Weekly Digest: 6 November 2017

The appellant was sentenced to an extended sentence of ten years’ imprisonment, comprising a custodial term of seven years and an extension period of three years. He was released on licence after serving two-thirds of the custodial term, but was recalled to custody after committing a further offence. He then remained in prison until the sentence had been served in full. The appellant complained that he was not provided with appropriate rehabilitation courses following his recall to prison, contrary to article 5 of the European Convention on Human Rights, as given effect in domestic law by the Human Rights Act 1998.

The Supreme Court had earlier held in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 that there was an obligation to provide life and IPP prisoners with a real opportunity for rehabilitation, but held that this was not imposed by article 5(1). The duty was an ancillary duty in the overall scheme of article 5 and existed throughout a prisoner’s detention. The Supreme Court in that case had declined to follow the judgment in James v United Kingdom (2013) 56 EHRR 12, in which the European Court of Human Rights concluded that after the punishment part of an IPP has been served and the prisoner remains in detention for reasons of public protection, a real opportunity for rehabilitation should be provided.

In Kaiyam v United Kingdom (2016) 62 EHRR SE 13 the European Court of Human Rights rejected the article 5(1) complaint in Kaiyam as inadmissible on the basis that article 5(1)(a) does not require a real opportunity for rehabilitation during the tariff period, since that represents the punishment part of the sentence. The European Court of Human Rights preferred the approach in James and declined to adopt the Supreme Court’s analysis.

The question of whether the obligation to provide rehabilitation opportunities arises under article 5(1), as the European Court of Human Rights held in James and Kaiyam, or derives from article 5 as a whole (as the Supreme Court held in Kaiyam) is important as it affects the substance of the obligation, including: the period during which the obligation applies, the standard of the duty, and the weight to be placed on the Secretary of State’s assessment of what amounts to a reasonable opportunity.

Delivering the judgment of a unanimous Court, Lord Reed observed that as a result of the Supreme Court’s judgment in Kaiyam, domestic law imposed a more demanding obligation on the prison authorities than the duty imposed by the European Convention on Human Rights. In this unusual situation, it was held that the proper approach was for the Supreme Court to adopt the same approach to the interpretation of article 5(1)(a) as the European Convention on Human Rights in James. The obligation to provide opportunities for rehabilitation would cease to be treated as an implicit obligation derived from article 5 as a whole.

His lordship held that the duty to provide an opportunity for rehabilitation established in James should apply equally to prisoners detained during the extension period of an extended sentence, having regard to the indefinite (albeit not unlimited) duration of detention during the extension period, its purpose of protecting the public from serious harm, and the possibility of change in response to opportunities for rehabilitation. The rationale in James that rehabilitation opportunities had to be available to IPP prisoners where they were detained solely because of the risk they pose to the public, applies to prisoners detained during the extension period of an extended sentence.

In light of the various opportunities for rehabilitation provided to the appellant in the present case, there could be no doubt that he was provided with a real opportunity for rehabilitation during his custodial sentence and his extended sentence. The appellant was not left in limbo without sentencing planning and without any attempt to provide him with an opportunity to rehabilitate himself. On the contrary, there were courses provided and completed, regular planning meetings, efforts made to find appropriate rehabilitative work, and transfers to less restrictive conditions. The problem which resulted in the appellant’s serving the whole of his sentence was not the failure of the prison authorities to provide appropriate courses, but his own misconduct. There was no question of his detention during the extension period, or at any other point during his sentence, having been arbitrary

Littlewoods overpaid VAT to HMRC between 1973 and 2004. Between 2005 and 2008, HMRC repaid the principal sum of £205 million, together with simple interest of £268 million. Littlewoods sought additional interest, calculated on a compound basis as £1.25 billion, on the ground that such interest was due under the common law of restitution, either as restitution for a mistake of law, or as restitution of tax unlawfully demanded.

