Saturday, 15 October 2011

Supreme Court decisions: A trio of former Lords Chancellor speak about judicial appointments

Updated 16th October .... The Supreme Court commenced the new Law term by handing down a number of very interesting decisions.  The cases are replete with material for practitioners, academics and law students.  Also, during this week, the President of the Supreme Court - Lord Phillips of Worth Matravers - announced that he will retire at the end of September 2012 - (Solicitor's Journal).

The decisions address questions about whether, under the European Convention on Human Rights, answers to questions put to suspects can be admitted in evidence at trial when the answers were given before the person had access to legal advice.  Although these cases came from Scotland, it will be interesting to see whether the decisions spill over into other parts of the UK.  There was a challenge to an Act of the Scottish Parliament which had been passed to enable those with pleural plaques to claim against insurers if employers (or former employers) were shown to have been negligent.  A further challenge arose to the Immigration Rules where age limits in one of the rules had been purposely raised by the government in order to try to combat forced marriages but some genuine couples were adversely affected by the change.


The Scottish criminal cases: 

In general, Scottish criminal matters are not appealable to the Supreme Court but then, there is the "devolution jurisdiction ..." - please see Law and Lawyers 1st June 2011 - "Scottish Ministers resentful of the Supreme Court's 'interference' in their legal system."    The resentment flared up over the decision in Cadder v Her Majesty's Advocate [2010] UKSC 43 where the court held that the Crown's reliance on admissions made by an accused who had not had access to a lawyer while he was being questioned as a detainee at a police station was a violation of right under Article 6(3)(c) read with Article 6(1) of the European Convention on Human Rights.    It was perhaps only a matter of time before cases would arise where the questioning occurred elsewhere than at a Police Station.

Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43 - HM Advocate v G and HM Advocate v G.  Links to the judgment and the Press Summary.

In Ambrose v Harris - Ambrose was questioned at the roadside and later prosecuted for "being in charge of a motor vehicle while over the alcohol limit."  Could the Crown bring in evidence of the questions and answers at the roadside where Mr Ambrose had been cautioned but had not received legal advice?

A second case - HM Advocate v M - questions under caution were put at a man's home.  The questions related to an assault.  He made a number of admissions but had not seen a lawyer.  At trial he objected to the Crown's reliance on those admissions.

A third case - HM Advocate v G - questions under caution were put at a man's flat but, at the time of the questions, the man had been handcuffed.  He made admissions to having drugs in his pocket.  He objected to the Crown relying on the statements made at his flat.

The court held by a 4 to 1 majority that, in the cases of Ambrose and M, the use of the questions and answers was not incompatible with Article 6.  Their cases were returned to the Scottish courts to decide whether it would be fair in all the circumstances to admit the evidence.  The absence of a lawyer would be one of the circumstances for the trial court to consider.  However, in G's case, the use of the questions and answers would be incompatible with Article 6.  For the purposes of Article 6, G was "charged" by the time the Police began their search.  G's freedom had been significantly curtailed in that he was detained and handcuffed and was, in effect, in Police custody from that moment onwards.  The circumstances were therefore sufficiently coercive for the incriminating answers to the questions put to him without access to legal advice to be inadmissible.

There is a dissenting judgment by Lord Kerr who was of the view that it was not open to UK courts to refrain from recognising a claim to a Convention right simply because Strasbourg had not spoken clearly on the matter.  Regarding rights of access to a lawyer, the selection of the time at which the person is taken into custody as the first occasion on which legal representation becomes necessary is both arbitrary and illogical.  Lord Kerr's judgment is essentially an attack on the view expressed by Lord Bingham in R (Ullah) v Special Adjudicator [2004] UKHL 26 where Lord Bingham said that the duty of national courts was to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."

Her Majesty's Advocate v P [2011] UKSC 44 - Judgment - Press Summary

This case also involved evidential matters and Article 6.  P was on trial for assault and rape.  He was detained, taken to a Police Station and questioned without the benefit of legal representation.  He gave answers which led the Police to other evidence.  Could that other evidence be used against him at trial?  The Supreme Court held that it could.  There was no absolute rule that the fruits of questioning an accused without the presence of a lawyer must always be held to be a violation of Article 6.  The question whether such evidence should be admitted has to be tested by considering the accused's right to a fair trial and whether that would be violated by leading the evidence.

Pleural Plaques - Axa General Insurance Ltd v The Lord Advocate [2011] UKSC 46.  Judgment - Press Summary.

