NI: The absence of exceptions to the general prohibition on abortion in cases of Fatal Foetal Abnormality and pregnancies arisng out of a sexual crime up to the point where the foetus becomes capable of existing independently of the mother, violates the right to respect for private life under the European Convention on Human Rights

The High Court has delivered a seminal judgment on the absence of exceptions to the general prohibition on abortion in cases of Fatal Foetal Abnormality, pregnancies arising out of a sexual crime and serious malformation of the foetus. 

The application from the Northern Ireland Human Rights Commission was about whether the failure to provide certain limited exceptions to the general prohibition on abortion in Northern Ireland is in compliance with the European Convention on Human Rights.

The Commission sought a declaration that the administering of drugs or using instruments to procure abortion, procuring drugs, &c. to cause abortion and punishment for child destruction are incompatible with Article 3 (prohibition of torture), Article 8 (right to respect for family and private life) and Article 14 (prohibition on discrimination) of the Convention.

In relation to Article 3, Mr. Justice Horner held that there is no breach in the additional stress of a pregnant women having to travel to England for an abortion.

The Commission failed to establish that there is a potential for pregnant women in cases of Fatal Foetal Abnormality, pregnancies arising out of a sexual crime or serious malformation of the foetus to receive treatment that would amount to inhuman or degrading treatment.

In his judgment, Mr. Justice Horner reasoned that there is no suggestion that women who become pregnant do not get the best of medical treatment during their pregnancies. Moreover, there is nothing preventing women from travelling to England to access medical facilities there to obtain a termination. The Director of the Public Prosecution Service has also made it clear that no one assisting any of these pregnant women will face criminal prosecution in Northern Ireland should their pregnancies be terminated in England.

He reasoned that similar stress might also be inflicted on a woman who becomes pregnant as a result of a consensual relationship due to an error or a "contraceptive malfunction". It depends on both the "personal circumstances" and "psychological make-up" of the woman concerned, he concluded.

But Mr. Justice Horner did find that the absence of exceptions to the general prohibition on abortion in cases of Fatal Foetal Abnormality and pregnancies arising out a sexual crime up to the point where the foetus becomes capable of existing independently of the mother, violates Article 8 of the Convention.

On Fatal Foetal Abnormality, Mr. Justice Horner emphasised that there is no life to protect because the foetus cannot survive independently outside the womb. He also cited the lack of evidence before the Court that even a "substantial section [...] never mind a majority", of the community in Northern Ireland requires a mother to carry such a foetus full term.

On pregnancies arising out of a sexual crime, Mr. Justice Horner found that the law places a "disproportionate burden" on a victim of sexual crime. The law makes no attempt to balance the rights of the women:

By imposing a blanket ban on abortion, reinforced with criminal sanctions, it effectively prevents any considerations of the interests of the woman whose personal autonomy in those circumstances has been so vilely and heinously invaded. A law so framed, can never be said to be proportionate.

However he rejected the submission that serious malformation of the foetus violates Article 8, despite acknowledging  the previous recognition that the criminalisation of abortion in such cases interferes with a woman's autonomy. 

Mr. Justice Horner also held that the criminalisation of the particular categories of pregnant women does not breach Article 14, when considered together with Article 8. Moreover, he found it "strictly speaking unnecessary" to consider Article 14, given his findings under Article 8.

In respect of the relief sought by the Commission, Mr. Justice Horner expressed his intention to grant a declaration of incompatibility for three reasons.

The first reason is because the identified provisions of law are incompatible with Article 8 of the Convention in respect of those women who have to carry a foetus with Fatal Foetal Abnormalities and, or who are pregnant as a result of a sexual crime.

The second reason is twofold. One, by not making a declaration of incompatibility the Court would be abandoning the immediate future of those women. Two, these matters have not been debated by the Assembly in Northern Ireland and are unlikely to be debated in the foreseeable future.

While the third reason is because there has been no hearing on these matters in Northern Ireland which would be binding or requires the Court to revise its opinion.

The failure to record, on the face of the warrant, the decision of the Director of Public Prosecutions to proceed by way of summary trial renders the warrant bad

The High Court has ruled that the failure to record, on the face of the warrant, the decision of the Director of Public Prosecutions to proceed by way of summary trial (i.e. judge alone) is a "fatal flaw", rendering the warrant bad. 

A minor convicted of possession of controlled drugs for unlawful sale or supply challenged the validity of his detention under Article 40 of the Constitution on the basis that the warrant, on foot of which the minor was committed to prison, fails to record the decision of the Director that the matter be tried summarily.

Mr. Justice Seamus Noonan, in his written judgment, stated that it is not in dispute that an accused is brought before the District Court on foot of a charge sheet. Or that the accused cannot know the form of trial (i.e. summary or indictable) until the Director's decision has been conveyed to a District Court judge. It is "settled law" that the Director alone decides the venue, subject to the District Court judge determining that the offence is minor. Indeed, the trial cannot proceed until the Director invokes the relevant jurisdiction.