Delivering the judgment of a unanimous Court, Lord Reed and Lord Hodge held that section 78 of the 1994 Act impliedly excluded the claim made by Littlewoods as a matter of English law, for the following reasons:

1. The scheme created by section 78 was held to be inconsistent with the availability of concurrent common law claims to interest. The right to interest in section 78 is subject to certain limitations, including (i) section 78(1), which limits HMRC’s liability to pay interest to cases of error by HMRC; (ii) section 78(3), and the provisions to which it refers, which determine that the interest rate is calculated on a simple rather than a compounded basis; (iii) section 78(11), which sets the applicable limitation period, which is shorter than the limitation period that would apply to a common law claim. These limitations would be defeated and rendered effectively pointless if it were possible for the taxpayer to bring a common law claim.
2. Section 78 states that the liability to pay interest under that section applies “if and to the extent that [the Commissioners] would not be liable to do so apart from this section”. On a literal meaning, this would permit a common law claim for interest to be made outside section 78. At the time section 78 was enacted, however, the type of common law claim made by Littlewoods in the present case had not yet been recognised in law, and was thus not contemplated by Parliament when it enacted the legislation. It was held that it cannot have been Parliament’s intention that a common law claim would be permitted in any case where an amount was paid under section 80, as this would render section 78 a dead letter, and would fatally compromise the statutory scheme.

In relation to the question of whether EU law required the payment of compound interest, it was held that the judgment of the CJEU in Case C-591 / 10 Littlewoods does not require reimbursement of the losses constituted by the unavailability of money. Their lordships held that the CJEU has given member state courts a discretion to provide reasonable redress in the form of interest in addition to the principal sum.

Ewa Michalak was a doctor employed by the Mid-Yorkshire Hospitals NHS Trust from April 2002 until she was dismissed in July 2008. Following her dismissal, Dr Michalak brought an unfair dismissal claim against the Trust in the Employment Tribunal. The tribunal found that her dismissal had been unfair due to sex and race discrimination and victimisation. Dr Michalak received a compensation award and a public apology from the Trust.

Before the tribunal had issued its determination, the Trust had reported Dr Michalak to the General Medical Council to consider whether she should continue to be registered as a medical practitioner. The Trust later accepted that there had not been proper grounds to refer her and she remains registered as a medical practitioner. In the meantime, however, the GMC had begun fitness to practice proceedings against Dr Michalak. She claimed that the GMC discriminated against her in the way in which it pursued those proceedings, including a failure to investigate complaints she had made against other doctors employed by the Trust. In August 2013, Dr Michalak brought a claim in the Employment Tribunal against the GMC, its chief executive and one of its investigation officers in relation to these complaints.

The GMC argued that section 120(7) of the Equality Act 2010 meant that the Employment Tribunal did not have jurisdiction to hear the claim, as judicial review already provides for an appeal in these matters.

Delivering the judgment of a unanimous Court, Lord Kerr observed that the Employment Tribunal was designed to be a specialised forum for the resolution of disputes between the employee and employer, with the power to award a comprehensive range of remedies. Where Parliament had provided an alternative route of challenge to a decision through an appeal or an appeal-like procedure, however, it was sensible for the appeal procedure to be confined to that statutory route. The rationale for this is that it avoids the risk of expensive and time-consuming satellite proceedings and is convenient for both the appellant and respondent. Employment Tribunals should be prepared to examine critically whether statutory appeals are available, and where they are, should strike out proceedings before them. This rationale only applies where the alternative route is capable of providing an equivalent means of redress, however.

His lordship observed that conventionally, an ‘appeal’ is a procedure which entails a review of an original decision in all its aspects – an appeal body may thus examine the basis on which the original decision was made, assess the merits of the conclusions reached and, if it disagrees, substitute its own view. Judicial review, by contrast, is a proceeding in which the legality of or procedure by which a decision is reached is challenged. It cannot partake of the nature of an appeal – the remedy available on a judicial review application in circumstances such as the present is a declaration that the decision is unlawful or that the decision be quashed. The court cannot substitute its own decision for that of the decision-maker and, in that sense, the decision of the GMC could not be reversed. An appeal in a discrimination case must confront directly the question whether discrimination has taken place, not whether the GMC had taken a decision which was legally open to it.

