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									            JUDICIAL REVIEW;

          A WIDER PERSPECITVE




            2012 Training day


                Jason Elliott
Dere Street Barristers, Newcastle upon Tyne
                    And
 2 Dr Johnson’s Buildings, Temple, London




                                              1
2
           SESSION 1-

JUDICIAL REVIEW IN CRIMINAL CASES




                                    3
(1)Challenging Magistrates’ Courts Decisions

   R v Hereford Magistrates’ Court ex p Rowlands [1997]
   2 Cr App R 340,

   (a)     where the defendant complains that the
           magistrates made an error of fact or mixed fact and
           law, he should appeal to the Crown Court. This will
           allow a complete re-hearing of the matter;

   (b)     where the defendant complains that the
           magistrates made an error of law or acted in excess
           of their jurisdiction, he should appeal by way of
           case stated;

   (c) where the defendant alleges unfairness, bias or
        procedural irregularity he should apply for judicial
        review of the decision.

   Magistrates’ Courts Act 1980, s. 111(4),

   Once an application to state a case has been made, the
   right to appeal to the Crown Court ceases.

   R v Morpeth Justices ex p Ward (1992) Cr App R 215,

   Case stated is generally the preferred method over
   judicial review in challenging the decisions of magistrates
   unless it

   ‘is for some reason inapposite or clearly inappropriate’.
   (Brooke J)

   Note: There may be occasions where an alleged
   procedural error or irregularity will not be apparent from
   the ‘case’ and judicial review is then more appropriate.

   Thus,

   R v Wandsworth Justices ex p Read [1942] 1 KB 281,



                                                                 4
Where the defence are prevented from being heard
contrary to the rules of natural justice (and now Art 6), an
application for Judicial Review and a quashing order would
be most appropriate.

Rigby v Woodward [1957] 1 WLR 250,

Where a defendant is denied the opportunity of cross-
examining a witness an application for Judicial Review
would be the more appropriate remedy.

R v Huyton Magistrates’ Court ex p Roberts [1988] COD
43,

Unlike case stated, Judicial Review does not preclude an
appeal to the Crown Court, although an application may
have to be made that the appeal be considered out of
time.

Note: The better approach would be to lodge the appeal
together with an application to adjourn pending the
decision of the High Court.

R v Mid-Worcestershire JJ ex p Hart [1989] COD 397,

Where an appeal and Judicial Review are lodged
concurrently, the High Court should be informed of this at
the start of proceedings.

Note: It is possible to envisage circumstances where the
approach may conflict with the rule in favour of
exhausting all remedies prior to commencement of JR
proceedings. This won’t always be the case as the 2
actions are aimed at different situations and seek
different results – the Crown Court retains the power to
acquit at an appeal de novo but has no power to quash.

It will generally be worth seeking Counsel’s advice where
concurrent proceedings are contemplated.

R v Brent JJ ex p Liles [1992] COD 269,



                                                            5
Where an appeal is begun by way of case stated, but for
some reason this becomes impractical, the High Court
retains the discretion to consider the application as if it
were an application for JR.

R v Ealing JJ ex p Scrafield [1994] RTR 195,

Challenges to sentences should generally be made by way
of Crown Court appeal.

Note: This is a quicker route in any event but only applies
if the sentence imposed was lawful.

Thus,

Haine v Walkett [1983] RTR 512,

The High Court was prepared to intervene on the
application of the Prosecution where the grounds put
forward by the defence as to why the defendant should
not be disqualified had not amounted to special reasons.

R v Highbury Corner JJ ex p Uchendu, The Times, 28th
January 1994,

The High Court was prepared to intervene at the behest of
the defence where a maximum sentence had been
imposed without regard to the principle of proportionality.

R v Warley JJ ex p Harrison [1994] COD 340,

The High Court was prepared to intervene at the behest of
the defence where a fine was set too high for a defendant
to be able to pay it.

R (Paul Rackham Ltd) v Swaffham Magistrates’ Court
[2005] JPL 224,

Case stated is not available as a means of challenging
committal proceedings. Judicial Review is the appropriate
remedy.



                                                              6
(2)Challenging Crown Court decisions

   Note: Decisions related to trial on indictment are outside
   the Jurisdiction of the High Court and should only be the
   subject of Appeal to the Court of Appeal (Criminal
   Division).

   R v Manchester Crown Court ex p McDonald [1999] 1 Cr
   App R 409,

   Judicial Review is the most appropriate route for
   challenging a Crown Court custody time limits decision.

   Mackay White v DPP [1989] Crim LR 375,

   Case stated is also possible as a route to challenging
   Crown Court custody time limits decisions.

   Note: Such an approach is generally ill advised because of
   the inherent delay.

   R v Clerkenwell Metropolitan Stipendiary Magistrate,
   ex p DPP [1984] QB 821,

   Whilst an application for JR may be sought to challenge a
   refusal to exercise jurisdiction, case stated is generally
   the more appropriate remedy.

   R v Hatfield JJ ex p Castle [1981] 1 WLR 217,

   Judicial review is generally the appropriate remedy where
   there is a prospective or continuing error of jurisdiction
   because a prohibiting order will be sought.

   R (Taylor) v Southampton Magistrates’ Court (2009)
   172 JP 17,

   Judicial Review is the most appropriate remedy where
   there is alleged to have been a breach of natural justice.




                                                                7
Re Smalley [1985] AC 622,

The House of Lords held that a Crown Court order could
not be reviewed if it affected the conduct of the trial in
any way.

Re Sampson [1987] 1 WLR 194,

The House of Lords held that where the Crown Court order
is an integral part of the trial process it could not be
reviewed.

Re Ashton [1994] 1 AC 9,

The House of Lords held that an order by the Crown Court
that a trial on indictment should be stayed as an abuse of
process clearly affects the conduct of the trial and cannot
be Judicially Reviewed.

R v Manchester Crown Court ex p DPP [1993] 1 WLR
1524,

“Is the decision sought to be reviewed one arising in the
issue between the Crown and the defendant formulated by
the indictment (including the costs of such issue)?” If the
answer is “Yes”, then to permit the decision to be
challenged by judicial review may lead to delay in the
trial: the matter is therefore probably excluded from
review by the section.”

R v DPP ex p Kebilene and others [2000] 2 AC 326

“If the substance of what it is sought to review is the
answer to some issue between the prosecution and the
defence arising during a trial on indictment that issue may
not be made the subject of judicial review proceedings.”

Note: The Law Commission has previously advised on the
prospect of transferring current High Court jurisdiction
over Crown Court matters (both Judicial Review and Case
Stated) to the Court of Appeal (Criminal Division).



                                                             8
(3)Challenging Charging decisions

   R (Peter Dennis) v DPP [2006] EWHC 3211,

   Where it can be demonstrated on an objective appraisal of
   the case that some serious evidence supporting a
   prosecution has not been carefully considered an
   application for Judicial Review will be appropriate.

   R v DPP ex p Timothy Jones [2000] Crim LR 858,

   Where it can be demonstrated that in a significant area a
   conclusion as to what the evidence is to support a
   prosecution has been irrational an application will be
   appropriate.

