CJEU(J): An agreement on European Union accession to the European Convention on Human Rights must be compatible with EU law

The Court of Justice of the European Union has ruled that the Draft Agreement for the the accession of the European Union (EU) to the European Convention on Human Rights is incompatible with European Union law.

The request for an Opinion, submitted by the European Commission, asked whether:

[...] the [D]raft [A]greement providing for the accession of the European Union to the Convention for Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950 ("ECHR"),] compatible with the Treaties?

In March 2010 the European Commission recommended to the Council of Europe, authorising the opening of negotiations on the Draft Agreement. The Council adopted this recommendation in June 2010 and designated the Commission as Negotiator.

The principles that must be covered by the internal rules of the EU during negotiations in April 2012 were set out in a Supplementary Annex to the Council's Mandate according to the Annex, the internal rules cover:

[...] [one,] the representation of the EU before the E[uropean] C[our]t of H[uman] R[ights; two,] the triggering of the co-respondent mechanism before the [Court] and the coordination rules for the purpose of the conduct of the procedure before the [Court] by the respondent and the co-respondent[; three,] the selection of three candidates for the office of Judge in the [Court; four,] the prior involvement of the Court of Justice, and[; five,] the circumstances in which the EU will agree a position and those in which the Member States will remain free to speak and act as they choose, both in the [Court] and in the Committee of Ministers.  

In April 2013 the Draft Agreement was agreed upon by negotiators.

The Court ruled that the Draft Agreement was incompatible on five grounds.

First, the failure of the Draft Agreement to take account of specific characteristics of EU law is threefold. One, the Draft Agreement did not limit the possibility of EU member states having higher human rights standards than EU law. This, despite the European Court of Justice judgment that member states could not have higher standards than the Charter of Fundamental Rights of the European Union where the law has been harmonised by EU. This rule also applies to the European Convention on Human Rights. But the Draft Agreement failed to take account of this. Two, the Draft Agreement did not provide for the application of the 'mutual trust' rule in Justice and Home Affairs matters. Three, Draft Agreement also failed to rule out the possibility that when applying Protocol 16 to the European Convention on Human Rights, the national courts would ask the European Court of Human Rights to rule on EU law matters before asking the Court of Justice.

Second, the Draft Agreement failed to rule out the possible use of the European Court of Human Rights to settle disputes. This violates Article 344 of the Treaty on the Functioning of the European Union (TFEU), which gives the Court of Justice monopoly on settling inter-state disputes on EU law between EU member states.

Third, the co-respondent mechanism where both an EU member state and the EU could be party to a case at the European Court of Human Rights is incompatible with EU  law on three grounds. One, it would give the European Court of Human Rights the power to interpret EU  law when assessing the admissibility of requests to apply this process. Two, a judgment by the European Court of Human Rights on the joint responsibility of the EU and member states could impinge on member states reservations to the European Convention on Human Rights. Three, the EU should not have the power to allocate responsibility for any breach of the European Convention on Human Rights between the EU and member states, since only the Court of Justice can rule on EU law.

Fourth, the rule in the Draft Agreement on prior involvement of the Court of Justice before the European Court of Human Rights ruled on EU law were incompatible with EU law on two grounds. One, the rules did not reserve the power on whether the Court of Justice has already rule on a matter of the EU. Two, the rules did not permit the Court of Justice to rule on the definitive interpretation of EU law.

Fifth, the rules on the Common Foreign and Security Policy were incompatible with EU law because a non-EU court cannot be given the power of judicial review over EU "acts, actions or omissions". This, despite the Court of Justice having no jurisdiction itself on most Common Foreign and Security Policy matters.

The consequences of the Court of Justice opinion means that EU accession to the European Convention on Human Rights cannot go ahead without amending the draft Agreement. Moreover, any amendments to the draft Agreement will have to be negotiated by all 47 signatories to the Convention.

In 1996, the Court ruled that the European Community (EC) could not accede to the European Convention on Human Rights. The Court ruled that only an amendment to the Treaty could overturn the decision. In 2009, the Lisbon Treaty amended existing treaties, inserting Article 6(2):

The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

This amendment now requires the European Union to accede to the European Convention on Human Rights.

CJEU(J): Obesity may be considered a disability for the purposes of the Equal Treatment in Employment Directive

The Court of Justice of the European Union has ruled that obesity may be considered a disability for the purposes of the Equal Treatment in Employment Directive.

Karsten Kaltoft had been working as a child-minder for the Municipality of Billund in Denmark since November 1996 until Mr. Kaltoft was dismissed in November 2010. However, Mr. Kaltoft was told that the reason for his dismissal was the decline in the number of children, without providing the reasons for selecting him.

