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.

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.

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.

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.

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.

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.

UK: Prisoner disenfranchisement is not a fundamental feature of the law

The Supreme Court has dismissed appeals by two convicted murderers who argued that European Union law gave them the right to vote in UK elections.

Peter Chester, who is serving a life sentence in the UK, and George McGeoch, who is behind bars in Scotland, both tried to sidestep British legislation over prisoner voting rights. The European Court of Human of Rights in Strasbourg having in the past deemed Britain's voting ban for all those serving a sentence illegal.

The Supreme Court observed that since the European Court of Human Rights had already declared the blanket ban on prisoners voting incompatible with human rights, there was no point in repeating it.

Mr. Chester, in his 50s, is serving life for raping and strangling his seven-year-old niece, Donna Marie Gillbanks, in Blackpool in 1977. He is detained at Wakefield prison in West Yorkshire; the minimum term he was ordered to serve before becoming eligible to apply for parole has expired.

Mr. McGeoch, from Glasgow, is serving his life sentence at Dumfries prison for the murder in 1998 of Eric Innes in Inverness. He received a minimum term of thirteen years but owing to subsequent convictions, including taking two prison nurses hostage in a siege in 2001, will not be considered for parole until 2015.

Handing down the decision, Lord Mance said that:

[t]he provisions on voting contained in the applicable European treaties focus on the core concerns of ensuring equal treatment between EU citizens residing in member states other than that of their nationality, and so safeguarding freedom of movement within the EU. Eligibility to vote in member states is basically a matter for national legislatures.

The Supreme Court observed that even if voting were to be extended to some prisoners, it was unclear that either Mr. McGeoch or Mr. Chester would necessarily benefit from a change to the rules, which could exclude prisoners convicted of more serious offences.

Lady Hale, observed:

Prisoners' voting is an emotive subject. Some people feel very strongly that prisoners should not be allowed to vote. And public opinion polls indicate that most people share that view.

Lord Sumption, observed that:

In any democracy, the franchise will be determined by domestic laws which will define those entitled to vote in more or less inclusive terms [....] The exclusion of convicted prisoners from the franchise is not a universal principle among mature democracies, but neither is it uncommon.

Lord Sumption also noted:

From a prisoner's point of view the loss of the right to vote is likely to be a very minor deprivation by comparison with the loss of liberty.

Lord Sumption observed that the Strasbourg based Court had 'arrived at a very curious position', noting:

Wherever the threshold for imprisonment is placed, it seems to have been their view that there must always be some offences which are serious enough to warrant imprisonment but not serious enough to warrant disenfranchisement. Yet the basis of this view is nowhere articulated.

The Court ruled in the case of John Hirst in 2005, that a blanket ban on allowing serving prisoners to go to the polls was incompatible with the European Convention on Human Rights.

Moreover, the Court concluded that it was up to individual countries to decide which inmates should be denied the right to vote from jail, but a total ban was illegal.

In November, the Government published the voting eligibility (prisoners) draft bill for pre-legislative scrutiny by a Joint Committee of both Houses. The Bill set out three options: a ban for prisoners sentenced to four years or more, a ban for prisoners sentenced to more than six months and a restatement of the existing ban.

Update 17/12/2014: The Supreme Court has published the judgment finding that there is no common law right to vote. The case, heard in July, challenged the legality of the Scottish Independence Referendum (Franchise) Act 2013. The Act of the Scottish Parliament prohibited prisoners from voting in the Referendum. The case questioned the compatibility of the Act with Article 3, Protocol 1 of the European Convention on Human Rights and the putative common law right to vote.

UK: Assets vested in a company may belong beneficially to the controller, if the arrangement in respect of the assets are such as to make the company its controller's trustee for that purpose

The Supreme Court has ruled that assets vested in a company may belong beneficially to the controller, if the arrangement in respect of the assets are such as to make the company its controller's trustee for that purpose.