It seems to me beyond argument that if the Director has determined that the accused be tried by jury, the District Judge cannot embark on a summary trial and, were he or she to do so, any resultant order would be quashed for the asking. That can be the only reason that in such circumstances the District Judge has no jurisdiction to try the accused. I cannot see how any other construction is possible. It must follow as a matter of logic that if the Director has made no decision one way or the other equally the District Judge has no jurisdiction.

Paraphrasing precedent, Mr. Justice Noonan described the decision of the Director as an "essential ingredient to the exercise of that jurisdiction". In the absence of such a decision by the Director there is simply no jurisdiction vested in the District Court.

Therefore Mr. Justice Noonan concluded that the failure to record, on the face of the warrant, the decision by the Director to proceed by way of summary trial renders the warrant bad. 

Breath specimen printouts must be produced in both English and Irish to comply with the law

The High Court has ruled that breath specimen printouts must be produced in both English and Irish in order to comply with the Road Traffic Act 2010 and the (Prescribed Form and Manner of Statements) Regulations 2011 (S.I. 541/2011).

The case was referred to the High Court from the District Court by Judge Conal Gibbons.

On April 21st, 2014, Mihai Avadenei was stopped on Wolfe Tone Quay in Dublin by Gardai operating a speeding check because he was doing 80 kilometers in a 50 kilometer per hour zone. Using the Drager Alcotest apparatus Mr. Avadenei was asked to provide a breath specimen for the presence of alcohol, which he failed.

At Store Street Garda Station Mr. Avadenei provided another breath specimen using the Evidenzer Irl apparatus. The Evidenzer Irl apparatus produces a document which is tendered as a certificate in court for what would otherwise be hearsay. During cross-examination Judge Gibbons heard that the only document produced by the Evidenzer Irl was in English only, despite the fact the apparatus could produce the same document in Irish.

At the conclusion of the Prosecution's case, solicitor for Mr. Avadenei submitted that there was no case to answer because the document was not a duly completed statement as there was no equivalent in Irish.

After the case was adjourned until a later date to allow for written submissions, Judge Gibbons accepted that the document, purporting to show the concentration of alcohol in the breath of Mr. Avadenei, was not a duly completed statement.

Arising from the foregoing, Judge Gibbons asked the High Court whether he was entitled to hold that the document was not a duly completed statement within the meaning of section 13 of the 2010 Act.

(i) On the facts so found, was I entitled to hold that the document purporting to show the concentration of alcohol in the breath of [Mr. Avadenei] is not a "duly completed" certificate within the meaning of s[ection] 13 of the Road Traffic Act 2010 and S.I. 541/2011, namely the Road Traffic Act 2010 (s.13) (Prescribed Form and Manner of Statements) Regulations 2011? 

Mr. Justice Seamus Noonan found that there are two lines of authority with regard to defective certificates in drunk driving cases:

The first can be said to arise in cases where certificate evidence is sought to be adduced in circumstances where there has been a technical error in the completion of the relevant certificate which doe not breach a mandatory statutory provision and does not result in any misleading and thus prejudice to the accused.

The second line of authority with regard to defective certificates holds that:

[...] where the relevant statute mandates the adoption of a particular procedure, a failure to adhere to that procedure will deprive the relevant certificates of any evidential value irrespective of whether or not the accused has been in any way misled or has suffered any prejudice as a result.

In the case of Mr. Avadenei, Mr. Justice Noonan took the view that the certificate falls into the second line of authority and, therefore, has no evidential value and cannot be admitted in court.  

EW: The Data Retention and Investigatory Powers Act is inconsistent with the right to privacy and protection of personal data in the absence of a national access regime protecting those rights under the EU Charter of Fundamental Rights

The Divisional Court of the High Court has ruled that section 1 of the Data Retention and Investigatory Powers Act 2014 is inconsistent with Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

David Davis MP and Tom Watson MP, among others, challenged the validity of section 1  of the Act and the Data Retention Regulations 2014 as being contrary to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and, or, Article 8 of the European Convention on Human Rights.

Article 7 of the Charter protects the right to respect for private and family life. This right is also covered by Article 8 of the Convention. Article 8 of the Charter provides for the right to the protection of personal data.

The Act was a response to the Digital Rights Ireland judgment. The invalidation of the Data Retention Directive put the legal foundation for requiring retention of communications data in doubt. Some communications service providers expressed the view that there was no legal foundation to keep communications data and indicated that any data retained under the 2009 Regulations would be deleted.

The Court found that legislation providing a general data retention regime for communications data infringes Article 7 and 8 of the Charter, unless the legislation is accompanied by an access regime on a national level that provides adequate protection for the rights under the respective articles:

The solution to the conundrum, in our view, and the ratio of Digital Rights Ireland, is that legislation establishing a general retention regime for communications data infringes on Article 7 and 8 of the EU Charter unless it is accompanied by an access regime (laid down at national level) which provides adequate safeguards for those rights.

The Court awarded a Declaration stating that section 1 of the Act is inconsistent with the Charter for two reasons. One, the Act does not lay down clear and precise rules providing for access to, and use of, communications data. Two, access to the data is not made dependent on a prior review by a court or an independent administrative body.

