Weekly Digest: 6 January 2020

The appellant had been convicted of assisting an offender with intent to impede his apprehension or prosecution and of four counts of failing to give information about acts of terrorism. He was alleged to have helped one of the bombers in the 21 July 2005 London Underground attacks avoid apprehension. The appellant had initially been questioned as a witness but during questioning the officers had reached the conclusion that there were grounds to suspect that he had committed a criminal offence. The decision was taken to continue questioning the appellant without arresting or cautioning him or informing him of his right to legal advice. Evidence from that questioning was admitted at trial after a voir dire. He applied to the European Court of Human Rights for a declaration that the domestic proceedings had been in breach of his right to a fair trial under Article 6(1) and the Grand Chamber held by a vote of 11 to 6 that there had been such a violation. The Criminal Cases Review Commission subsequently referred his conviction to the Court of Appeal.

The Court of Appeal dismissed the appeal. The majority of the Grand Chamber had found that there had not been “compelling reasons” to justify restricting the appellant’s access to a lawyer and that the Government had failed to demonstrate why the overall fairness of the trial was not irretrievably prejudiced by the decision not to caution him and to restrict his access to legal advice ([66] to [77]). The dissenters found there were compelling reasons given the urgent need to avert serious adverse consequences for life, liberty or physical integrity and the temporary nature of the restrictions ([79] and [80]) and that the appellant’s trial had not been unfair given that he had gone to the station voluntarily and could have left, he at no point challenged the authenticity of his statements, the statements were the subject of careful judicial directions and the statements did not form a substantial basis for his conviction ([81] and [82]).

The court is required to determine whether the conviction is unsafe; the appeal is not directly concerned with the question before the Strasbourg Court, which was whether the proceedings involved a violation of Article 6. It does not necessarily follow from the finding of violation of Article 6 that the appellant had been wrongly convicted although there is considerable overlap between the issues relevant. In every case, the safety of the conviction will depend on the kind of breach and the nature and quality of the evidence in the case. Further, although the court should ‘usually’ follow any ‘clear and constant line of decisions’ of the Strasbourg Court, it might be right to depart even from a ‘clear and constant’ line of decisions if (i) it is inconsistent with some fundamental substantive or procedural aspect of our law or (ii) its reasoning appears to overlook or misunderstand some argument or point of principle. Moreover, the degree of constraint the Strasbourg jurisprudence imposes is context-specific ([110]). Here there had been significant dissent in the Grand Chamber and the majority of the Fourth Section had found the other way; the Grand Chamber’s decision rested strongly on the application of a strong presumption of irretrievable prejudice in a case where (i) there were no ‘compelling reasons’ for denying access to legal advice and (ii) the suspect has not been notified of his right to a lawyer and his right to silence and privilege against self-incrimination – a significant development of existing case law; and the Grand Chamber had seemed to err in considering that the absence of evidence from the police as to the reasons for ordering that the interview should continue, or of any written record of those reasons was relevant to whether the trial was fair, rather than whether there were compelling reasons to justify the restrictions and in concluding that the statement had a central position in the prosecution case ([111]).

There were compelling reasons for restricting access to legal advice given the need to obtain information about the whereabouts of an individual who had already detonated a bomb capable of killing and maiming large numbers of people and who it was believed, for good reason, may be planning imminently to detonate more ([114]). However, even if there were no such reasons, and a presumption of irretrievable prejudice applied, it would clearly be rebutted on the facts ([117]). There was no compulsion and he had not been misled as to his procedural rights – there had been no unequivocal representation given by those with the conduct of the investigation or prosecution of the case that he would not be prosecuted ([118]). He did not retract his statement and its admissibility was tested at a voir dire. The regime created by ss. 76 and 78 of the Police and Criminal Evidence Act 1984 constituted a substantial procedural safeguard, as did the supervisory jurisdiction of the Court of Appeal. These factors were material to the overall fairness of the proceedings ([119]). Further, there was considerable other evidence in the case ([121]). In all the circumstances, even if the Grand Chamber had been correct that there was a violation of Article 6, the conviction was safe ([124] and [126]).