   R v DPP ex p C [1995] 1 Cr App R 136,

   Where the decision to charge is perverse, ie no reasonable
   prosecutor could have properly arrived at it an application
   will be appropriate.

   R v DPP ex p Manning [2001] QB 330,

   Where CPS policy (such as the Code for Crown Prosecutors)
   has not been properly applied and / or complied with an
   application will be appropriate.

   This includes situations where irrelevant considerations
   have been taken into account.

   R v DPP ex p Kebilene [2000] 2 AC 326,

   Where it can be demonstrated that the decision was
   arrived at by reason of fraud, corruption or bad faith an
   application will be appropriate.

   R v DPP ex p C [1995] 1 Cr App R 136

   The Court also has the power to intervene in decisions
   where there has been a decision not to prosecute,
   although this power should be used sparingly.


                                                               9
The Court can only intervene in such circumstances where
the decision not to prosecute was reached by some
unlawful policy, or because the DPP failed to act in
accordance with settled policy (as set out in the Code), or
because the decision was perverse.

R v DPP ex p Treadaway, The Times, October 31st 1997,

Whilst a previous County Court decision is not
determinative in the context of a decision to charge, the
findings made required very detailed consideration if the
DPP was not to institute a criminal prosecution.


R v DPP ex p Manning [2001] QB 330,

Whilst the DPP was not under a general duty to give
reasons for a decision not to prosecute, it was reasonable
to do so unless compelling grounds suggested otherwise.

R (on the application of Peter Dennis) v DPP [2006]
EWHC 3211,

Where the decision not to prosecute contradicts the
verdict at an inquest clear reasons are required in support
of a failure to prosecute.

R v Inland Revenue Commrs ex p Allen [1997] STC 1141,

A decision to prosecute is amenable to judicial review if it
is an unjustified departure from established prosecution
practice or if it is unfair in that it amounts to a breach of
contract or representation.




                                                                10
                    SESSION 2 –

THE DUTY OF CANDOUR IN JUDICIAL REVIEW PROCEEDINGS




                                                 11
           EXTRACTS FROM “GUIDANCE ON DISCHARGING THE DUTY
             OF CANDOUR AND DISCLOSURE IN JUDICIAL REVIEW
                            PROCEEDINGS”

          Note: This is the internal policy document issued by and to
          the Treasury Solicitors on the subject. It was issued in
          January 2010.

          “The duty of candour

          A public authority’s objective must not be to win the
          litigation at all costs but to assist the court in reaching
          the correct result and thereby to improve standards in
          public administration

          The point was explained by Lord Donaldson MR in R v
          Lancashire County Council ex p. Huddleston1 when he said
          this:

          “This development [i.e. the remedy of judicial review and
          the evolution of a specialist administrative or public law
          court] has created a new relationship between the courts
          and those who derive their authority from public law, one
          of partnership based on a common aim, namely the
          maintenance of the highest standards of public
          administration ... The analogy is not exact, but just as
          the judges of the inferior courts when challenged on the
          exercise of their jurisdiction traditionally explain fully
          what they have done and why they have done it, but are
          not partisan in their own defence, so should be the public
          authorities. It is not discreditable to get it wrong. What is
          discreditable is a reluctance to explain fully what has
          occurred and why... Certainly it is for the applicant to
          satisfy the court of his entitlement to judicial review and
          it is for the respondent to resist his application, if it
          considers it to be unjustified. But it is a process which
          falls to be conducted with all the cards face upwards on
          the table and the vast majority of the cards will start in
          the authority’s hands” (emphasis added).



1   R v Lancashire County Council ex p Huddleston [1986] 2 All ER 941


                                                                        12
          This is the approach that should be applied in response to
          all applications for judicial review, and is required in
          order to satisfy the requirement of the duty of candour,
          the obligation upon all public authorities who are parties
          to applications for judicial review. The duty of candour in
          judicial review applies from the outset and applies to all
          information relevant to the issues in the case, not just
          documents.

          Golden Rules for conducting a disclosure exercise

          • The litigation case-handler must have overall
          responsibility for the disclosure exercise

          • Take steps to preserve all potentially relevant
          documents as soon as proceedings are likely

          • Start early. At the outset formulate, record and
          implement a strategy for conducting the disclosure
          exercise based on an understanding of the issues in the
          case and knowledge of the systems for record-keeping

          • Maintain a record of what has been seen and by whom
          and the decisions taken

          • A document which is disclosable must be disclosed even
          if it is embarrassing or damaging to a party's case

          • Before giving inspection look at the output of the
          disclosure exercise in the same way as the claimant will
          look at it - look to see what is there and what is not there

          • Devote sufficient resources from the outset to ensure
          that the process can be, and is, conducted on time and
          properly.”

          [p. 1]

          1.3.     Solicitor's duty

          • In the case of Al Sweady2 the Divisional Court

2   R (Al Sweady & others) v Secretary of State for Defence [2009] EWHC 2387


                                                                           13
          highlighted two disclosure obligations imposed on
          solicitors in litigation:

          a)The duty to make sure that the client is fully aware of
          the duty to ensure that proper disclosure is given;

          b)The duty to go through the documents disclosed by the
          client to make sure, as far as possible, that no documents
          have been omitted from the client's list3.

          • Note that in the context of applications for judicial
          review, disclosure by list (i.e., in accordance with the
          provisions of CPR 3 Part 31) is not usually required.
          However, if the evidence that is served is to comply with
          the duty of candour, it will be necessary for the solicitor
          with conduct of the case to have undertaken an exercise
          equivalent to the exercise that is described in the next
          bullet point in order to satisfy himself that the evidence
          served meets the requirements of the duty of candour.
          Thus the basic approach described in the next bullet point
          should closely inform the approach that is taken to the
          preparation of witness evidence in response to all
          applications for judicial review.

          • The solicitor's duty on disclosure (for example, under
          CPR 31) was summarised by the Court of Appeal in Hedrich
          v Standard Bank London Ltd4 drawing on Chapter 14 of the
          third edition of Matthews and Malek on Disclosure. The
          main points are:

          a)A solicitor's duty is to investigate the position carefully
          and to ensure so far as is possible that full and proper
          disclosure of all relevant documents is made (Myers v
          Elman [1940] AC 282).

          b)The solicitor's duty extends to explaining to his client
          the existence and precise scope of the disclosure
          obligation and the need to preserve documents.

          c)The solicitor has an overall responsibility of careful

3   Woods v Martins Bank [1959] 1 QB 55
4   [2008] EWCA Civ 905


                                                                          14
investigation and supervision in the disclosure process and
he cannot simply leave this task to his client. The best
way to fulfill this duty is to take possession of all the
original documents as early as possible. The client should
not be allowed to decide relevance – or even potential
relevance – for himself, so either the client must send all
the files to the solicitor or the solicitor must visit the
client to review the files or take the relevant documents
into his possession. It is then for the solicitor to decide
which documents are relevant and disclosable.

d)Once the documents have been produced by the client,
the solicitor should carefully go through the documents
disclosed to make sure, so far as is possible, that no
documents subject to the disclosure obligation are
omitted from the list.... A solicitor must not necessarily
be satisfied by the statement of his client that he has no
documents or no more documents than he chooses to
disclose. If he has reasonable grounds for suspecting that
there are others, then he must investigate the matter
further, but he need not go beyond taking reasonable
steps to ascertain the truth. He is not the ultimate judge
and if he has decided on reasonable grounds to believe his
client, criticism cannot be directed at him.

e)If a solicitor is or becomes aware that the list of
documents or any verifying affidavit or statement of truth
is inadequate and omits relevant documents or is wrong or
misleading, he is under a duty to put the matter right at
the earliest opportunity and should not wait until a further
order of the court. His duty is to notify his client that he
must inform the other side of the omitted documents, and
if this course is not assented to he must cease to act for
the client. If the client is not prepared to give full
disclosure, then the solicitor's duty to the court is to
withdraw from the case.”