However the Court disapplied section 1 of the Act, suspending the Order until March 31st, 2016. The Order disapplying section 1 applies to the extent that it permits access to retained data in the two respects set out in the Declaration.

CJEU(J): The Outright Monetary Transaction programme does not exceed the powers of the European Central Bank in relation to monetary policy or breach the prohibition on monetary financing of EU Member States

The Court of Justice of the European Union has ruled that the Outright Monetary Transaction programme does not: (i) exceed the powers of the European Central Bank in relation to monetary policy; (ii) infringe the principle of proportionality, or; (iii) breach the prohibition of monetary financing of EU Member States. 

On September 6th, 2012, the European Central Bank issued a press release announcing that it had adopted certain decisions concerning the Outright Monetary Transaction programme. The Programme permits the European System of Central Banks to purchase government bonds of Member States on the secondary market subject to certain conditions: (i) the States concerned must participate in a financial assistance programme of the European Financial Stability Facility or the European Stability Mechanism; (ii) transactions would focus on the shorter part of the yield curve; (iii) quantitative limits would not be set in advance; (iv) the European Central Bank would receive the same treatment as a private creditor, and; (v) liquidity would be fully sterilised.

The case originated in Germany, where a number of concerned parties brought a case before the Federal Constitutional Court against the Federal Government. The parties argued that the Programme: (i) is not covered by the mandate of the European Central Bank and breaches the prohibition on monetary financing of Member States, and; (ii) that those decisions breach the principle of democracy, which is enshrined in German Basic Law.

For the first time in its history, the Federal Constitutional Court requested a preliminary ruling from the Court of Justice.   

In view of the Programme's objectives and the instruments provided for achieving those objectives, the Court found the Programme falls within the monetary policy.

First, the Programme contributes to achieving the objectives of the monetary policy by seeking to preserve the singleness of that policy.

Second, the Programme is likely to preserve the singleness of the monetary policy and contribute to maintaining price stability - its primary objective.

The Court found that the ability of the ESCB to influence price developments through its monetary policy decisions largely depends on the transmission of the impulses. The impulses are sent out by the ECB across the money market to various sectors of the economy. Thus, if the monetary policy transmission mechanism is disrupted, it would likely render the decision of the ESCB ineffective in a part of the Euro area. This would undermine the effectiveness of the measures adopted by the ESCB, affecting its ability to guarantee price stability.

The Court concluded that a monetary policy cannot be treated as equivalent to an economic policy simply because the monetary policy is likely to have indirect effects on the stability of the Euro area. The fact that Programme is made conditional upon full compliance with the European Financial Stability Facility or the European Stability Mechanism does not change that conclusion.

The Programme, the Court held, does not infringe on the principle of proportionality for three reasons.

The first reason is, considering the economic conditions described by the ECB in the press release in September 2012, the ESCB could take the view that the Programme was appropriate for the purpose of maintaining price stability.

The second reason is, in view of the conditions that would apply in the event of the Programme being implemented, it does not manifestly go beyond what is necessary to achieve those objectives.

The third reason is because the ESCB considered the various interests in question in order to prevent disadvantages from arising. Those disadvantages are manifestly disproportionate to the Programme's objectives.

The Court held that the prohibition on monetary financing does not prevent the ESCB from adopting or implementing the Programme under conditions that do not result in intervention by the ESCB as having the same effect as that of a direct purchase of bonds from public authorities and bodies member states.

Moreover, the prohibition does not preclude the possibility of the ESCB purchasing bonds from creditors previously issued by that state.

However the Court warned that in purchasing government bonds on the secondary market, "sufficient safeguards" must be put in place to ensure that the Programme does not "fall foul" of the prohibition.

Three safeguards were put forward by the ECB to the Court. The first safeguard, contained in the draft decision and draft guideline, indicates that the Governing Council will be responsible for deciding on: (i) the scope; (ii) the start; (iii) the continuation, and; (iv) the suspension of the intervention envisaged by the Programme on the secondary market. The second safeguard, the ESCB intends to ensure the observation of a minimum period between the issue of security on the primary market and its purchase on the secondary market. While the third safeguard, the ESCB intends to refrain from making prior announcement about either its decision to: (i) carry out such purchases, or; (ii) the volume of purchases envisaged.

UK: The policy of indefinite retention of DNA profile, fingerprints and photographs of a person convicted of a recordable offence is compatible with the right to respect for private life under the European Convention on Human Rights

The Supreme Court has ruled that the indefinite retention of the DNA profile, fingerprints and photographs of a person convicted of a recordable offence is compatible with Article 8 (right to respect for private life) of the European Convention on Human Rights.

Fergus Gaughran was arrested on the morning of October 14th, 2008, for driving with excess alcohol. Mr. Gaughran later pleaded guilty to the offence at Newry Magistrates Court. He was fined and disqualified from driving for twelve months.

On the day of the arrest, the police took Mr Gaughran's fingerprints, photographs and "non-intimate" DNA sample with his full consent.