Obiter dicta: The assessment of the fairness of the proceedings is a multifactorial and holistic one. The difficulty with a strong presumption of irretrievable prejudice, as applied by the Grand Chamber, is that once the conclusion is drawn that there are no ‘compelling reasons’ for restricting the right of access to legal advice, and irrespective of the degree of unfairness caused by the admission of the statement in question, the cards are stacked against the contracting state. The Grand Chamber’s strong presumption would apply in a case where the statement in question had been obtained by serious oppression in just the same way as it applies in this case, where there was no oppression. The application of such a strong presumption has the potential effectively to determine the outcome of a case and has the potential to undermine the multifactorial, holistic approach to overall fairness which the previous Strasbourg authorities have repeatedly espoused. The Court of Appeal does not, however, need to form a final view on the question whether a strong presumption of irretrievable prejudice should apply in a case where there are no compelling reasons for restricting access to legal advice ([116] and [117]).

The appellant had been convicted of one count of murder and three counts of attempted murder in relation to a shooting in a pub. Among other things it was alleged that he had assisted the shooter’s escape and that he had taken the shooter to a home to clean up and change clothes. Significant evidence at trial was given by H that the appellant had knocked on her door that evening to say he was visiting the house next door and that he had told her to let him know if the police came. Subsequently the stolen car used to escape the shooting was found on fire nearby and DNA and gunshot residue associated with the shooting was found in the house. H had also claimed that a number of months later the appellant and his partner had threatened her in an attempt to stop her from giving evidence. The appellant appealed against his conviction, seeking leave to admit CCTV evidence not adduced at trial which he alleged showed he could not have been where H claimed he was in relation to that later allegation. He argued that if that evidence had been admitted then it would have undermined H’s credibility significantly.

It had become apparent during submissions that the existence of the CCTV footage had been disclosed to the defendants before the applicant’s trial but it had not been viewed by him or his then representatives prior to his conviction ([63]). It is highly doubtful that in those circumstances there is a reasonable explanation for failing to adduce the evidence during the trial. It is for the defence at trial to take decisions as to whether to use or act on the disclosed unused material, and a failure to inspect it is unlikely to justify a later application, following conviction, for it to be introduced as fresh evidence. The court has indicated that only in exceptional circumstances will evidence be admitted that could have been adduced at trial ([64]). However, it only became clear that the existence and analysis of the CCTV footage had been disclosed to the defence during submissions and given that the prosecution had accepted that the CCTV footage, and the expert’s analysis of it, met the test for admissibility it would be admitted and leave to appeal granted ([65] and [66]).

The appeal would, however, be dismissed. Extensive evidence was introduced during the trial as to the character of H and her potential unreliability. By way of a partial summary, evidence was adduced showing that the police were frequently called to her house following complaints, she used cannabis, she had stored class A drugs for others and then provided information to the police about them, she had been served with a child abduction order, she had made an unverified allegation about a neighbour that he had buried two AK47 rifles on a farm, and others considered her a compulsive liar. The prosecution had therefore made it clear that they only suggested she should be relied on if her evidence had independent support, in the sense that her word could not be trusted on its own ([57]). However, notably her evidence as to the appellant having visited was supported by evidence from her daughter and another that she had immediately told them that it was the appellant who had just visited, and evidence from others that she had told them he had visited before the police started making enquiries ([58] and [59]). The immediacy of these statements, which she repeated on a number of occasions, provided considerable protection against concoction. This was res gestae evidence of significant strength ([60]). That compelling evidence was not undermined by evidence that she may have lied about subsequent events ([61]). The verdict of the jury is safe ([62]).

The appellant (aged 41, a number of previous convictions including offences of assault, harassment, producing cannabis and motoring offences), having been drinking alcohol, got into an argument with his partner, grabbed her by the hair and used it to pull her to the floor, hitting her head on the floor twice. He then took her 10-year-old child by the throat and held him over the kitchen side before walking out of the house. The appellant subsequently picked up a railway sleeper and threw it through the sitting room shattering the glass, re-entered, picked his partner up by her throat and threw her to the floor. He then ripped the door off the fridge, throwing it at his partner’s legs. After a further argument in which he pushed his partner, causing her to land on her 12 year old child, resulting in him falling into the door frame, he left the house and texted his partner with the word “dead” after the name of her eldest child. He pleaded guilty to one count of assault occasioning actual bodily harm, one of criminal damage, two of common assault and one of affray. He was sentenced to 8 months’ imprisonment for the assault occasioning actual bodily harm, with a shorter concurrent sentence for the criminal damage, four months concurrent on each count of common assault but consecutive to the actual bodily harm, and two months consecutive for the affray. The offences had been committed in breach of a community order imposed for two offences of driving with a drug level above the limit and an offence of driving whilst disqualified. That order was revoked and a consecutive sentence of four months’ imprisonment imposed, comprised of a sentence of four months’ imprisonment for driving whilst disqualified and concurrent sentences of two months for the offences of driving above the limit.

