Review of significant caselaw

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Electoral Law

Moohan v Lord Advocate [2014] UKSC 67

The appellant prisoners (M) appealed against a decision ([2014] CSIH 56, 2014 S.L.T. 755) that the blanket ban on prisoners voting in the Scottish independence referendum was not unlawful. M had made an unsuccessful application for judicial review of the Scottish Independence Referendum (Franchise) Act 2013, which based the franchise for the referendum on the franchise for local government elections, which was determined by the Representation of the People Act 1983. Section 2(1)(b) of that Act provided that a person who was subject to any legal incapacity to vote would not be entitled to vote at a local government election. Section 3(1) incapacitated convicted prisoners from voting. M argued that the 2013 Act's blanket disenfranchisement of convicted prisoners in relation to the referendum was ultra vires the Scottish Parliament on the following grounds: it was incompatible with ECHR Protocol 1 art.3; it was incompatible with ECHR art.10; it was incompatible with EU law; it contravened the substantive requirements of the International Covenant on Civil and Political Rights 1966; it was incompatible with the basic democratic principles of the common law constitution, namely the principle of universal suffrage and the concomitant fundamental right to vote; it contravened the common law requirements of the rule of law.

Held: appeal dismissed. (Lords Kerr and Wilson dissenting on the issue of ECHR Protocol 1 art.3) (1) The ordinary meaning of the words of Protocol 1 art.3 strongly supported the view that the signatories of the ECHR were undertaking to hold periodic elections to a democratically elected legislature. The requirement that the elections were held "at reasonable intervals" also suggested that the drafters of the article did not have referendums in mind. The words in their ordinary meaning did not support a wider view that the article was intended to cover any major political decision which was put to a popular vote, however important that decision might be. Further, there was no real support for M's position in the Strasbourg jurisprudence. There was no clear direction of travel in that jurisprudence to extend the article to referendums. On the contrary, between 1975 and 2013 there had been at least 12 applications in which claims under the article concerning a right to vote in referendums had been rejected as inadmissible (see paras 8, 15 of judgment). (2) The courts below had been correct to hold that art.10 did not confer any wider right to vote than was conferred by Protocol 1 art.3 (para.19). (3) There had been no breach of EU law. First, a "yes" vote in the referendum would not itself determine the citizenship of M or others born in Scotland. Second, the instant court had recently held that EU law did not incorporate any right to vote, such as that recognised in the Strasbourg court's case law on the ECHR (paras 22-24). (4) M's submission that the Scottish Parliament lacked the competence to legislate in breach of art.25 of the International Covenant on Civil and Political Rights failed to allow for the fundamental separation of powers in our constitution. The UK Parliament and the Scottish Parliament made laws; the executive branch of the UK Government made international treaties; but unless those treaties were incorporated into law, they did not affect domestic rights (para.29). (5) It could not be said that the common law had been developed so as to recognise a right of universal and equal suffrage from which any derogation had to be provided for by law. It had been our constitutional history that the right to vote had been derived from statute. The UK Parliament through its legislation had controlled the modalities of the expression of democracy. It was not appropriate for the courts to develop the common law in order to supplement or override the statutory rules which determined our democratic franchise (para.34). (6) There could be no separate argument that the rule of law encompassed a universal right to vote (para.38). (7) (Per Lord Kerr) The primary aim of Protocol 1 art.3 was to ensure that citizens should have a full participative role in the selection of those who would govern them. Given that a referendum as to whether Scotland should become an independent nation would have made a critical difference to the form of government to which M and other citizens in Scotland would be subject, the right to vote in this particular referendum should be recognised as an undeniable aspect of M's Protocol 1 art.3 right (para.69).

Mental Health and Deprivation of Liberty
M v State Hospitals Board for Scotland [2014] CSIH 71

The State Hospitals Board for Scotland (S) reclaimed against a decision of the Lord Ordinary (i) holding unlawful S's decision to prohibit smoking and the possession of tobacco in the buildings and grounds of the state hospital in so far as it affected a patient (M) on the basis that the decision had not been taken in accordance with the principles set out in the Mental Health (Care and Treatment) (Scotland) Act 2003 s.1; and (ii) holding that M's rights under the ECHR art.8 and art.14 had been breached (M v State Hospitals Board for Scotland [2013] CSOH 143, 2013 S.L.T. 1001). M cross appealed against the Lord Ordinary's decision not to award him damages in just satisfaction for the breach of his Convention rights.

