Review of significant caselaw

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Held: Reclaiming motion refused. (1) The 15 year provisions applied only to a narrowly defined group of persons: before selecting the review period, S and Parliament had had before them three key studies, each of which examined the risk of reoffending among convicted sex offenders and made clear that there was no time at which it could be concluded that an offender presented no risk of reoffending, that a large proportion of convicted sex offenders were reconvicted of crimes within a 25 year period and that a significant number re-offended after 10 years. (2) With regard to the test for an assessment of proportionality, as set out by Lord Reed in his dissenting opinion in Bank Mellat v HM Treasury [2013] UKSC 38, [2014] A.C. 700, although it would have been possible to select a shorter period within which a review might be required, a significant element of respect for the legislature was required in what was an area of public safety, it was accepted that some requirement for notification was necessary, the requirements ought to be seen as the lowest level of general measures applicable to the category of convicted sex offenders, the objective of notification was legitimate, and there was no basis for concluding that a less drastic measure would have the same impact than that selected in terms of reducing reoffending. Allowing S and Parliament an appropriate degree of respect, it could not be maintained that the selection of 15 years was disproportionate, especially as that period might be reviewed as research developed; considering the interests of the individual and the risks to the public in terms of the available evidence, the level of interference fell far short of creating an imbalance between rights infringement and public benefit, Bank Mellat , considered . (3) The court agreed with the High Court's assessment in Hay (Ian Morris) v HM Advocate [2012] HCJAC 28, 2014 J.C. 19 that where there were defined periods of notification, either because they were finite or subject to review within a reasonable time, the requirements could not be said to be disproportionate; S and Parliament were correct in their view that the requirements were Convention compliant in that, in terms of art.8.2, they were necessary in the interests of public safety for the prevention of crime, Hay , applied . Per Lord Drummond Young, (1) the fourth element of the proportionality test, introduced by Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 A.C. 167, went to the heart of proportionality, rather than the three other requirements; the first three probably covered the essential elements of proportionality, if they were interpreted flexibly and purposively rather than formulaically, ultimately however, the critical question was the fourth criterion, namely an evaluation of the balance between the importance of the objectives and the extent to which they were furthered on one hand and the degree of intrusion to the rights and liberties of the affected individual on the other hand, Huang , considered ; (2) Animal Defenders International v United Kingdom (48876/08) [2013] E.M.L.R. 28 made it clear that under the Convention, it was not a ground of objection that fixed and general rules, such as the notification regime, were enacted that interfered with the Convention rights of an individual, moreover, it was significant that the notification regime discriminated amongst offenders according to the seriousness of their offending, Animal Defenders International , considered.
The Strasbourg Court has had to consider arguments under Article 3 in relation to prisoners and detainees in the last year, often with success for the applicant.
In the case of Muršić v Croatia (application no. 7334/13) the European Court of Human Rights held by majority (six votes to one) that there had been: no violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. The case concerned an allegation of prison overcrowding and generally poor prison conditions in a Croatian prison.
The Court found in particular that, whilst there were some elements for concern with regard to Mr Muršić’s lack of personal space during certain short non-consecutive periods of his detention, his overall conditions of detention – including in particular three hours a day outside of his cell in an otherwise entirely appropriate facility – had not met the threshold of severity required to characterise his detention as inhuman or degrading.

The judgment is noteworthy in that it re-affirmed the general principles on the question of prison overcrowding and clarified the Court’s related case-law. In particular, whilst there is a strong presumption of inhuman and degrading treatment under Article 3 of the Convention when a detainee disposes of less than 3 square metres of personal space, this could sometimes be compensated for by the cumulative effects of the conditions of detention, such as freedom of movement and the appropriateness of the detention facility.

In Helhal v France (application no. 10401/12) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights.

The case concerned the compatibility of a disabled prisoner’s state of health with his continuing detention and the arrangements for his care in prison.

