ECHR: Whole life tariffs must be subject to periodic reviews

In July, the European Court of Human Rights ruled that a ‘whole life’ sentence, forcing murders to die in prison, is inhuman and degrading after an appeal was brought by Jeremy Bamber, who murdered five members of his family in 1985.

The Strasbourg based Court proposed that those serving life without the possibility of parole should have their cases reviewed after 25 years, after which they could be freed.

The ruling sparked a furious reaction from figures within the government. However, there is no right of appeal against the ruling and the government has six months to act upon the ruling.

Arthur Hutchinson has lodged the first challenge of a ‘life means life’ prison sentence following the European Court of Human Rights ruling.

Mr. Hutchinson is serving a ‘whole life’ sentence for stabbing Basil and Avril Laitner and their son Richard, before raping their 18-year-old daughter Nicola at knifepoint on the night of a family wedding in October 1983.

Durham Crown Court ruled that Mr. Hutchinson should serve 18 years. However, then Home Secretary Leon Brittan later ruled Mr. Hutchinson should serve life.

Mr. Hutchinson has already brought a challenge against the sentence in the courts. Just five years ago the Court of Appeal ruled that there was ‘no reason at all’ to depart from the sentence.

Mr. Justice Tugendhat noted that:

[t]hese were exceptionally serious murders, and it is right that the applicant should remain in prison for the rest of his life by way of punishment.

The government has already been asked to provide an official response to the claim by Arthur Hutchinson. This could lead to a full hearing in 2014. If the Court rules in favour of Mr. Hutchinson, he could win the right to be freed.

EW: A vasectomy may be in the best interests of a vulnerable adult if it improves the quality of life and/or leads to lessened supervision

In a seminal High Court (sitting as the Court of Protection) ruling delivered by Ms. Justice Eleanor King, a man with significant learning difficulties has been ordered to undergo a vasectomy to prevent him from having more children.

Mr. Justice King remarked that there was ‘no question’ of the man known as ‘DE’ of having the mental capacity to use contraception, but that it is lawful and overwhelming in the best interests of ‘DE’ to have a vasectomy.

‘DE’ is in a long term relationship with his girlfriend ‘PQ’, who also has learning difficulties. In 2010 ‘PQ’ gave birth to ‘XY’, a boy of whom ‘DE’ is the biological father.

Measures were taken to prevent another pregnancy, as a result. ‘DE’ was required to be supervised at all times, effectively losing his independence.

For both families, the consequences were profound. It also impacted on the relationship between ‘DE’ and ‘PQ’, which ‘nearly broke under the strain, but remarkably weathered the storm’.

The son ‘XY’ is now in the care of his maternal grandmother. However, the High Court  heard it was inevitable that if ‘DE’ and ‘PQ’ had another child, the child would be taken into care. This would cause significant psychological distress, likely resulting in a breakdown of the relationship.

‘DE’ has made it clear that he does not want any more children. The Court heard that ‘DE’ took no parental responsibility, and is not willing to give up his own life to be a father.

While Ms. Justice King considered the restoration of his independence and the resumption of his relationship with ‘PQ’, to be of the utmost importance, a vasectomy is ‘undoubtedly’ in the best interests of ‘DE’.

  
Ms. Justice King insisted that the seriousness of making the court order that ‘had the effect of taking  away the fertility of a man’ had not been underestimated:

In my judgment it is overwhelmingly in DE’s best interests to have a vasectomy. That being said the court does not make such an order lightly, conscious as it is for the court to make an order permitting the lifelong removal of a person’s fertility for non-medical reasons requires strong justification.

The seminal ruling followed a four day trial,  marking a three-year legal battle for the parents of ‘DE’.

The parents of ‘DE’ went to their local General Practitioner and requested ‘DE’ have a vasectomy, in 2010. The matter was referred to the local NHS Trust. An application by the NHS Trust was made to the High Court with the support of the parents of ‘DE’, the General Practitioner, and the local authority involved in the care of ‘DE’.

 
Comment: The only known previous case in the United Kingdom involving an application for male sterilisation was in 1999. The Court refused, ruling that a vasectomy would not be in the best medical and emotional interests of the 28-year old with Down’s Syndrome.

