Issue 45 May 2009 - Current Awareness: Civil Court Procedure, Contempt of Court, Fixed Penalty Notices, Ghana
CIVIL COURT PRODECURE
(1) Secretary of State for Business, Enterprise and Regulatory Reform, Petitioner [2009] CSOH 50
In an application by the petitioner to wind up a company under s.124A of the Insolvency Act 1986 brought on the ground of expediency in the public interest, it was alleged that the company used inappropriate business practices, had deficient financial management and failed to lodge accounts and annual returns. A provisional liquidator of the company was appointed by the court. One of the two directors of the company who was also the owner of 50 per centof its share capital, lodged answers to the petition on behalf of the company. The petitioner acknowledged that the director had a residual power to act on behalf of the company to instruct solicitors and counsel to oppose the winding up petition and to appeal against the appointment of the provisional liquidator (in Re. Union Accident Insurance Co.Ud [1972] 1 WL.R. 640) but where, as here, the director sought Secretary of State for Business, Enterprise and Regulatory Reform, Petitioner to represent the company in court the director had no right to do so.
Held: (1) Lord Hodge considered that art.6 gave everyone the right to a fair trial. That right includes the right to attend a court hearing and participate effectively in the proceedings. Companies and other non-natural persons can be victims in terms of the Convention.
(2) Even so, that did not necessarily mean that, in relation to representation in court, a company should be treated in precisely the same way as a party litigant.
(3) A company as a legal person is not the same as a natural person. Where a person chooses to obtain the benefits of limited liability by trading through the medium of a registered company, he has also to accept the disadvantages to which a separate legal personality gives rise.
(4) It followed that as a general rule there was no incompatibility between art.6 and the requirement that a company be represented in court, not by a director but by a suitably qualified legal representative who has responsibilities to the court and who is subject to professional discipline.
(5) Nonetheless, exceptional circumstances may arise in which the court has to take steps to allow a company or corporation to be represented in court in order to ensure a fair hearing under art.6. The Rules of Court do not provide for such a circumstance but the court has an inherent power to regulate its own procedures which it can use in this context. There may be circumstances in which the court may authorise a person who is not a lawyer with rights of audience to represent a company' or corporation and in view of the importance of this point Lord Hodge reported the case to the Inner House for consideration.
(2) Scottish Daily Record and Sunday Mail Limited v Procurator Fiscal Edinburgh [2009] HCJAC 24
This was a petition to the nobile officium of this court at the instance of Scottish Daily Record and Sunday Mail Ltd. They challenged a finding made by the sheriff at Edinburgh that in publishing a photograph in the Daily Record they were in contempt of court.
The sheriff fined them £1,750. The case related to a criminal trial and the photograph was of one of the accused, a well-known footballer, and there was an associated headline which made reference to the accused and that the court had heard evidence that the accused had been identified as having assaulted the complainer. By that stage in the trial only one of the two civilian wimesses who could potentially identify the accused had in fact given evidence to that effect. The newspaper story was published before the next wimess gave evidence. The sheriff held this was a contempt of court. The petitioners relied on art. 10 and freedom of expression to support the argument that, as the accused was well known, the question of identification carried less weight than in other cases.
Held: Petition dismissed.
(1) The law remained as stated in HM Advocate v Caledonian Neivspapers Lid, 1995 S.C.C.R. 330 and the authorities quoted therein. Where identification is in issue, publication of a photograph of the accused that gives rise to a possibility, which is not remote and is greater than minimal, that it may affect the ability of a witness or witnesses to identify the accused, will constitute contempt of court within the meaning of s.2(2) of the Contempt of Court Act 1981.
(2) The Court noted that with well known people that it may be that a person will be so well-known that mere mention of his or her name may be expected to bring an image to the minds of the vast majority of members of the public but that such cases will be rare.
