HUMAN RIGHTS
Declarations of incompatibility - early release - application of article 5(4) European Convention of Human Rights 1950 to early release provisions
R (on the application of Wayne Thomas Black) v Secretary of State for Justice: CA (Civ Div) (Lords Justice May, Latham, Moore-Bick): 15 April 2008
The appellant (B) appealed against a dismissal of his application for judicial review of the secretary of state's decision to reject the parole board's recommendation for his early release.
B had been sentenced to a total of 20 years' imprisonment for kidnap and robbery offences. B later received a further consecutive sentence of four years for escaping from custody and for assault. Both sets of offences had been committed before April 2005, so that any early release was governed by the provisions of section 35(1) of the Criminal Justice Act 1991.
The parole board recommended B's release on licence after he had served 11 years. However, the secretary of state found that the risk B posed to the public had not been sufficiently reduced and rejected the recommendation.
B's application for judicial review of that decision was dismissed and leave to appeal was allowed on the issue of whether the secretary of state's decision breached B's rights under article 5(4) of the European Convention on Human Rights.
B submitted that the decision as to whether to release him if recommended to do so by the Parole Board was entirely dependent on a decision by the executive, which was no different in kind from the determination by the secretary of state's predecessors in both discretionary and mandatory life sentence cases that had been held by the court to be incompatible with a prisoner's article 5(4) rights.
The secretary of state submitted that a proper understanding of the House of Lords decisions in R (on the application of Giles) v Parole Board [2003] UKHL 42, [2004] 1 AC 1 and R (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484 made it clear that the lawfulness of the continued detention of a fixed-term prisoner was always determined by the sentence imposed by the court and was, therefore, justified by article 5(1)(a).
Held: (1) Convention jurisprudence made a clear distinction between decisions depriving a person of his liberty made by an administrative body on the one hand and the court on another, De Wilde v Belgium (No1) (A/12) [1979-80] 1 EHRR 373 ECHR applied. In the present case, the situation was one in which the responsibility for determining the length of a sentence was shared between the judge and the secretary of state. The ratio in Giles was confined to longer than commensurate sentences of less than 15 years, where it was the Parole Board that had the responsibility for determining the prisoner's release dates and was not an authority for a sweeping proposition that article 5(4) had no relevance to determinate sentences. The appellant in Clift was in the same position as B, although the decision in Clift was based solely on an analysis of the scope of article 14. However, the fact that article 5(4) was not argued in Clift did not make Clift authority for the proposition that it had no relevance in cases such as B's. Since that decision, the Court of Appeal had had occasion to consider article 5(4) again in R (on the application of Johnson) v Secretary of State for the Home Department [2007] EWCA Civ 427, [2007] 1 WLR 1990. The inescapable logic of Johnson was that a prisoner serving a determinate sentence was entitled to have the lawfulness of his detention determined, not merely speedily, but by a court.
(2) On the assumption that had been made so far, the Parole Board met the criteria for a sufficiently independent body to be article 5(4)-compliant. That must apply to all determinate prisoners. But whatever might be the position of the Parole Board, section 35 of the 1991 act, as it applied to those sentenced to 15 years or more, did not comply with the requirements of article 5(4), as it left the decision to the secretary of state. In other words, like Giles, the sentence did confer on the executive responsibility for determining when the public interest permitted the prisoner's release. Section 35, as applied to those serving 15 years or more under the 1991 act, provided for a procedure that did not comply with the requirements of article 5(4). It left the decision as to release in the hands of the executive and was therefore capable of being applied arbitrarily, which was the mischief at which article 5(4) was directed.
Although the present appeal must be dismissed, because the procedure in the present case complied with domestic law, the court granted a declaration of incompatibility under section 4 of the Human Rights Act 1998.
Judgment accordingly.
Tim Owen QC, Hugh Southey (instructed by Bhatt Murphy) for the appellant; Parishil Patel (instructed by the Treasury Solicitor) for the respondent.
CRIMINAL LAW
Causing children to engage in sexual activity - doli incapax - rebuttable presumptions
R v T: CA (Crim Div) (Lord Justice Latham (vice president, Court of Appeal Criminal Division), Mr Justice Forbes, Sir Richard Curtis): 16 April 2008
The appellant (R) appealed against conviction for 12 counts of causing or inciting a child under 13 years of age to engage in sexual activity.
R was aged 12 at the time of committing the alleged offences. There was no dispute that he had committed the offences: the only question was whether R was entitled to raise the issue of his capacity to know that those acts were wrong. Following a preliminary ruling, the judge concluded that section 34 of the Crime and Disorder Act 1998 precluded R from raising capacity as an issue. R pleaded guilty and was subsequently sentenced to a three-year supervision order.