ComReg benchmarking must be in line with EU directives

The imposition of price control by ComReg that could have reduced the cost of making mobile calls have been struck down in the High Court.

The European Union and ComReg have been attempting to reduce the fees that mobile companies charge each other for carrying calls, as these affect the prices paid by consumers.

The higher charges make it difficult for new companies to get a grip in the market.

Vodafone had appealed two decisions by ComReg, imposing new maximum wholesale charges to other mobile companies for service called ‘Mobile Voice Call Termination’.

Mr. Justice John Cooke noted ComReg had directed Vodafone to adopt a particular cost recovery method, and charge a maximum of 2.6 cent per minute from January 1st 2013, and 1.04 cent per minute from July 1st.

Mr. Justice Cooke observed, the issues concerned the nature of ComReg in its entitlement to take account of relevant directives on pricing and cost recovery methods.

The pricing instruction devised by ComReg to Vodafone was a result of benchmarking of what Vodafone charged against seven European Union member states.

Vodafone argued that the ComReg devised methodology was incompatible with European Commission rules, and that ComReg had acted unlawfully in benchmarking prices without reference to actual costs in Irish markets.

Mr. Justice Cooke observed that ComReg in its benchmarking approach in the price control decision was beyond the powers designated to ComReg under European Commission regulations.

The result produced by the use of a benchmark based upon only seven European Union countries is a result so flawed by its random nature and uncertain reliability that it could not constitute a sufficiently robust basis for the application of European Commission regulations.

The court allowed the appeal in part and set aside the direction by ComReg to Vodafone, ensuring that its mobile termination rates are set at 2.6 cent and 1.04 cent per minute.

While only Vodafone sought to challenge the decision of ComReg, the ruling will also have implications for the other mobile phone operators.

The case in the High Court related to a price-control decision by ComReg of November 2011 for the service known as ‘Mobile Voice Call Termination’.

Mr. Justice Cooke adjourned making final court orders, placing a stay on the judgment until September 24th.

NI: Irish asylum standard not compliant with EU requirements

On Wednesday, a non-Arab Darfuri journalist who fled Sudan with her three children amid concerns the family would be killed due to her views on race and politics, won a High Court challenge from being returned to the Republic of Ireland.

Mr. Justice Stephens quashed a decision by the UK Border Agency to send ALJ and her three children A,B and C, back to the Republic of Ireland on the basis that it was in the best interests of the family to remain in Northern Ireland. .

ALJ gave evidence of a being a political journalist and writer who suffered a series of arrests, assaults and a miscarriage.

In April 2010, ALJ and her three children left Sudan with the help of traffickers, Mr. Justice Stephens heard. Her husband had to remain in Sudan, and ALJ is unaware if he is still alive. ALJ and her three children disembarked in Dublin three weeks later.

ALJ was informed that her entitlement to remain in the Republic of Ireland had expired when her bid for refugee status was refused. In July 2011, ALJ and the children travelled to Northern Ireland and applied for asylum in the United Kingdom. When authorities in the Republic of Ireland accepted a request to take ALJ and the three children back to conclude the asylum proceedings in the Republic, a challenge in the Northern Ireland High Court was launched.

The argument that during the asylum of process in Ireland, which can take up to five years, the family would be subject to standards that do not comply with the minimum required set out by the European Union.The current asylum process in the Republic means the applicants would not be able to work. The children at the age of 16 are not entitled to an education, and the family would have to live in hostel accommodation.

For the sake of the children, Mr. Justice Stephens held that the family should remain in Northern Ireland. Mr. Justice Stephens quashed the removal decision. The decision not to assure responsibility for determining the asylum application in the United Kingdom  on the basis of a failure to consider the need to safeguard the welfare of children was also quashed by Mr. Justice Stephens.

New laws must contain adequate principles and policies

On July 26th, Mr. Justice Gerard Hogan ruled offences against David Douglas, charged under section 18 of the Criminal Law Act 1935 were unconstitutional due to being insufficiently precise and lacking any ‘clear principles and policies’ in relation to defining the scope of the prohibited conduct.

The case against Mr. Douglas, observed massaging his penis through his clothing in a Dublin City centre café on two consecutive days, cannot proceed after Mr. Justice Hogan ruled the offences of causing scandal and injuring the morals of the community are unconstitutional.