In periods throughout his employment with the Municipality, Mr. Kaltoft, with financial assistance attempted to lose weight by attending fitness classes. While the Municipality denies that the issue of obesity provided the basis for the dismissal, Mr. Kaltoft maintained his dismissal is rooted in discrimination due to his weight.

Mr. Kaltoft took a case for damages for discrimination to the Retten i Kolding (District Court of Kolding) in Denmark. The District Court asked the Court of Justice to clarify if EU law includes a self-standing prohibition on discrimination on the grounds of obesity. Alternatively, the District Court asked if obesity can be classified as a disability within the meaning of Equal Treatment in Employment Directive.

In July, Advocate General Niilo Jääskinen observed that nothing in the  Charter of Fundamental Rights of the European Union explicitly refers to obesity as a prohibited ground of discrimination. Therefore, the Advocate General concluded, any prohibition could only exist as part of a general prohibition in the labour market. Moreover, the Advocate General held that the Charter is only binding when a member state implements EU law. The Advocate General also emphasised that EU legislative acts prohibiting discriminatory conduct are addressed to specific grounds of discrimination with definitive subject areas. Therefore, there is no general, stand-alone prohibition on discrimination on the grounds of obesity.

The Court of Justice found that if obesity hinders:

[...] the full and effective participation of that person in professional life on an equal basis with other workers ...

then obesity can fall within the concept of "disability". 

CJEU(J): The processing of personal data on household CCTV may breach EU Data Protection Directive

The Court of Justice of the European Union has ruled that the processing of personal data on a household CCTV may breach the EU Data Protection Directive if the CCTV also monitors public space.

The Court case relates to František Ryneš, a Czech national, who installed CCTV after being subject to attacks by unknown individuals. The CCTV filmed public space and the entrance to the house opposite.

In October 2007 a window in the family home was broken by a shot from a catapult. The CCTV, handed over to the police, made it possible to identify and prosecute two suspects.

However, one of the accused challenged the legality of Mr. Ryneš recording and holding of the images. The Office for the Protection of Personal Data in the Czech Republic found Mr. Ryneš breached data protection laws despite using the CCTV to identify the perpetrators of crime.

Mr. Ryneš appealed the ruling, later dismissed by the Mĕstský soud v Praze (Prague City Court) in April 2012. Mr. Ryneš appealed on a point of law to the Nejvyšši správni soud (Supreme Administrative Court). The Supreme Administrative Court placed a stay on proceedings, asking the Court of Justice if:

[...] on a proper construction of the second indent of Article 3(2) of Directive 95/46, the operation of a camera system, as a result of which a video recording of people is stored on a continuous recording device such as a hard disk drive, installed by an individual on his family home for the purposes of protecting the property, health and life of the home owners, but which also monitors a public space, amounts to the processing of data in the course of a purely personal or household activity, for the purposes of that provision.

The Court held that Mr. Ryneš did not breach data protection laws because the CCTV served to identify and prosecute a criminal. However, the Court did suggest CCTV that also monitors public space, even partially, where it is directed outwards from the private setting would breach the Data Protection Directive.

EW: Consumers party to an unregulated agreement are entitled to rights, remedies of a regulated agreement under the CCA insofar as the Act is applicable

The High Court (Commercial) has ruled that Northern Rock Asset Management (NRAM) formerly Northern Rock must pay out compensation to 41,000 former Northern Rock customers because of incorrect wording in Unsecured Together Loan Agreements.

Between 1999 and 2008 Northern Rock offered a product called Together Mortgage. The product allowed borrowers to borrow up to 95% of the value of their home on a secured loan, and in addition, take out a fixed unsecured loan of up to 30% of the value of their home, capped at £30,000.

However, the agreements entered into by consumers between 1999 and 2008 failed to differentiate between regulated and unregulated agreements. The same documentation was used for loans exceeding £25,000 as was used for loans of £25,000 or less.

Northern Rock Asset Management took the case against Jeffery McAdam and Ann Hartley. Both availed of a Together Mortgage in addition to taking out an unsecured loan of £30,000. The case was also taken in an effort to secure a legally binding opinion that its customers with loans in excess £25,000 were not entitled to compensation.

However, Mr. Justice Michael Burton found the rights and remedies under section 77A of the Consumer Credit Act 1974 were applicable to Unsecured Together Loan Agreements. The failure of Northern Rock to indemnify Mr. McAdam and Ms. Hartley under the Act was a breach of its obligations under the Agreement.

The judgment means the public limited company could pay out approximately £258m, or roughly £6,300 per customer.

In 2012, Northern Rock Asset Management had to allocate roughly £270 to repay customers who had borrowed up to £25,000 because the wording in the documents failed to differentiate between regulated and unregulated agreements under the Consumer Credit Act 1974.

