In this week’s Digest, the last of 2017, the Court of Appeal allowed an appeal against the refusal of a claim for JR against the IPCC, holding both that the findings of an investigation were inadequate and that disclosure of the report had not been properly approached. The Administrative Court considered prison conditions in Lisbon and concluded there was a real prospect that detention in that facility would infringe Article 3 ECHR such that further information was needed from Portugual.
R (Miah) v. Independent Police Complaints Commission and anr [2017] EWCA Civ 2108
The judgment, available here, was handed down by Lord Justice Sales on 14.12.17.
This was an appeal against the decision of the respondent on the grounds that it did not (i) address the issues raised in his complaint; (ii) deal with the issues raised adequately; and (iii) give the appellant enough information about the substance of the investigation. The complaint investigated by the respondent related to the use of a police officer’s powers under Schedule 7 to the Terrorism Act 2000 to detain and interrogate an individual with a view to ascertaining whether they were involved in terror offences. The appeal succeeded on both ground (i) and (ii); the respondent had failed to follow the correct procedure. The case was remitted to the respondent for further consideration.
This appeal related to the investigation at local police level of a complaint by the appellant against an officer of the Metropolitan Police Service and an appeal by the appellant to the IPCC pursuant to the regime set out in Schedule 3 to the Police Reform Act 2002. The initial complaint related to an MPS officer who, at Heathrow Airport, exercised his powers under Schedule 7 to the Terrorism Act 2000 to detain and question the appellant with a view to ascertaining whether he was someone who has been involved in the preparation or commission of terrorism offences. The appellant’s complaint was based on his belief that his treatment at Heathrow had occurred as a result of discrimination against him on the grounds of his religion.
The subject of these proceedings was the appellant’s appeal against the decision of the Hickenbottom J. By that decision, the judge refused the claim for judicial review of the IPCC’s dismissal of the appellant’s appeal been brought on the grounds that the MPS report was deficient. This appeal was argued on three grounds; namely, that the judge had erred in:
- regarding “the findings” set out in the MPS report as adequate, as IPCC had;
- finding that the IPCC and the MPS had applied the correct test for non-disclosure of information; and
- deciding that the court could dismiss the appellant’s claim without itself reviewing the available material to see whether the complaint in relation to be detained and questioned at Heathrow had any evidential basis.
The appeal was allowed in respect of (i) and (ii) and, as a result, no consideration was given of (iii). On (i), Sales LJ concluded that the IPCC should have ruled that the appellant’s appeal about the findings of the investigation be allowed and should have issued directions requiring the appropriate authority – in this case the Commissioner of the MPS – to ensure that a full and complete investigation report was prepared. Further, or in the alternative, the IPCC should have considered whether to issue a direction requiring the appellant’s complaint to be reinvestigated with a view to the production of an investigation report which contained a full set of findings for considerations by the Commissioner of the MPS. It was noted that the information contained in the original report was very limited.
Regarding (ii), the appeal was allowed insofar as that ground related to the conduct of the MPS. The investigating officer had erred in respect of the procedure to be adopted when drawing up his report. When determining what to include in his investigation report, the investigating officer had applied the harm test in order to determine what information was to be disclosed. This was not within his remit, however. The investigating officer should have prepared the report and left it, in this case, to the Commissioner of the MPS to apply the harm test. Rather, it seemed that the Commissioner had simply accepted the investigation report as prepared and passed it to the appellant.
With the appeal allowed on (i) and (ii), the case was remitted to the IPCC for further consideration.
Mohammed v. Comarca de Lisboa Oeste, instancia Central De Sintra, 1A Seccão Criminal, Portugal [2017] EWHC 3237 (Admin)
The judgment, available here, was handed down by Lord Justice Beatson on 12.12.17.
This was an appeal against an extradition order on the grounds that the prison conditions where the appellant was likely to be detained were not compatible with his article 3 ECHR rights. The appeal succeeded in part on the basis that the evidence before the court gave rise to real concerns that detention in that particular prison in Lisbon may infringe the appellant’s article 3 rights. Accordingly, the court requested further information from the judicial authority in Portugal before the appeal continues.