(3) The Court rejected the line that there are categories of person, such as footballers, of whom it may be said, that they are "celebrities", attracting instant recognition and recall both on and off the pitch, so that an exception can be made in respect of them without regard to the circumstances of any particular case. Recognition of a person is a notoriously subtle process. It is common experience that one may fail to recognise a person, familiar in a particular context, when seen out of context. Against that background the only safe course, where identification is in issue, is not to publish any photograph or similar image of the accused, at least until a stage of the trial when there is no question of further identification evidence being given.
(3) Sutherland vHM Advocate [2009] HCJAC 29
Four fixed penalty notices were issued in respect of the failure of a vehicle, with a registered number, to display a current Excise License, contrary to the Vehicle Excise and Registration Act 1994 s.33(1). The penalties were not paid. In accordance with the procedure set out in s.63 of the Road Traffic Offenders Act 1988, statutory notices were served upon the complainer as owner (registered keeper) of the vehicle.
There was no response to these notices. There was no request for a hearing. Continuing to follow the procedure in the 1988 Act, the Chief Constable of Grampian Police applied to the Clerk of the District Court to register fines of £90 in respect of each fixed penalty offence. This was done, but no payment was forthcoming. The complainer, S, was cited to appear before the District Court for means enquiry. S lodged with the District Court what purported to be a Minute raising devolution issues. S argued that the complainer's right to a fair trial under art.6 had been infringed. The reasons presented for this were, first, that the justices of the District Court were "lay" persons, not properly qualified to make legal determinations, and secondly, that the Acts of Parliament setting up the District Courts (the District Courts (Scotland) Act 1975 and the Bail, Judicial Appointments ete. (Scotland) Act 2000) were incompatible with art.6.
The respondent argued that there couJd be no devolution issue, since there had been no act of the Scottish Ministers or Parliament. In any event, the Minute did not set out a relevant case for a contravention of art.6. There was no basis for the suggestion that the use of lay judges amounted to a contravention of art.6, the use of such judges having a long established place in many European legal systems.
Given the terms of Clark v Kelly, 2003 S.C (P.C) 77, it must be assumed that the activities of lay justices were compatible with the Convention. Finally, it was said that the District Court could not declare a statute to be incompatible with the Convention. The Justice of the Peace accepted those submissions and dismissed the Minute. The complainer appealed.
Held: Bill refused.
(1) The Court was unable to find any fault in the reasoning of the Justice of the Peace in dismissing the Minute as incompetent and irrelevant. There was no Act of the Scottish Ministers or Scottish Parliament under challenge. The respondent played no part in the process of registering the fines or in the means enquiry.
(2) The Acts authorising the fixed penalty procedure are contained in UK legislation. There was simply no competent devolution issue set out in the Minute.
(3) Further, the compatibility of the legislation with the Convention has already been determined in McDonald vHM Advocate[ 2007]HCJAC 36. There it was made clear that the statutory provisions did not infringe the Convention, since the owner or driver of the vehicle to which the fixed penalty notice was attached could opt for criminal proceedings and hence a hearing.
(4)The compatibility of lay justice with the convention has also been determined; this time by the Privy Council in Clark v Kelly. Again, there was no basis for arguing any art.6 infringement.
(4) KBO v Secretary of State for the Home Department [2009] CSIH 30
KBO, the appellant, is a national of Ghana. On December 2, 2005 he applied to the respondent for indefinite leave to remain in the United Kingdom, under s.3(1)(b) of the Immigration Act 1971, but this was refused. The appellant appealed against that decision to the Asylum and Immigration Tribunal on the ground that the decision was unlawful under s.6 of the Human Rights Act 1998, as being incompatible with the appellant's Convention rights under art.8. The appeal was allowed by an immigration judge but on reconsideration by senior immigration judges that decision was reversed. KBO sought leave to appeal from the Inner House. The facts are important and require to be set out at length.