[pp. 3, 4 & 5]


“…In Al Sweady the court emphasised that the case-
handler has a duty to ensure that proper disclosure is


                                                           15
given where there is to be cross-examination or in any
case where the court makes findings of fact. The court
made it plain that any infringements of the three basic
human rights (Articles 2, 3 and 5) would be subject to
intense scrutiny and that in such a case the duty of
disclosure is "even more acute"…”

[p. 5]

“…In some instances, even if an order for disclosure has
not been made by the court, an exercise that has all the
elements of a CPR 31 disclosure exercise will be required.
Situations where such an exercise is likely to be
appropriate will be those where complex issues of
disputed fact are central to the claim that has been made.
Examples of such situations may be where the claim
alleges breach of the substantive obligations arising under
ECHR Articles 2 or 3. These are only examples. The
circumstances of each claim should be assessed in order to
determine the approach that is appropriate. If in doubt,
ask. Bear in mind that the primary practical difference
between complying with the duty of candour and a CPR 31
disclosure exercise is that in the latter, disclosure is by
list, and (save where legal professional privilege or public
interest immunity is asserted) inspection of all documents
on the list occurs.

What is described in the remainder of this document is the
key steps in a CPR 31 disclosure exercise in a complex
case. However, the principles that underlie this guidance
should be principles that guide your actions in all cases.
Even in the majority of judicial review claims where such
disclosure is displaced by the duty of candour, careful
consideration of what is set out below will help ensure
that the evidence and documents served fully discharge
the duty of candour. In all cases carefully consider what is
necessary and proportionate to ensure that the court is
fully informed on all relevant issues. Sometimes this may
mean that what is required may take longer than the usual
period permitted for the service of evidence in a judicial
review claim. If it appears that this may be the situation
in a specific case, seek directions from the court so that a


                                                           16
sensible and robust timetable can be set…”

[p. 6]

“1.6. Consequences of failure

Failure properly to discharge the duty of candour or to
disclose a relevant document can have serious
consequences, including:
• the material if subsequently produced may not be relied
on without permission of the court;

• a formal order for disclosure;

• the drawing of adverse evidential inferences;

• an adverse costs order;

• proceedings for contempt of court;

• reputational damage;

• allegations of deliberate concealment affecting the
outcome of the litigation.”

[p. 6]

“3.2 Proportionality – reasonableness of the search

• Judgements about where and in what way to conduct
searches will be made on a case by case basis. The limiting
factors are relevance and proportionality. It may be more
or less difficult and time consuming to search in a
particular location or way. There may be more or less
prospect of any such search producing relevant material.
Applying this approach, it may not be necessary to search,
for example, each and every potential location; but it is
necessary properly to consider doing so. If it is decided not
to search any potential location, the reason for that
decision should be recorded. (See also, below at
paragraph 5 as to record- keeping generally.)

• It would be appropriate to apply the test set out in CPR

                                                             17
31.7 to the question of what is a reasonable search which
will be determined on a case by case basis. It should be
the subject of detailed consideration at the outset (see
Section 3.1 above). Factors relevant in deciding the
reasonableness of a search include the following:

the number of documents involved;

the nature and complexity of the proceedings;

the ease and expense of retrieval of any particular
documents;

the significance of any document which is likely to be
located during the search.

• Decisions taken on proportionality should be taken by
the defendant department in conjunction with the case-
handler and where necessary with the benefit of advice
from counsel, recorded and included in the Disclosure
Statement.

• Once the size of the task has been determined the
appropriate resources required to carry it out should be
identified and deployed consistent with meeting the court
deadline for disclosure.

• Where documents are held by the NPD there will be
consultation between the defendant department and the
NPD applying the same principles.”

[p. 12]


“4.9 Sensitive material

The practical consequences of handling, reviewing, and
clearing disclosure of potentially sensitive material are
often the main reasons for problems in complying with the
disclosure obligation timeously. Additionally, the process
of reviewing documents for PII purposes may be
protracted, especially where significant quantities of


                                                            18
documents are involved. It is good practice therefore to
get ahead of the timetable where possible and so avoid
having to conduct searches and reviews in the pressurised
and tightly timetabled environment of ongoing (and
possibly expedited) proceedings.

4.10 Consideration should be given to entering into data
exchange agreements with the claimants and agreeing on
data return/destruction to apply at the end of the case.”
[p. 17]

“10 Disclosure by other parties

The duty on other non-HMG parties in the litigation to give
disclosure is not linked to the Crown's obligation to give
disclosure. However, this should not prevent requests to
other parties to clarify the claim and to provide
disclosure.”

[p. 20]




                                                            19
              SESSION 3 –

SOME DEVELOPMENTS IN THE LAST 12 MONTHS




                                          20
(1)     Family law


      A Local Authority v DS [2012] EWCA 1442

      Judgment by the President of the Family Division, Sir
      Nicholas Wall, providing guidance on LSC refusal to
      grant prior authority in relation to expert evidence
      (Independent Social worker).

      Following a 5 month delay the LSC refused to grant
      prior authority for instruction of the ISW to perform a
      parenting and risk assessment. This was because the
      ISW was requesting a rate of £50 per hour. The current
      rate set by the Community Legal Services (Funding)
      (Amendment No 2) Order 2011 restricts such payment
      outside London to £30 per hour.

      The President pointed out that the LSC has the power
      to refuse to fund the instruction of an expert,
      regardless of the decision of the (1st instance) court,
      as well as to lay down limits on the level of the
      experts’ fees.

      The role of the 1st instance court -

      The court will need to be persuaded that the
      instruction of an expert is necessary for the resolution
      of the case. If the court is so persuaded, it should set
      out either in a brief judgment or on the preamble of
      an order that the instruction of an expert is necessary,
      and set out its reasons. The court should also identify
      the issues on which the expert should report. Should
      the LSC refuse to grant prior authority, then it should
      likewise set out its reasons accordingly.