EW: Justice Secretary must amend policy on prisoner book ban

The High Court (Administrative) has ruled that the prohibition on sending books to prisoners is unlawful. The prohibition imposed by the Justice Secretary Chris Grayling was overturned by Mr. Justice Andrew Collins, ordering an amendment to the policy on what prisoners can receive.

Mr. Justice Collins in ruling described as "strange" the reference to books as a privilege:

A book may not only be one which a prisoner may want to read but may be very useful or indeed necessary as part of a rehabilitation process.

The challenge to the prohibition was taken by Barbara Gordon-Jones, a 56-year-old serving an indefinite sentence for a number of offences including arson with intent to endanger life. 

Ms. Gordon-Jones, Mr. Justice Collins observed:

[...] has a doctorate in English literature and the books she wishes to read are often such as are not normally required by fellow prisoners.

Her interests include books by Alan Bennett, Monica Ali and the Dialogues of Marcus Aurelius.

Mr. Justice Collins accepted that there was no intention by ministers to prevent access to books with weekly earnings which can be as low as £2.50 meant the prohibition on books stopped short of an outright ban. However, Mr. Justice Collins noted the restrictions on what prisoners can receive from friends and relatives under the amended Incentives and Earned Privileges Scheme was viewed as an outright ban on books:

As I have said, I see no good reason in the light of the importance of books for prisoners to restrict beyond what is required by volumetric control and reasonable measures relating to frequency of parcels and security considerations

The prohibition was imposed by Justice Secretary Chris Grayling a year ago in a crackdown on prisoners' "perks and privileges".

Surrogate, as birth mother, must be registered on birth certificate as the legal mother

The Supreme Court has ruled, by a six to one majority, that the surrogate mother of twins, as the birth mother, is entitled to be registered as the legal mother on the birth certificates. The judgment overturns the High Court ruling by Mr. Justice Abbott in March 2013.

The issues arose from the radical developments in assisted reproduction and were issues for the legislature, not for the courts to address, observed Chief Justice Susan Denham.

The lacuna surrounding particular rights of children born through surrogacy merits the outstanding issues being left to the legislature:

Any law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content.

In separate judgments, only Mr. Justice Frank Clarke dissented, while the remaining panel agreed the appeal should be allowed. However, Mr. Justice O'Donnell stressed his decision to allow the appeal was based on the fact that the Civil Registration Act 2004 requires the surrogate mother, as the birth mother, to be registered as the the mother on the respective birth certificates.

The case centers around twins born to a surrogate mother, using sperm and ovum from the genetic parents.

While the genetic father of the twins was registered on the birth certificates, the Registrar of Births refused to register the genetic mother because she was not the birth mother. The Registrar maintained that the surrogate mother must be registered on the birth certificates.

The core issue was the registration of a "mother" under the Civil Registration Act 2004, observed Chief Justice Denham. The Constitution does not provide for a definitive definition of "mother". Nor does the Constitution prevent the development of legislation on surrogacy.

The State relied on the status of the Latin legal maxim, mater semper certa est - the mother is always certain. However, Chief Justice Denham observed that the maxim is not part of Irish common law and the words merely recognise a fact that the woman who gives birth to a child is the mother of the child.

As it stands, neither Irish jurisprudence or existing legislation addresses the outstanding issues on surrogacy arrangements, Chief Justice Denham observed. Citing the lacuna in the law as being the basis for her decision, the appeal was allowed.

In applying the test for Supplementary Welfare Allowance the deciding officer must have regard to the complexity of the applicant's family circumstances

The Department of Social Protection must reconsider the decision to grant a single person's Supplementary Welfare Allowance to a separated father of four children, the High Court has ruled. Kevin McCormack cared for his four children full time prior to separating from his wife in 2011 and moving back to Dublin to seek employment.

Mr. McCormack applied for Supplementary Welfare Allowance in July 2012. In his application, Mr. McCormack sought the maximum available for one parent with three children. However, in August 2012, the Department refused his application for the maximum €900 sought because it was in excess of the €475 monthly limit for a single person. Mr. McCormack appealed to the Appeals Officer, but the application was disallowed in December 2012.

A solicitor on behalf of Mr. McCormack made an application to the Chief Appeals Officer requesting a review. In November 2013, the Chief Appeals Officer gave a reasoned written decision for rejecting the application to review the decision of the Appeals Officer:

[...] as the housing and other basic needs of the children were met by their primary carer and the applicant received no increase in respect of those children on his primary social welfare payment, they were not dependent on [Mr. McCormack] for support and could not be regarded as dependent children. 

