This week’s Digest considers three judgments of the High Court. The first rules on the positive obligation on the state under article 2 ECHR to protect the lives of vulnerable people under deprivation of liberty safeguards. The second discusses whether a private prosecutor was entitled to payment out of central funds of his costs relating to confiscation enforcement proceedings. The third considers whether a Polish citizen could be extradited pursuant to a European Arrest Warrant where the Polish authorities had previously extradited and failed to prosecute him.
R (Maguire) v Senior Coroner for Blackpool [2019] EWHC 1232
The judgment, available here, was handed down by Irwin LJ on 15 May 2019.
Jackie Maguire died in hospital of a perforated ulcer at the age of 52 on 22 February 2017. She had Down’s syndrome and learning difficulties. She had lived for more than 20 years in a care home in Blackpool. The Senior Coroner opened an inquest into her death in August 2017 and considered engaging article 2 ECHR. He ruled that the allegations against Jackie’s carers amounted to allegations of individual negligence and so fell outside the state’s obligations under article 2. He also declined to leave the determination of neglect to the jury, who concluded that Jackie’s death was from natural causes. Jackie’s mother, the claimant, challenged both of these Coroner’s decisions. The application was dismissed – the Coroner’s approach could not be faulted.
In April 2016 Blackpool City Council had renewed its decision to deprive Jackie of her liberty for a year, imposing deprivation of liberty safeguards. Over the course of the afternoon and evening of 21 February 2017 Jackie’s carers made a number of calls to her GP requesting a GP visit, to NHS111 for medical advice, and eventually an emergency call asking for an ambulance to be dispatched urgently. Jackie refused to be taken to hospital and it was decided that it would be disproportionate to use physical force in the light of her limited symptoms. She was not displaying any ‘red flag signs’ that her life was at immediate risk. The next day she was found lying soiled on the floor and was taken to hospital by ambulance, before dying that evening.
The claimant contended on judicial review that the Coroner erred by determining that article 2 did not apply, under the recent decision of R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin). Under article 2, the state has a positive obligation to take appropriate steps to safeguard the lives of those in its jurisdiction. However, where a state has made provision for securing high professional standards among health professionals, matters such as errors of professional judgment or negligent coordination in the treatment of a particular patient will not be sufficient engage article 2. In particular, death by natural causes will not engage article 2 in the absence of any reason to believe that the state failed to protect the life of the individual in question; for example, a failure to provide timely medical care to a prisoner obviously in need of it. The claimant argued that Jackie was a vulnerable person under the care of the state and, through her deprivation of liberty, in a situation comparable with a prisoner in detention.
The Court held that while the reach of the duty under article 2 was not easy to define, the ‘touchstone’ remained whether the circumstances of the case were such as to call a state to account. In the absence of either a systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility, the state would not be held accountable. Neither element were present on the facts of this case. Mental incapacity sufficient to justify deprivation of liberty was insufficient on its own to trigger the engagement of article 2.
The claimant also argued that the Coroner should have left a finding of neglect to the jury, submitting that acts or omissions by different individuals or different failures in the system could combine to form a total picture that amounted to neglect. The Court held that the approach taken by the Coroner could not be faulted – he had properly directed himself and no error of law arose. The application was dismissed.
Re Ketan Somaia [2019] EWHC 1227
The judgment of Jefford J, dated 15 May 2019, is not available on BAILII but is available on Lawtel and Westlaw.
A private prosecutor had successfully brought proceedings against the defendant for fraud. He then brought confiscation proceedings in the Crown Court and a confiscation order was made, along with orders that the prosecutor’s costs should be paid out of central funds. To enforce the confiscation order the prosecutor sought the appointment, under section 80 of the Criminal Justice Act 1988 (“the 1988 Act”), of a receiver over the defendant’s assets. Section 17(1)(a) of the the Prosecution of Offences Act 1985 (“the 1985 Act”) provided that the court could “in any proceedings in respect of an indictable offence” order payment out of central funds. The prosecutor submitted a bill of costs to the Legal Aid Agency’s Criminal Cases Unit. The Lord Chancellor successfully applied to intervene and applied to set aside the order that the private prosecutor’s costs should be paid out of central funds. The Court accepted the Lord Chancellor’s submissions. Confiscation enforcement proceedings were not criminal proceedings and so not covered by section 17 of the 1985 Act.
The 1985 Act dealt with defence, prosecution and third party costs in criminal cases. The prosecutor argued that confiscation proceedings under the Proceeds of Crime Act 2002 were in respect of an indictable offence and that, although the instant proceedings were not “criminal proceedings”, the position should be the same for proceedings under the 1988 Act. The Lord Chancellor submitted that, although confiscation proceedings were part of the sentencing process and therefore part of criminal proceedings, enforcement proceedings in the High Court for the appointment of a receiver were purely civil in nature.
