This week’s Digest considers three judgments. In R (Privacy International) the Supreme Court assessed whether an ouster clause shielding the Investigatory Powers Tribunal from judicial review was effective. In Kuddus the Court of Appeal (Criminal Division) considered whether a conviction for gross negligence manslaughter could stand where the defendant had no direct personal knowledge of the circumstances leading up to the deceased’s death. Finally, in R (Maughan) the Court of Appeal (Civil Division) confirmed that coroners should apply the civil standard of proof in determining whether the deceased committed suicide.
R (Privacy International) v Investigatory Powers Tribunal and ors [2019] UKSC 22
Judgment was handed down by Lord Carnwarth on 17 May 2019.
The Investigatory Powers Tribunal (“IPT”) is a specialist tribunal established under the Regulation of Investigatory Powers Act 2000 (“RIPA”). Section 67(8) of RIPA purportedly acted as an ouster clause, shielding the IPT from the supervisory jurisdiction of the High Court. Privacy International Challenged section 67(8). By a bare majority the Supreme Court held that the provision was not effective, as it had to be interpreted through the common law presumption against ouster. The Court also suggested that none but the most clear and explicit provision would suffice to oust the supervisory jurisdiction of the High Court, and appeared to doubt whether any such provision could exist.
Privacy International, an NGO, believed themselves to have been unlawfully spied upon by Government Communications Headquarters (“GCHQ”). They brought a claim before the IPT that the wide-ranging warrants allegedly used by GCHQ were unlawful. The IPT held that these warrants were lawful and dismissed the claim. Privacy International commenced proceedings for judicial review on the ground that the IPT had made an error of law in misinterpreting the statutory provisions behind the warrants. However, section 67(8) of RIPA provided that:
“…determinations, awards, orders and other decisions of the [Investigatory Powers] Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”
The Divisional Court and a unanimous Court of Appeal thought this clause effectively shielded the IPT from the High Court. The Supreme Court judgment overturned these decisions. Lord Carnwarth, for the majority, held that following Lord Diplock’s judgment in O’Reilly v Mackman [1983] 2 AC 237 and the more recent case of R (Cart) v Upper Tribunal [2011] UKSC 28 it was clear that any determination vitiated by any error of law, jurisdictional or not, was to be treated as no determination at all. More importantly, the courts below had erred in assuming that this was an exercise in ordinary statutory interpretation. On the contrary, the ordinary meaning of the statutory language had to yield to the strong common law presumption against ousting the jurisdiction of the High Court. Such a clause could not protect a decision that is flawed through an error of law. Lord Lloyd-Jones, agreeing with Lord Carnwarth, added that it was a necessary corollary of the sovereignty of Parliament that an authoritative and independent body exists that could interpret legislation made by Parliament.
Lord Sumption, dissenting, held that the rule of law was sufficiently vindicated by the judicial character of the IPT, did not require a right of appeal from the IPT, and the plain words of section 67(8) were sufficiently clear to exclude the jurisdiction of the High Court to entertain a challenge to the IPT’s decisions on the merits. Lord Wilson’s dissent was grounded on the explicit statutory wording. He deprecated the famous yet “strained” reasoning in Anisminic v Foreign Compensation Commission [1969] 2 AC 147 and argued that the common law presumption that Parliament did not intend to exclude the jurisdiction of the High Court had to yield to the only reasonable meaning of the words of the statutory provision.
R v Kuddus [2019] EWCA Crim 837
The judgment of Sir Brian Leveson P, dated 16 May 2019, is available here.
The appellant, the sole director of a takeaway company, was convicted of gross negligence manslaughter, a breach of the Health and Safety and Work Act 1974 and a contravention of EU Food Safety Regulations. A 15-year-old customer had died following an allergic reaction to ingredients in the takeaway meal put together by a Mr Rashid, who worked in the takeaway’s kitchen. The appellant was not present at the time. He appealed against the conviction for gross negligence manslaughter. After a meticulous review of the authorities on gross negligence manslaughter the Court of Appeal held that there was no requirement for the appellant to know that there was an obvious and serious risk to the specific person who died, as opposed to the class of people to whom he owed a duty. However, the Court allowed the appeal as the appellant was not himself aware of the deceased’s allergies and so it could not be said that a reasonable person in his position would conclude that there was an obvious and serious risk of death.
The deceased and her parents thought her allergies to nuts and prawns to be mild. She had not been prescribed with an EpiPen or referred to specialist advice about such treatment. The deceased’s friend, who had ordered the takeaway with her from a third-party website, had put in the allergy box on the website order “nuts, prawns” but did not contact the restaurant directly to tell them. Despite this the food provided by Mr Rashid contained peanut protein. Megan later died as a result of a fatal asthma attack precipitated by an allergic reaction to nuts. There was no evidence that the appellant himself knew about the “nuts, prawns” comment, but the prosecution case on the count of gross negligence manslaughter was that his failure as an owner to introduce system of allergen control led to the negligent breach of his duty of care. The jury convicted.