Here is a case which will prove to be a delight to constitutional lawyers and will have to be wrestled with by law students.  In Rothwell v Chemical Cleaning and Insulating Co Ltd [2007] UKHL 39, the House of Lords had held that pleural plaques were not actionable "damage" in the law of tort.  Although the decision was not strictly-speaking binding in Scots Law, the Scottish Parliament legislated to reverse the decision for Scotland.  (No similar legislation was ever enacted for England and Wales).  Unsurprisingly, the insurance companies did not like this act of benevolence on the part of the Scottish Parliament and they mounted a challenge to the legislation.  Their case was a two pronged attack:  (1) that the Act of the Scottish Parliament was incompatible with Article 1 of Protocol 1 to the European Convention on Human Rights.  The Scottish Parliament may NOT legislate contrary to the Convention - it is not a sovereign Parliament.  (2) that the Act was open to judicial review as an unreasonable, irrational and arbitrary exercise of the Scottish Parliament's legislative authority.  Their case failed on both counts.

The judgments are interesting for the emphasis placed on respect for the views of the elected Parliament in relation to social policy and what was in the public interest unless those views were manifestly without reasonable foundations.  The legislation pursued a legitimate aim and the means chosen to meet the aim were proportionate.  Further, the Act could not be said to be a result of an unreasonable, irrational and arbitrary exercise of the Parliament's legislative authority.  In principle, Acts of the Scottish Parliament were judicially reviewable but not on those grounds.  The key factor was to ensure that the Parliament respected the rule of law in any legislation which it enacted.

This case is covered in much greater detail in a post by David Hart QC on the UK Human Rights blog.

Immigration - forced marriages - R (Quila and another) v Home Secretary - R (Bibi) v Home Secretary [2011] UKSC 45 - Judgments - Press Summary

This case, on appeal from the English Court of Appeal (Civil Division), was a challenge based on Article 8 of the European Convention on Human Rights to Rule 277 of the Immigration Rules.  In November 2008, the government amended the rules by raising from 18 to 21 the age at which a person could be granted a visa to settle in the UK as a spouse or to sponsor another for the purpose of obtaining such a visa.  The view was that this would deter "forced marriages."  However, it could also have a severe impact on genuine cases such as that of Mr Quila, a Chilean national, married to Ms Jeffery (a British citizen).    Ms Jeffery was 17 and a sponsoring spouse had to be 21.  The court held, by a 4 to 1 majority, that the refusals to grant visas was a breach of Article 8.  Lord Brown dissented.  He considered that the balance between the suffering caused by forced marriages and the disruption to innocent couples was one to be decided by elected politicians and not judges.  Government policy was not to be frustrated except in the clearest cases.  Lord Brown said:

"In the light of all the material now before this court, most notably the May 2011 Home Affairs Committee Report and Karma Nirvana’s evidence before it, the evidence of other EU countries imposing similar minimum age requirements for sponsoring marriages, the 2003 EC Directive (and the 2008 Council Report on its application) recognising that such requirements are widely regarded as helping to prevent forced marriages, the original, never disputed, increase in the age requirement for sponsorship from 16 to 18 with that aim in mind, together with such (admittedly, albeit to my mind inevitably, limited) Home Office statistical evidence as suggests the benefit of a further such increase from 18 to 21, I find it hard to see how this court can properly strike down the rule as incompatible with article 8."               [Links added].


The majority decision brought forth what is becoming the usual sense of wrath within the coalition government.  The Home Secretary described the decision as "arbitrary and disruptive" - see The Independent.   Of course, it is easy for Ministers to characterise a decision such as this as being somehow perverse since most people agree that forcing people to marry is unacceptable.  Nevertheless, on the question of the age limits, there is clearly strong support within Europe for the government's position.  Lord Brown recognised the "appalling evil" of forced marriage but nevertheless felt unable to substitute his view for that of the elected government when there was substantial material to support the view which the government had adopted.  The case stands as a good illustration of the debate about the role the judges play in relation to the European Convention.

Further discussion of the case is at UK Human Rights blog - Rosalind English  - "Home Office policy on forced marriage violates Article 8 family life."

Judicial Appointments

A trio of former Lords Chancellors appeared together before the House of Lords Constitution Committee to discuss the Judicial Appointments system under the Constitutional Reform Act 2005.  They were Lord MacKay of Clashfern (Lord Chancellor from 1987 to 1997); Lord Falconer (LC from 2003 to 2007) and The Rt. Hon Mr Jack Straw MP (LC from 2007 to 2010).  This is an interesting discussion which is worth watching - see Constitution Committee 12th October 2011.

In the actual sequence of Lords Chancellor, Lord Irvine of Thoroton served from 1997 to 2003 and it was during his tenure that the Human Rights Act 1998 was enacted.  Lord Irvine was the principal architect of the scheme embodied in the Act which creates a balance between Parliamentary Sovereignty (Supremacy) and the European Convention on Human Rights.  Parliamentary Sovereignty was preserved since the courts may only make a declaration of incompatibility.  They do not have power to "strike down" legislation.  Lord Irvine spoke out in defence of the Act in a House of Lords debate in May 2011.  He gave examples of where the Act had come in for undue criticism though he welcomed the coalition's decision to set up a Committee to consider a British Bill of Rights.  Lord Irvine also noted criticism of the judges by various Ministers and he asked that the "intemperance" should stop.  The rule of law was too important to be marketed for short-term advantage.

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