Weekly Digest: 26 January 2020

A prisoner appealed against a decision that he should attend a county court hearing via video link rather than in person.

The appellant was serving a mandatory life sentence following his conviction for murder in 2009. He was in a Category A prison and did not present an escape risk. In 2015, he brought proceedings under the Data Protection Act 1998 against the solicitors who had represented him during his trial. He applied to appear at the county court hearing in person, but the prison governor stated that the interests of justice could be met by him using a video link from prison. The appellant challenged that decision by way of judicial review, but the judge found that it did not breach Article 6 ECHR and that the prison had not fettered its discretion. The judge also refused permission to pursue a further argument, namely that the decision was unlawfully taken by an official in the prison when the governing statute required it to be taken by “the Secretary of State”. That argument had been advanced in reliance upon the decision in R (King) v Secretary of State for Justice [2015] UKSC 54, [2016] AC 384.

The appeal was allowed.

Right to fair trial

The decision made pursuant to the Crime (Sentences) Act 1997 Sch.1 Pt I para.3(1) had to respect the Art. 6 rights of the prisoner concerned (see para. 29 of judgment). The Strasbourg court had considered the question of the attendance by prisoners at court hearings for Art. 6 purposes, both in its criminal and civil context. That consideration included the role that could be played by video link. However, the court’s jurisprudence did not support the appellant’s submission that a prisoner litigant in person should always be produced in person for his civil trial if his opponent would be physically present in court, unless he waived his right or was excluded as a result of his conduct at court.

There would be logistical difficulties, risks and expenses involved in producing the appellant at court and it had not been established by medical evidence that he would be better off physically present at court. It was not possible to sustain a contention that the appellant’s participation by video link would violate his Art. 6 rights or that he would be deprived of a fair hearing if he attended by video link. He would be able to participate effectively and present both his evidence and argument. He could question the witness from his previous solicitors. In such circumstances the judge, whose function was to ensure a fair trial, would be especially astute to ensure that the appellant was not placed at a disadvantage and would be alert to any practical constraints under which he was working (paras 35-42).

Unlawful fettering of discretion

The decision-maker had not unlawfully fettered her discretion in refusing the appellant’s request to be produced physically at the hearing of his claim. The exercise of the power to produce a prisoner at court was governed by Prison Service Order 4625 (2002) “Production in Civil Proceedings”. A fair reading of that order showed that the interests of justice were the primary consideration. The decision had to respect the prisoner’s fair trial rights and “if it appears that the prisoner’s case will suffer detriment if they do not attend, this would be a strong case for allowing the production”. The decision in the instant case did not proceed on the basis that a Category A prisoner could never be physically produced in a civil court, but given the security and logistical difficulties in doing so, that was a reflection of the reality (para. 46).

False factual promise

The decision was taken on the basis of a fundamental misunderstanding of an important fact, namely that the hearing would not take place in a court with a secure dock. The court was not persuaded that the decision would necessarily have been the same had the decision-maker not made an error in assuming that the hearing would be in an ordinary court or the chambers of a judge. On that limited basis, the decision was unsustainable and had to be quashed. It would be retaken in the light of up-to-date information, including the location and practical arrangements for any hearing, the risks associated with the appellant’s physical presence, and the logistics, including cost, of arranging his attendance (para. 4).

Further argument

The judge’s case management decision to refuse leave to argue the further argument could not be impugned on appeal. The appellant’s argument, if correct, would disable prison staff from making decisions about the production to a court of any prisoner, not only those in Category A. However, there was no evidence about the relationship generally between the Ministry of Justice and prisons in decision-making on production of prisoners. The issue would be better decided in a case where it arose squarely, on the basis of full evidence and argument (paras 57, 61).

The appellants appealed against their committal to prison for contempt of court for breach of an injunction to prevent trespass on the respondents’ land and unlawful interference with their rights.

The respondents owned land on which they engaged in lawful “fracking”. The appellants were environmental protestors involved in protests on and near the respondents’ site. In June 2018, an interim injunction was granted to restrain “persons unknown” from trespass and unlawful interference. Paragraph 4 of the injunction prohibited obstruction of the highway leading to the site entrance with the intention of causing inconvenience or delay to the respondents. Paragraph 7 of the injunction was based on unlawful conspiracy and addressed interference with the respondents’ supply chain. It prohibited acts which included obstructing free passage along the highway of the respondents’ lorries with the intention of impeding their lawful activities.

In July, the appellants prevented vehicles from accessing the site by laying down in the road until removed by police. In August, the first appellant stood on the access route to the site in the path of a tanker lorry, causing it to veer across the carriageway. The respondents issued a committal application, naming the appellants as respondents. The court found it proved that they had done the prohibited acts intentionally and with knowledge of all the facts which made those acts a breach of the injunction. It rejected the appellants’ claims that they did not know of the injunction at the time of the incidents. The judge was satisfied that the custody threshold was passed and ordered the appellants’ committal to prison for four weeks in relation to the first incident and two months in relation to the second, both suspended for two years.