Held: Reclaiming motion allowed (Lady Paton dissenting in part). (1) None of the three elements of mora, taciturnity and acquiescence had been made out: it was apparent throughout the period after the critical decision was made that a legal challenge was in the offing, and after intimation of M's claim, he was actively engaged in securing legal aid to pursue it. (2) There was no need for S to apply the principles in s.1 of the 2003 Act where there was a distinction to be made between a particular patient's care and treatment, including the security conditions under which he was detained, and a hospital's general management; in the absence of evidence that smoking was a component part of M's medical care plan, the question whether he, or any other patient, should be permitted tobacco or allowed to smoke was a matter for S, exercising their management powers under the National Health Service (Scotland) Act 1978, and did not involve the discharge of a function under the 2003 Act. (3) S's concession in L v Board of State Hospital [2011] CSOH 21, 2011 S.L.T. 233, to the effect that in making decisions about patients' management and welfare it was under a duty to apply the 2003 Act principles, was not wholly accurate as these principles had only to be applied when the decisions concerned particular patients' care and treatment or security conditions and other related matters as covered by the 2003 Act, L, considered. (4) M had standing to challenge by judicial review any management decision by S which gave him reasonable concern, even if it was not one affecting his civil right or patrimonial interests. (5) The court could neither agree with the Lord Ordinary's view that S's actings were contrary to government policy, nor his view that the decision to build a smoke free hospital was questionable in terms of the legal or policy context, or that it put it beyond their power to take advantage of the exemption for psychiatric institutions. (6) It was not appropriate for the court to go behind a conclusion reached by professionals who were experts in the field by saying, as the Lord Ordinary appeared to have done, that a partial smoking ban was workable so far as M was concerned: it was not practical to suggest that M alone would be allowed to smoke in the absence of any clinical imperative, and there was nothing to suggest that the consultation carried out during the partial ban had not been meaningful. (7) There was no reason to hold that S's decision was unlawful because of the process adopted, any irrationality, or any fault in the reasons given. (8) Detained persons enjoyed the same rights under the Convention as others except in so far as a restriction fell within the scope of lawful detention in terms of art.5, or was a necessary consequence of such detention, thus in order to constitute a violation of art.8, the conditions of detention founded upon had to be more restrictive than those inherent in an otherwise lawful detention, Munjaz v United Kingdom (2913/06) [2012] M.H.L.R. 351, applied. (9) S's decision represented a restriction consequent upon patients' lawful detention in terms of art.5, and M's right to respect for private life extended only to protection against interference beyond the concomitants thereof. Per Lady Paton, dissenting in part, (1) that smoking was such an addictive activity that it was very much part of an individual's personal autonomy, thus art.8 was engaged but bearing in mind the nature of the mental disorders suffered by state hospital patients, the types of item required to smoke, the degree of organisation and supervision required to enable patients to smoke without harming themselves or others, and the prejudicial effect for some patients of the interaction of the smoking and their medication and of secondary cigarette smoke upon non-smokers, the smoking ban imposed by S was necessary in the interests of public safety, the prevention of crime, and for the protection of health; (2) that relative comparators for art.14 purposes would be other NHS hospitals and their patients, where smoking was completely banned, thus there had been no discrimination. Opinion, (1) that the Lord Ordinary had been correct in holding that, if the 2003 principles did apply, they had not been complied with; (2) that the Lord Ordinary's opinion that the smoke free policy was imposed on mental health detainees and not prisoners because the former were not in a position to defend themselves was without foundation; (3) that since art.8 was not engaged, its potentially discriminatory application under art.14 did not arise but had art.8 been engaged, in assessing any form of discrimination, a comparison with prisons would not have been appropriate; (4) that there being no violation of art.8 or 14, the question of damages did not arise but had it been decided that the smoking ban had violated M's Convention rights, the Lord Ordinary's decision, that a finding of breach alone was the just and appropriate remedy, would have been upheld.