The Court found in particular that, although the applicant’s continuing detention did not in itself constitute inhuman or degrading treatment in the light of his disability, the inadequacy of the physical rehabilitation treatment provided to him and the fact that the prison premises were not adapted to his disability amounted to a breach of Article 3 of the Convention.
The Court first reiterated the content of the State’s duty of care towards sick prisoners as established by its case-law. The State had to be satisfied that prisoners were fit to serve their sentences, provide them with the necessary treatment and adapt the overall conditions of detention to individual prisoners’ state of health.
Regarding the applicant’s continuing detention, the Court agreed with the domestic courts that Mr Helhal’s fitness to serve his sentence had not been called into question. His disability had been taken into account in refusing his request for a suspension of his sentence, a decision which had also been based on two concurring medical expert opinions. The Court therefore concluded that Mr Helhal’s continuing detention was not in itself contrary to Article 3.
However, as to the quality of the treatment, the Court considered that the national authorities had not done everything that could be expected of them to provide Mr Helhal with the rehabilitation treatment he needed. In particular, he had had no physiotherapy sessions at all between 2009 and 2012 and just one short session a week since then. The Court added that the mere fact that Mr Helhal had been reluctant to seek a transfer to Roanne Prison could not be invoked by the national authorities to justify their failure to take action.
Lastly, with regard to the conditions of detention, the Court took the view that the assistance in washing himself provided to Mr Helhal by a fellow inmate in the absence of showers suitable for persons of reduced mobility did not suffice to fulfil the State’s obligations with regard to health and safety.
In conclusion, the Court held that, while Mr Helhal’s continuing detention was not in breach of Article 3, the non-existent or inadequate treatment and the need for him to be assisted by a fellow inmate in order to take a shower had subjected him to a level of suffering exceeding that inherent in detention, and therefore amounted to a violation of Article 3.

In Grand Chamber judgment in the case of Bouyid v Belgium (application no. 23380/09) the European Court of Human Rights held, by a majority, that the slap which the applicants had received from police officers while under their control at a police station had undermined their The case concerned an allegation by two brothers, one of whom was a minor at the time, that two police officers had slapped them in the face while they were under the officers’ control at their family’s local police station. The Court found in particular that the slapping had undermined their dignity. It also observed that the subsequent investigation had not been effective, that the investigating authorities had failed to devote the necessary attention to the applicants’ allegations and that the length of the investigation had been unreasonable. The Court reiterated that even in the most difficult circumstances, the Convention imposed an absolute prohibition on torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. In a democratic society ill-treatment was never an appropriate response to problems facing the authorities.

In reaching this decision the Grand Chamber made an number of important observations on the application of art. 3, particularly where the assault was carried out by a member of the forces of the state. First, the Court reiterated that it could well suffice that the victim was humiliated in his own eyes for there to be degrading treatment within the meaning of Article 3 of the Convention. It did not doubt that even one unpremeditated slap devoid of any serious or long-term effect on the person receiving it could be perceived as humiliating by that person. That was particularly true when the slap was inflicted by law-enforcement officers on persons under their control, because it highlighted the superiority and inferiority which by definition characterised the relationship between the former and the latter in such circumstances. The fact that the victims knew that such an act was unlawful could also arouse in them a feeling of arbitrary treatment, injustice and powerlessness. Moreover, individuals who were under the control of the police or a similar authority were in a situation of vulnerability, and the authorities were consequently under a duty to protect them. In inflicting the humiliation of being slapped by one of their officers they were flouting this duty.

The Court further emphasised that a slap inflicted by a law-enforcement officer on an individual who was entirely under his control constituted a serious attack on the individual’s dignity. A slap had a considerable impact on the person receiving it. Being directed at the face, it affected the part of the person’s body which expressed his individuality, manifested his social identity and constituted the centre of his senses which were used for communication with others.

The Court noted that the fact that the slap might have been administered thoughtlessly by an exasperated officer was irrelevant in this context. The Grand Chamber therefore departed from the Chamber’s approach on this point. Even in the most difficult circumstances, the Convention imposed an absolute prohibition on torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. In a democratic society ill-treatment was never an appropriate response to problems facing the authorities.

Social Work
B v Edinburgh City Council [2015] CSOH 120

A father (F) of two children (C) petitioned for judicial review seeking reduction of decisions of a local authority (E) in respect of C. C resided with their mother pursuant to an English court order granted in 2010 and F had limited parental rights in respect of C. While C were resident within its jurisdiction, E had made several investigations into, and assessments of, C's welfare, together with declaratory conclusions, in relation to where C ought to reside in their best interests. E moved for dismissal of the action, contending that F did not have locus standi and that there had been an unreasonable delay in bringing the application. F submitted inter alia that E's investigations into C's welfare were flawed, unlawful and had breached C's and F's rights under the ECHR art.3.

Held: Petition refused. (1) An honestly held opinion reached in good faith in a difficult situation could rarely amount to contempt of court, and the present case had involved an evaluation by trained and professional people which they had believed to be in C's best interests, and that had been a continuing and consistent exercise, Contempt of court proceedings in respect of M and L [2015] CSIH 25, 2015 S.L.T. 269, considered . (2) There was no evidence that art.3 was engaged in respect of C. (3) F required to show that his application was based upon a sufficient interest in the whole context and the strict wording of the Social Work (Scotland) Act 1968 ought to prevail; the court did not have the power to read down the words to make them into something they were not, there were no relevant averments that F was a victim, and mora , taciturnity and acquiescence had been established, Principal Reporter v K [2010] UKSC 56, [2011] 1 W.L.R. 18, considered , and AXA General Insurance Ltd, Petitioners [2011] UKSC 46, [2012] 1 A.C. 868, followed.

