Public Interest Litigation Update:
25th March 2016
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On 3rd March 2016 the High Court ruled that police interview tapes of persons detained under the Terrorism Act can only be used in certain circumstances: for criminal or civil proceedings or for the purpose of investigating a complaint of ill treatment in relation to the interview itself. The tapes cannot be used to progress other cases or to inform future investigations.
- High Court sets limits on the use of police interview working tapes
The applicant, Conal Corbitt was arrested on 7th May 2015 in connection with the discovery of a bomb hidden at the junction of Brompton Park and Crumlin Road. Following his detention under the Terrorism Act he refused to answer any questions during interview by police. Further to a request made by his solicitor, the PSNI refused to give an undertaking that the applicant’s voice during interview would not be used in any other investigations. The applicant continued to remain silent at interview and was charged with offences under the Terrorism Act 2000.
He judicially reviewed the decision seeking a declaration that the PSNI’s policy of recording and retaining suspects’ voices was unlawful. The challenge related to the code of practice about audio recordings of those detained under the Terrorism Act.
The Lord Chief Justice stated that, ‘The body of the Code of Practice is silent on the extent of the use of the working tape which can be made by police. The context set by the provisions on tape destruction point towards the working copy only being used for matters connected to the investigation in respect of which the interview was conducted. That interpretation also guards against arbitrary use.’
You may access the case summary here and a report from the Belfast Telegraph here.
The appellant was stopped in his car by police on 11th March 2014 under the Justice and Security Act 2007. When asked to provide details of his movements, he stated that he was going to his mother’s home but refused to provide her address. The police informed him that it was an offence to refuse to give them this information under the 2007 Act. He refused and was arrested under the Police (NI) Act 1998 for obstruction of a police officer in the due execution of his duty and fined £50.
- Court sets aside conviction for refusing to answer
The offence of obstructing a police officer carries a heavier penalty than the refusal to provide information under the Justice and Security Act 2007.
On 14th March 2016, Mr Justice Treacy, delivering the judgment of the Court of Appeal, held that the failure to provide details of movements under the 2007 Act could not independently amount to the offence of obstruction under the Police Act. The appellant could only be convicted and sentenced under the 2007 Act which created the offence and specified the penalty.
You may access the case summary here.
R v Jogee, Ruddock v The Queen  UKSC 8
- Supreme Court rules that joint enterprise law was misinterpreted for thirty years
The cases heard were appeals against murder convictions which had been based on the principle of joint enterprise. The appellants alleged that the cases of Chan Wing-Siu (1985) and Powell and English (1999) and the cases which followed them had been wrongly decided.
In Jogee’s case, it was alleged that he encouraged his co-defendant to commit murder, although he was not inside the house when the incident took place.
The principle of joint enterprise set out in the case of Chan Wing-Siu is that if two people set out to commit an offence and in the course of the deed one of them commits an additional offence, the other person is guilty as an accessory had he foreseen that the perpetrator might have acted as he did. For example, as in the case of Ruddock, if D1 and D2 break into a house to commit robbery, based on the fact that D2 knew that D1 carried a knife, it could be proved that he had foreseen the possibility that D1 might stab someone.
The Supreme Court ruled unanimously that the secondary party must intend to assist or encourage someone to commit the crime to secure a conviction. It decided that Chan Wing-Siu and Powell and English were wrong in principle because they required only that the secondary party foresaw the possibility that his companion might commit the other offence. Foresight is not a sufficient test to convict someone of murder and it does not equate with intent.
While the appellants’ murder convictions were set aside, there was evidence in Jogee’s case that he was guilty of at least manslaughter and might, on proper direction, have been found guilty of murder.
What does this decision mean?
The Supreme Court makes it clear that persons may be still be found guilty where they intentionally encourage or assist someone to commit an offence. Anyone who participates in a crime involving a risk of harm and death results, is at least guilty of manslaughter.
The decision does not mean that all convictions arrived at through the old application of the law are invalid. While appeals should be made within the time limit, the Court of Appeal may grant leave to appeal out of time in cases of substantial injustice.
Link to Court press summary is available here. You may access BBC News article here.
Secretary of State for Justice v Paul Black  EWCA Civ 125
- Court of Appeal rules that Smoking Ban does not apply to prisons
On the 8th March 2016 the Court of Appeal of England and Wales decided that the smoking ban does not apply to prisons.
A prison inmate sought to challenge the Secretary of State’s decision to refuse to provide access to the NHS Smoke-Free Compliance Line at HMP Wymott, a state-run prison in which he was detained.
The basis for the challenge was that the Secretary of State had misdirected himself in law, by concluding that the ban set out in Part I of the Health Act 2006 did not bind the Crown. This meant that the Act did not require the prison to implement the ban. The conclusion was based on the established legal principle that no statute binds the Crown unless it expressly says so or the Crown is bound by necessary implication.
Singh J had accepted that while there was no express provision the Crown was bound by necessary implication. The Secretary of State’s decision was therefore quashed. The Secretary of State appealed the decision and the Court of Appeal set aside the judgment of Singh J.
What does the decision mean?
The judgment does not prevent the Ministry of Justice from phasing in a ban on smoking in prisons and this is the intended action. The decision means that the smoking ban as set out in Part I of the Health Act 2006 does not apply to prisons and other Crown premises. However, since public prisons are state-run, smoking may otherwise be regulated under prison rules without the need for legislation.
You can read a recent article here and you may access a report from the Independent here.
On 15th March 2016, Mr Justice Treacy allowed a judicial review which challenged the Prison Service Policy that permits forced strip searches to be recorded and retained for a period of six years.