R submitted that the judge's ruling on section 34 was wrong. R contended that the common law had long since recognised the concept of doli incapax as a defence, in the same way as self-defence, and that it had an existence entirely separate from the presumption that was abolished with the passing of section 34.
R argued that the principle against doubtful penalisation could only have been abrogated by clear express words and the enactment of section 34 was only concerned with removing the rebuttable presumption, leaving the defence intact. Accordingly, if a child wished to raise the defence, he would have the evidential burden of raising the issue and the prosecution would have the subsequent burden of establishing that the child knew that what he had done was wrong.
Held: Nowhere in settled authority had the concept of doli incapax had any existence separate from the presumption, C (A Minor) v DPP [1996] AC 1 HL applied, H v O'Connell [1981] Crim LR 632 DC and A v DPP [1992] Crim LR 34 DC considered. Furthermore, it had been the clear expressed wish of parliament, prior to the enactment of section 34 of the act, to abolish the concept of doli incapax as having any effect in law. Parliament had to be taken to have intended the presumption to encompass the concept of doli incapax when it was abolished in section 34. Accordingly, it was not possible for a child over the age of 10 to raise the issue of his capacity to know that his criminal acts were wrong.
Appeal dismissed.
Gareth Walters for the prosecution; Peter Blair QC, Kerry Barker for the defence.
|
Intentional homelessness - priority needs - statutory interpretation - women's refuges
Manchester City Council (appellant) v Sharon Moran (respondent) & Secretary of State for Communities & Local Government (intervener): Rosemary Richards (appellant) v Ipswich Borough Council (respondent) & Secretary of State for Communities & Local Government (intervener): CA (Civ Div) (Sir Anthony Clarke, Master of the Rolls, Lords Justice Tuckey, Wilson): 17 April 2008
In a joined hearing of two appeals relating to the homelessness status of two women (M and R), the court was required to determine the issue of whether a women's refuge constituted 'accommodation' for the purposes of part VII of the Housing Act 1996.
M had been given temporary accommodation by her local housing authority (X) following the termination of her licence to occupy a women's refuge because of her threatening behaviour. However, X had later required her to vacate that accommodation on the basis that, by reason of her conduct at the refuge, she had become intentionally homeless. It argued that accommodation had been available to her at the refuge and that it would have been reasonable for her to continue to occupy it. M's appeal against that decision was successful in the county court, and X appealed against the judge's decision.
R's local housing authority (Y) had accepted that she was homeless and in priority need when she applied to it after having fled to a women's refuge to escape domestic violence. It indicated that it proposed to discharge its duty to her by, in the first instance, securing that accommodation was available to her at the refuge, and then by offering her alternative accommodation at the earliest opportunity.
When R was evicted from the refuge by reason of her threatening behaviour, Y took the view that it ceased to owe her a duty because she was intentionally homeless, in that the refuge had been accommodation that it would have been reasonable for her to continue to occupy.
A judge dismissed R's appeal against that decision and she lodged the present appeal. The issues were: (i) whether a women's refuge could be described as accommodation for the purposes of the act; (ii) if it could, whether, it could be reasonable, for the purposes of the act, for a woman to continue to occupy a refuge; (iii) if it was, whether it was reasonable for the housing authorities in the present cases to conclude that it would have been reasonable for M and R to continue to occupy the refuges.
Held: (1) A women's refuge could be described as accommodation for the purposes of the act. The decision to the contrary in R v Ealing LBC Ex p Sidhu [1981-82] 2 HLR 45 QBD was inconsistent with the decisions of the House of Lords in R v Brent LBC Ex p Awua [1996] AC 55 HL and in R v Hillingdon LBC Ex p Puhlhofer [1986] AC 484 HL, and was wrong, Sidhu overruled, Brent and Awua considered.
(2) It could be reasonable, for the purposes of the act, for a woman to continue to occupy a refuge. Where the enquiry was whether it would be reasonable for a woman to continue to occupy a refuge as opposed to other accommodation, particular matters fell to be considered in addition to the general matters that fell to be considered in any enquiry under section 175(3) or section 191(1) of the act.
The general matters included: the size, type and quality of accommodation made available to her; the terms of the agreement by which it was made available; her ability to afford it; the appropriateness of its location for her and her children; the extent of its facilities for her children; its appropriateness for her in the light of any particular characteristics she or her children might have; the length of time for which they had already occupied it; the state of their physical and emotional health; and the length of time for which they might be expected to occupy it. The particular matters included: the nature of the refuge; the scale of support that it aspired to provide; the length of the period for which it expected her to remain in occupation; the length of the period for which women generally occupied it; the extent to which, during her occupation, it had been full; any evidence that her occupation may have prevented it from offering accommodation to another victim of domestic violence; the extent to which any conditions of the licence agreement made it reasonable or otherwise for her to continue to occupy it; and the extent of her need, and of her ability to accept, such physical and emotional support as it offered.