His lordship observed that the origins of judicial review lie within the common law and it is not a procedure which arises ‘by virtue of’ any statutory source – section 31 of the Senior Courts Act 1981 did not establish judicial review as a procedure, but rather regulated it. If Parliament had intended that judicial review was within the scope of the procedures contemplated by section 120(7), it would have provided for it expressly.

In a brief judgment, Lord Mance agreed with Lord Kerr but added that he would not necessarily limit the ability of judicial review to cater for a close examination of a claim on its merits – in appropriate circumstances, judicial review may lead the court to a conclusion that there exists only one possible outcome of a properly conducted legislative or executive decision-making process. In this situation, however, his lordship held that the Employment Tribunal offers the natural means of recourse and there is no need to strain the ordinary understanding of the concept of ‘appeal’ to embrace judicial review.

The appellant had undergone gender reassignment from male to female. She was issued with a gender recognition certificate (GRC) in 2006. Since June 2010 she has been unemployed, apart from a period in 2015-16. In order to receive Jobseekers Allowance (JSA) she has to attend a Jobcentre Plus (JCP) office in person every two weeks.

DWP uses a centralised database, the Customer Information System (CIS), to record information about each of its customers, including his or her current sex, the fact that he or she was previously recorded as having a different sex (if applicable), his or her current name and title, and his or her former names and titles (if applicable), the fact that a person has a GRC and its date, and the reason for a change of recorded sex being gender reassignment (if this is the case). These data are held for the life of the individual concerned and for 50 years and a day thereafter (‘the Retention policy’). This is because gender at birth at present remains relevant to the calculation of state pension entitlement, and in order to detect fraud. The fact of a GRC and the reason for a change of recorded sex being gender reassignment is no longer visible to front-line staff, but any previous name, title or gender is visible.

Access to an individual’s CIS record is not required for the routine issue of benefit payments, but it will be required, for example, to make routine changes, such as a change of address. However, the DWP also has a Special Customer Records policy (‘the SCR policy’) which applies to certain categories of customer who require extra protection for their privacy and is routinely applied to transgender customers unless they ask otherwise. This requires specific authorisation for access. This has the effect that there are delays in accessing the account to authorise payment and it alerts the front-line staff to the probable reason for the restricted access. The appellant had suffered distressing incidents at JCP offices when her transgender status has been openly referred to.

Delivering the judgment of a unanimous Court, Lady Hale, in her first judgment as President of the Supreme Court, held that the Retention and SCR policies were not unlawful under the GRA, the HRA or the EA.

Lawfulness under the GRA

Section 9 of the GRA provides that where a GRC is issued a person’s gender ‘becomes for all purposes’ the acquired gender. It does not rewrite history or require the previous state of affairs to be expunged from official records, but other sections offer additional protection against inappropriate official disclosure of that prior history The Retention and SCR policies were held not to be inconsistent with or prohibited by any provision of the GRA.

Lawfulness under the HRA

The Retention and SCR policies do constitute a very serious interference with the rights of transgender people to respect for their private life protected by article 8 ECHR. The justifications relied on by the DWP – the need to retain information for the time being for the purposes of calculating state pension rights, and to identify and detect fraud – are legitimate and rationally connected with the policies. The question is whether the policies are proportionate. In carrying out the balancing exercise it was held to be relevant that front line staff will only rarely have to access the CIS, that the DWP has been engaging with the appellant over many years to try to understand and cater for her concerns, that it is no simple matter to modify existing computer systems designed to cater for vast numbers of customers, which interact with one another in complex ways, and that it was not possible to make further adjustments to the CIS without inordinate expense. Her ladyship stated that it was not for the courts to administer the benefits system.

