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.

First civil partnership dissolution in Ireland

With kind permission of the Irish Times  

Monday, November 18, 2013 - page 2. 

Ruadhán Mac Cormaic, Legal Affairs Correspondent

Same-sex couple have civil partnership dissolved