Weekly Digest: 5 February 2018
6 February 2018
This week’s digest considers two Court of Appeal judgments and a judgment of the Divisional Court. The Court of Appeal held that the Data Retention and Investigatory Powers Act 2014 was incompatible with EU law. The court also granted permission to appeal in a case in which the claimant argues that the blanket prohibition on assisted suicide violates art 8 of the European Convention on Human Rights. The Divisional Court considered whether the defence of self-defence / defence of another is available to a charge of obstructing a constable contrary to s. 89(2) of the Police Act 1996.
Secretary of State for the Home Department v Watson  EWCA Civ 70
The judgment, which is available here, was handed down by Beatson LJ on 30 January 2018.
The Court of Appeal held that section 1 of the Data Retention and Investigatory Powers Act 2014 (‘DRIPA’) was inconsistent with EU law on the basis that it permitted access to retained data where the object sought to be achieved by that access was not restricted solely to fighting serious crime, or where access was not subject to prior review by a court or independent administrative authority.
The Court of Appeal held that it was obliged to apply a preliminary ruling delivered by the CJEU. It was common ground between the parties that the relevant judgment of the CJEU established, at the very least, that where access is sought to communications data retained by the authorities for the purpose of the prevention, investigation, detection and prosecution of criminal offences, access to and use of such data should be restricted to the objective of fighting serious crime and should be dependant on a prior review by a court or an independent administrative body.
The court considered it appropriate to grant declaratory relief, limited to the context of the prevention, investigation, detection and prosecution of criminal offences, to the effect that DRIPA was inconsistent with EU law to the extent that it permitted access to retained data, where the objective pursued by that access was not restricted solely to fighting serious crime, or where access was not subject to prior review by a court or an independent administrative authority.
The court declined to grant all the relief sought by the claimants on the basis that there were a number of issues arising from the CJEU’s judgment that were outstanding and which were due to be considered by the Investigatory Powers Tribunal.
R (on the application of Conway) v Secretary of State for Justice  EWCA Civ 16
The judgment, which is available here, was handed down by Sir Ernest Ryder on 18 January 2018.
The Divisional Court had earlier declined to issue the declaration of incompatibility sought by the claimant that the prohibition on assisted suicide is incompatible with article 8 of the European Convention on Human Rights (‘ECHR’). The Court of Appeal granted the claimant permission to appeal.
When he had a prognosis of six months or left to live, the claimant wishes to have the option of taking action to end his life at the time of his choosing. This would necessarily involve the assistance of medical professionals. It was submitted on behalf of the claimant that the blanket prohibition on assisted suicide in s 2 of the Suicide Act 1961 constituted an unnecessary and disproportionate interference with article 8 of the ECHR. The claimant suggested that the prohibition should not apply when specified criteria are met.
The Court of Appeal granted the claimant permission to appeal. A number of the claimant’s grounds of appeal had a real prospect of success. The claimant’s rights under article 8(1) were both engaged and interfered with. It was held that there must accordingly be anxious scrutiny of the proportionality of the interference. It followed that the court had to identify the justifications relied upon and then test those against the four stage test for proportionality.
Oraki v Crown Prosecution Service  EWHC 115 (Admin)
The judgment, which is unavailable, was handed down by Singh LJ on 17 January 2018.
The appellant was convicted of obstructing a police officer in the course of his duty contrary to s. 89(2) of the Police Act 1996, the magistrates having ruled that he was unable to plead self-defence / defence of another. The Divisional Court ruled that the defence was available as a matter of law and quashed the defendant’s conviction.
Michael Bisgrove represented the respondent.
The appellant was pulled over by two police officers, the officers having suspected that he was driving without insurance. The appellant became upset when he was notified that the vehicle was going to be detained. The appellant’s mother took the car keys from him and inserted the keys into the ignition with a view to driving the car. One of the police officers attempted to stop her and the appellant tried to pull him off her. The appellant was convicted of two counts of obstructing an officer contrary to s. 89(1) of the Police Act 1996 and one count of assaulting a police officer contrary to s. 89(2). The appellant argued he was acting in lawful self-defence, but it was held that the defence was unavailable to the charge of obstructing a police officer in the execution of his duty. He appealed to the Crown Court, which dismissed his appeal on the basis that the defence was unavailable as a matter of law.
The Divisional Court held that the defence was available to a charge of obstructing a police officer. The court held that it was not bound by the judgment in Kenlin v Gardiner  2 QB 510. Singh LJ stated that there was no reason in principle or authority why the defence should not be available in relation to the offence of obstructing a constable. The defence is a general defence known to the criminal law, unlike some defences which are available in relation to specific offences. His lordship held that the reasonableness of a mistaken belief on the part of a defendant is relevant to the question of whether it is a genuinely held belief but if it is a genuinely held belief, it does not matter that the belief is an unreasonable one. The law of self-defence then applies in accordance with the state of mind of the defendant, albeit mistaken and perhaps unreasonable.
The Crown Court held that it made certain findings of act which would have led it to acquit the appellant had the defence been available. On the basis that it was in fact available, the Divisional Court quashed his conviction.
R v Darren Osborne (Woolwich Crown Court 2.2.18)
The full sentencing remarks of Cheema-Grubb J are available here.
Darren Osborne, who was 48 years of age, hired a van with the intention of using it to murder people lawfully assembling and protesting in London. Frustrated at his inability to do so, the defendant drove to Finsbury Mark Mosque and struck a number of members of the public who were gathered outside the mosque. Twelve members of the public were struck and injured, with one person dying immediately at the scene. The defendant was convicted of one count of murder and 11 counts of attempted murder.
The defendant had 102 previous convictions. The trial judge stated that the defendant, having watched a BBC drama-documentary which told of the grooming and sexual abuse of young girls in Rochdale by British-Pakistani Muslim men, became radicalised and was determined to carry out an attack on members of the Muslim community. Having passed a mandatory life sentence for murder, her ladyship held that the murder was committed for the purpose of advancing a political, religious, racial or ideological cause. For the purposes of the Counter Terrorism Act 2008, it was a murder with a terrorist connection, which was an aggravating feature. Her ladyship took 30 years as the starting point for the minimum term. Given the seriousness of the injuries to those who survived the attack, her ladyship passed a discretionary life sentence for each offence of attempted murder, to be served concurrently. The appropriate minimum term for the murder in the context of an attempt at multiple murder was held to be 43 years, minus the 224 days the defendant had spent on remand.
Justice stalwart Sir Henry Brooke dies at 81
Retired Lord Justice of Appeal and Chairman of the Law Commission, Sir Henry Brooke, died on 30.1.18 following cardiac valve surgery. The full piece can be read here.
Judge agrees to judicial review of ‘cab rank’ rule for unexplained deaths
A High Court judge has granted an application for a judicial review of a senior coroner’s “cab rank” policy in dealing with unexpected deaths, saying it raises issues of importance to Jewish and Muslim communities.
The full piece can be read here.
John Worboys release hearing date set
The first stage of a legal challenge against the Parole Board’s decision to release John Worboys will take place on Wednesday. Sir Brian Leveson P and Mr Justice Garnham will consider whether to allow the Mayor of London and two of Worboys’ victims to apply for a judicial review.
The full piece can be read here.