The Retention policy was held therefore to constitute a proportionate means of achieving its legitimate aims. The SCR policy could not be considered in isolation from it. It has the legitimate aim of protecting the privacy of those customers who need and want it. The problems associated with it are inevitable if access to the CIS is to be restricted. It too is justified.

Lawfulness under the EA

There was held to be no direct discrimination on the ground of gender reassignment. The details of all customers who change their names and titles are recorded on the CIS. Transgender customers who need and want it are treated differently under the SCR policy. It was held that they are not treated less favourably as a result of their transgender status.

The claim of indirect discrimination also failed. The Court accepted that gender reassignment changes one’s identity at a much deeper level than name changes for other reasons. However the SCR policy was held to constitute a proportionate means of achieving a legitimate aim for the purposes of section 19(2)(d) of the EA and for the same reasons any discrimination was held to be justified for the purposes of article 14 of the ECHR.

The four applicants were convicted on unconnected occasions of possessing a psychoactive substance, namely nitrous oxide, with intent to supply contrary to section 7 of the 2016 Act. Two were convicted after trials and two on their own pleas of guilty. In none of their cases was it contended that the nitrous oxide in the possession of each applicant was an exempted substance. In fact, it was agreed that it was not. The applications were prompted by widespread publicity given to a handful of other cases where such a contention was accepted by trial judges. If the nitrous oxide the applicants had in their possession was a ‘medicinal product’, then they would have been convicted of offences not known in law, because it is not an offence under the 2016 Act to possess a medicinal product with intent to supply. On the other hand, if the nitrous oxide was not a ‘medicinal product’ within the meaning of the Act, then all of the applications were bound to fail.

The Lord Chief Justice dismissed the appeals and observed that the regulatory regime contemplated that a substance might be a medicinal product for one purpose (and thus subject to control under the 2012 Regulations) and not another. This followed from the judgment of the ECJ in D & G (C-358/13, C-181/4) in which the court adhered to the long-standing principle that determination of the question had to be considered on a case-by-case basis by reference to many factors.

The manufacture and supply of nitrous oxide for medical purposes would clearly be covered by the 2012 Regulations because in that context it fell within the definition of a medicinal product. But a combination of factors led inexorably to the conclusion that in the circumstances of the instant cases the nitrous oxide was not a medicinal product. The substance no doubt modified the physiological functions of those who inhaled it, but it brought neither short-term nor long-term beneficial effects to human health. The canisters in question were manufactured for use unconnected with medical purposes. They were widely available and they were distributed for use in catering, which in itself was held to be a strong indicator that they were not medicinal products. Further, the purpose of supplying the canisters was purely recreational and had nothing whatsoever to do with health.

The Crown applied for leave to appeal against a ruling which terminated the defendants’ trial for murder. The defendant had been accused of setting fire to a 43-year-old homeless man whilst he slept in a car park. The prosecution relied on circumstantial evidence, including CCTV footage showing the arrival and departure of the defendants at the car park at the relevant time and evidence that the deceased had earlier propositioned the first defendant’s girlfriend. Kerosene had been found on the deceased’s clothes and forensic evidence linked the second defendant to a barbeque lighting fluid bottle found near the deceased’s body. Kerosene was also found on the first defendant’s shoes. In his prepared statement, the first defendant admitted being present when the lighting fluid was poured, but claimed that the deceased had poured it over himself. It was the prosecution’s case that the defendants were joint principals. The case was not put on the basis of secondary liability. It was the defendants’ case that there was no case to answer. The judge considered that there was no evidence as to who threw the liquid, if it was thrown at all, or who started the fire. He stated that association or suspicion was not enough, and that there had to be an actus reus and a mens rea of intent to kill or cause really serious bodily harm. He concluded that it was not a case which ought properly to be left to a jury.

The prosecution submitted there was enough evidence whereby a reasonable jury, properly directed, could properly infer the guilt of both respondents.  The Court of Appeal held that the judge’s ruling that there was no case to answer was reasonable.  The circumstances were highly suspicious, but the court confirmed that suspicion was not enough to enable the case to pass half time.