(3) Although the approach of the reviewing officers in M and R's cases had not run closely along those lines, even had they closely followed that guidance they could not reasonably have reached any different conclusion. The housing authority's appeal was allowed in M's case, and R's appeal was dismissed.
Appeals allowed in part.
Clive Freedman QC, Zoe Thompson (instructed by Manchester City Council in-house solicitor) for the appellant Manchester City Council; Jan Luba QC, Adam Fullwood (instructed by Shelter) for the respondent Moran; Martin Chamberlain (instructed by the Treasury Solicitor) for the intervener; Martin Hodgson (instructed by Anthony Gold) for the appellant Richards; James Findlay, Wayne Beglan (instructed by Prettys) for the respondent Ipswich Borough Council.
INSURANCE
Contractual liability - economic loss - indemnities - insurance policies - public liability insurance
Tesco Stores Ltd v Constable & ors: CA (Civ Div) (Lords Justice Tuckey, Thomas, Hughes): 16 April 2008
The appellant company (T) appealed against a decision ([2007] EWHC 2088 (Comm), [2007] 2 CLC 493) on preliminary issues to the effect that it could not recover in the circumstances under its public liability insurance.
T had embarked on a project to build a supermarket over a railway cutting. The railway was to be enclosed in a tunnel and the supermarket was to be built above it. While the work was being carried out, part of the tunnel collapsed on to the railway line, which was closed for 51 days.
The railway track and surrounding land were owned by Network Rail. T had entered into a deed of covenant with the train operating company (C) under which T agreed to compensate C for all losses arising from the carrying out of the works. There was no damage to any property belonging to C. T made a payment to C under the deed of covenant for loss of passenger revenues. T sought to recover that sum from the respondent public liability insurers (D).
The relevant policy provided an indemnity for 'all sums for which the insured shall be liable at law for damages in respect of... loss or damage to property... obstruction, loss of amenities, trespass, nuisance or any like cause'.
The judge held that T's liability to C was in respect of a claim in contract for economic loss and was not within the scope of the cover, which was public liability cover and which contemplated harm for which there was liability in tort. He further held that a contractual liability extension in the insurance did no more than provide cover for an insured who was liable in contract for a tort within the scope of the cover committed by another party in the course of the project.
T submitted that the judge had attached too much importance to the fact that the insurance was public liability insurance and that the wording of the cover was wide enough to cover contractual claims.
Held: (1) A public liability policy provided cover against liability to the public at large. Liability in that sense arose in tort. As a general rule, a claim in tort could not be founded on pure economic loss. Therefore, the judge was right to say that the fact that the insurance was public liability insurance was important and that such policies did not generally cover liability in contract for pure economic loss. That was a strong pointer to the meaning of the words used, but would not be conclusive if the wording clearly extended cover to third party claims in contract for pure economic loss.
(2) The wording of the insuring clause as a whole was typical of public liability cover. The words 'shall be liable at law' were wide enough to include liability in contract, but the following words made clear that the cover was against liability in tort. The damages had to be in respect of one or more of the following classes of liability and each class of liability corresponded with a familiar class of liability arising in the law of tort from physical interference with a third party's person, property or property rights. The wording could be construed to cover contractual liability co-extensive with the liability in tort, but not to cover a liability in contract arising solely under a contract of indemnity.
(3) The words 'in respect of' in the insuring clause meant 'for' and not merely 'caused by', 'consequential upon' or 'in connection with'. So the liability for any of the torts had to be to the person who had the right to claim, and liability for loss suffered by someone else as a consequence of the tort was not 'in respect of' it, AS Screenprinting Ltd v British Reserve Insurance Co Ltd [1996] CLC 1470 CA (Civ Div), Rexodan International Ltd v Commercial Union Assurance Co Plc [1999] Lloyd's Rep IR 495 CA (Civ Div) and Horbury Building Systems Ltd v Hampden Insurance NV [2004] EWCA Civ 418, [2004] 2 CLC 453 applied.
(4) The contractual liability extension was not a general extension to the cover provided by the insuring clause. For the extension to apply, the contractual liability assumed had to be 'in respect of' the physical impact on a third-party claimant's person, property or property rights. Any loss which C suffered was not in respect of physical impact on its property or its property rights and was, therefore, not within the contractual liability extension.
(5) T's claim therefore failed because C had not suffered any material damage to its property, nor was T liable to C in tort for any interference with C's property rights, nor was it liable in contract in respect of liabilities defined by the law of tort.
Appeal dismissed.
Justin Fenwick QC, Mark Cannon QC (instructed by Berwin Leighton Paisner) for the appellant; Colin Edelman QC, Richard Harrison (instructed by Davies Lavery) for the respondents.
No comments yet