- Prison policy of filming forced strip searches breaches ECHR
Rule 16 of the Prison and Young Offenders’ Centre Rules (NI) 1996 permits forcible searching where prisoners refuse to provide consent. However, prisoners must not be required to undress in the sight of another prisoner or any person other than the officers conducting the search.
After refusing to provide consent, the applicant had been subjected to a forced strip search which was filmed. The Prison Service stated that the rationale behind the policy of recording planned use of force incidents is to keep a record to safeguard prisoners and staff involved should any subsequent complaints or allegations be made. Recording does not take place of any images deemed to be inappropriate and unnecessary.
The applicant alleged that this policy was incompatible with his rights under Article 8 of the ECHR because it interfered with his right to respect for private and family life in a disproportionate way. Mr Justice Treacy stated that:
‘In the absence of any proper basis in domestic law the recording of the search and its retention and the policy under which it was carried out are not ‘in accordance with law’ and therefore not a justified interference with the applicant’s Article 8 rights.’
Read summary of the judgment here.
McLaughlin’s (Siobhan) Application  NIQB 11
- Denying bereavement benefits to cohabitees not justified where children impacted
An unmarried mother challenged the decision of the DSD to refuse to provide her with benefits under the Social Security Contributions and Benefits (NI) Act 1992, following the death of her partner.
The applicant lived with her partner for 23 years and they had four children together. She was refused Bereavement Benefit and Widowed Parent’s Allowance solely because of the fact that she and the deceased had neither been married nor in a civil partnership.
The Court decided that refusal of payment is justified where the sole beneficiary of the benefit claimed is the cohabiting partner of the deceased. However, the Court ruled that the benefit should not be refused where the purpose is to ease the financial burden on a family following death of a parent. Treacy J stated that,
‘Parents are under the same or similar financial obligations regarding the maintenance of their children irrespective of whether they are married, in a civil partnership or cohabiting…The purpose of the benefit was to diminish the financial hardship on families consequent on the death of one of the parents.’
Treacy J concluded that the DSD’s decision unlawfully discriminated against the applicant on the grounds of her marital status. Therefore she was entitled to Widowed Parent’s Allowance but was not entitled to Bereavement Benefit.
Citizen’s Advice Bureau Summary can be accessed here.
Scots Law: Assisted Suicide
Ross v Lord Advocate  CSIH 12
- No requirement to publish prosecution guidance regarding assisted suicide
This case concerned an appeal under Scots Law from a decision of the Lord Ordinary on a petition for judicial review. The petitioner suffered from Parkinson’s disease and anticipated that eventually he would require assistance to end his life. He sought clarification as to the factors that would be taken into account in deciding whether or not to prosecute the person who assisted him.
In Scotland, the position differs from that of England and Wales in that it is not a criminal offence to assist the suicide of another person. However, assisting someone to commit suicide could give rise to liability for either murder or culpable homicide where the assistance is the immediate and direct cause of death.
The Petitioner sought a declaration that the Lord Advocate was in breach of Article 8 of the ECHR in failing to publish specific guidance which identified the facts and circumstances he will take into account in deciding whether or not to prosecute someone for assisting another person to commit suicide.
The Inner House of the Court of Session upheld the Lord Ordinary’s decision that the refusal to publish such guidance did not violate Article 8 of the ECHR.
The UK Human Rights Blog article is available here.
On 16th March 2016 the Court of Appeal made a ruling that the Northern Ireland Minister of Health is the correct person to make a decision on the appropriate deferral period from giving blood for males who have sex with other males.
- Minister of Health can decide on deferral period from giving blood for homosexual males
The Minister had decided not to alter the lifetime ban or to bring Northern Ireland into line with the rest of the UK which implements a one-year deferral period. On 11th October 2013, Mr Justice Treacy allowed an application for judicial review against his decision. He held that the Minister’s decision was irrational and biased and that the Secretary of State was the appropriate decision-maker. The Minister appealed the findings while the respondent cross-appealed against the trial judge’s failure to deal with his claim that a lifetime deferral was disproportionate.
The Court of appeal held that the Minister is the appropriate person to decide on the deferral period. Moreover, there was no basis to conclude that his decision was irrational or entrenched in bias. However, he should have brought the matter to the attention of the Executive Committee and did not do so.
By a 2-1 majority the Court of Appeal concluded that maintaining the lifetime prohibition was not disproportionate or contrary to EU law.
John O’Doherty, Director of the Rainbow Project expressed disappointment at the judgment,
‘It is disappointing that they failed to recognise that there is no reasonable, rational or medical reason to maintain this lifetime ban.’
Read summary of judgment here and access BBC news article here.
The High Court is required to reconsider its decision to quash the Minister of Education’s decision to close Clintyclay Primary School, the first Catholic school in Northern Ireland attempting a transformation to integrated status.
- Clintyclay Primary School decision remitted back to trial judge
The Minister had announced his decision after considering a proposal for closure and a proposal for transformation to integrated status. He considered that low enrolment numbers (of 30 children) meant that it was no longer sustainable. Due to this long term situation, switching to integrated status was not considered feasible.
A judicial review was brought by a parent of a pupil at the school and in March 2015 the trial judge concluded that the Minister had misdirected himself on the question of the school’s finances by relying on matters raised by the Council for Catholic Maintained Schools and comments by the Education and Training Inspectorate.
The Court of Appeal remitted the matter back to the High Court for reconsideration.
You may access the case summary here and Belfast Telegraph article here.
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