Ms. Justice Marie Baker found the decision making process of the Department was flawed in assessing the application because it only had regard to Mr. McCormack's accommodation needs without having regard to the complexity of his family circumstances:

I am satisfied that the decision making process was flawed as a matter of law in that the decision body took an erroneous view of the test it had to apply, and looked only to the accommodation needs of [Mr. McCormack] himself without having any regard to the complexity of his family relationships [...].

Ms. Justice Baker also found that the children could not be viewed as living primarily with one parent, or having one primary carer.

CJEU(J): Legislation prohibiting 'hidden fees' contravenes right of airlines to freely set fares under Regulation (EC) No 1008/2008

The Court of Justice of the European Union has ruled that budget airlines can continue to charge for separate baggage and seating, a business model that has helped airlines such as Ryanair and easyJet to flourish.

Consumers and rival airlines have criticised the use of additional charges for check-in-baggage, overweight bags, allocated seating and priority boarding as hidden fees.

Despite the criticism, the Court ruled that charging fees for check-in-baggage were justified. The ruling overturns a Spanish ruling by the Court for Contentious Administrative Proceedings that had upheld a complaint against Vueling, a budget airline that is part of British Airways and IAG.

The Court ruled that the Spanish legislation prohibiting the application of a fee for checked-in-baggage infringes European Union law.

The processing and storing of checked-in baggage is likely to lead to additional costs for the airline, which is not the case for carried hand-baggage. Furthermore, the extent of the liability of the carrier for damage is greater when baggage is checked in than when it is not.

The case had been taken by a Spanish national, Ms. Arias Villegas, who was charged €40 for two pieces of checked-in-baggage travelling between La Coruna and Amsterdam in 2010.

Photographic evidence must be supplied with speed camera summons

The High Court has ruled that photographic evidence must be included with the summons issued to an accused. There must also be evidence that the "permanent visual record" (i.e. photographs(s)) has been given to an accused prior to the trial commencing.

The case was referred to the High Court by District Court Judge Mary Devins after Michael Gilvarry of County Mayo was summonsed for doing 93 kilometres per hour in an 80 kilometres per hour zone in Ballina on October 30th, 2011.

During the case several witnesses were called, including Inspector John McDonald from the Garda Fixed Charge Processing Office. In evidence Inspector McDonald gave an overview of, inter alia, the Office's prosecution works dealing with the capture of information.

In the course of cross-examination Inspector McDonald accepted that a copy of the photographic image should be provided to an accused before the trial began.

The Inspector gave evidence to the existence of a contract between the Minister for Justice, the Garda Commissioner and the Go Safe Company, which was entered into in November 2009. The contract governed the outsourcing of functions from June 1st, 2011. Although he was not in a position to provide a copy of the contract to the Court.

Inspector McDonald also gave evidence that the "permanent visual record" provided by the Prosecution was the same as the original, but admitted that he was not familiar with the process of enhancement.

At the end of Mr. McDonald's evidence Ms. McGregor for Mr. Gilvarry made a total of five submissions.

Ms. McGregor submitted that there was no evidence before the Court that a "permanent visual record" was served on Mr. Gilvarry as required by the 2010 Act. Ms McGregor further submitted that there is no presumption with the 2010 Act that the relevant "permanent visual record" has been served on an accused.

Ms. McGregor submitted that the contract between the Minister for Justice, the Garda Commissioner and the Go Safe Company is the foundation of a number of presumptions relied upon by the Prosecution. Ms. McGregor cited sections 81(2)(ii), 81(6)(a) and (b) as examples.

Ms. McGregor submitted that the contract must be in evidence in order to prove: (i) that the person is authorised (e.g. Derek Walsh, the Go Safe Operator who gave evidence), and; (ii) the extent of the functions. Moreover, as the contract was not in evidence, the Court was not entitled to presume its existence or apply presumptions that might flow from its existence.

Finally, Ms. McGregor submitted that the "permanent visual record" is enhanced after downloading to the server and is therefore tainted as a result.

Judge Mary Devins adjourned the matter until November 2012, when she questioned the Director of the Go Safe Company about the contract. Mr. Browne said that the contract started on November 16th, 2010 and would run until November 15th, 2015.

Having indicated that she was unable to find any precedent dealing with the issues that arose in this case, Judge Devins posed three questions to the High Court.

One, was there evidence before the Court that the photographic evidence was served on Mr. Gilvarry as required by the 2010 Act? 

Two, does the prosecution need to provide a copy of the contract between Go Safe and the Minister for Justice or is it sufficient to give evidence of the existence of a contract? 

Three, is the photographic evidence tainted because it is enhanced after downloading to the server?