In January 2009, Mr. Gaughran's solicitor wrote to the Police Service claiming that the retention of the DNA profile, fingerprints and photograph is unlawful. The Police Service replied in February, 2009, stating that the consequences of S and Marper -v- United Kingdom judgment was a matter for the government of the United Kingdom. However following the devolution of policing in 2010, the DNA retention policy became an issue for the Northern Ireland Minister for Justice.

Mr. Gaughran was granted leave to apply for judicial review in April 2009. The case was heard by Lord Justice Girvan in the High Court, which held that the infringement of Article 8 by the Police Service was justified.

The question before the Supreme Court was whether the policy of the Police Service to retain indefinitely the DNA profile, fingerprints and photographs of a person convicted of a recordable offence is a breach of the right to respect for private life.

The lack of reference to the DNA sample in the question is because legislation is due to come into force in Northern Ireland that means DNA samples must be destroyed within six months of being taken.

The onus in this case was on the Police Service to satisfy the Court that its policy is consistent with the law, justifiable, and satisfies the principle of proportionality.

Lord Clarke agreed with Lord Justice Girvan that S and Marper only considered the position of those suspected of a crime:

There is no indication that the Strasbourg court was considering the position of those who had been convicted at all. I agree with [Lord Justice] Girvan's conclusion at para 42 that Strasbourg was not saying that a blanket policy of retaining the data of convicted persons would be unlawful.

On the policy of the Police Service indefinitely retaining biometric data, Lord Clarke found that there was no jurisprudence to support that it was not justified.

Lord Clarke concluded that the balance struck between the competing public and private interests by authorities in Northern Ireland, and England and Wales, is proportionate and justified:

Taking account of all relevant factors I would hold that the balance struck by the Northern Irish authorities, and indeed in England and Wales, is proportionate and justified.

Moreover, Lord Clarke concluded that the benefits of retaining DNA profiles of a person who are convicted outweighs the right to respect for private life under Article 8.

Lord Kerr, however, in his dissenting opinion, concluded that the indefinite retention of DNA profiles, fingerprints and photographs of a person convicted of recordable offences in Northern Ireland is incompatible with the right to respect for private life.

Unconstitutionally obtained evidence should not be automatically deemed inadmissible at trial

The Supreme Court has ruled that evidence obtained unconstitutionally should not be automatically deemed inadmissible at trial. The judgment refines the test for the exclusion of evidence first set out in the case of O'Brien in 1965 and again in Kenny in 1990.

The case stems from Gardaí in Waterford investigating three robberies on a bookmakers premises in mid-2011.

Two separate but connected issues  arose in the Supreme Court case. The first issue relates to the proper interpretation of the passage on appeals by the Director ect., on certain criminal proceedings. Specifically, whether Judge Mary Ellen Ring had erroneously excluded evidence in circumstances where it is accepted that the Judge was bound to follow, and properly applied, the Kenny judgment to the facts:

Can it be said that  a trial judge properly applied the established case law of a higher court by which that trial judge was bound, even if this Court takes the view that the established case law in question requires to be revisited in a material respect?

Mr. Justice Frank Clarke found that a trial judge can be properly described as having erroneously excluded evidence even where the trial judge was bound to follow what turns out to be an erroneous judgment. On that basis, Mr. Justice Clarke was satisfied that an appeal to the Court under section 23 is permissible.

The second issue concerned the statutory requirement that excluded evidence must be "compelling" for its exclusion to be appealed. Compelling evidence is defined as meaning that:

[...] the evidence is reliable, of significant probative value, and such that, when taken together with all other evidence adduced a jury might properly convict.

After establishing that there was sufficient material on the record of the trial to enable the Court to be satisfied that the evidence is compelling, Mr. Justice Clarke concluded that it was not necessary to reach a conclusion on a motion, submitted on behalf of the Director of Public Prosecutions, to introduce additional evidence.

The question before the Court was whether O'Brien or Kenny are correct, or, whether the test set out requires refining by identifying a point not identified in either case.

In O'Brien, the Supreme Court held that evidence should not be excluded if it can be shown that those gathering the evidence had knowledge that their actions were in breach of constitutional rights. Where as in Kenny, the Supreme Court held that evidence may be excluded if it can be shown that constitutional rights were breached, regardless of the knowledge or level of care involved, save in highly unusual and exceptional circumstances.

Mr Justice Clarke, in his judgment, felt O'Brien does not go far enough, while Kenny goes too far. Refining the test, Mr. Justice Clarke set out five principles.

One, the onus is on the prosecution to establish the admissibility of all evidence. However, Mr. Justice Clarke was keen to emphasis that the test which follows does not concern the integrity or probative value of the evidence. Rather, the test is concerned with objections to the admissibility of the evidence where it relates solely to the circumstances in which it was gathered.

Two, where a warrant is challenged the onus is on the prosecution to establish either: (a) that the evidence was not gathered in circumstances of unconstitutionality, or; (b) that, if the evidence was gathered in circumstances of unconstitutionally, it remains appropriate for the Supreme Court to admit the evidence.

Three, any facts the prosecution need to establish in order to discharge the onus must be established beyond reasonable doubt.