Johnstone v Scottish Ministers [2015] CSOH 121; 2015 G.W.D. 30-496
A prisoner (J), detained in the state hospital (H), petitioned for judicial review of the refusal of the Scottish Ministers (M) to transfer him to the prison regime. On 8 April 1998, J had pleaded guilty to culpable homicide on the basis of diminished responsibility. The trial judge had accepted the evidence of two psychiatrists inter alia that J constituted a serious danger to society by reason of his mental state and had made an order under the Criminal Procedure (Scotland) Act 1995 s.58 for J's detention in H, and an order under s.59, restricting J's discharge from H without limit of time. J was now diagnosed with a dissocial personality disorder, which was such that were he to be released, he would pose a risk of serious harm to the public, thus he was not presently eligible for release under the mental health regime. J contended that treatment for his condition could equally be provided in prison, and sought to be transferred thereto, with a view to his eventual release, where he expected to be provided with a reasonable opportunity of taking steps to rehabilitate himself and, in due course, to demonstrate to the Parole Board that he no longer presented an unacceptable danger to the public. J claimed that the lack of any means by which he could be transferred to prison breached his rights under the ECHR and sought declarator that the relevant provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 were incompatible with his ECHR rights, that M had breached his rights under art.3 and art.5, and damages of £10,000.
Held: Petition refused. (1) There was binding authority in the Privy Council, consistent with Strasbourg authority, to the effect that the continued detention in H of a person with a mental impairment, such as J, under provisions similar to those now contained within the 2003 Act, did not infringe his Convention rights, even where his mental condition was untreatable and his continued detention was on grounds of public safety, moreover, there was no support for the proposition that art.5(1)(e) could only be invoked as a justification for depriving a person of their liberty if the medical impairment was so serious as to necessitate treatment to cure or alleviate it; it could not be said that the provisions of the 2003 Act which permitted the detention of a person with a mental impairment in a mental institution on grounds inter alia of public safety, and did not require a person suffering from a medical impairment to be transferred to the prison environment in circumstances where there was no effective treatment available within the mental institution, were non-compliant with the Convention, further, J's continued detention in H did not breach art.5 thereof, Anderson v Scottish Ministers [2001] UKPC D 5, [2003] 2 A.C. 602 and Hutchison Reid v United Kingdom (50272/99) (2003) 37 E.H.R.R. 9, followed and Glien v Germany (Application No.7345/12), considered . (2) The 2003 Act enabled the condition of someone detained within H to be reviewed on a regular basis by an independent tribunal (T), with the opportunity of appeal to the court; J had not taken up his opportunity of producing evidence and being represented at T's latest hearing, or of appealing its decision, and were T's decision open to doubt, it would be wrong for the court to overturn it on a petition for judicial review when J had not availed himself of the opportunities open to him to influence or challenge it. (3) Both the responsible medical officer's annual report and T's decision appeared to confirm that J continued to benefit from treatment which was only available to him within H, thus, could J not lawfully be detained in a mental institution when there was no treatment available there for his condition, he could not yet, on that account, be released or transferred. (4) J's detention in H was lawful according to domestic law and was compliant with his rights under art.5(1)(e) of the Convention, J had not averred any circumstances of his treatment which would take his case beyond the inevitable element of suffering and humiliation involved in a detention such as his and his art.3 claim therefore had to fail, there was no merit in his petition and the question of damages did not arise.

Cheshire West and Chester Council v P [2014] UKSC 19; [2014] A.C. 896; [2014] 2 W.L.R. 642; [2014] 2 All E.R. 585.

The appellants (P, X and Y) appealed against decisions ([2011] EWCA Civ 1257, [2012] P.T.S.R 1447 and [2011] EWCA Civ 190, [2012] Fam. 170) that living arrangements made for them by the respondent local authorities did not amount to a deprivation of liberty under the ECHR art.5. P had cerebral palsy and Down's syndrome and required 24-hour care. He was in supervised local authority accommodation. Intervention was required to cope with his challenging behaviours, including use of restrictive clothing and the insertion of fingers into his mouth to prevent him from eating his continence pads. The Court of Protection concluded that he was being deprived of his liberty, but that it was in his best interests. The Court of Appeal found that he was not being deprived of his liberty. X and Y were sisters with significant learning difficulties. X was in foster care with intensive support in most aspects of daily living. She would be subject to restraint if she attempted to leave the house. Y was in residential care and under continuous supervision and control. The Court of Appeal upheld a decision that X and Y's living arrangements were in their best interests and did not amount to deprivation of their liberty, referring to the "relative normality" of their lives compared with the lives they might have had if still living with their family.