Answering the first question, Mr. Justice Kearns concluded that it is insufficient for a member of the Gardaí to state that it is normally the case that photographic evidence is included with the issued summons:

There must be evidence that it has in fact been given to an accused person before the trail commences. The evidential shortfall can easily be remedied if the statutory declaration of service of the summons were to also state that the summons, together with the "permanent visual record attached", have been served on [Mr. Gilvarry] prior to the trial.

On the second question, Mr. Justice Kearns found that it is not a necessary proof for the prosecution to provide a copy of the contract, or to formally prove every detail of the contract between Go Safe and the Minister for Justice. It is merely sufficient that the prosecution call a witness who is familiar with the parts of the contract that indicate that: (i) a contract envisaged by the relevant section was made; (ii) the parties to the contract, and; (iii) that contract is still in existence.

While there was no issue about the quality of the photographic evidence in this case, Mr. Justice Kearns observed that it is not necessary under the 2010 Act to prove that the technology used is accurate or in good working order. However, Mr. Justice Kearns observed that it is open to a defendant, such as Mr. Gilvarry, to give evidence that the photograph(s) furnished to him and submitted to the court were altered.

UK: Disclosure of cautions and minor convictions breaches right to private life

The Supreme Court has rejected a joint appeal by the Home Secretary and the Justice Secretary to overturn the Court of Appeal (Civil Division) judgment, in January 2013, that disclosure of cautions and minor spent convictions under the Rehabilitation of Offenders Act 1974 to prospective employers is not required.

The Supreme Court judgment arose from two separate cases. The first involved 'T', a male, who was forced to reveal two police cautions he had received as a minor in connection to theft when he applied for a job at a football club and enrolling in a course in sports studies.

The second case involved 'JB', a female, who was cautioned in 2001 on suspicion of theft of a packet of fake fingernails. However, in 2009, after training as a care worker 'JB' was prohibited from working in the care sector due to the police caution.

The Supreme Court held in both cases, the requirement to disclose to prospective employees minor convictions and police cautions breached Article 8 of the European Convention on Human Rights - the right to a private life - hindering entry into their chosen areas of work.

Despite the Court of Appeal placing a stay on the declaration from taking effect until permission to appeal was decided, the Secretaries of State made an order on May 22nd, 2013, which commenced May 29, 2013, with the aim of "eliminating" the incompatibilities. When the Supreme Court granted permission, the stay was extended until the judgment.

The Supreme Court judgment will mean criminal convictions will no longer have to be disclosed during a criminal record check where it did not lead to a prison sentence; does not relate to any of the fourteen listed categories of offence; and, where five-and-a-half years has elapsed for those under eighteen at the time of the conviction or eleven years for those over eighteen. For cautions, two years must have passed for those over eighteen and six years for those under eighteen.

EW: Technical defects not to be considered an extraordinary circumstance under Regulation No. 261/2004

The Court of Appeal (Civil Division) has dismissed an appeal by Jet2.com, an airline, who argued a flight delay because of technical defect amounted to an "extraordinary circumstance".

Rather, the Court upheld the judgment of Judge Platts at Manchester County Court that Ronald Huzar, a passenger, was entitled to compensation under European Union Regulation No. 261/2004 after suffering a 27 hour delay on a flight from Malaga, Spain, to Manchester, in October 2011.

The Court of Appeal judgment means that technical defects are not to be considered an "extraordinary circumstance" under the EU Regulation. Moreover, the judgment emphasises the requirement for airlines to pay compensation for delays of more than three hours.

The Court of Appeal judgment now brings the United Kingdom into line with other European countries, establishing much needed case precedent.

In a case where an airline claims "extraordinary circumstance", the onus of proof rests on the carrier. However the Court found the defence did not apply in the case of Mr. Huzar.

The judgment has retrospective application meaning anyone who has suffered a long delay on a qualifying flight since the summer of 2008 is entitled to claim.

CJEU(J): A search engine as a data controller is responsible for content links - even if the material was previously published legally

The Court of Justice of the European Union has ruled that Google must delete data that is "inadequate, irrelevant or no longer relevant" from search results when a member of the public requests.

The case was taken by Spanish national, Mario Costeja González, when he failed in his attempts to have an auction notice of his repossessed home deleted. The notice dating back to 1998 was published on the website of Catalonia, a mass circulation newspaper.

Mr. González claimed the matter of his house being auction to recover social security debts had been resolved and, therefore, should be forgotten.

The Court of Justice held that under EU law on data protection, Google must erase links to two webpages on the website of La Vanguardia.

The Court made it clear in ruling that EU law had already established "a right to be forgotten". Moreover, the Court found that the inclusion of links a member of the public wants removed:

on the grounds that he wishes the information appearing on those pages relating to him personally to be 'forgotten' after a certain time ...

was incompatible with EU law on data protection.

The Court found the data that had to be erased could:

appear to be inadequate, irrelevant or no longer relevant, or excessive ... in light of the time that has elapsed.