M v Locality Reporter Manager [2015] CSIH 56

The father (M) of two children (X) appealed by stated case against a decision of the sheriff affirming a decision of the children's hearing (H). X resided with a foster parent pursuant to a residence supervision requirement made prior to 2014. At a hearing on 15 July 2014, H continued the residence supervision requirement and varied the contact condition to once per month. M thereafter appealed to the sheriff in terms of the Children (Scotland) Act 1995 s.51, on the basis inter alia that H's system was not compliant with the ECHR. The sheriff found inter alia that there had been no procedural irregularity or unfairness in the conduct of the hearing and confirmed H's decision. The sheriff asked whether (1) he was entitled to confirm H's decision; (2) he had erred in refusing to receive M's clandestine recording of H; (3) H's decision and his decision confirming it had constituted a lawful review of the supervision requirement.

Held: Appeal dismissed. (1) It was not the task of the sheriff to conduct an open ended survey of the paperwork and substitute his decision for H's and in the absence of any relevant legal issue arising which would have justified the sheriff interfering with H's decision, he could only reach the decision which he had; M had failed to make any relevant criticism of his decision making and question 1 would be answered in the affirmative. (2) The limited form of the appeal hearing was one of the reasons for refusal of the recording and on that basis, the decision was well within the discretion of the sheriff, he had given good reasons to justify his decision and question 2 would be answered in the affirmative. (3) M had failed to identify any error of law by the sheriff in relation to the relevant statutory provisions, ECHR or case law, and question 3 would be answered in the affirmative. Opinion , that the matters which M sought to raise in respect of X's welfare and circumstances might be raised in the future before H. Observed, per Lord McGhie, (1) that it ought to be recognised that the general onus to show why children should not be returned to their parents did not apply to every evidential detail and a children's hearing would only require to consider case authorities or text books where some dispute in respect of an issue of principle required to be resolved before it was able to make a decision in respect of the welfare of the children, Saviny v Ukraine (39948/06) (2010) 51 E.H.R.R. 33, considered; (2) that H v Mearns 1974 S.C. 152 was not authority for the proposition that in the event of any impropriety, such as the wrongful exclusion of an entitled part from part of a hearing, the hearing would be deemed not to have taken place, H v Mearns , considered .
In McDonald v The United Kingdom (2015) 60 EHRR 1 , the applicant (M) complained that the withdrawal of night-time care disproportionately interfered with her right to respect for private life under the ECHR art.8. M had suffered a stroke and several falls which limited her mobility. She had a small and neurogenic bladder, which meant she usually had to urinate two to three times a night. This combination of factors made it unsafe for her to access a toilet or commode unaided. M was provided by the local authority with a temporary care package, which included seventy hours per week of night-time care. Four consecutive care assessments found that M had a need for night-time assistance but the local authority decided to reduce the amount allocated to her care by removing night-time care and supplying her with incontinence pads. M applied for judicial review of the decision and pending resolution, She continued to receive night-time care for five nights, reducing to four nights after one month and then ceasing altogether after 45 months. Her application for judicial review was refused but the local authority carried out a further care plan review in 2009 in which it was decided that, despite M's opposition, the provision of incontinence pads was a practical and cost-saving solution. The domestic courts found that from the date of the 2009 reassessment there had been no interference with M's art.8 rights, nor had there been a failure to comply with the Disability Discrimination Act 1995. M contended that the withdrawal of night-time care had disproportionately interfered with her art.8 rights and that by withdrawing the night-time service the respondent State was in breach of its positive obligation to provide her with a service which enabled her to live with dignity. The State argued that it enjoyed a wide margin of appreciation in striking a fair balance between the competing interests of individuals and the community as a whole, which was even wider where it involved assessing priorities for the allocation of limited resources.

The Court upheld the complaints in part. (1) The State had accepted the determination of the Supreme Court (upholding the Court of Appeal) that the local authority had been in breach of its statutory duty to provide M with care in accordance with its own assessment, between the date it withdrew night-time care and the 2009 care plan review. Consequently, M's right to respect for her private life had been breached during that period (see paras 50-52 of judgment). (2) From the date of that care plan review, the interference had been lawful and the state had a wide margin of appreciation on issues of social, economic and health-care policies, James v United Kingdom (A/98) (1986) 8 E.H.R.R. 123, Shelley v United Kingdom (Admissibility) (23800/06) [2009] Prison L.R. 5, and Hatton v United Kingdom (36022/97) (2003) 37 E.H.R.R. 28 considered. That margin was particularly wide when an assessment of priorities in the allocation of limited State resources was involved, Osman v United Kingdom (23452/94) [1999] 1 F.L.R. 193 considered. The court was satisfied that the decision to reduce M's care package had been fully considered by the local authority and by the domestic courts and was proportionate as M's personal feelings had properly been balanced against the local authority's concern for her safety and independence and respect for other care-users (para 56-58).