Held: Appeals allowed. (Lords Carnwath, Hodge and Clarke dissenting in X and Y's appeals). (1) The cases involved consideration of the criteria for determining whether the living arrangements made for a mentally incapacitated person amounted to a deprivation of their liberty. The deprivation of liberty safeguards in the Mental Capacity Act 2005 sought to secure professional assessment, independent of the hospital or care home in question, regarding whether the person lacked the capacity to make their own decision about accommodation, and whether it was in their best interests to be detained. The European Court of Human Rights had not dealt with a case combining certain features of the instant cases, including: (a) a person who lacked legal and factual capacity to deal with their own placement but had not evinced dissatisfaction or objection; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which was as close as possible to "normal" home life; and (c) the initial authorisation of that placement by a court as being in the person's best interests. It was axiomatic that people with mental and physical disabilities had the same human rights as everyone else. It might be that those rights had to sometimes be restricted, but the starting point should be the same. Far from disability entitling the state to deny such people human rights, it imposed a duty to make reasonable accommodation to cater for their special needs. Those rights included the right to physical liberty, as guaranteed by art.5. That was not a right to do what, or to go where, one pleased. It was a more focused right not to be deprived of that physical liberty. The "relative normality" approach adopted by the Court of Appeal, was rejected in P's case, as it was inconsistent with the view that people with disabilities had the same rights as everyone else. The approach had more application to X and Y's case, but did not answer the question of whether it involved a deprivation of liberty in other respects for which the state was responsible. The answer was in the key feature that the person concerned "was under continuous supervision and control and was not free to leave", HL v United Kingdom (app. no.45508/99) (2005) 40 E.H.R.R. 32 applied. The person's compliance or lack of objection was not relevant; the relative normality of the placement, whatever the comparison made, was not relevant; and the reason or purpose behind a particular placement was also not relevant. It was easy to focus on the positive features of the placements for all three appellants, but the purpose of art.5 was to ensure that people were not deprived of their liberty without proper safeguards. Because of the extreme vulnerability of people like P, X and Y, a periodic independent check on whether the arrangements were in their best interests was needed. The CoP decision in P's case would be restored and a declaration made that X and Y's living arrangements constituted a deprivation of liberty within the meaning of s.64(5) of the 2005 Act (see paras 1, 8-10, 32, 45-58 of judgment). (2) (Per Lords Carnwath, Hodge and Clarke) A further feature of the instant cases that the ECtHR had not yet ruled on was the fact that the regimes involved were no more intrusive or confining than was required for the protection and well-being of the person concerned. The attractions of a universal test, applicable to all regardless of physical or mental difficulties, were recognised, but the ECtHR had remained wedded to a case-specific test. There was also concern that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. X and Y could be said to have had their liberty restricted compared with a person with unimpaired health and capacity. However, that was not the same as a deprivation of liberty (paras 88-104).
In the European Court we have Stefan Stankov v Bulgaria (no. 25820/07). There on 21 May 1999 a court declared Mr Stankov to be partially incapacitated on the grounds that he suffered from schizophrenia, which had led to a change in personality and deprived him of the ability to manage his own affairs and interests. Mr Stankov’s mother was appointed as his guardian. On 22 June 1999 she asked the social services to take her son into care. On 30 June 1999 Mr Stankov was admitted to the Dragash Voivoda home for men with mental disorders, an institution under the responsibility of the Ministry of Labour and Social Policy. On 26 September 2002 he was transferred to the Rusokastro home for adults with a mental deficiency, which was under the responsibility of the same Ministry. In June 2006 Mr Stankov, through his lawyer, asked the public prosecutor’s office to apply to the Regional Court to have his legal capacity restored on the grounds that his condition allowed him to manage his own interests. The prosecutor refused to institute proceedings for restoration of his legal capacity. Mr Stankov submitted in particular that his placement in a social care home was in breach of arts. 3, 5(1), 5(4), 5(5), 6(1) and 13 ECHR.
On the merits, the Court reiterated its settled jurisprudence on Article 5(1): to determine whether someone has been deprived of their liberty within the meaning of Article 5(1), the starting-point must be his specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. In the context of deprivation of liberty on mental health grounds, a person can be considered to be detained even during a period when he was in an open hospital ward with regular unescorted access to unsecured hospital grounds and the possibility of unescorted leave outside the hospital (Ashingdane v. U.K., 28 May 1985, paragraph 42, Series A No. 93). Applying the law to the case before it, the Court found that the Applicant required express permission to go to the nearby village or take part in excursions organised for residents of Rusokastro institution. Moreover, a medical report on the Applicant reported ‘regular escapes’ and the Court found that the Applicant ran the risk of being sought by the police if he left the institution without permission. The duration of this treatment was indeterminate and the Applicant continued to reside there at the date of judgment, more than fifteen years after his initial placement. This was found to be a sufficiently long time for the Applicant to fully feel the negative effects of the restrictions imposed on him.