The Court added:

that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive ...

Moreover, the Court emphasised the need to strike a balance between the right to privacy and freedom of expression. An exception to the right to privacy was the role played by an individual in public life, the Court ruled.

In effect, the judgment means that search engines as a data controller has a responsibility for the content that it links to. As a result, search engines may be required to remove links even if the material was previously published legally.

CJEU(J): EU Data Retention Directive breaches right to respect for private life and fundamental right to the protection of personal data

The Court of Justice of the European Union has ruled the EU Data Retention Directive (2006/24/EC) invalid. The Court deemed the Directive to be an interference with the fundamental rights of practically the entire European population.

Challenged by Digital Rights Ireland, the Directive required internet service providers and telecommunications companies to record details about one's emails, internet use, location and text messages. The information that was gathered stops short of recording the content of the e-mail or text message.

For every citizen this database of information is kept for up to two years. This database can be accessed by gardaí without a warrant, subject to internal procedure.

The Court of Justice deemed the 2006 Directive unnecessary and disproportionate as a means of targeting crime of terrorism.

The Court deemed the Directive invalid on four grounds.

First, the Court deemed the monitoring of the entire population excessive.

Second, the Directive failed to provide effective control over access and use of the data. In particular, the failure to insist that any request for data should be approved by a court.

Third, there was no clear justification as to why data stored on all citizens for an extended period of time, was chosen.

While the fourth ground was the failure to establish adequate security for the stored data, leaving it vulnerable to attack from hackers.

The Court concluded that the Directive interferes in a  particularly serious manner with the fundamental rights to  respect for private life and to the protection of personal data.

The case will now return to the High Court to decide whether Irish data retention law is unconstitutional given the Court of Justice judgment. The case also challenges the implementation of the Criminal Justice (Terrorist Offences) Act 2005.

UK: Any deprivation of liberty must be subject to independent periodic review and authorised by court or statutory procedures

The Supreme Court yesterday ruled on what constitutes a deprivation of liberty for people unable to consent to their detention.

The judgment, following a three-day hearing in October 2013, will impact significantly on people unable to make certain decisions including those with autism, brain injuries, dementia and learning disabilities.

The Supreme Court was asked to set out the criteria for judging whether the living arrangements made for a person in local authority care amount to a deprivation of liberty.

In a majority verdict, the Court ruled in favour of 'P' and 'Q', finding that living either in supported accommodation or in foster care is a deprivation of their liberty. Accordingly, the Court held, this deprivation would require periodic independent review.

Any deprivation of liberty must be authorised by a court or by the Deprivation of Liberty Safeguards, as laid out in the Mental Capacity Act 2005.

In ruling Lady Hale observed:

[...] what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

The judgment provides for additional protection for those in local authority care.

The constitutional right to conduct business in Irish is not absolute

Peadar Ó Maicín, a native Irish language speaker, has lost a Supreme Court case to have a bi-lingual jury selected from a specially designated area of Connemara where most people speak Irish.

Mr. Justice Hardiman observed that while there is no legislation requiring a juror to be competent in English or Irish, he described it as "as extraordinary state of affairs" in need of "urgent legislative action".

In his dissenting opinion, Mr. Justice Hardiman described the actions of the State in promoting the Irish language as "uniformly minimalist and grudging". Mr. Justice Hardiman did not believe there is any other country:

in which a citizen would not be entitled to conduct his business before a court in the national and first official language, and to be understood directly by such court in that language

However, the Supreme Court agreed that the case raised important constitutional issues on balancing language rights against the duty to prosecute crimes before a representative jury.

The High Court held Mr. Ó Maicín was not entitled to have his case heard by a judge and bi-lingual jury without a translator.

Mr. Ó Maicín is facing trial charged with two offences; assault causing harm and unlawfully producing an article (a broken whiskey bottle) capable of inflicting serious injury during a fight.

The State opposed the appeal on the basis that there would have to be a test of competence in the Irish language. But this would be impossible due to random jury selection.

In a majority four-one judgment, the Supreme Court held that while Mr. Ó Maicín has a constitutional right to conduct business and his trial in Irish with the aid of a translator, the right is not absolute.

Charity cannot be used as a substitute for mandatory sanctions

The High Court has ruled that the court poor box cannot be used as an alternative to imposing penalty points and a fine in speeding cases.

Mr. Justice Hogan observed that despite the "obscure and uncertain origins" of the court poor box, its use in other cases is of such longstanding and widespread use, it must be considered part of common law - adopted under Article 50.1 of the Constitution.

However, Mr Justice Hogan ruled that the court poor box does not apply in penalty points cases.