The case for KB was that he was born in Ghana in 1982 and came to live in the United Kingdom with his parents in 1983, when he was one year old. His father was, at that time, a student in the United Kingdom. The family lived in Norwich, where the appellant went to primary school. In 1988 the family returned to Ghana. In 1994 they came back to the United Kingdom, as the appellant's father was undertaking further studies at the University of Strathclyde. They lived in Glasgow, where the appellant went to secondary school. In due course he passed his Highers and obtained a place at Glasgow Caledonian University to study Business Economics. He also developed a strong interest in music while at school. His father had by that time returned to Ghana, leaving the appellant and the other members of the family in Glasgow. The appellant's father disapproved of his involvement in music and refused to allow him to take up the place at Glasgow Caledonian, insisting that the appellant should instead return to Ghana and study there. In compliance with his father's wishes, the appellant returned to Ghana in 1999 and studied Economics and Psychology at the University of Accra, graduating in 2002. Apart from a visit to Glasgow of about two months' duration during 2002, he remained in Ghana until February 2004, when he returned to the United Kingdom on a working holiday-maker visa under which he was permitted to study. He obtained a place at the University of Strathclyde to study for an MSc in Business Economics, and returned to Glasgow. He graduated in November 2005. In December 2005, shortly before his visa was due to expire, he sought leave to remain in the United Kingdom, as we have explained. He was then 23 years of age, and had spent slightly more than half his life living in the United Kingdom. He has remained in the United Kingdom since making the application.
The immigration judge decided that the case was unusual. The appellant had lived most of his life here, had pursued his deep interest in music here and had only returned to Ghana to please his father. He had pursued studies here, had a girlfriend here and business contacts and friends here. The senior immigration judges held that the immigration judge had erred in law by failing to address the second of the five questions posed by Lord Bingham of Cornhill in his speech in R (Razger) V Secretary of State for the Home Department [2004] 2 A.C 368 at para.[l7]:
"In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public a uthority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the pro tection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
Held: Application allowed and decision of the immigration judge restored.
(1) The senior immigration judges appear to have approached the second question on the basis that it imposed a stringent requirement. In that regard, they said (at para. [16]): "The question can be posed in terms of 'a minimum level of severity to engage the operation of the Convention'. In relation to mental health, this would mean 'something very much more extreme than relative disadvantage as compared with the expelling state' - per Lord Bingham at paragraph 10; cf Lord Walker of Gestingthorpe at paragraph 32. Another statement of the approach to be taken is in the opinion of Lord Carswell at paragraph 72 - 'For the reasons given in ... R (Ullah) v Spedal Adjudicator [2004] 2 A.c. 323 article 8 could exceptionally be engaged by the foreseeable consequences for health of removal ... even though they do not amount to a violation of article 3. In order to bring himself within such an exceptional engagement of article 8 the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights.'''
(2) The senior immigration judges then purported to apply that approach to the facts of the appellant's case but considered that the case came down to theappellant preferring to live here rather than in Ghana, which was not enough, but which showed an error of approach. In para.[l7] of his speech in R (Razgar) v Secretary of State for the Home Department, Lord Bingham posed the five questions which, it was said, were likely to have to be answered by an adjudicator in a case where removal from the United Kingdom was resisted in reliance on art.8.
(3) The gravity of the inference undoubtedly requires to be taken into account at the "balancing" stage with which Lord Bingham's fifth question is concerned. It is not, however, necessary to demonstrate that the interference is of particular gravity at the stage with which Lord Bingham's second question is concerned, namely the stage of deciding whether art.8(1) is engaged. As was said in VW (Uganda) v Secretary if State for the Home Department [2009] EWCA Civ.5 at paras [22]-[23] per Sedley LJ at para. [22]: " ... The phrase 'consequences of such gravity' in question (2) posits no specially high threshold for art.8(1). It simply reflects the fact that more than a technical or inconsequential interference with one of the protected rights is needed if art.8(1) is to be engaged."
(4) As a consequence of their misunderstanding of Lord Bingham's second question, and their misapplication of the dicta which they cited, the senior immigration judges appear to have considered that it was necessary for the appellant to establish "a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights", before it could be decided that the admitted interference with the appellant's private life would have consequences of sufficient gravity to engage art.8. That was a mistaken approach.