The appellant was born in Iraq and is a citizen of the UK. He was the subject of a European Arrest Warrant (EAW) issued by the respondent relating to four offences arising out of the fraudulent use of credit cards, identity theft, and forgery or counterfeiting in Portugal. The appellant spent time in pre-trial detention in Portugal but, after sentence was passed, he failed to present himself to serve the remainder of his sentence. The appellant did not inform the authorities that he was returning to the UK and, on 1 June 2017, his extradition was ordered by DJ Devas pursuant to the EAW.
This was the appellant’s appeal against that order on the ground that conditions in the prison where he was likely to be detained would infringe his article 3 ECHR rights. The court, in its approach, followed the procedure set out in the CJEU in Joint Cases C-404/15 and C-659/15/PPU Criminal Proceedings Aranyosi and Caldarau [2016] QB 921, which required the court to undertake a three-stage process.
Stage 1: the determination of whether there is a risk of article 3 infringement, assessing objective, reliable, specific, and properly updated evidence.
There was single report before the DJ when the matter was first heard and the Divisional Court held that this report alone was not sufficient evidence of a real risk of a breach of article 3. However, the Divisional Court now had before it a second report in relation to more recent prison conditions in Lisbon Prison. That report contained information that the basement cells in zones A and B of the prison were occupied with two inmates with toilets separated by a 1m wall, that they were cold with signs of damp, that the basement cells in zone C were cold, damp, and in a poor state of cleanliness, that the cells in Zone E were the worst with a degraded floor and the walls damp with an unpleasant smell. Had the DJ had both reports before him, Beaston LJ concluded that he might have concluded that there was a real risk of article 3 harm.
Stage 2: the court must request the issuing authority to provide necessary supplemental information on the envisaged detention conditions.
As a result, a number of questions were certified for the issuing authority which the court required a response to within 28 days. These included whether the appellant would in fact be held in Lisbon prison and be detained in a cell which provided him with at least 3m2 of personal space at all times. After a response from the relevant authority, stage 3 remained to be considered.
Stage 3: if, after a response from the issuing authority, there is a real risk of inhuman or degrading treatment, execution of the EAW must be postponed.
The issue of Portuguese prison conditions is now a live one and it remains to be seen whether Portugual is able to provie satisfactory information to dispel the Article 3-risk (by for example demonstrating conditions have improved or indicating extraditees will be detained other than in Lisbon, or offending parts, of Lisbon prison). If they do not, then Portugual will have to consider offering assurances or risk there being no extradition from the UK to Portugal for the foreseeable future.
General News
Amber Rudd announces new national economic crime centre for UK
Amber Rudd announced plans for a new economic crime centre, with the power to task the Serious Fraud Office to investigate the worst cases of fraud and corruption. This is all part of a revised anti-corruption strategy that targets “corrupt insiders” working in, inter alia, the police and prison services.
The full piece can be read here.
Scotland Yard carry out urgent review after rape trial collapses
A rape trial collapsed owing to what the prosecuting barrister called “the most appalling failure of disclosure” he had encountered. Proceedings were halted at Croydon Crown Court after it emerged police had belatedly disclosed phone messages between the complainant and her friends that threw the case into doubt. The accused, speaking outside of court, spoke of the “mental torture” of the whole process and this betrayal by the system.
The full piece can be read here.
MoJ rejects calls for ban on revealing complainants’ sexual history in rape cases
An MoJ report rejected calls for a ban on revealing complainants’ sexual history in court. The report did ask the CPS to update their guidance for prosecutors and for the Criminal Procedure Rule Committee to review the relevant courtroom rules.
The full piece can be read here.
Number of children penalised for knife possession rises 16%
The number of 10 to 17 year olds cautioned or sentenced for knife possession has risen by 16% in the year to date. 2017 is set to be branded the worst in years for child deaths caused by knife crime.
The full piece can be read here.
British soldiers breached Geneva convention in Iraq
The High Court has found that British soldiers breached the Geneva convention in subjecting Iraqi civilians to cruel and inhuman treatment by hooding them and taking turns to run over their backs. The judgment comes days after the ICC confirmed there was a reasonable basis to conclude that British soldiers had committed war crimes against Iraqi detainees.
The full piece can be read here.