A pensioner had challenged the refusal of Judge Conal Gibbons of the District Court to allow a contribution to be made to the court poor box after pleading guilty to speeding.

Counsel for the pensioner pointed out Judge Gibbons' allowance of the use of the court poor box in another speeding case. However, Judge Gibbons claimed that he had since become aware of a High Court judgment (see comment below) precluding his use of the court poor box in speeding cases.

Mr. Justice Gerard Hogan noted that the dismissal of penalty points offences under the Probation Act was prohibited under section 55 of the Road Traffic Act 2010.

Mr. Justice Hogan ruled that the common law jurisdiction must be deemed to have been superseded with the commencement of the 2010 Act.

Mr. Justice Hogan ruled that the imposition of an "informal sanction" like a donation to the court poor box would be an indirect circumvention of the 2010 Act.

Moreover, Mr. Justice Hogan observed the difference between existing case law in which the court poor box was used in cases of sexual assault was, the legislator provided for mandatory sanctions for particular road traffic offences.

However, the District Court still has jurisdiction in sexual assault cases because mandatory sanctions were not provided for.

Comment:  D.P.P v Maughan [2003] IEHC 117 (3rd Nov. 2003)

The notice party, Colm McNerney pleaded guilty to a charge of drink driving before the District Court. However, McNerney gave evidence that at the time of the offence he was driving to the hospital to be with his seriously ill father, who died weeks later.

After initially adjourning, Judge Maughan indicated that the issue would be struck out if McNerney paid €200 to Victim Support. In ruling, Mr. Justice Ó Caoimh held that:

It is not in dispute that if this was the intention of [Judge Maughan] at the time he did not have jurisdiction to strike out the charges in question as the same do not permit the application of the Probation Act 1907.

In concluding, Mr. Justice Ó Caoimh expressed that he was:

…satisfied that the order made by [Judge Maughan] was made in excess of jurisdiction as he was obliged at the time to determine the case before him and to proceed in accordance with law to enter a conviction and to impose a penalty as required by law.

While the judgment did not expressly decide that the poor box could not be used, in this case for drink driving, due to mandatory sanctions, this appears to be an inescapable conclusion.

The power of arrest may only be exercised with such force as is reasonable in the circumstances

The Supreme Court has ruled an arrest for drink driving unlawful because the accused was unjustifiably handcuffed on foot of a personal routine of a Garda Sergeant.

Peter Cullen was stopped in Dublin 15 in September 2007 by Sergeant Moyles after being spotted driving erratically. While speaking to Mr. Cullen, Sergeant Moyles formed the opinion that he was intoxicated. Sergeant Moyles had Mr. Cullen provide a breath specimen, which he failed.

On cross examination in Dublin Circuit Court Sergeant Moyles stated that Mr. Cullen was cooperative at all times prior and subsequent to his arrest. Sergeant Moyles also stated that Mr. Cullen had not used threatening force in order to avoid arrest. Nor was there anything in the conduct of Mr. Cullen which might lead Sergeant Moyles to suspect that he might resist arrest. Sergeant Moyles also stated that it was his personal policy to handcuff any person arrested for drink driving, irrespective of the circumstances.

At the conclusion of the Prosecution's case, Counsel for Mr. Cullen applied for a direction on the basis that Sergeant Moyles had no reasonable grounds for the handcuffing. Counsel submitted that such restraint was unjustified and amounted to a conscious, deliberate and unlawful use of force, rendering Mr. Cullen's detention unlawful. Counsel also submitted that the exclusionary rule obligated a trial judge, in cases where a conscious breach of constitutional rights occurs, to exclude the admissibility of evidence except where the prosecution establish some extraordinary and excusing circumstance justifying the actions of Gardaí.

While Judge Terence O'Sullivan accepted that the Prosecution had failed to prove that handcuffing Mr. Cullen was lawful, proportionate or justified and, therefore, Sergeant Moyles acted lawfully, he referred two questions to the Supreme Court.

The first question posed was whether Judge O'Sullivan was entitled to hold that the handcuffing of Mr. Cullen, following arrest, was unjustified because Sergeant Moyles did not believe he was likely to resist arrest or attempt to escape from lawful custody.

The second question hindered on the first question being answered in the affirmative. The question posed was whether Judge O'Sullivan was correct to conclude that the handcuffing of Mr. Cullen was a conscious and deliberate breach of his constitutional rights.

Before answering the questions posed by Judge O'Sullivan, Mr. Justice Nial Fennelly set out the principles on: the use of reasonable force when making an arrest; the judgement of the Gardaí as to the reasonable force; the application of handcuffs; and, more general observations on lawful arrest and detention. Mr. Justice Fennelly also noted the courts are slow to review the operational decisions of individual Gardaí.