Four, evidence obtained in deliberate and conscious violation of constitutional rights should be excluded save in exceptional circumstances considered in existing precedent. If the evidence is obtained in violation of constitutional rights, but the prosecution shows  this was not conscious or deliberate, a presumption against the admission of the evidence arises. Moreover, where evidence is obtained in breach of constitutional rights but not deliberately or consciously, the evidence should be admitted where the prosecution can establish that the breach was inadvertent or due to later legal developments.

Five, evidence that could not have been constitutionally obtained  or gathered should be excluded, even if those involved in gathering evidence were unaware due to inadvertence of the absence of authority.

Mr. Justice Donal O'Donnell expressed agreement with the approach taken by Mr. Justice Clarke. While Mr. Justice John Murray concurred in part with Mr. Justice Adrian Hardiman, who, among others, dissented.

Mr. Justice Hardiman questioned whether the Court had jurisdiction to hear the appeal because an error on the part of Judge Ring had not been established. Indeed, the majority agreed that Judge Ring had not erred. Mr. Justice Hardiman also observed that a trial judge who follows a binding authority that is subsequently overturned by a higher court does not commit an error.

Both parties agreed that a decision on a retrial should be set aside until after the substantive issues were determined.

UK: Local authorities have a statutory duty to provide accommodation in the area in so far as reasonably practicable

The Supreme Court has ruled that local authorities have a statutory duty to provide accommodation in "so far as reasonably practicable" under section 208(1) of the Housing Act 1996.

The case was taken by Titina Nzolameso, a single mother of five children. Ms. Nzolameso has long standing health problems including HIV. The introduction of a cap on Local Housing Allowance in 2012 resulted in her family's eviction from a privately rented four bedroom house in November 2012.

Following the family's eviction, Ms. Nzolameso applied to Westminster City Council under the homelessness provision of the 1996 Act. The family were temporarily housed in a hotel in the Royal Borough of Kensington and Chelsea on a bed and breakfast basis.

On January 24th, 2013, the Council offered Ms. Nzolameso temporary accommodation in Bletchley, near Milton Keynes, due to "a severe shortage of accommodation in Westminster".

When Ms. Nzolameso rejected the offer, the Council issued a letter headed "Notice that our housing duty has come to an end" under section 193(5) of the 1996 Act. Ms. Nzolameso appealed, however the appeal to the reviewing decisions officer was rejected. This was followed by unsuccessful appeals to the London Central County Court in October 2013, and the Court of Appeal in October 2014. After being refused judicial review of the County Court ruling, the Council stopped providing temporary accommodation. Subsequently, Ms. Nzolameso, after the Children's Services Department refused to accommodate the whole family, asked the Department to provide the children with accommodation.

In a unanimous Supreme Court judgment, Lady Hale found that:

There is little to suggest that serious consideration was given to the authorities obligations before the decision was taken to offer the property in Bletchley. At that stage, the temporary lettings team knew little more than what was on the homelessness application form. This did not ask any questions aimed at assessing how practicable it would be for the family to move out of the area. Nor were any inquires made to see whether school places would be available in Bletchley and what [Ms. Nzolameso's] particular medical conditions required.

Therefore, Lady Hale concluded, the Council still owed Ms. Nzolameso a duty to secure accommodation.

Lady Hale also set out guidelines. The first guideline provides that every local authority have "a policy for proving sufficient units of temporary accommodation" to meet the anticipated annual demand. The second guideline provides that every local authority have a policy for the allocation of those units to individual homeless households. Moreover, where a shortage is anticipated in Borough Units, the policy should outline the factors taken into account in offering units close to home, and the factors that would make it suitable to accommodate a household further away. Both policies should be kept up to date and made publicly available.

Finally, Lady Hale rejected the standard paragraph used in the letter purportedly explaining the reviewing officer's decision. However, Lady Hale did not set out any guidelines for local authorities to ensure that their decisions are evidenced and explained properly.

EW: Absconder policy inconsistent with Directions to Parole Board

The Divisional Court of the High Court has ruled the prisoner "absconder policy" is inconsistent with the Secretary of State's Directions to the Parole Board of England and Wales. 

The case challenging the policy was taken by John Gilbert. Mr. Gilbert pleaded guilty to wounding with intent to cause grievously bodily harm in April 2008. He received the maximum term of four years and six months minus the time spent on remand.

The policy was introduced by the Secretary of State in May 2014 with immediate effect. Published in August 2014, the policy was an interim amendment to the PSO 6300 Release on Temporary Licence. This came in response to three serious incidents of offences committed by prisoners on release on temporary licence in the summer of 2013, and high profile prisoner absconds in 2014.

In November 2012 the Parole Board recommended the transfer of Mr. Gilbert to open conditions. Following the recommendation Mr. Gilbert was transferred to HMP Stanford Hill prison in January 2013. His sentence plan included gradual progression to 'release on temporary licence'.

After a successful period in open conditions, including being released on temporary licence on three separate days, Mr. Gilbert failed to return to prison after missing the train on June 2nd, 2013, by 7pm. The following morning Mr. Gilbert surrendered to Eastbourne police station.

As a consequence of the policy Mr. Gilbert was ineligible for transfer to open conditions. On August 15th, 2014, Mr. Gilbert was refused a transfer to open conditions.