These offences reflected a frightening and harmful episode of domestic violence ([12]). The appellant was fortunate, given both the sustained nature of assaults on his partner and the use of the fridge door as a weapon, that the judge did not determine the offence of assault occasioning actual bodily harm as a category 1 offence with an appropriate starting point of 18 months’ custody and a category range of between 1 and 3 years. The judge would have been justified in ordering periods of custody imposed in relation to each of the offences of common assault to run consecutively with one another, in order to reflect the separate assaults on the two young children ([13]).

However, the two offences of common assault in respect of which the judge imposed a total of 4 months’ imprisonment were both summary-only offences, as was the offence of driving whilst disqualified for which the judge imposed a consecutive period of 4 months’ imprisonment ([18]). The effect of paragraph 23 of Schedule 8 to the Criminal Justice Act 2003 is that if a Crown Court decides to revoke a community order which was made in respect of a summary-only offence and re-sentence the offender while sentencing him for another summary-only offence, the Crown Court is constrained by section 133(1) of the Magistrates’ Court Act 1980 such that the sentences in respect of those summary-only offences is limited to a total period of 6 months’ imprisonment ([20] and [25]). In contrast with the activation of a suspended sentence, when a court is re-sentencing under paragraph 23 of Schedule 8 to the 2003 Act it was imposing a sentence of imprisonment for the first time for those summary offences and accordingly section 133 of the 1980 Act applies ([24]). The period of imprisonment for the offence of driving while disqualified would therefore be reduced to 2 months’ imprisonment ([26]).

The Court of Appeal heard three otherwise unconnected cases raising issues about the proper approach to sentencing offenders who suffer from autism or other mental health conditions or disorders. PS (age 14 years and 4 months at the time of the offending, age 15 now) had been convicted of murder, wounding with intent and attempted wounding with intent and been sentenced to be detained at Her Majesty’s Pleasure with a minimum term of 14 years. He appealed against his sentence on the basis of medical evidence obtained after his conviction and sentence, which shows him to have autism. Abdi Dahir appealed against a sentence of 14 years’ imprisonment for causing grievous bodily harm with intent, alleging his Post-Traumatic Stress Disorder was not properly considered. CF (aged 15 to 16) committed sexual offences against boys aged 6 and 13, and a girl aged 8 for which he received five years’ detention. He submitted that his sentence was manifestly excessive in length on a number of grounds, including a failure by the judge to take into account the effects of CF’s autism.

The approach to sentencing offender’s with mental health conditions

Mental health conditions and disorders may be relevant to sentencing in a number of ways. First, a consideration of the impact of a mental health condition or disorder at the time of the offence may be relevant to the assessment of the offender’s culpability in committing the crime in question. Where the offender’s mental condition has been exacerbated by a failure to take prescribed medication, or by “self-medication” with controlled drugs or alcohol, the sentencer will consider whether the offender’s conduct was wilful or arose, for example, from a lack of insight into his condition ([8]). Secondly, the offender’s mental health at the time of sentence may be relevant to the decision about the type of sentence imposed, although mental health conditions and disorders can only be taken into account in a limited way so far as the impact of custody is concerned ([9]). Thirdly, mental health conditions and disorders may be relevant to an assessment of whether the offender is dangerous for the purposes of the Criminal Justice Act 2003. Fourthly, they may need to be taken into account in ensuring that the effect of the court’s sentence is clearly understood by the offender and in ensuring that the requirements of a community order or an ancillary order are capable of being fulfilled by the offender ([10]). Sentencing an offender who suffers from a mental disorder or learning disability necessarily requires a close focus on the mental health of the individual offender (both at the time of the offence and at the time of sentence) as well as on the facts and circumstances of the specific offence ([17]). Where it causes the sentencer to move substantially down within the appropriate guideline category range, or even into a lower category range, in order to reach a just and proportionate sentence, a sentence or two in explanation of those choices should be included in the remarks ([18]). It is important, when commissioning pre-sentence, psychiatric or psychological reports, that the issues to which the reports are relevant should be clearly identified ([19]). The younger the offender, and the more serious the offence, the more likely it is that the court will need the assistance of expert reports ([20]). In some cases, reports obtained post-conviction reveal features of the offender’s mental health which are relevant to sentence but which conflict with the case which the offender had advanced at trial. In such situations, the sentencer must remain true to the jury’s verdict, but within those confines must form his or her own view as to the proper basis for sentence ([21]).

