read as limiting or derogating from any other right or freedom conferred by or under any law having effect in any part of it: see s.11 of the Human Rights Act 1998, which gives effect to this principle in domestic law. The limits of the legislative competence of the Scottish Parliament are not defined by Art.53 or s.ll. The protection that Art.53 requires in this context is to be found only in the limits that are set by the Convention rights listed in s.1 of that Act. (8) Even if any of these Articles were engaged, there was an adequate factual information to entitle the Scottish Parliament to conclude that foxhunting inflicted pain on the fox and that there was an adequate and proper basis on which it could make the judgment that the infliction of such pain in such circumstances constituted cruelty. The social impacts of the proposed legislation were for the legislature to judge. (9) Art.6(1) was not violated. The pleadings were irrelevant as a matter of law and the Court had not been obliged to hear evidence. (10) Per Lord Bingham of Cornhill with reference to Art.ll a right to assemble and protest is of little value if one is free to assemble but not, having done so, to protest. If people only assembled to act in a certain way and that activity is prohibited, the effect in reality was to restrict their right to assemble. Whilst he did not consider that Art.ll was inapplicable on the present facts, it was still not violated, as the Act was a social reform which the Parliament on the evidence was entitled to make and the measures in it were necessary in a democratic society.

Comment: The Appellants were not legally represented before the House of Lords. The proceedings relating to the Hunting Act 2004 in which the same result obtained are reported as R (Countryside Alliance and others) v Attorney General and R (Derwin and others) v Attorney General [2007] UKHL 52. The appellants were legally represented there. Arguments based on Art.l of the First Protocol also failed as did arguments based on European Community law. It is understood that the Countryside Alliance has made an application to the European Court of Human Rights.

CRIMINAL PROCEDURE

(6) Burns v HMA [2007] HCJAC 66

B appealed against the dismissal of a devolution minute by a sheriff which alleged unreasonable delay in his prosecution for involvement in the distribution of child pornography on the internet. In February 2003 B had been told by English police there was sufficient evidence to charge him but it was not clear whether he would be charged in England or Scotland. On taking advice the case was passed to the Scottish police. It was only in December 2004 that B answered a Petition warrant. The Procurator Fiscal had taken direct control of the case in October 2003. B argued that he had been substantially affected by the action of the authorities in February 2003 and that time had begun to run then and not in December 2004.

Held: Appeal refused. The correct starting point was December 2004. (1)Although a purpose to which regard must be had in applying the reasonable time requirement is to ensure that the criminal proceedings, "once initiated", are prosecuted without undue delay it has been accepted that initiation can take place before the formal commencement of criminal proceedings by the public prosecutor. (2)In Scotland, the formal charging, in the domestic sense, of a suspect by a Scottish police officer will, ordinarily at least, constitute' official notifications given by the competent authority of an allegation that the individual has committed a criminal offence. That officer is subject to the direction of the procurator fiscal and has a responsibility to report to him on such matters. (3) In England the clock will likewise ordinarily start ticking when a defendant is "formally charged", which appears to be a step taken by a police officer who is different from and independent of the investigating police officers. (4) None of the authorities to which the Court was referred dealt with any cross-border situation. However, it was significant, that in its proffered definition in Eckle v Germany (1983) 5 EHRR 1 the European Court used the definite article ("the competent authority").That suggested that what must be looked at is the prosecuting authority of the legal system in which the criminal proceedings are ultimately brought, together with such bodies, if any, as form an integral part of that system. (5) Scottish police officers can be regarded as an integral part of the Scottish criminal justice system, being answerable to the procurator fiscal and subject to directions from him. English police officers cannot be regarded as so answerable or subject to such directions. (6)The position may be different if these "foreign" officers are acting in furtherance of a request by Scottish officers.

(7) HMA v Sinclair [2007] HCJAC 27

S was indicted for the 1977 murder and rape of two young women in Edinburgh in the case which became known as the ''World's End Murders." S argued on appeal that (i) pre-trial publicity and (ii) the uncontrolled availability of information about him on the internet meant that he could not obtain a fair trial. He relied on Art.6. S already had a serious criminal record including convictions for rape and murder. There had been speculation in the print media that S had committed the 1977 crimes for around ten years up until the end of 2004. There was material which was readily obtainable on the internet claiming that the appellant was the killer.

Held: minute dismissed (1) Montgomery v HMA 2000 S.C.C.R.1044 still provided the appropriate approach in considering allegations of unfairness and their relationship to Art.6(1). (2) Following existing case law the judge could deal with pre-trial publicity in the print media by a suitable direction to the jury. There was nothing in the publicity, which although extensive, meant that its nature and extent made this an exceptional case where a suitable direction to the jury would not be a sufficient safeguard. (3) On access to the internet this could be dealt with in two ways. The jury could be given a suitable direction to leave out of account anything they may have read on the internet before they were sworn in. Where the concern related to research on the internet during the course of the trial, once empanelled then again at the start of the trial it would be appropriate for the judge to direct the jury to not search the internet for information about the case whilst they served as jurors. Weight had to be placed on the trust between the judge and the jury.

Comment: The decision, although from April 2007, has only recently been made public. As is well known the case never got to the jury after all. The appellant was acquitted at trial when, in circumstances which aroused huge media controversy, the trial judge determined that the appellant had no case to answer because of an insufficiency of evidence.

 REPARATION

(8) McGibbon v McAllister [2004] CSOH 4

The de facto step father of an 18 year old man killed in a car crash caused by the fault of the defender sued for damages. He argued that the word "parent" in para.(b) of Sch.l of the Damages (Scotland) Act 1976 could be construed to include the pursuer. The defender sought to resist the claim at procedure roll.

Held: plea for the defender dismissed and proof before answer allowed. (1) An ordinary reading of para.(b) of Sch.l to the 1976 Act would, if given effect, be incompatible with Art.14 taken together with Art.8 of the Convention. (2) It was evident that the provisions of the Act recognised and tried to protect respect for family life and that Art.8 protected factual family relationships as well as those which existed through blood ties. (3) An interpretation of para.(b) which, if given effect, would have the result that, while the wrongful death of a stepchild is considered to be an event which is properly to be compensated, the wrongful death of a "de facto stepchild" is not considered to merit compensation, is not an outcome which accords the same respect to the purely de facto family relationship as to the relationship by affinity. (4) Putting it this way is to equate "respect" with "recognise as being of significance and value". The complaint therefore came to be that the state had not accorded the same value to the pursuer's terminated, relationship with his partner's son as it would have done had he and his partner been married. (5) The state's obligations under Art.8 go well beyond simply recognising family life as something of significance and value and such recognition was at least part of what the individual is guaranteed by virtue of the Article. (6) A tangible expression of that recognition is to confer title to sue for damages when a family relationship is wrongfully terminated. Not to confer title to sue on someone in the position of the pursuer when title to sue is conferred on persons in an analogous position is therefore to discriminate in a way that contravenes Art.14. (7) Following the approach adopted by the House of Lords in Ghaidan v Ghodin-Mendoza [2004] 2 A.C. 557 on the approach to interpretation under s.3(1) of the Human Rights Act 1998, the meaning of "parent" where the word appears in para.(b) could be extended to include someone who, to a material extent, as a matter of fact fulfilled the roles usually associated with parenthood.