Rejecting the "absconder policy" as inconsistent, the Court reasoned:

It is irrational to say in two policy documents in force at the same time (a) in most cases phased release via open conditions will be necessary to test whether the prisoner can be safely released into the community but (b) if the prisoner has failed on one occasion to return from [release on temporary licence], only in exceptional circumstances will it be necessary (or "absolutely necessary") to operate a phased release via open conditions to test whether the prisoner can be safely released into the community.

The Court granted the Secretary of State permission to appeal against the judgment. However the Court rejected an application for a stay pending the outcome of an appeal.

UK: A decision of a judicial body should be final and binding and not capable of being overturned by a member of the Executive

The Supreme Court has ruled that Dominic Grieve, as Attorney General, did not have the power to overturn the determination of the Upper Tribunal, that twenty-seven letters exchanged between Prince Charles and ministers in seven government departments between 2004 and 2005 should be released.

The question posed to the Supreme Court was:

[...] whether communications passing between HRH The Prince of Wales and ministers in various government departments [...] between September 2004 and March 2005 [...] should be disclosed pursuant to a request made by Rob Evans, a journalist who works on the Guardian newspaper.

The Supreme Court judgment brings to an end the ten-year protracted legal battle. In April 2005 Rob Evans requested the disclosure of the letters under section 53(2) of the Freedom of Information Act 2000 and regulation 18(6) of the Environmental Information Regulations 2004. Initially the departments refused to confirm having possession of the letters, but later acknowledged it. However the departments refused to disclose the letters, considering the letters exempt  from the Act and the Regulations. Following this, Mr. Evans complained to the Information Commissioner, but the Commissioner upheld the departments' refusal in a reasoned determination in December 2009. Mr. Evans appeal to the First-tier Tribunal was transferred to the Upper Tribunal, which issued a reasoned determination in September 2012.

The departments did not appeal the determination of the Upper Tribunal. On October 16th the Attorney General issued a certificate claiming that he had formed the view that the departments had been entitled to refuse disclosing the letters and outlined his reasoned.

Mr. Evans sought to overturn the Certificate on the ground that the reasoning outlined by the Attorney General did not constitute reasonable grounds within the meaning of section 53(2) and, or because the "advocacy correspondence" was concerned with environmental issues, therefore the Certificate was in breach of Directive 2003/4/EC and, or Article 47 of the Charter of Fundamental Rights of the European Union. Mr. Evans' claim was dismissed by the divisional Court of the High Court, but was upheld by the Civil Division of the Court of Appeal on both grounds.

In a five-two majority verdict Lord Neuberger upheld the Court of Appeal judgment, that it is not reasonable for a member of the Executive to issue a certificate simply because he differs in opinion from that adopted by a court, for two reasons.

One, to allow a member of the Executive to overrule a judicial decision breaches two constitutional principles. The decision of a court is binding between parties and cannot be ignored  or set aside, and the decisions and actions are open to review by the court at the suit of an interested party.

Two, the earlier conclusion was reached by the Upper Tribunal, a court of record, after a full public oral hearing. In contrast, the later conclusion was reached by an individual who consulted one side of the correspondence, without argument on behalf of Mr. Evans, received no fresh facts, and simply differed in opinion.

In determining on what grounds a certificate can be issued, Lord Neuberger agreed Lord Dyson Master of the Rolls in the Court of Appeal:

Examples of what would suffice are that there has been a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law.

Moreover, Lord Neuberger concluded that the limitation on the grounds upon which a certificate  can be issued also apply following a decision of the First-tier Tribunal.

Although not strictly necessary, Lord Neuberger also considered the effect of the 2003 Directive on the Certificate, concluding that it would have been invalid in so far as it related to environmental information contained in the advocacy correspondence. 

UK: Benefit Cap (Housing Cap) Regulations 2012 are lawful

The Supreme Court has upheld the benefits caps imposed by the Government as lawful. However, the Court found that the effect of the policy breach the government's obligations under the United Nations Convention on the Rights of the Child.

The lawfulness of the benefits cap was challenged by two single mothers on the ground that it is discriminatory and unfair. It was also submitted that the cuts imposed amounted to a violation of human rights and that the effect was disproportionate on women, particularly for those seeking to escape domestic violence.

'SG', is a single mother with six children residing in a two-bed flat in East London. The impact of the benefit cap leaves her and her six children with £80-a-week to live on.

'NS' has three children. 'NS' and her three children reside in a two-bed flat in outer London after a history of domestic violence and sexual abuse in her marriage. The impact of the benefit cap leaves her with a shortfall of £50-a-week in rent.

In a three to two majority verdict the Court found the Benefit Cap (Housing Benefit) Regulations 2012 were not unlawful under Article 14 of the European Convention on Human Rights together with Protocol 1 to the Convention.

In finding the government are in breach of obligations under the United Nations Convention on the Rights of the Child, the Court found the Secretary of State for Work and Pensions had failed to:

[...] show how the cap was compatible with his obligation to treat the best interests of the child as a primary consideration.