The appeal of PS

PS had acted as a lookout for a gang he was associated with when they committed three stabbings ([23]). He was convicted on a joint enterprise basis ([25]). He had one previous conviction for robbery at 13, had witnessed domestic violence as a child and suffered behavioural issues but had shown capacity to improve and mature ([26] and [27]). The judge had fell into error in concluding PS had an intention to kill. Where a defendant is charged with murder on the basis of a joint enterprise, it is sufficient so far as his mental state is concerned, for the jury to be sure that he shared in an intention either to kill or to cause really serious injury. Where the fatal injury is inflicted by a defendant who intends to kill, it does not necessarily follow that all who are guilty of being involved in a joint enterprise with him to commit murder also intended to kill, as opposed to intending to cause really serious injury. PS should have been sentenced on the basis he had an intention to cause really serious injury ([42]). Further, a new report diagnosing PS with Autism Spectrum Disorder and ADHD was admissible as fresh evidence and those disorders significantly reduced PS’s culpability ([43]). A minimum term of 10 years would be substituted ([45]).

The appeal of Abdi Dahar

Abdi Dahar had assaulted a man with a broken bottle resulting in several lacerations to his face ([46]). He had many previous convictions, including for offences of violence, disorder and damage, as well as offences of dishonesty ([47]). This was clearly a greater harm offence for the purpose of the guideline and the higher culpability factor of the use of a weapon was present. However, psychiatric evidence showed the lower culpability factor of mental disorder linked to the commission of the offence was also present. The judge was not obliged to put the offence into category 2, because he was entitled to conclude that on balance it was a category 1 case; but the appellant’s mental health was an important factor in the case. Whether at Step 1, as a balancing of factors indicating different categories, or at Step 2 when considering the mitigation, it should have resulted in a significant downward movement from the starting point. The appellant had also made genuine attempts to seek medical help before and after the offence ([56]). A sentence of 10 years’ imprisonment would be substituted ([58]).

The appeal of CF

CF’s sexual offences were committed against children who, although younger than CF, were his friends, and at times when he was playing with them either in their homes or in his ([60]). There were three victims, R (a boy, aged 5 to 6), H (a boy, aged 13) and L (a girl, aged 8). The most serious offending were two counts of causing a child under 13 to engage in sexual activity which represented six occasions on which CF had placed R’s penis in his mouth ([59]). A pre-sentence report showed CF had an IQ of 75 but verbal comprehension score and working memory score in the second percentile ([63]). The nature of the offending (committed by an adolescent when playing with much younger friends) was clearly suggestive of inappropriate sexual experimentation by an immature and vulnerable offender. Insufficient weight was given to his learning disabilities and his autism ([71]). It was not appropriate to assess the length of sentence largely by reference to the adult offence-specific guideline for causing a child under 13 to engage in sexual activity as the sentencing levels in that guideline take into account the inevitable difference in age between the adult offender and the child victim, a feature absent in this case ([73]). Further, although section 13 of the Sexual Offences Act 2003 (which limits the maximum sentences for offences contrary to section 9 to 12 of the 2003 Act to 5 years where committed by person under age 18) does not apply to offences of causing a child under 13 to engage in sexual activity, contrary to section 8 of that Act, it provides another statutory recognition that when dealing with sexual offending, the court must be careful not to treat the young offender as if he or she were simply a reduced-size version of an adult offender committing similar offences ([74]). Finally, in the context of an offence that could only be committed against a child under 13 a victim aged 5 or 6 was not one who was of “extreme youth” ([75]). The appropriate sentence after trial should have been three years’ detention and a sentence of two and a half years’ detention would be substituted ([76]).