The Court held that the confiscation enforcement proceedings were civil proceedings. Section 17 of the 1985 Act was not necessarily limited to dealing with the costs of a private prosecutor. Looked at simply as a matter of the construction of section 17, the wording seemed to be wide enough to cover proceedings under section 80 of the 1988 Act and to extend to proceedings to identify realisable property and its value. But this construction was not open to the court because of the decision in Steele Ford & Newton v CPS [1994] 1 A.C. 22, in which the House of Lords held that there was no power to award costs out of central funds other than in criminal proceedings. Further, the Costs in Criminal Cases (General) Regulations 1986, Practice Direction (CA (Crim Div): Costs in Criminal Proceedings) [2015] EWCA Crim 1568 and the Criminal Procedure Rules 2015 also did not appear to contemplate that proceedings in the High Court could result in an order for payment of costs out of central funds under section 17. Section 17 was therefore not intended to apply to civil proceedings in the High Court even if they were consequential on criminal proceedings.
The Court then considered the meaning of “criminal proceedings”. The only authority which pointed to the meaning of criminal proceedings as encompassing enforcement proceedings was R (Taylor) v Westminster Magistrates Court [2009] EWHC 1498 (Admin). The decision was not expressly concerned with the 1985 Act, but supported the contention that confiscation enforcement proceedings, other than those by way of enforcement of a fine in the magistrates’ court, were “criminal proceedings” because they were part and parcel of the confiscation proceedings. However, any observations in those cases were obiter or not determinative of the application of section 17. Although Taylor provided a measure of support for the prosecutor’s case, it did not amount to authority that the interpretation of the 1985 Act for which the Lord Chancellor contended was wrong.
Ciemnak v Poland [2019] EWHC 1340 (Admin)
The judgment, available here, was handed down by Holman J on 22 May 2019.
The appellant challenged his extradition to Poland to serve a two year and two month sentence for drugs offences. He had already previously been extradited to Poland in 2014, served a sentence for an earlier offence, and returned to the UK to live with his wife and eight-year-old son. His appeal was allowed. In this case, the public and international interest in extradition was outweighed by his and his family’s article 8 ECHR rights.
The appellant formerly lived in Poland. He had been convicted in Poland for drugs offences in 2002 and 2005, and had been arrested in June 2008 for further drugs offences. He travelled to England shortly afterwards and met the woman who was now his wife. They had one eight-year-old son. He was extradited back to Poland in 2013 pursuant to an European Arrest Warrant (“EAW”) both to serve the sentences of imprisonment that had already been imposed and to face trial for the 2008 offences. The 2008 offences were not prosecuted at this point. He served 15 months in Polish custody between 2014 and 2015 before returning to England with the consent of the Polish court. However, he was convicted in in absentia in 2017 for the 2008 offences, though he did manage to instruct an advocate, and sentenced to two years and two months’ imprisonment. Poland now issued a further EAW. The appellant challenged this second warrant.
The district judge had categorised the appellant as a fugitive. The High Court disagreed: while he had been a fugitive upon first travelling to England in 2008, he was not a fugitive from 2013. He was successively on bail, in prison in Poland, and then in England with the express permission of the Polish court. The district judge also blamed the appellant for the approximately ten year delay. The Court disagreed: any delay after 2013 was a consequence of the fact that the Polish authorities, despite having obtained his extradition in June 2014, “did not get on with the prosecution”. There was no explanation as to why, despite the appellant being in prison for 15 months, the prosecution for the 2008 offences had not taken place. The district judge also erred in assessing the quantity of drugs supplied. While the total quantity of drugs allegedly concerned, including 139g of amphetamine, 90 MDMA pills and half a kilo of cannabis, was significant, the actual offence for which the appellant had been convicted related only to the supply of 19g of amphetamine. The Court held that the district judge had elided these two quantities. Finally, the appellant relied on the effect of a second extradition on his wife and son, under article 8 ECHR. The Court found that the district judge was wrong to find that the appellant was not his son’s primary carer – the family lived together in a single household as a united family.
Given the significant errors in the reasoning of the district judge, section 27 of the Extradition Act was engaged, meaning that the Court could allow the appeal if the questions in the initial extradition hearing should have been decided in such a way as to order the appellant’s discharge. The Court considered that while the offences are serious, they were not of such gravity as to make extradition imperative, ten years later. There had already been ample opportunity for the Polish authorities to prosecute him, and there was no explanation for why this had not been done. There was firmly established family life and good evidence, based on the effect of the 2014 and 2015 separation, that the son is likely to be seriously affect by a further separation. These article 8 rights in particular outweighed any public and international interest in the extradition. The appeal was allowed.
OTHER NEWS
The High Court is recruiting up to 36 judicial assistants
The programme, which is now open for applications, is aimed at recently qualified solicitors and barristers with ‘outstanding intellectual ability, excellent organisational skills and the ability to manage large and complicated workloads’.
Placements will last for either three or five months, and the work will involve carrying out research, summarising case documents and transcripts, summarising submissions and discussing cases and hearings with judges. The assistants will be paid around £2,500 a month.
The full piece can be found here.
Boris Johnson summoned to court over 2016 referendum £350 million a week claim
The Tory leadership candidate has been accused of the offence of misconduct in public office after making the claim during the 2016 EU referendum campaign, in a private prosecution launched by campaigner Marcus Ball.
The preliminary hearing will take place at Westminster Magistrates’ Court and the case will then be sent to the Crown Court for trial.
More details can be found here.
Birmingham City Council wins injunction to stop protests against LGBT lessons
Demonstrators protesting against primary school children being taught that people of all genders and sexualities should be treated equally have been served with a high court injunction.
Birmingham city council made the application following several weeks of protests outside Anderton Park primary school in the city.
More details can be found here.