In November 2011, Mr. Justice Moylan, sitting in the High Court, ordered the husband, Michael Prest, to procure the conveyance of the matrimonial home to his wife, Yasmin Prest. Mr. Justice Moylan also ordered that Mr. Prest make a lump sum payment and periodical payments at a rate of two percent of that sum while it remained outstanding, together with school fees for the children. In addition Mr Justice Moylan awarded costs in favour of Ms. Prest, with a payment on account. He also ordered Mr. Prest to procure the transfer of seven UK properties owned by Mr. Prest's companies, Petrodel Resources Ltd and Vermont. The transfer of these seven properties to Ms. Prest is in partial satisfaction of the lump sum order.

Mr. Justice Moylan concluded that there was no general legal principle of law which entitled him to reach the companies' assets by piercing the corporate veil. This is because precedent shows that the separate legal personality of a company cannot be disregarded expect where it is being abused. While accepting there is no relevant impropriety, Mr. Justice Moylan found that in applications for financial relief ancillary to a divorce there exists a wider jurisdiction to pierce the corporate veil. 

However, the majority of the Court of Appeal disagreed with Mr. Justice Moylan. Lord Justice Rimer held that the practice developed by the Family Division was beyond the jurisdiction of the Court except where either the corporate personality was being abused, or on the particular facts of the case it could be shown that an asset legally owned by the Company was held in trust for Mr. Prest. Lord Justice Rimer considered that Mr. Justice Moylan had rejected both of these possibilities on the facts, and therefore should not have made the order.   

The question before the Supreme Court was whether the Court has the power order the transfer of seven properties to his wife given that the properties legally belong to the companies.

In his written judgment Lord Sumption outlined three possible legal bases on which the assets of the companies may be able to satisfy the lump sum order against Mr. Prest.

The first basis is where a court is at liberty to disregard to corporate veil in order to provide effective relief. On this point, Lord Sumption agreed with Mr. Justice Moylan. While Lord Sumption acknowledged that Mr. Prest has acted improperly in many ways, he found no evidence that Mr. Prest was seeking to avoid any obligation relevant to the divorce proceedings.

However Lord Sumption disagreed with Mr. Justice Moylan that the legislation on property adjustment orders in connection with divorce proceedings might be regarded as conferring a distinct power to disregard the corporate veil in matrimonial cases:

I do not accept this, any more than the Court of Appeal did. [Mr. Justice Moylan] was entitled to take account of [Mr. Prest's] ownership and control of the companies and his unrestricted access to the companies' assets in assessing what his resources were for the purpose of section 25(2)(a). But he was not entitled to order the companies' assets to be transferred to [Ms. Prest] in satisfaction of the lump sum order simply by virtue of section 24(1)(a). (emphasis added)

Lord Sumption outlined three reasons for not giving the legislation the same effect as Mr. Justice Moylan did. The first reason is because it is axiomatic that the words in the statute are not read in a way that departs from the general system of law without expressing the intention of the legislation with "irresistible clearness". The second reason is the type of transfer in this case is ordinarily unnecessary to achieve a fair distribution of the assets. The third reason is because there is legislation on the avoidance of transactions intended to prevent or reduce financial relief. This is designed, in certain circumstances, to remedy a situation where a party attempts to frustrate proceedings by disposing of assets.

The third basis is on which the companies can be ordered to convey the properties to Ms. Prest is if the properties may belong beneficially to Mr. Prest. However Mr. Justice Moylan did not feel the need to make any decision on this issue.

In respect of the matrimonial home Lord Sumption concluded that, because the Prest family were not paying rent to Petrodel Resources Limited, this is a clear case of Mr. Prest using the company as a vehicle to hold legal title on the trust for himself. While the other five properties, Lord Sumption observed, were acquired by Petrodel Resources Limited in each case for a nominal consideration of one pound. As no explanation was provided to the Court for the "gratuitous transfer", there was nothing to rebut the presumption of equity that the company was not intended to acquire a beneficial interest in the properties.

The question for Lord Sumption now, was, who did hold the beneficial interest.

Of the seven properties, two of which were acquired in the name of Vermont, Lord Sumption concluded that Mr. Prest is the beneficial owner.

Therefore, in a unanimous verdict, the Supreme Court held that all seven properties should be transferred to Ms. Prest.