      At paragraph 54, the President proposes a possible
      form of order for the instruction of an expert,
      depending on the facts of the case: -

      a) The proposed assessment and report by X (as set
      out in paragraph 2 of this order) are vital to the


                                                                21
resolution of this case.

b) This case is exceptional on
its facts.

c) The costs to be incurred in the preparation
of such report are wholly necessary, reasonable and
proportionate disbursement on the funding
certificates of the publicly funded parties in this
case.

d) The court considers X's hourly rate of £y and
the estimated costs of the assessment report to be
reasonable in the context of (his) qualifications,
experience and expertise.

e) The field in which X
practises, and the particular expertise which (he)
brings to bear on cases involving (subject) are highly
specialised. There is no realistic prospect of finding
an alternative expert with the necessary expertise at
a lower fee.

f) (The court considers that any further
delay in order to give the LSC the (further)
opportunity to consider an application for prior
funding approval would be wholly outside the
child(ren)'s timescale(s)

The order should also be buttressed by reasons as set
out in his guidance.




                                                         22
Re Ali [2012] EWHC 2302 (Admin)

In 2003 Mr Liaquat Ali was convicted of money
laundering and sentenced to 12 years' imprisonment.
A confiscation order was later made against Mr Ali to
the value of £756,000. On 18 June 2010 in light of
lack of payment towards the confiscation order, an
Enforcement Receiver was appointed.

Mr Ali owned 5
properties in England. Mr Ali's wife, his brother, his
sister-in-law and his nephew applied for declarations
of beneficial interests in various of the properties.
The Receiver opposed the claims, save for conceding
that the wife had a 50% beneficial interest in one of
the properties which was held in joints names in law.
the other properties were all held in Mr Ali's sole
name save for one which he owned jointly with one of
the claimants, the claimant asserting that he in fact
held 100% of the beneficial interest.

Dobbs J
summarised the legal principles applicable to the
establishment of beneficial interests. The Judge
applied the general principles contained in Stack v
Dowden [2007] 2 AC 432 Jones v Kernott [2012] 1 AC
776 and Lloyds Bank v Rossett & Another [1991] AC
107.

Dobbs J stated that in Jones v Kernott [2012] 1
AC 776 it was held that in "sole name" cases, there
were two questions to be asked – namely whether it
was intended that the other party have any beneficial
interest in the property at all and, if he does, the
second issue is what that interest is. In considering
the first of the questions there will need to be
evidence of an actual agreement, arrangement or
understanding between the parties which must "be
based on evidence of express discussions between the
partners, however imperfectly remembered and
however imprecise their terms may have been"(Lloyds
Bank v Rosset and Another [1991] AC 107, Lord Bridge
of Harwich at 132 In considering the second question
the Court may have regard to the "whole course of
dealing" between the parties, in order to ascertain
their intentions, or, if necessary, to impute them.

In

                                                      23
relation to improvement works said to have been
done by the claimants, Morris v Morris [2008] EWCA
Civ 257 and Knowles v Knowles [2008] UKPC 230
(which establish that the carrying out of work on the
property of another without more (in other words
mere conduct), does not provide the party carrying
out the work with a beneficial interest save in
exceptional circumstances.

Dobbs J heard oral
evidence from the claimants and Mr Ali and reviewed
a significant amount of documentary evidence. She
concluded that Mr Ali and the claimants had not given
credible evidence, noted a number of inconsistencies
in their accounts and gaps in documentary evidence
and dismissed all claims save those conceded by the
Receiver in relation to Mr Ali's wife.




                                                    24
(2)     Criminal Law

      Paul Chambers v DPP [2012] EWHC 2157

      Appeal by way of case stated from the decision of the
      Doncaster Crown Court upholding the appellant’s
      conviction in the Magistrates Court for sending by a
      public communication network a message of a
      “menacing character” contrary to s. 127(1)(a) and (3)
      of the Communications Act 2003.

      “(1) A person is guilty of an offence if he –

      (a)      sends by means of a public electronic
            communications network a message or other
            matter that is grossly offensive or of an indecent,
            obscene or menacing character…”

      “(3) A person guilty of an offence under this section
      shall be liable, on summary conviction, to
      imprisonment for a term not exceeding six months or
      to a fine not exceeding level 5 on the standard scale
      or to both. ...”

      PC had tweeted in relation to reports of delays out of
      Doncaster airport,

      “@ Crazycolours: I was thinking that if it does then I
      had decided to resort to terrorism”:

      “@ Crazycolours: That’s the plan! I am sure the pilots
      will be expecting me to demand a more exotic
      location than NI”.

      He then posted the following message,

      “Crap! Robin Hood Airport is closed. You’ve got a
      week and a bit to get your shit together otherwise I
      am blowing the airport sky high!!”


                                                                  25
“There was no evidence before the Crown Court to
suggest that any of the followers of the appellant’s
“tweet”, or indeed anyone else who may have seen
the “tweet” posted on the appellant’s time line,
found it to be of a menacing character or, at a time
when the threat of terrorism is real, even minimally
alarming. In fact nothing was done about it by anyone
until 11 January 2010, some five days later when the
duty manager responsible for security at Robin Hood
Airport, while off duty at home, found it. Mr Duffield
did not see this “tweet” on the appellant’s time line,
and it was never sent to him or to the airport. Rather
he was at home searching generally for any “tweets”
which referred to Robin Hood Airport. In cross
examination he said that he did not know whether the
“tweet” was a joke or not, but as even a joke could
cause major disruption it had to be investigated.
Accordingly he referred the “tweet” to his manager,
Mr Armson. Mr Armson was responsible for deciding
whether any perceived threat to the airport should be
graded as “credible” or “non-credible”. If “credible”,
it was to be referred immediately to the Ministry of
Defence, but if “non- credible”, as a matter of
standard practice it was to be reported to the airport
police. Mr Armson examined the appellant’s “tweet”.
He regarded it as “non-credible”, not least because it
featured the appellant’s name and, as he noted, the
appellant was due to fly from the airport in the near
future. Nevertheless in accordance with airport
procedure he passed this “tweet” to the airport
police. The airport police themselves took no action,
presumably for exactly the same reason, but they
decided to refer the matter on to the South Yorkshire
police.” [13]

“The police sought the advice of the Crown
Prosecution Service. As a result the appellant was
charged with the offence of which he now stands
convicted.” [16]

“On the basis of these facts the Crown Court was


                                                     26
“satisfied” that the message in question was
“menacing per se”. The court took the view “that an
ordinary person seeing the “tweet” would see it in
that way and be alarmed. The airport staff did see it
and were sufficiently concerned to report it”.” [17]

“The Crown Court went on to hold “that the required
mens rea ... is that the person sending the message
must have intended the message to be menacing, or
be aware that it might be taken to be so ...” The
court was satisfied that the appellant was, at the very
least, aware that his message was of a menacing
character.” [18]

Questions posed by the Crown Court for the High
Court included whether,

(1)      the actus reus included the element that the
      person sending the message intended “to create a
      fear in or through the recipient”

(1a)the mens rea required such an element

(1b)is the actus reus “the sending of a message of the
proscribed character by the defined means”

(2)     what is the mens rea

(3)     had the court acted in a manner which was
      compliant with the Convention

(4)      did the message pass the threshold of gravity
      necessary to constitute a message of a menacing
      character.