However, Lady Hale in her dissenting opinion noted that the benefits cap breaks the chain between the benefit and need:

Claimants affected by the cap will, by definition, not receive the sums of money which the state deems necessary for them adequately to house, feed, clothe and warm themselves and their children.

The benefits cap limits the maximum a family can claim to £500-a-week, equivalent to the average earnings of a working household. The benefits cap applies regardless of the number of children in the family or the level of local rents.

CJEU(O): Non-consultant hospital doctors are entitled to a minimum rest period

The Court of Justice of the European Union has found Ireland is in breach of European Union Directive 2003/88/EC (Organisation of Working Time Directive) concerning the working hours of non-consultant hospital doctors (NCHDs).

The European Commission took the action against Ireland for failing to fulfill its obligations under Article 3, Article 5, Article 6, Article 17(2) and Article 17(5) of the Directive.

In January 2012 the Irish Medical Organisation (IMO) and the Health Service Executive (HSE) signed a collective Agreement concerning the working time of non-consultant hospital doctors. The agreement sets out a standard employment contract for non-consultant hospital doctors.

Under the current conditions, the work of non-consultant hospital doctors is split between time allotted for training and time spent treating patients. However, Clause 3(a) of the Agreement stipulates that:

[...] time spent training as scheduled in the duty roster and at a time when the NCHD is not on call is not to be counted as working time.

Advocate General Bot found non-consultant hospital doctors are entitled to a minimum rest period, and the decision not to include the training time in the calculation of the working time for non-consultant hospital doctors "encroaches on the minimum rest period". Moreover, Advocate General Bot found the time spent training and the time spent treating patients are intrinsically linked.

Ireland incorporated the Directive into national law through the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004, as amended by the 2010 Regulations.

Although the opinion of Advocate General Bot is not binding, the Court of Justice usually upholds the opinion handed down. The Court of Justice is expected to provide a binding judgment later this year.

UK: Court has no power to strike out an application for financial provision as an abuse of process, even where there is no reasonable prospect of success

The Supreme Court has given permission to Kathleen Wyatt, a divorced woman, to file a claim seeking a financial order thirty-two years after splitting from her then husband, Dale Vince.

The two met in 1981, aged 21 and 19 respectively, marrying later that year. Ms. Wyatt bore a child from a previous relationship when she met Mr. Vince.

The couple had a son together in 1983 in Norfolk after which they split up. The couple legally divorced in October 1992. Subsequently, Ms. Wyatt had two more children from a later relationship.

Mr. Vince, now a wealthy businessman, started out by experimenting in wind power at Glastonbury, fixing a windmill to a pylon and charged mobile phone batteries. In 1996 Mr. Vince began earning a substantial income after securing a bank loan for a wind turbine at Nympsfield and founded Ecotricity - a green energy company.

Ms. Wyatt, who raised the split couple's only child, currently residing in Monmouth is seeking a financial order of £1.9 million. Mr. Vince resides in Gloucestershire with his second wife. Ecotricity has an estimated worth of £57 million.

The Supreme Court held in a unanimous judgment that the Family Division of the High Court could not strike out any claim without the issues being fully considered.

However, Lord Wilson warned of the "formidable difficulties" Ms. Wyatt faces in successfully seeking a financial order due to the lengthy delay and the fact that the relationship lasted less than three years.

But Lord Wilson observed that Ms. Wyatt may be able to rely on the fact that she play a greater role in raising their only child, justifying the financial order.

While Lord Wilson ruled out the prospect of an award approaching £1.9 million, he warned that it is:

[...] a dangerous fallacy, albeit currently propounded by those who favour reform along the lines of the Divorce (Financial Provision) Bill currently before the House of Lords, that the current law always requires rich men to meet the reasonable needs of their ex-wives. 

Ms. Wyatt will now have to seek any financial order in the Family Division of the High Court.

The Oireachtas may not delegate points of principle and policy

The Court of Appeal has ruled that legislation prohibiting the sale of psychoactive substances is unconstitutional.

The three-judge Court unanimously found Section 2(2) of the Misuse of Drugs Act 1977 violates Article 15.2.1 resulting in the secondary legislation the Misuse of Drugs Act 1977 (Controlled Drugs) (Declaration) Order 2011 (S.I. No. 551 of 2011), invalid.

Mr. Justice Gerard Hogan found Section 2(2) of the 1977 Act unconstitutional because the section proclaims to give law making powers to the government that, in the absence of appropriate principles and policies, are vest exclusively in the Oireachtas:

The fundamental difficulty here is that the 1977 Act determined that only "certain" dangerous or harmful drugs would be controlled, thus leaving important policy judgments to be made by the Government rather than by the Oireachtas. 

The case concerned the prosecution of Stanislav Bederev, who was charged on April 26th, 2012, for possession for sale of Methylethcathinone. Mr. Bederev brought a High Court challenge seeking to halt criminal proceedings on the grounds that section 2(2) of the 1977 Act was unconstitutional, thus invalidating the 2011 Order.

In May 2014, Mr. Justice Paul Gilligan found the legislation was directed at drugs that would have a negative and detrimental effect on individual health and society.