The charges related to separate incidents at the café in January 2009.

Mr. Justice Hogan stressed the importance that there was no allegation that Mr. Douglas had exposed himself. It was also contended Mr. Douglas either desisted or disguised his activities when other people approached.

Counsel for Mr. Douglas argued the offences breached the rights of Mr. Douglas under the constitution, including the right to equality before the law and protection of personal liberty. The Criminal Law Act 1935, section 18 provides:

Every person who shall commit, at or near and inside of any place along which the public habitually pass as of right or by permission any act in such a way as to offend modesty or cause scandal or injure the morals of the community shall be guilty of an offence under this section and shall on summary conviction thereof be liable to a fine not exceeding [IR£500] or, at the discretion of the court to imprisonment for any term not exceeding [six months].

Mr. Justice Hogan ruled the words ‘or cause scandal or injure the morals of the community’ in section 18 of the 1935 Act were ‘hopelessly’ and ‘irremediably’ vague and lacked any real principles and policies in relation to the scope of the prohibited conduct.

However, Mr. Justice Hogan emphasised that the ruling does not prevent the Oireachtas legislating to create new offences which would address conduct of this nature, but any new laws must contain adequate principles and policies.

Private prosecution of indictable offences permissible

Mr. Justice Gerard Hogan in a seminal High Court ruling upheld the right of citizens to bring private prosecutions against individual banking officials.

The ruling will allow hotelier Patrick Halpin to bring private prosecution agaisnt two officials of the Irish Banking Resolution Corporation Mr. Halpin alleges behaved dishonestly during discussions about a rescue plan for his business. 

In the first case of its kind since the banking collapse, a summons has been issued to compel banking officials to attend a Distrct Court to answer allegations.

The decision to proceed further with the case will be a matter for the Director of Public Prosecution once the District Court hearing has taken place.

Mr. Justice Hogan in his written ruling noted that:

the underlying purpose of the private prosecution is still the same, namely, to draw to the public prosecutor's attention to the case with the implicit request that the prosecution be taken over.

While the ruling allows for private prosecution, there are risks involved, such as the substantial legal costs should the prosecution fail.

The ruling came after Mary Kelly and Declan Buckley, the former a current employee and the latter a former employee of the Irish Banking Resolution Corporation sought a judicial review to halt the private prosecution against them.

Mr. Halpin has run hotels in Dublin and in County Clare for the past twenty five years, these include the Aberdeen Lodge and Merrion Hall boutique hotels in Dublin, and Halpin's Townhouse in Kilkee, County Clare.

The Irish Banking Resolution Corporation appointed a receiver to two of the companies last year after Mr. Halpin got into financial difficutly in recent years over borrowings with the former Anglo Irish Bank.

Mr. Halpin claims he was invited to a meeting with Ms. Kelly and Mr. Buckley in February 2012 to discuss the sale of Merrion Hall in an attempt to pay down the debt. The meeting occurred prior to a receiver being appointed.

Mr. Halpin claims both himself and his accountant were left with the impression from the meeting that the matter would be considered further by Anglo Irish Bank, and that Anglo Irish would welcome proposals.

However, Mr. Halpin claims he later learned from a letter he subsequently received that the decision to appoint a receiver had already been made, and that both Ms. Kelly and Mr. Buckley were aware of this at the meeting, but deliberately concealed this knowledge from Mr. Halpin.

Subsequently, Mr. Halpin initiated a private prosecution against Ms. Kelly and Mr. Buckley in the District Court, alleging offences of dishonesty under the Criminal Justice (Theft and Fraud Offences) Act 2001, and succeeded in getting the District Court to issue a summons against both individuals. The argument  put forward in the High Court  to halt the private prosecutions was that private prosecutions  had been effectively abolished by the Criminal Justice Act 1999.

It was also put to the High Court that there had to be a preliminary examination procedure for a private prosecution to take place.

Mr. Justice Hogan disagreed with the argument that private prosecutions had been effectively abolished because the 1999 Act abolished the traditional practice of holding a preliminary investigation in the District Court to determine if sufficient grounds existed for sending a person forward for trial to a higher court.

Mr. Justice Hogan placed a stay on the private prosecution until January to allow Ms. Kelly and Mr. Buckley to appeal to the Supreme Court.