Considering the subjective question of consent to detention, the Court noted that the Applicant did not appear to have been consulted regarding the placement in 1999, despite the fact that he was capable of expressing a valid opinion and his consent was necessary under national law. Moreover, he was not a party to the contract signed between the institution and his mother. The Court found that the process for placement in the institution was similar to that in the case of Stanev v. Bulgaria (17 January 2012, Application No. 36760/06) and that the Applicant had not consented to the confinement. Referencing its decisions in Shtukaturov v Russia (27 March 2008, Application No. 44009/05, paragraph 108) and Stanev (paragraph 130), the Court opined that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation. It noted that, even if the Applicant had not explicitly expressed his objections to the placement, he demonstrated this through his attempted escapes and his repeated requests to the directors of the institutions and his guardians to leave. Finally, the Government had not shown that the Applicant’s consent was sought according to a fair and proper procedure and that all necessary information was provided to him.
In light of all of these points and the role of the State in his institutionalisation, the Court found that the placement amounted to a deprivation of liberty. It found that Bulgarian law does not provide for automatic and periodic judicial oversight of placement of people in social care institutions and that there is no recourse to contest the lawfulness of the detention because it is not viewed in the national legislation as a deprivation of liberty.
The Court reiterated that, in order to fall within the ambit of Article 3, treatment must reach a minimum level of severity, taking into account the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects, and, in some instances, the sex, age and state of health of the victim (Kudła v Poland [GC], Application No. 30210/96, ECHR 2000-XI, paragraph 90). The Court recalled that Article 3 applies equally to all forms of deprivation of liberty: it is immaterial whether the measure entails detention ordered in the context of criminal proceedings or admission to an institution with the aim of protecting the life or health of the person concerned (Stanev, paragraph 206). The Court relied on its jurisprudence in Z.H. v Hungary (Application No. 28973/11, 8 November 2012, paragraph 31) to find that, because the Applicant is a member of a particularly vulnerable group and, as such, should have benefited from reasonable steps by the authorities to prevent situations likely to result in inhuman and degrading treatment, it was incumbent on the Government to prove that they took the requisite measures. It held that the Government had focused on measures taken between 2008 and 2012 to improve conditions in the institution but had failed to discharge its obligation of proof pertaining to conditions and punishments suffered by the Applicant prior to 2008.
The Court stated that, although the Applicant shared a room measuring 16 sq. m with three other residents, he enjoyed considerable freedom of movement both inside and outside the home, a fact likely to lessen the adverse effects of a limited sleeping area. It did, however, find a violation of Article 3 in relation to the conditions in the Rusokastro institution prior to improvements in quality in 2009. The Court took into account that the Applicant was exposed to these conditions for a considerable period of approximately six years and he had already suffered similar conditions during his three years in the Dragash Voyvoda institution.
The Court referred to its settled caselaw whereby compensation for non-pecuniary damage flowing from a breach of Article 3 should, in principle, be part of the range of available remedies under Article 13. Given that national law provided no effective remedy, it found a violation of Article 13. On Article 6(1) the Court quoted extensively from its judgment in Stanev v Bulgaria on the failure of Bulgarian law to allow the possibility of a person under partial guardianship to apply to a court for restoration of his legal capacity, finding in favour of the Applicant. Bulgarian law does not clearly accord a right of direct access to the courts for people partially or completely deprived of legal capacity to seek restoration of their legal capacity or provide for automatic periodic review of whether the grounds for placing a person under guardianship remain valid. It quoted the statement in Stanev that restrictions on a person’s procedural rights, even where the person has been only partially deprived of legal capacity, may be justified for the person’s own protection, the protection of the interests of others and the proper administration of justice. Access to a court to review a declaration of incapacity is one of the most important rights for the persons concerned and the Court therefore considers it one of the fundamental procedural rights for the protection of those who have been partially deprived of legal capacity.

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