Comment: Despite what was reported in the media in the 24 hours after the judgment, the Court of Appeal did not accidentally legalise hard drugs.  

EW: Smoking ban applies to Crown prisons

The Administrative Division of the High Court has ruled that the prohibition of smoking in certain premises, places and vehicles applies to state prisons for which the Crown is responsible.

The case was taken by Paul Black, a prisoner at HMP Wymott since 2009. Mr. Black, convicted in 2007, is serving a sentence of indeterminate detention for public protection for sexual assault and outraging public decency. Mr. Black is a non-smoker with a history of serious health problems including angina and dysphnoea. In 2009 he required surgical intervention for an anterior myocardial infarction.

Three submissions were made on behalf of Mr. Black. The third submission, that the failure to enforce Rule 20(1) and Rule 34(2) of the Prison Rules 1999 is a breach of Mr. Black's expectations and the public law duty on the Secretary of State, was rejected because:

[...] the concept of legitimate expectation has nothing to do with the present case. As I understood it, reliance upon that concept was fairly abandoned at the hearing before me. The reason for this is that the present case does not concern a policy; it concerns a rule of law [...]

The second submission, that the Smoke Free Compliance Line be accessible, confidential and anonymous under Article 8 and Article 14 of the European Convention on Human Rights, was also rejected:

In my judgment, the difficulty with [Mr. Black's] submission on this narrower ground is that there is no authority to support it, whether in the European Court of Human Rights or in the domestic Courts.

However, Mr. Justice Rabinder Singh did accept that Chapter 1 of Part 1 the Health Act 2006 applies to prisons for which the Crown is responsible:

In my judgment, the Secretary of State has proceeded on an erroneous understanding of the law. In my view, Chapter 1 of Part 1 of the Health Act 2006 does apply to prisons and in particular to state prisons, for which the Crown is responsible.

The appropriate form of relief is yet to be decided by Mr. Justice Singh.

NI: Facebook liable for privacy breach for failing to disable access to content

The High Court in Northern Ireland has awarded £20,000 in damages to a convicted sex offender for the misuse of private information.

Facebook Ireland Limited hosted a page operated by Joseph McCloskey entitled, 'Keeping our Kids Safe from Predators 2". The social media giant also hosted a page by RS, the father of one of CG's victims.

CG brought the case seeking damages and an injunction on the basis that Facebook and Mr. McCloskey misused private information, breaching Article 2, Article 3 and Article 8 of the European Convention on Human Rights, and are guilty of actionable negligence.

The case relates to a series of postings on Facebook. The first series of posting was on the profile page of Mr. McCloskey in April 2013, attracting more than 180 comments, all hostile to CG. The contents were removed by early June. The second series of postings was on the profile page of RS, appearing in November 2013 and removed in early December. The second series of postings included a photograph of CG, shared more than 1,600 times and the name of the area CG was thought to reside in. The third series of postings also appeared on the profile page of RS in late December 2013, removed in January 2014.

The High Court heard the system operated by Facebook to remove content requires the complainant to provide the Uniform Resource Locator (URL) for each posting which a complaint is made about. Mr. Justice Stephens observed that this requires the complainant to accurately record the URL for each posting, and requires the reasons to be provided as to why each posting should be removed. Mr. Justice Stephens described this system as "laborious":

The question also arises as to whether the requirement to have the URLs of each comment about which complaint is being made merely creates the potential for entering into endless and in some circumstances fruitless correspondence because with each new posting there is a new URL so there is endless potential to identify each URL given the speed with which comments can be added.

In evidence, CG explained that he was extremely concerned by the postings on Facebook, living in fear because he anticipated violence. This affected his relationship with his disabled child, who was concerned about being seen in the company of CG.

Mr. Justice Stephens held that CG had an expectation of privacy concerning his criminal convictions, the sentencing, and his personal information or information about his family. However, the expectation of privacy had to be balanced against the right to freedom of expression for Facebook and Mr. McCloskey.

In concluding, Mr. Justice Stephens held that the actions of Mr. McCloskey:

[...] incited violence and hatred. It was indiscriminate and led to the potential for public order situations to develop. It was an attempt to hunt a sex offender, to drive him from his home and to expose him to vilification. All of the content of the profile/page [...] in relation to CG was oppressive and unreasonable and there was a course of conduct over a period of time which amounted to harassment of CG and which both [Facebook] and [Mr. McCloskey] knew or ought to have known amounted to harassment of him.

Mr. Justice Stephens found Mr. McCloskey liable for the misuse of private information and for harassment. However, no finding were made in respect of any breach of the Data Protection Act 1998 because no case was pleaded. However, Mr. Justice Stephens found that the failure of Facebook to delete the postings amounted to misuse of private information.

Mr. Justice Stephens granted CG the injunction preventing Mr. McCloskey from harassing him by any means. While Facebook was ordered to remove the "Keeping our Kids Safe From Predators 2" page. Finally, Mr. Justice Stephens awarded £15,000 in damages against Facebook and Mr. McCloskey for the postings by Mr. McCloskey, and £5,000 against Facebook for the postings by RS.