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

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.

ECHR: Whole life tariffs must be subject to periodic reviews

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

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

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

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

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

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

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

Mr. Justice Tugendhat noted that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ComReg benchmarking must be in line with EU directives

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NI: Irish asylum standard not compliant with EU requirements

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

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

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

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

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

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

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

New laws must contain adequate principles and policies

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

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

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

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

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

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

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

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