The respondent was a Nigerian national. Her brother, who has lived in the UK for 11 years, was her sponsor for the purpose of her visa application. The respondent’s application for entry clearance was considered and refused on the basis that Entry Clearance Officer was not satisfied that she was genuinely seeking entry as a visitor.

It was submitted on behalf of the respondent that the decision to deny her entry was contrary to article 8. The Court of Appeal held that both the First-tier tribunal and the Upper Tribunal had erred in finding that the ambit of ‘family life’ encompassed the relationship between the respondent and her brother. The protection of family life under article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults would not necessarily acquire the protection of article 8 without evidence of further elements of dependency, involving more than the normal emotional ties.

The claimant had been found guilty of training a bull terrier-type dog for use with an animal fight, contrary to section 8(1)(h) of the Animal Welfare Act 2006. The Crown Court found that the dog had originally been kept at the claimant’s home. After it had been whelped, however, it was kept for considerable amounts of time at the home of another man. The court found that the claimant “whether by herself or though her agent [the other man]” kept the dog for use in connection with an animal fight by arranging for the dog to be sent to Ireland for assessment and/or training. The claimant asked the Crown Court to state a case on the question of whether a person could “keep or train” an animal within section 8(1)(h) through an agent.

The finding of fact that the claimant had physical and actual possession of the dog for the purposes of animal fighting made the claim for judicial relief academic. However, there was a broader question of whether an animal in the physical possession of another, but at the direction and arrangement of the person charged, could still be kept by that person. Whilst there was no statutory interpretation of “keeps” within the Act, the court held that the starting point was that the word should be given its ordinary meaning. By such a meaning, a person might keep an animal by having actual physical possession, but also by requesting another to keep it for them. The word included an assumption of a level of control over an animal whether at the home of the person charged or the home of another. In either event the animal was still being kept by the person charged.

The court held that section 8(1)(h) ought to be interpreted to include those may have actual physical possession as well as those who retain control of the animal whilst it is elsewhere. The keeper of an animal may have it in their own home or retain it in the home or place of another. Equally a person may themselves train the animal to fight or arrange for another to carry out the training for them. The court concluded that there was no sensible basis to restrict the interpretation of section 8(1)(h) to the person who had actual physical possession or actually did the training themselves; to do so would unnecessarily restrict the offence and the policy of the legislation to criminalise those who are involved in training animals to fight.

The appellant imported two consignments of died poppy heads from the Netherlands with a view to satisfying orders for decorative poppy heads.  A summons was issued by the Border Agency seeking the condemnation of the two consignments pursuant to section 139 and schedule 3 of the Customs and Excise Management Act 1979.  The District Judge made an order of condemnation and the appellant appealed against that order to the Crown Court. The definition of ‘poppy straw’ in the 1971 Act is, ‘all parts, except the seeds, of the opium poppy after mowing’.

The Crown Court proceeded on the basis and in the case stated set out as a fact found that the appellant was at all material times a trader in dried flowers. The Crown Court also accepted his representations that the consignments had been hand-picked by a team of about 8 people who harvested the seeds by hand from a specially adapted trailer. The seed heads were then sorted and dried. In some cases, the poppy seed heads with stalks attached had been cut and in some cases the seed heads had been broken off with no stalks attached.

Before the Crown Court, it was argued by the appellant that the imported goods were not poppy straw but papaver gigantum.  The Crown Court found that “mowing” meant harvesting, reaping, picking or other removal from the soil and to interpret mowing as requiring or excluding any particular means of harvest would make a nonsense of the definition of poppy straw.

The Administrative Court held that the Crown Court had reached the wrong conclusion on the meaning of the statutory definition. The relevant poppies had not been mown and so the relevant poppy heads (with and without stalks) were not parts of the poppy after mowing. Rather, they had been harvested or picked with care in a way that preserved those heads for use for an ornamental or decorative purpose, including floristry.