“The 2003 Act did not create some newly minted
interference with the first of President Roosevelt’s
essential freedoms – freedom of speech and
expression. Satirical, or iconoclastic, or rude
comment, the expression of unpopular or
unfashionable opinion about serious or trivial matters,


                                                         27
banter or humour, even if distasteful to some or
painful to those subjected to it should and no doubt
will continue at their customary level, quite
undiminished by this legislation. Given the
submissions by Mr Cooper, we should perhaps add that
for those who have the inclination to use “Twitter”
for the purpose, Shakespeare can be quoted
unbowdlerised, and with Edgar, at the end of King
Lear, they are free to speak not what they ought to
say, but what they feel.” [28]

“Before concluding that a message is criminal on the
basis that it represents a menace, its precise terms,
and any inferences to be drawn from its precise
terms, need to be examined in the context in and the
means by which the message was sent. The Crown
Court was understandably concerned that this
message was sent at a time when, as we all know,
there is public concern about acts of terrorism and
the continuing threat to the security of the country
from possible further terrorist attacks. That is plainly
relevant to context, but the offence is not directed to
the inconvenience which may be caused by the
message. In any event, the more one reflects on it,
the clearer it becomes that this message did not
represent a terrorist threat, or indeed any other form
of threat. It was posted on “Twitter” for widespread
reading, a conversation piece for the appellant’s
followers, drawing attention to himself and his
predicament. Much more significantly, although it
purports to address “you”, meaning those responsible
for the airport, it was not sent to anyone at the
airport or anyone responsible for airport security, or
indeed any form of public security. The grievance
addressed by the message is that the airport is closed
when the writer wants it to be open. The language
and punctuation are inconsistent with the writer
intending it to be or to be taken as a serious warning.
Moreover, as Mr Armson noted, it is unusual for a
threat of a terrorist nature to invite the person
making it to ready identified, as this message did.
Finally, although we are accustomed to very brief


                                                       28
messages by terrorists to indicate that a bomb or
explosive device has been put in place and will
detonate shortly, it is difficult to image a serious
threat in which warning of it is given to a large
number of tweet “followers” in ample time for the
threat to be reported and extinguished.” [31]

“By contrast with the offences to be found in
s.127(1)(b) of the Act and s.1 of the Malicious
Communications Act 1988 which require the
defendant to act with a specific purpose in mind, and
therefore with a specific intent, no express provision
is made in s.127(1)(a) for mens rea. It is therefore an
offence of basic intent. That intent was examined by
the House of Lords in DPP v Collins. While it is true
that the examination was directed to grossly offensive
messages, it would be quite unrealistic for the mens
rea required for the different classes of behaviour
prohibited by the same statutory provision to be
different in principle, the one from the other, or on
the basis of some artificial distinction between the
method of communication employed on the particular
occasion. In consequence we are unable to accept
that it must be proved that, before it can be
stigmatised as criminal, the sender of the message
must intend to threaten the person to whom it was or
was likely to be communicated, or that such a specific
purpose is a necessary ingredient of the offence. That
would, in effect involve an offence of specific intent
which Parliament elected not to create.” [36]

“In DPP v Collins, Lord Bingham emphasised that:

“... Parliament cannot have intended to criminalise
the conduct of a person using language which is, for
reasons unknown to him, grossly offensive to those to
whom it relates, or which may even be thought,
however wrongly, to represent a polite or acceptable
usage”.

He continued:



                                                       29
“On the other hand, a culpable state of mind will
ordinarily be found where a message is couched in
terms showing an intention to insult those to whom
the message relates or giving rise to the inference
that a risk of doing so must have been recognised by
the sender. The same will be true where facts known
to the sender of the message about an intended
recipient render the message peculiarly offensive to
that recipient, or likely to be so, whether or not the
message in fact reaches the recipient”. [37]

“We agree with the submission by Mr Robert Smith QC
that the mental element of the offence is satisfied if
the offender is proved to have intended that the
message should be of a menacing character (the most
serious form of the offence) or alternatively, if he is
proved to have been aware of or to have recognised
the risk at the time of sending the message that it
may create fear or apprehension in any reasonable
member of the public who reads or sees it. We would
merely emphasise that even expressed in these terms,
the mental element of the offence is directed
exclusively to the state of the mind of the offender,
and that if he may have intended the message as a
joke, even if a poor joke in bad taste, it is unlikely
that the mens rea required before conviction for the
offence of sending a message of a menacing character
will be established. The appeal against conviction will
be allowed on the basis that this “tweet” did not
constitute or include a message of a menacing
character; we cannot usefully take this aspect of the
appeal further.” [38]




                                                         30
The Mayor, Commonality and Citizens of the City
of London –v- Tammy Samede & others [2012]
EWHC 34,

“What are the limits to the right of lawful assembly
and protest on the highway? In a democratic society
that is a question of fundamental importance. It
arises in this case, in this way. Do those limits extend
to the indefinite occupation of highway land by an
encampment of protestors who say this form of
protest is essential to the exercise of their rights
under Articles 10 and 11 of the European Convention
on Human Rights, when the land they have chosen to
occupy is in a prominent place in the heart of the
metropolis, beside a cathedral of national and
international importance, which is visited each year
by many thousands of people and where many
thousands more come to exercise their right, under
Article 9 of the Convention, to worship as they
choose?” [1]

“Before the court are claims made by the City of
London Corporation (“the City”) for possession of
highway and other open land in the churchyard of St
Paul’s Cathedral, which has been occupied by the
defendants as a protest camp. The City also seeks
injunctions to require the removal of the tents and
other structures comprised in the camp…”

“…The defendants belong to the unincorporated
association that has organized the protest, which
originally called itself “Occupy London Stock
Exchange”, or “Occupy London SX”, names now
shortened simply to “Occupy”…”[2]

“When the protesters first arrived in the churchyard
they had been trying to get into Paternoster Square,
where the London Stock Exchange building stands. But
Paternoster Square had been closed off by its owners,
Paternoster Square Management Limited, who on 14

                                                       31
October 2011 had been granted an injunction by Peter
Smith J, preventing “persons unknown” entering or
remaining in or trespassing on the square. The same
company issued a claim in the Chancery Division on 12
December 2011 (claim no. HC11CO4400), seeking an
order preventing “persons unknown”, without its
consent, entering or remaining on Paternoster Square
“for the purpose of any protest action”. On 13
December 2011 Vos J granted a further injunction,
effectively extending the prohibition contained in the
order of Peter Smith J to adjoining land around
Christchurch Court, “[until] trial or further order in
the meantime or 13 December 2012 (whichever shall
be the earliest)”.” [5]

“The City does not dispute that the defendants’ rights
under Articles 10 and 11 rights of the Convention are
engaged. It does not seek to stop the defendants
exercising those rights. However, it contends that the
removal of the tents would amount to a justified
interference with them…” [14]

“Whilst it has been possible to pass and re-pass along
the highway at this point, Mr Wilkinson said the
obstruction has had several consequences, which have
been going on for some time and “threaten to
continue indefinitely”: (1) people on many routes
have had to divert around the camp; (2) the
remaining width of highway has been heavily
congested at times, as photographs show; and (3)
significant numbers appear to have ceased to use the
highway in this location and have found alternative
routes….” [20]