On the use of reasonable force when making an arrest, Mr. Justice Fennelly held that:

[...] the power of arrest, whether exercised by a police officer or by a citizen may be exercised and may only be exercised with the use of such force as is reasonable in the circumstances.

However Mr. Justice Fennelly concluded that what force is reasonable in the circumstances is for the individual Garda to judge, and that the law allows for a generous measure of judgement in this regard:

An error of judgement by an officer in applying force where he genuinely believes to be necessary will not either render the arrest invalid or expose the officer to legal remedy, whether criminal or civil. 

On the application of handcuffs, Mr. Justice Fennelly set out four principles.

One, that a Garda is fully entitled, and may be obliged, to apply handcuffs to an arrested person, where he or she believes that it is necessary to do so in the particular case. Two, the decision to apply handcuffs must be left to the individual Garda dependant on his own appreciation of the requirements of the individual case. Three, the factors to be taken in account are: the nature of the offence, the prevailing circumstances, and the personality and character of the individual to be arrested. Four, that a realistic latitude is shown by the law to Gardaí in this regard.

Mr. Justice Fennelly also set out three principles on lawful arrest and detention.

One, that an arrest is a pre-requisite for the authority to demand that a suspect provide blood, urine or breath specimens. Two, that an arrest may be invalid, if in the absence of lawful authority or consent of the owner, the arrest was carried out on private property. Three, detention that was originally lawful, can become unlawful because the suspect was held in detention without justification.

Thus, Mr. Justice Fennelly answered the first question in the affirmative because Sergeant Moyles failed to give consideration to the context, behaviour and demeanour of Mr. Cullen.

While on the second question Mr. Justice Fennelly deemed the arrest unlawful, but found it unnecessary to refer to the breach of constitutional rights or the exclusionary rule. 

ECHR: There is an inherent obligation on a state to use special measures, safeguards to protect children from ill-treatment

The European Court of Human Rights has ruled that Ireland had been negligent in failing to protect Louise O'Keeffe from abuse in school in 1973.

The case was taken to the European Court of Human Rights after the Supreme Court ruled that the State was not liable because the school was run by the Catholic Church.

The Court held, by eleven to six with Judge Peter Charlton fully dissenting, that the structure of primary education in 1970s Ireland failed to protect Ms. O'Keeffe from abuse.

The Court found that there had been a violation of Article 3, prohibiting inhuman and degrading treatment, and Article 13, the right to an effective remedy, of the European Convention on Human Rights.

However, the Court found that there had been no violation of Article 3 in respect of the investigation into the compliments of sexual abuse at the school.

The Court also found that complaints made under Article 8, Article 2 of Protocol No. 1 and Article 14 did not establish any matters separate to the matters already examined.

The Court found that the State had an inherent obligation to use special measures and safeguards to protect children, especially those in primary education, from ill-treatment.

Delegating the obligation to protect children from ill-treatment does not absolute a state from that obligation.

The Court found Ireland failed to meet this obligation:

[...] which had to have been of the sexual abuse of children by adults prior to the 1970s through, among other things, its prosecution of such crimes at a significant rate [...]

Despite this, the State continued to allow the management of primary school education for the majority of children to national schools, without any mechanism of control against the risks of sexual abuse occurring.

The Court also found that Ms. O'Keeffe was entitled to choose from the legal remedies available, rejecting the Supreme Court judgment that Ms. O'Keeffe should fail for not exhausting all available legal remedies in Ireland first.

ECHR: No breach of right to fair trial in granting state officials immunity from civil torture proceedings

The European Court of Human Rights has ruled that four British nationals cannot sue Saudi Arabia through British courts for compensation.

In a majority six to one judgment, the Court held that it is:

[...] satisfied that the grant of immunity to the state officials in the present case reflected generally recognised rules of public international law.  

The Court observed that in granting:

[...] immunity to the state officials in the applicants’ civil cases did not therefore amount to an unjustified restriction on the applicant’s access to a court. There has accordingly been no violation of Article 6 of the convention in this case. However, in light of the developments currently under way in this area of public international law, this is a matter which needs to be kept under review.

The case highlights the distinction between criminal and civil cases of torture. Criminal cases of torture can be heard in the United Kingdom even if the offences have been committed in another country. But civil cases of torture, where the torture was committed abroad, British courts will not consider.

In the only dissenting opinion, Bulgarian Judge, Zdravka Kaladjieva expressed his:

[f]ear that the views expressed by the majority on a question examined by this court for the first time not only extend state immunity to named officials without proper distinction or justification, but give the impression of also being capable of extending impunity for acts of torture globally. 

The Court acknowledged their medical examinations carried out after the men returned to the United Kingdom concluded that the applicant’s injuries were consistent with torture.