Wednesday, 11 December 2013

Differences with Strasbourg ~ are "battle lines" now drawn?

The Court of Appeal (Civil Division) has considered two appeals by men subject to continuing detention after their "minimum terms" or "tariff periods" have expired. Haney and Khaiyam v Secretary of State for Justice

Mr Haney is serving an automatic life sentence for robbery.  He had a minimum term of 3 years which expired on 13th November 2012.  He claims that his Article 5 and 14 rights have been breached as a result of the delay in his transfer to open prison conditions (such transfer being a condition for his being realistically considered suitable for release by the Parole Board).

On 30th July 2006, Mr Kaiyam was sentenced to Imprisonment for Public Protection. A minimum term of 2 years 257 days was ordered.  He claims
that his Article 5 rights are breached because of delay in providing him with a suitable course which would afford him a reasonable opportunity to reduce the risk of his reoffending and thereby persuade the Parole Board to direct his release.  [He also made a related claim at common law which the court dismissed].

The Article 5 claims of both men had been rejected by the High Court because the binding House of Lords decision in R (James and others) v Secretary of State for Justice [2009] UKHL 22, [2010] 1 AC 553 required, as a matter of the domestic law of precedent, such a decision.   However, the European Court of Human Rights had subsequently held that the House of Lords was wrong - James, Wells and Lee v UK (2013) 56 EHRR 12.  (Previous post 20th September 2012)

Mr Lang's Article 14 claim had also been rejected because of the binding House of Lords decision in  R (Clift and others) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484 even though the E Ct HR had, in an unreported case, subsequently decided that the House of Lords was wrong.

The rejection of the claims was correct in the light of the House of Lords decision in Kay and others v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465 paras 40 to 45.

It was accepted that the Court of Appeal had no choice but to dismiss the Convention claims in both appeals.  The Court of Appeal went on to grant permission for an appeal to the Supreme Court and it did this without expressing a view on the issues in the case.  The Master of the Rolls (Lord Dyson) said:

"The issue of whether the Supreme Court should follow either or both of the Strasbourg decisions in preference to its own (relatively recent) decisions is one pre-eminently for it to determine. Our courts are required by section 2(1) of the Human Rights Act 1998 to do no more than "take into account" the relevant Strasbourg jurisprudence. In these circumstances, whether the Supreme Court decides to follow Strasbourg raises policy questions of some delicacy. I see no point in second guessing how the Supreme Court will approach the question."

Dialogue or conflict?

The stage may be set for a potential confrontation (or more "dialogue") between the Supreme Court and Strasbourg.  In the prisoner voting case - R (Chester) v Secretary of State for Justice (previous post) - the Supreme Court applied the "mirror principle" - as developed from Lord Bingham's speech in R v Special Adjudicator ex parte Ullah [2004] UKHL 26 - and followed  the E Ct HR decisions in  Hirst v UK (No.2) and Scoppola v Italy.

Views about the relationship between the UK Supreme Court and Strasbourg have been expressed extrajudicially by two of the serving Supreme Court Justices - Lady Hale and Lord Sumption.  Their lectures are discussed on this blog - Lady Hale ... Lord Sumption

The Secretary of State for Justice is the respondent in these appeals.  He is on record as saying that he wants the UK Supreme Court to be "Supreme" - Law and Lawyers 26th September 2013

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