“It seemed clear that the defendants intended to
occupy the protest camp indefinitely unless legal
action was taken. The City had sought to negotiate
with the defendants “on a pragmatic basis to seek to
avoid litigation by agreeing controls on the [protest
camp] so as to limit its impacts and to agree that it
would vacate the area by a given date [31 December
2011]”. But the City’s proposed way forward had been


                                                     32
rejected by the defendants, and no alternative had
been suggested. Whilst the offer to negotiate
remained open, the City had decided that
“negotiations must run alongside the litigation and
can no longer be an alternative to it”.” [25]

“Mr Cottam said that services at the cathedral had
been interrupted by the loud noise emanating from
the camp. The noise carries into the cathedral, mainly
from the west steps and particularly after 5 p.m.,
which is the time at which the daily weekday evening
service of Evensong starts, and then on Sundays where
there is a service in the middle of the day and
another beginning at 3.15 p.m.. Noisy meetings are
held in the camp. A public address system was being
used, with an amplified speaker facing the steps
where protesters gathered to listen…”[36]

“The European Court of Human Rights has repeatedly
stressed the importance to be attached to freedom of
speech. This is a liberty that will be jealously
guarded. Any restrictions upon it must be closely
scrutinized (see R (Laporte) v Gloucestershire County
Council [2007] 2 AC 105, at paras 36 and 37). The
same applies to the expression of opinion in
conjunction with others, which is protected under
Article 11. In Handyside v United Kingdom [1976] 1
EHRR 737 the European Court of Human Rights said
this (at para 49):

“... The Court’s supervisory functions oblige it to pay
the utmost attention to the principles characterising a
‘democratic society’. Freedom of expression
constitutes one of the essential foundations of such a
society, one of the basic conditions for its progress
and for the development of every man. Subject to
Article 10(2), it is applicable not only to ‘information’
or ‘ideas’ that are favourably received or regarded as
inoffensive or a matter of indifference, but also to
those that offend, shock or disturb the State or any
sector of the population. Such are the demands of
that pluralism, tolerance and broadmindedness,


                                                        33
without which there is no ‘democratic society’. ...”.

Domestic jurisprudence has been no less robust. In R v
Secretary of State for the Home Department, ex p
Simms [2000] 2 AC 115 Lord Steyn said this (at p 126
E-G):

“Freedom of expression is, of course, intrinsically
important: it is valued for its own sake. But it is well
recognised that it is also instrumentally important. It
serves a number of broad objectives. First, it
promotes the self fulfilment of individuals in society.
Secondly, in the famous words of Holmes J. (echoing
John Stuart Mill), “the best test of truth is the power
of the thought to get itself accepted in the
competition of the market:” Abrams v. United States
(1919) 250 U.S. 616, 630, per Holmes J. (dissenting).
Thirdly, freedom of speech is the lifeblood of
democracy. The free flow of information and ideas
informs political debate. It is a safety valve: people
are more ready to accept decisions that go against
them if they can in principle seek to influence them.
It acts as a brake on the abuse of power by public
officials. It facilitates the exposure of errors in the
governance and administration of justice of the
country: see Stone, Seidman, Sunstein and Tushnett,
Constitutional Law, 3rd ed., (1996), 1078-1086. ...”.
[98]

“For an interference to be justified, it must be
rationally connected to one of the legitimate aims
specified in Articles 10(2) and 11(2). It must be
convincingly demonstrated that the interference
meets a pressing social need and is proportionate (see
Handyside, at paras 48 and 49). Action will not be
proportionate unless it is the least intrusive means
necessary to achieve the aim. Even if it is the least
intrusive means necessary to meet the aim, it must
also strike a fair balance between the needs of the
community and the individual so as not to impose an
excessive burden on the individual. To apply a blanket
policy will not normally be proportionate. Nor may


                                                           34
criteria be set whose effect would be prevent the
competing interests to be properly balanced (see
Dickson v United Kingdom (2008) 46 EHRR 41, at para
82). Whether or not an interference is proportionate
must be decided by the court (see, for example, R
(SB) v Governors of Denbigh High School [2007] 1 AC
100). This must be determined on the facts of the
individual case. The court will focus very sharply and
critically on the reasons relied on by the initial
decision- maker for curtailing the right or rights
engaged (see, for example, Zana v Turkey (1997) 27
EHRR 667, (at para 51).”[99]

“I therefore accept Mr Forsdick’s submission that,
apart from their rights under Articles 10 and 11 of the
Convention, the defendants have no arguable right to
occupy, control or take possession of highway land
from the City as highway authority.”[121]

“…even if one leaves those breaches of statute aside,
it would be impossible in my view to reconcile the
presence of the protest camp with the lawful function
and character of this land as highway. This is not to
say that the City would be able to resist a lawful
protest in St Paul’s Churchyard, which did not
obstruct the highway, cause nuisance, or interfere
with the rights and freedoms of others. It could not,
and has said it would not want to. But it does oppose
the occupation of the land by this protest camp. I do
not think this stance is unreasonable. It is akin to the
mayor’s in the Parliament Square case, which was
endorsed by the court both at first instance and on
appeal (apart from the claim against Mr Haw, whose
defence was different from the Democracy Village
defendants’). One can see in paragraph 48 of Lord
Neuberger’s judgment in Hall how close the parallel
is:

“It is important to bear in mind that this was not a
case in which there is any suggestion that the
defendants should not be allowed to express their
opinions or to assemble together. The claim against


                                                         35
them only relates to their activities on PSG. It is not
even a case where they have been absolutely
prohibited from expressing themselves and assembling
where, or in the manner, in which they choose. They
have been allowed to express their views and
assemble together at the location of their choice,
PSG, for over two months on an effectively exclusive
basis. It is not even as if they will necessarily be
excluded from mounting an orthodox demonstration
at PSG in the future. Plainly, those points are not
necessarily determinative of their case, but, when it
comes to balancing their rights against the rights of
others, they are obviously significant factors.”…[161]

“Thirdly, on the City’s evidence I am convinced that
the effects of Occupy’s protest camp in St Paul’s
Churchyard have been such as to interfere seriously
with the rights, under Article 9 of the Convention, of
those who desire to worship in the cathedral…”[162]

“Fourthly, in my judgment, the harm for which the
protest camp is responsible does not end there. In
addition to the obstruction of the highway, the
effects of the camp – both direct and indirect – on
routes available to pedestrians, and the concomitant
loss of open space that the public can get to, the
protest camp has strained the local drainage system
beyond capacity, has caused nuisance by the
generation of noise and smell, has, by its presence,
damaged the trade of local businesses, and has made
a material change in the use of the land for which
planning permission would not be granted…” [163]

Fifthly, the length of time for which the camp has
been present is relevant, as it was in the Parliament
Square case. Again, the facts are quite similar. In Hall
Lord Neuberger said (at para 49):

“... The fact that Democracy Village have been
exclusively in occupation of PSG for over two months
is also relevant, especially as there is no sign of the
camp being struck, as the defendants, have it may be


                                                         36
      said, had some 70 days to make their point.”[164]

(3)     Regulatory Law

      Bass & another v Solicitors Regulation Authority [2012]
      EWHC 2012 (Admin)

      The appellants, Partners (B) in a law firm, appealed a
      finding that they had breached Rule 5 of the Solicitors
      Code of Conduct 2007 in relation to supervision of a
      fixed-share partner (P).