The appellant (aged 58, 21 previous convictions for 58 offences between 1978 and 2012, sixteen of which were drug offences, dating from between 1986 and 2008, convictions for offences of supplying, or possessing with intent to supply, Class B drugs in 1986 and 1992 and supplying, or possessing with intent to supply Class A drugs in 1997 and 2008, addicted to class A drugs since 17) had been seen handing something unknown to a female in the street leading to the police searching his bedsit. They found drugs with an estimated street value of £1,650 comprising 105 grams of cocaine and 56 grams of heroin. The drugs were wrapped in one gram portions for sale. Drug dealing paraphernalia including a tick list, razors, scales, pieces of plastic and six mobile telephones were also found. Three of the phones contained messages relating to selling drugs, one of which indicated a wish to use someone’s flat as a base to sell 8 ounces of drugs a day. The appellant pleaded guilty to two counts of possessing Class A drugs with intent to supply and was sentenced to six years’ imprisonment.

The authorities established a number of key features of the legal framework surrounding the minimum sentence provisions: (1) The right approach for the sentencing judge is to start by applying the relevant sentencing guidelines to determine the appropriate sentence without reference to the minimum sentence provisions. Only then should the judge consult those provisions to ensure that the sentence complies with the statute. (2) Under section 110 the court shall pass a custodial sentence of at least seven years, except where the court is of the opinion that there are particular circumstances making it unjust to do so. (3) Section 144 of the Criminal Justice Act 2003 allows the court to reduce the prescribed minimum sentence by up to 20 per cent in recognition of a guilty plea. That produces a minimum sentence following a plea of guilty of 2,045 days (about 67 months). The ability to reduce the minimum to this extent must be taken into account when assessing whether the application of section 110 would be unjust. (4) The question of whether particular circumstances would make it unjust to impose the minimum sentence is inherently fact-sensitive. The authorities suggest that in cases where the burden lies on the defendant to persuade the court that particular circumstances would make it unjust to apply the minimum sentence provisions, a pre-sentence report should usually be obtained. The failure to obtain a report is not, however, of itself a fatal flaw in the sentencing exercise. (5) One way of testing whether or not a sentence would be unjust in the particular circumstances of the case is to ask whether or not the sentence under section 110 is markedly more severe than the sentence that would have been passed, applying the Sentencing Council guidelines for the offence. This, however, has to be measured against the deterrent element which underlies section 110. (6) The court must loyally apply the law that Parliament has enacted. It must not circumvent or dilute the effect of the statute by taking too liberal an approach to the notion of what is “unjust” as, for instance, by treating perfectly normal circumstances as “particular circumstances” within section 110 in order to circumvent the operation of those provisions ([5]).

The appellant played a significant role in street dealing of heroin and cocaine; the guideline starting point for a single such offence is four and a half years’ custody, with a range from three and a half years to seven years. Here there were two offences ([24]). The appellant’s four previous convictions for involvement in the supply of drugs represented a significant aggravating factor ([25]). The supply was not just social but was for profit ([27]). The appropriate sentence, without regard to section 110, would have been in the range of five years and one month to five and a half years’ custody ([28]). It may be that the judge should have ordered a pre-sentence report, although this is not mandatory in all cases. It may be arguable that there is a threshold requirement for a defendant to give at least some indication of the kinds of circumstance capable of amounting to particular circumstances within section 110 that might be disclosed or corroborated by such a report. Certainly, an application for a pre-sentence report will be stronger if the advocate can point to some particular circumstance in relation to which further information could be expected to be obtained by the National Probation Service ([29]). However, there was now a pre-appeal report. The sentence imposed was not “markedly more severe” than would have been otherwise and there were no particular circumstances making it unjust to apply the minimum. Appeal dismissed ([28], [30], [33]).

The Divisional Court considered three appeals by Lithuanian nationals sought to be returned pursuant to a European Arrest Warrant to undergo trial or serve sentences for crimes in respect of which sentences have already been passed. The appellants’ case was that conditions in three of the five prisons in Lithuania meant there was a real risk of breach of Article 3, if the appellants were extradited and called on to serve their sentences in one of those prisons. The issue raised by the appellants was not the lack of space available to inmates but the risk of violence to them by other inmates of these prisons, and whether the prison authorities in Lithuania could provide adequate protection to the appellants in relation to that risk.