Relying on Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515, [2019] 4 WLR 100, the appellants argued that the terms of paras 4 and 7 were insufficiently clear and certain to be enforceable by committal because they made the question whether conduct was prohibited dependent on the intention of the person concerned. Alternatively, they argued that the sanction of imprisonment, albeit suspended, was unduly harsh in view of their rights under Article 10 ECHR and Article 11 and the fact that the judge had referred to the sentencing guidelines for criminal cases for breach of a criminal behaviour order.

The appeal was allowed in part.

Right to protest

The right to engage in public protest was an important aspect of the fundamental rights to freedom of expression under Art. 10 and the freedom of peaceful assembly under Art. 11. Even protests which were deliberately intended to cause disruption fell within the scope of those provisions, Kudrevicius v Lithuania (37553/05) (2016) 62 EHRR 34 applied. Any interference with those rights had to be lawful, necessary and proportionate. Both the injunction prohibiting the appellants’ conduct and the sanctions imposed for breach of it were restrictions on the appellants’ exercise of their rights under those provisions and required justification (see paras 41, 43-45 of judgment).

Clarity of injunction

Although the language used in Boyd, another “fracking” case, was found to be too vague, the court in that case held that there was no impediment to suing persons unknown who would come into existence when they committed a threatened tort; nor was there any such prohibition on granting a quia timet injunction to restrain such persons from committing a tort which had not yet been committed.

Where an injunction was granted against “persons unknown”, it was unreasonable to impose upon members of the public the cost of obtaining legal advice in order to find out what the injunction did and did not prohibit them from doing. Therefore, the terms of an injunction had to be sufficiently clear and precise as to enable persons potentially affected to know what they must not do. There was nothing objectionable in principle about including a requirement of intention in an injunction, nor was there anything inherently unclear in doing so.

The references to “intention” in the injunction did not have any special legal meaning and were not difficult for a member of the public to understand. Although it was possible to frame a prohibition which applied only to future conduct that actually caused damage, in order to avoid prohibiting lawful conduct it was necessary to include a requirement that the conduct complained of was intended to cause damage. It was not correct, as suggested in Boyd, that the requirement of the tort of conspiracy to show damage could only be incorporated into a quia timet injunction by reference to the defendant’s intention (paras 48, 54, 58, 60, 62, 65-66, 69, 74).

Sanctions

The fact that acts of deliberate disobedience to the law were committed as part of a peaceful protest was relevant in assessing culpability for the purpose of sentencing. However, there was no principle which justified treating the conscientious motives of a protestor as a licence to flout court orders with impunity. Where individuals resorted to hindering lawful activities of which they disapproved, in deliberate defiance of an order, they had no reason to expect that their conscientious motives would protect them from the sanction of imprisonment.

However, there were reasons for showing greater clemency in response to non-violent acts of civil disobedience done with the aim of bringing about a change in law or policy. There was a moral difference between such acts, generally committed by otherwise law-abiding citizens, and those of ordinary law-breakers. It was therefore often appropriate to suspend the operation of the sanction in such cases.

The judge had had regard to the fact that the appellants’ breaches were part of a protest, but had erred in failing to accept the relevance of that in deciding what sanction to impose. He had, however, been entitled to conclude that the committal orders were justified by the need to protect the respondents’ rights and to maintain the court’s authority. The criminal sentencing guidelines provided a useful comparison and the judge had not misapplied them. In relation to the July breach, he had been entitled to treat the appellants’ culpability as aggravated by the element of planning involved and the resulting disruption.

Their lack of remorse was also relevant, as was their failure to admit contempt. The sentence imposed was therefore not wrong in principle or outside the reasonable range. In relation to the August incident, the judge had failed to give sufficient weight to the fact that no actual harm had been caused and the economic loss sustained by the respondents was slight. The two-month term was reduced to four weeks (paras 87, 91, 95, 97-102, 105-109).

A House of Commons Library briefing describes the statutory framework governing the release of prisoners in England and Wales and Government proposals to change them. A draft Order which provides that prisoners would be released automatically at the two thirds point of their sentence will be debated in the Commons on 28 January 2020.

The full piece can be read here.

Home Office figures have revealed that between September 2015 and September 2018 the proportion of crimes recorded that led to a charge or summons in the same period fell from 14% to 8.4% and that in the year to September 2019 the figure declined again to 7.3%, about one in 14 cases.

The full piece can be read here.

Legislation to be brought before Parliament on 22 January 2020 will end the automatic half-way release for offenders sentenced for crimes such as rape, manslaughter and grievous bodily harm. Instead they will be made to spend two-thirds of their sentence in prison, before being subject to strict licence conditions upon release. The move is part of an overhaul of the criminal justice system and follows the announcement on 21 January 2020 of tougher sentences for the most serious terrorist offenders.

The full piece can be read here.

 The Care Quality Commission (CQC) has confirmed that it is considering a criminal investigation of the East Kent NHS trust, which is responsible for five hospitals, where senior doctors have been criticised for refusing to work weekends and evenings in the maternity unit. Allegations have emerged of at least seven preventable baby deaths at the trust since 2016 and the inquest of Harry Richford, who died seven days after he was born at the Queen Elizabeth the Queen Mother Hospital in Margate in 2017, is due to conclude on 24 January 2020.

The full piece can be read here.