      An investigation into the firm in October 2007 brought
      to light that P had breached the Solicitors’ Accounts
      Rules by billing residual clients’ accounts as profit
      costs without authority and transferred sums directly
      into the office account. No allegation of dishonesty
      was made against any of the parties. On discovering
      the breach, the Partners immediately dismissed P,
      repaid the monies and reported the matter to the
      Solicitors Regulation Authority.

      The matter was before the Solicitors Disciplinary
      Tribunal where a number of allegations relating to
      breaches of the Rules were admitted by the parties;
      however, B disputed that they failed to exercise
      adequate or appropriate supervision of P. At the
      conclusion of the SRA case the appellants made a
      submission of no case to answer, firstly on the basis
      that P was a Principal of the firm and not an ordinary
      member of ‘staff’, and secondly on a technical point;
      the Rules came into force in July 2007 and the
      Tribunal were therefore precluded from retrospective
      application of the Rules in relation to the allegation.

      The Tribunal rejected the submissions and found the
      breach of Rule 5 proven, ruling that P was a member
      of staff and noting that no proper systems were in
      place to supervise client matters. The tribunal did not
      address the issue of commencement of the 2007
      Rules.



                                                            37
The appeal was upheld by the Court as the Tribunal
had failed to answer a material question which
centred on the issue of commencement of the 2007
Rules, and as such the allegation was not soundly
based in law and the Court quashed its finding. Client
file closure procedures were part of what P was asked
to do when she commenced employment; any
assertion of inadequate instructions on
commencement by her supervisors would have been
irrelevant as this predated the 2007 Rules. The Panel
had needed to identify what exactly it was that B had
failed to do that amounted to a failure to ensure
proper direction and supervision of clients' matters
from the date that the 2007 Rules came into force up
to the date that the investigation began.

The Court did reject the submission that P was not a
member of ‘staff’ as references in Rule 5.01(1); it was
held that the scope of Rule 5.01 stretched to
effective management of the firm as a whole,
supervision of ‘staff’ being only one element of that.

 In relation to the appeal against the financial penalty
imposed for the remaining findings, the Court
distinguished the case of Hazelhurst v Solicitors
Regulation Authority [2011] EWHC 462 (Admin), in
stating that even where a breach had occurred and
the partners had acted appropriately in reporting the
matter, a financial penalty could still be imposed,
particularly as in Hazelhurst the Auditors and the Law
Society had been deceived. The Court noted that the
Tribunal was entitled to form the view that the
Partners had not adequately supervised P on her
arrival. The Court however reduced the penalty from
£10,000 to £5,000.




                                                       38
Fabiyi v Nursing & Midwifery Council [2012] EWHC
1441 (Admin)

The appellant was a midwife who had been employed
by the University College London Hospital Trust
('UCLHT'). Following a number of complaints, she was
placed on supervised practice on 2 June 2008. After
being informed that any unsupervised midwifery work
was banned during the supervised practice period,
including any external agency work, the appellant
continued to complete agency work at other Hospital
Trusts. The Appellant was also found to have worked
unsupervised within UCLHT. A report into the
unsupervised work concluded that the appellant had
brought the Trust into disrepute. The resulting
disciplinary hearing on 20 October 2008 led to the
appellant's dismissal from the UCLHT on 22 October
2008; the subsequent appeal of that decision was
dismissed on 9 November 2008.

The case was then passed to a Panel of the Conduct &
Competence Committee ('CCC') of the Nursing &
Midwifery Council ('NMC'). Eight charges of working as
a midwife in a non-supernumerary role were admitted
by the appellant, but a ninth charge of dishonesty was
denied. The appellant did not attend the hearing at
which the Panel found all charges proven, including
the allegation of dishonesty. The appellant was then
struck off both the midwifery and nursing parts of the
register. An appeal was then brought by the
appellant on the basis that there had been significant
procedural irregularity in the hearing and that the
decision of the Panel had been undermined by
significant errors of law.

It was held that the direction by the legal assessor
regarding the dishonesty 'Ghosh test' was deficient as
it did not fully follow the standard Ghosh direction in
the Crown Court Bench Book (see paras [63-73] of the


                                                      39
judgement. Significantly it omitted to identify that
before considering the question of dishonesty the
Committee must satisfy itself whether the acts to
which the dishonesty was said to attach to had been
proved. This was of particular importance because
there was a lack of adequate particularity in the
charge.

Appeal allowed; case remitted to the CCC for
reconsideration with the exception of the dishonesty
allegation which was held unfounded.




                                                       40
Musonza v Nursing & Midwifery Council [2012] EWHC
1440 (Admin)

The appellant was a registered Nurse and a
Zimbabwean national. She received two custodial
sentences in 2009. The first was for using a false
passport to obtain leave to remain in the United
Kingdom. The second was for supplying the NHS
Student Grant Unit with a false British passport,
allowing her to obtain over £31,000 by deception over
a 4 year period from 2001-2004 while studying a
nursing course at Luton University.

The matter was referred to the Conduct &
Competence Committee ('CCC') of the Nursing &
Midwifery Council ('NMC') in December 2010. The
appellant returned the case management form
declining an oral hearing, instead requesting a private
meeting at which she could not participate. Much of
the subsequent meeting was not transcribed but a
short decision was read into the record by the panel.
The decision was that a striking off order was the only
possible course of action.

The appellant then appealed the decision on the basis
of procedural irregularity, evidential conclusiveness of
the convictions, failure to consider the Appellant's
mitigation, errors in the decision and unduly harsh
sanction.

It was held that the referral procedure had not been
adequate to inform the appellant of the importance
of obtaining legal advice and representation. Further,
the panel had erred in law by not considering the
appellant's evidence in relation to the second criminal
offence, and by not considering the appellant's
mitigation or factual basis for that mitigation.

Appeal allowed; case remitted for reconsideration by
the CCC.


                                                       41
(4)     Mental health

      R (RW) v SSJ [2012] EWHC 2082 (Admin)

      The responsible clinician and tribunal were of the
      view in March 2011 that the patient required
      continued treatment in detention in hospital, and the
      tribunal recommended transfer from Broadmoor to a
      medium secure unit; in June the RC sought permission
      for trial leave to a MSU, with return to prison being
      the planned consequence if it were unsuccessful; trial
      leave in September was unsuccessful and, that month,
      the Secretary of State remitted the patient to prison
      on the RC's advice. (1) There had been new
      information since the tribunal which put a different
      complexion on the case, namely the unsuccessful trial
      leave, so the Secretary of State was entitled to take
      at face value the RC's new opinion that the patient did
      not require treatment in hospital for mental disorder.
      (2) It was not necessary for the Secretary of State to
      consider that lack of treatment in prison might breach
      Article 3 or require almost immediate re-transfer to
      hospital; the correct approach was to consider the
      remission request when made, and consider transfer
      to hospital later if necessary. (3) Permission to amend
      the grounds to challenge the alleged ongoing failure to
      transfer under s47 was refused, but the judge directed
      that if a fresh application were made within six weeks
      that the permission application be referred to him.