Social Security

R. (on the application of JS) v Secretary of State for Work and Pensions (Also known as: R. (on the application of SG) v Secretary of State for Work and Pensions

[2015] UKSC 16; [2015] 1 W.L.R. 1449; [2015] P.T.S.R. 471; [2015] H.R.L.R. 5; [2015] H.L.R. 21; (2015) 18 C.C.L. Rep. 215.

The appellant single mothers (S) appealed against a decision that the benefit cap introduced by the Benefit Cap (Housing Benefit) Regulations 2012 was justified for the purposes of ECHR art.14. The Regulations capped entitlement to welfare benefits. The cap affected households living in high-cost areas of housing with several children. The scheme was justified by economic and social policy, namely to limit the extent to which non-working families were publicly funded, to motivate people to work, and to reduce public expenditure. It affected more women than men, as single parent households were most impacted, and single parents were, generally, women. The issue was whether the Regulations violated art.14 and Protocol 1 art.1 owing to an unjustifiably discriminatory impact on women in relation to their right to the peaceful enjoyment of their possessions. It was not in dispute that the benefits were "possessions" and that the Regulations resulted in indirect discrimination between men and women.
Held: Appeals dismissed. (Lady Hale and Lord Kerr dissenting, and Lord Carnwath concurring with the result but for different reasons) (1) The Regulations undoubtedly pursued a legitimate aim. The Government concluded in 2010 that expenditure on benefits was unaffordable. All three policy reasons were equally legitimate. S's argument that a fairer system would have set the cap using as a benchmark not the average earnings of working households, but their average income including benefits, was problematic for several reasons. One reason was that the Welfare Reform Act 2012 s.96, whose compatibility with the ECHR was not challenged, required the cap to be set by reference to "earnings"; the Regulations would be ultra vires if they failed to do so. Other criticisms focused on the cap's impact upon the income of the households most affected. The cap was set at £35,000 per annum; the median earnings of working households. Half of all working households earned less than that. Whether non-working households should receive more was a political question, which it was not the court's function to determine. Importantly, affected households had received advance notice of their income reduction, and assistance had been made available to help them address the implications. It was highly significant that no credible means had been put forward by which the legitimate aims of the Regulations might have been achieved without impacting more women than men. As women headed most of the households at which the aims were directed, a disparity between the numbers of men and women affected was inevitable. That was because child-related benefits were included within the scope of the cap. But if they were not so included, the cap's legitimate aims would not have been achieved (see paras 63-69, 72-73, 76-77 of judgment). S's argument that the secretary of state was obliged by the Human Rights Act 1998 s.6 to treat the best interests of the child as a primary consideration in accordance with the United Nations Convention on the Rights of the Child art.3(1) was also problematic. The cap impacted the children of affected households, and the children's Convention, although not part of UK law, was relevant to issues involving children's rights. However, the instant context was not one in which the adults' rights were inseparable from the best interests of their children. The consequences of the cap for children depended upon how their parents responded to it. There was no relationship between the fact that the cap affected more women than men on the one hand, and the assumed failure of the legislation to give primacy to the interests of children on the other (paras 78, 81-82, 86-87, 89). Proportionality involved issues of social and economic policy, the determination of which was for democratically-elected institutions. The court had to respect assessments performed by those institutions unless they were manifestly without foundation. The Regulations had been considered and approved by both Houses of Parliament (paras 93-96). (2) (Per Lord Carnwath) Child-related benefits existed to meet children's needs. The cap deprived children of their benefits for reasons unrelated to their own needs. The secretary of state had not shown how the Regulations were compatible with the obligation to treat children's best interests as a primary consideration. However, the consequences of that were to be dealt with in a political, rather than a legal, arena (paras 124-128, 133). (3) (Per Lady Hale) The duty to treat children's best interests as a primary consideration under art.3(1) of the children's Convention was binding on the UK as part of its international obligations. The duty was relevant to proportionality and discrimination, whether affecting children or their mothers. The question was whether the benefit cap could be justified independently of its discriminatory effect. That involved asking whether proper account had been taken of children's interests. Clearly it had not, because the cap deprived them of the basic necessities of life. The cap could not, therefore, be viewed as a proportionate means of achieving a legitimate aim (paras 215-216, 218-227, 229).

Scott Blair, Advocate

Terra Firma Chambers

25 October 2015


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