The appellant advanced two grounds of appeal. The first was that the Judge was wrong to refuse to direct the jury that they needed to consider whether there was, in fact, a serious and obvious risk that the appellant’s breach of duty would cause the deceased’s death specifically, as opposed to a hypothetical allergy sufferer. At the heart of this ground was whether the appellant was entitled to argue before the jury that the medical evidence about the deceased herself, which indicated that she only suffered from mild allergies, meant that she was not exposed to a serious risk of death. The appellate Court rejected this ground, holding that:
“to focus on the particular circumstances of the specific victim is to misunderstand what has to be established to prove gross negligence manslaughter. There is no requirement that there must be proved to be a serious and obvious risk of death for the specific victim who dies… the question to be answered is whether the defendant’s breach gave rise (as an objective fact) to a serious and obvious risk of death to the class of people to whom the defendant owed a duty.”
The second ground was that the Judge wrongly directed the jury in terms which equated the knowledge of the business or Mr Rashid with that of the appellant, when the appellant himself knew nothing of the allergy. The Court accepted this submission. If a reasonable person possessed of the knowledge available to the appellant would have foreseen only a chance that the risk of death might arise, as opposed to an obvious and serious risk of death, then that was not enough to justify a conviction for gross negligence manslaughter. The appeal was allowed and the conviction on that count quashed.
R (Maughan) v The Senior Coroner for Oxfordshire and anor [2019] EWCA Civ 809
The judgment of Davis LJ, dated 10 May 2019, is available here.
The appeal concerned (i) the standard of proof, criminal or civil, to be applied in coroners’ inquests in deciding whether the deceased deliberately took his own life intending to kill himself, and (ii) if the answer depended on whether the determination was expressed in a short-form or a narrative conclusion. In a judgement that highlighted significant inconsistencies between a number of previous authorities, the Court of Appeal definitively concluded that the standard of proof to be applied was the civil balance of probabilities, unless the issue of unlawful killing arose: on that issue alone, because of the connotations of homicide, the standard of proof was criminal. Whether the determination was expressed as a short-form or narrative conclusion was irrelevant.
On 11 July 2016 James Maughan was found hanging in his prison cell at HMP Bulllingdon. He was pronounced dead shortly afterwards. The Coroner at the inquest held that the evidence was insufficient to enable a jury to return a short-form conclusion of suicide to the criminal standard. However, in accordance with the Coroner’s Guidance, he directed that the jury’s conclusion should be elicited by way of narrative conclusion on the balance of probabilities. The jury concluded narratively that James deliberately tied a ligature made of sheets around his neck and suspended himself from the bedframe, intending to kill himself.
This conclusion was very distressing to the deceased’s Catholic family. On appeal, the appellant, the brother of the deceased in this case, submitted that the criminal standard should be applied throughout both for the purposes of a short-form and narrative conclusion. The respondent Senior Coroner for Oxfordshire and the intervening Chief Coroner of England and Wales maintained a neutral position, but the latter in particular advanced detailed arguments representing the pros and cons of the respective positions.
The Divisional Court held that, while a finding of suicide can cause serious consequences, this could not affect the legal standard of proof. It held that the relevant standard was the civil standard for both forms of conclusion. The Court of Appeal upheld this decision. First, for reasons of consistency and certainty, there could be no sliding scale within the relevant standard applicable, despite the fact that an inquest is not a criminal proceeding or a civil proceeding. Second, there was a very real inconsistency in adopting a criminal standard of proof for a short-form but a civil standard in a narrative conclusion that created very real difficulties for juries in having differing standards of proof relating to various findings within their conclusions. Third, the essence of an inquest is that it is primarily inquisitorial and not concerned to make findings of guilt or liability. Fourth, suicide has ceased to be a crime since 1961. Fifth, the natural answer to the question “how?”, which is the one an inquest is concerned with, favours the lower standard of proof.
Finally, the court gave guidance in cases of unlawful killing, holding that, unlike in cases of suicide, in such cases the criminal standard of proof had to apply. Unlawful killing connotes a crime, is in practice restricted to homicide cases, and often entails questions of criminal liability being determined. The appeal was dismissed.
OTHER NEWS
Legal aid lawyers offered £50 and £100 incentives to test flexible court hours
Legal aid practitioners will be paid up to a £100 a time to help the government test early and late sittings in civil and family courts. HM Courts & Tribunals Service says ‘the small amount of funding’ has been made available to reflect the potential burden the tests will create.
The full piece can be found here.
A ‘blanket’ rule against Army prosecutions could cause injustice
Earlier this week, Defence Secretary Penny Mordaunt said British troops and veterans will be given stronger legal protections against prosecution.
The proposed law would protect soldiers against prosecutions for actions on the battlefield abroad after 10 years, except in “exceptional circumstances”.
However, Lord Saville, the judge who chaired the Bloody Sunday inquiry, has said a blanket rule on Army prosecutions could cause injustice.
More details can be found here.
Defendants pleading guilty online may not be aware of wider consequences, MPs told
An international justice monitoring group has added its voice to critics of the automatic online conviction system being introduced as part of the £1bn courts reform programme. Fair Trials says the system’s ‘decision tree’ is not enough to ensure defendants understand the full ramifications of pleading guilty to a non-custodial offence.
More details can be found here.
Probation service to be renationalised
The supervision of all offenders on probation in England and Wales is being put back in the public sector after a series of failings with the part-privatisation of the system.
It reverses changes made in 2014 by then Justice Secretary Chris Grayling. The National Audit Office said problems with the part-privatisation had cost taxpayers nearly £500m.
The full story can be found here.