                                                            42
Davis v West Sussex County Council (2012) EWHC 2152

At a safeguarding vulnerable adults case conference
the local authority determined that certain allegations
of abuse at a care home were substantiated or
inconclusive, made recommendations, and decided to
refer three members of staff to their professional
bodies. The claimants sought judicial review of the
decisions (and of a subsequent Default Notice,
although this was not pursued). (1) The local
authority's procedure was unfair, in breach of the
rules of natural justice, its own guidance (based on
government guidance), and legitimate expectations - a
precis cannot do justice to how disgraceful the
procedure was. (2) Two defences, arguing that no
public law rights arose, failed: (a) there was no
respect in which the duty to protect vulnerable adults
conflicted with the less pressing obligation to treat
other parties affected in a just manner; (b) there was
a sufficient public flavour to make the process of
investigation and decision a public function distinct
from the contractual relationship. (3) The defendant's
arguments that no remedy should follow failed: in
particular, because the decisions were unfair,
inconsistent with or unsupported by the findings of
external bodies, and had a serious continuing impact
on the claimants and their residents and staff, and
because the defendant showed an inability to
recognise, even in hindsight, some basic requirements
of fairness.




                                                     43
GP v Derby City Council (2012) EWHC 1451

Consultation with nearest relative prior to s3
detention would not have involved unreasonable delay
so (in the absence of any other justification) the
failure to consult resulted in unlawful detention.




                                                   44
(5)     Extradition

      Wright v Commissioner of Metropolitan Police [2012]
      EWHC 669

      The Appellant appealed the District Judge's decision to
      send her case to the Secretary of State to determine
      extradition to Argentina on the basis that extradition
      would breach her Convention (Articles 3, 5 and 8.)
      Appeal allowed. The Court held that there was a real
      risk, pursuant to Article 3, that the Appellant would
      face inhuman and degrading treatment in custody.
      The requesting authority had neither provided an
      undertaking nor adduced any evidence to rebut the
      assertions made by the Appellant as to the poor and
      abusive conditions.

      The sentence which the appellant faced following
      extradition was between 4 ½ and 16 years
      imprisonment in Argentina having been apprehended
      with cocaine in her luggage whilst boarding a flight to
      the UK. Having been granted bail she returned to the
      UK.

      Extradition proceedings in the UK had resulted in a
      finding that (a) there was a case for the appellant to
      answer and (b) her Art 8 rights would not be infringed
      by her extradition.

      Time to appeal that decision having not been
      extended and an application for habeas corpus having
      failed, she brought Judicial Review proceedings
      challenging (1) the failure of the Commissioner to
      investigate a conspiracy to bring the drugs into the UK
      and (2) the failure of the DPP to charge. Although the
      application was not pursued in those terms,

      “The task on this application is to determine how this
      appellant will be treated in Argentina in the prisons
      where she will be detained and whether there is a real


                                                                45
risk that the appellant if extradited would be
subjected to torture or to inhuman or degrading
treatment or punishment in Argentina (Soering v
United Kingdom (1989) 14 EHRR 439,468[88]). The
thrust of the appellant's case is that the expert
evidence shows a "scenario of systematic human rights
violations" in Argentinean penal institutions. It is said
by Mr Jones that this evidence discloses at least a real
risk that the appellant, if returned to Argentina, will
face inhuman and degrading treatment.” [16]

“Mr Jones contends that the evidence of Dr Verdu
establishes that the appellant if extradited would be
at real risk of suffering from first a lack of proper
supplies, second systematic abuse from prison staff,
including cruel punishment and degrading searches
and third violence on inmates by fellow prisoners,
which is not prevented by prison staff. These matters
according to Mr. Jones are of such severity as to reach
the high threshold for showing that the appellant
should not be extradited.” [17]

“Records kept by the National Penitentiary Attorney
examined by Dr Verdu show that in 2009, 55% of the
inmates were beaten or tortured during the first
contact with prison staff. In addition, aggression on
inmates was carried out during searches and during
isolation punishment, which led to 77% of inmates
suffering ill treatment, and sustained injuries like
bleeding or having difficulties in walking. Dr Verdu
also explains that 43% of the injured victims receive
no medical attention from the Federal Penitentiary
service (14/341).” [33]

“As has been explained, the respondent has failed to
give any undertakings as to how and where the
appellant would be held if extradited to Argentina
and the detailed evidence of Dr. Verdu could have
been, but has not been, the subject of cross-
examination.” [40]




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“The characteristics which would make the appellant
vulnerable to abuse are her sex and the fact that she
would be foreigner. Even after taking account of the
evidence put in by the respondent which essentially
relates to Module V (which is now closed) and Unit 31
(which is where the appellant may spend some part of
her sentence), the evidence adduced before us
demonstrates clearly that there is a systemic abuse of
foreign women prisoners in Argentina so that the
appellant would if extradited be subject to shortages
of basic food and personal hygiene products, frequent
physical violence and degrading intimate searches in
the presence of men. The evidence shows that there
would be inadequate redress available to her and the
respondent would be unable to prevent these
abuses.” [42]

 “It seems clear in this case that the abuses, which
the appellant would suffer in Argentina, are so
widespread and systemic that there is a real risk of
article 3 mistreatment. In other words, the appellant
should not be extradited because to do so would
affront well-established authorities that humanitarian
principles prevent a country from removing an
individual to a country where he or she is foreseeably
at real risk of being seriously ill–treated (see, for
example Soering and Chahal v United Kingdom
(1996) 23 EHRR 413) For those reasons, the appeal
will have to be allowed on the article 3 ground. So the
other grounds can be dealt with more briefly than
they would have been if they were of crucial
importance on this appeal.” [44]

“The appeal will be allowed on the basis that the
extradition of the appellant to Argentina would on the
specific facts of this case infringe her rights under
article 3 ECHR. It must be stressed that this is a fact-
sensitive decision based solely on the specific facts in
this case, and in particular first that no undertakings
were given by Argentina and second that there was no
attempt to cross-examine Dr Verdu on her evidence or
otherwise to contradict her powerful evidence.


                                                       47
Therefore there is no basis whatsoever for assuming
or believing that future attempts by the Government
of Argentina to obtain extradition orders will fail for
these reasons, which were found to be crucial on the
evidence adduced and that were not challenged in the
present case. Our decision may well have been
different if the Government of Argentina had adduced
proper evidence or given undertakings. The reasoning
in this case on the article 3 ECHR issue also would not
apply to a country which was a party to the ECHR as it
could always be assumed that such a country would
ensure the article 3 rights of the requested person
would be complied with.” [58]




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