The Divisional Court dismissed the appeals. There can be no doubt that the post-Soviet problem of the caste system in Lithuanian prisons has been long-standing and is of concern. The kind of inter-prisoner violence in question, if unchecked and unmediated, would potentially represent a significant risk of breach of Article 3 ([115]). However, while it cannot be said that the steps taken, or in hand, by the Lithuanian authorities abolish the problem completely, they constitute an adequate response; the allocation of specific funding, the increase in front-line staffing, the existing and planned refurbishments taken together demonstrate that a significant effort is being made ([121]). The Lithuanian authorities had provided assurances as to how the risk would be managed which inevitably mean that they will be fully aware of the impact if any extradited prisoner were to suffer serious harm ([124]). There is no consensus amongst Member States that the presumption is lost. There is no evidence that another Member State has declined to extradite to these three prisons and there is no “pilot judgment” from the ECtHR concerning Lithuanian prisons ([125]). The presumption of compliance has not therefore been displaced, although without the action plan and evidence of implementation the decision might have been otherwise ([126]).

The appellants also alleged that the Lithuanian authorities had failed to disclose the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment’s 2019 report in advance of its due publication date in June 2019 and made assertions in conflict with it ([128]). Member States do not have an obligation to disclose a CPT report, or the state’s response, in advance of the point when it would otherwise become available but the duty of candour must also mean that evidence or assertions should not be advanced which are inconsistent with the factual position known to the requesting state ([133]). It is the obligation of the Crown Prosecution Service when assisting a requesting state to ensure that state is alerted to their duty of candour ([135]).

The Claimants, all non-governmental organisations, challenged the legality of the Investigatory Powers Commissioner (Additional Directed Oversight Functions) (Security Service’s Agent Participation in Criminality) Direction 2017 which requires the Investigatory Powers Commissioner to keep under review the application of Security Service Guidelines on the use of agents who participate in criminality and the authorisations issued in accordance with them, and the legality of those guidelines themselves. The Security Service Guidelines, among other things, provide guidance as to the operation of the Security Service’s own procedure for authorising the use of agents participating in crime, a procedure distinct from the regime under Part II of the Regulation of Investigatory Powers Act 2000 for authorising the conduct and use of Covert Human Intelligence Sources. Authorisation did not provide legal immunity from prosecution but could form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.

A majority of the Investigatory Powers Tribunal (Singh LJ, Lord Boyd of Duncansby and Sir Richard McLaughlin) dismissed the claim.

Whether there is a lawful basis for the policy

There is an implied power in the Security Services Act 1989 for the Security Service to engage in the activities which are the subject of the policy under challenge. The running of agents, including the running of agents who are embedded in an illegal or criminal organisation, such as the IRA, would obviously have been occurring before 1989. The 1989 Act intended to continue the existence of the Service and it is impossible to accept that Parliament intended in enacting the 1989 Act to bring to an end some of the core activities which the Security Service must have been conducting at that time ([60]). The use of agents in proscribed organisations is an essential part of the core activities of the Security Service ([61]). It is not necessarily and always going to be the case that the authorisation of an activity under the Guidelines would amount to a criminal offence ([64]). Further, if the Security Service lack the power to do what they are doing in running agents in a proscribed organisation, the same could be said of the ordinary police ([66]).

Whether the policy creates an immunity from the general criminal law

It is clear from the words of the policy itself that it does not confer any immunity from criminal prosecution on anyone and the Guidelines require that to be made clear to agents ([73]). There is no legal duty on the part of the Security Service to inform the relevant police or prosecution authorities of their activities ([76] and [77]). The policy does not seek or purport to displace the exercise by independent prosecution authorities of their proper functions, for example, of assessing where the public interest lies in whether or not to prosecute a person even when the evidential test has been met. All that the policy does is to set out what the Security Service would intend to say by way of representations as to where the public interest lies if that becomes necessary ([83]). There is nothing improper or unlawful about the Security Service having such a policy ([84]).

The secret nature of the policy and whether the policy was in accordance with the law for the purposes of the ECHR

A policy need not be disclosed where that is necessary in the interests of national security ([87]). There is no requirement of publication and there is no more of the text of the Guidelines which can properly be put into the public domain ([87] to [91]). The oversight powers given to the Investigatory Powers Commissioner provide adequate safeguards against the risk of abuse of discretionary power ([93]). There is nothing inherent in the policy which creates a significant risk of a breach of Article 3 or indeed any other Convention right ([100]). Further, the claimants did not have standing to rely on the Convention rights as they were not victims of an unlawful act ([105] to [107]).

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The full piece can be read here.

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The full piece can be read here.

Speaking at a ceremony to mark her retirement Lady Hale has advised against the selection of judges on the basis of their political views as they do in the United States.

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