Time to talk about human rights

If you have missed the controversy over the election results and the looming overhaul of the Human Rights Act 1998 (HRA) by the new justice secretary, Michael Gove, then you have clearly been on a spectacularly secluded holiday. Although human rights jurisprudence has permeated much of our legal system, it is evident that judicial review in the UK was galvanised by the HRA, so the prospect of its repeal has many commenters debating the merits, extent, and impact of any such change.

But this is a judicial review update, so, while encouraging all interested readers to trawl the academic and practitioner articles and blog posts on it, what better time to acknowledge some judicial dialogue on the topic?

Compensation award

In R (Nealon and Hallam) v Secretary of State for Justice [2015] EWHC 1565 (Admin), Lord Justice Burnett and Mrs Justice Thirlwall dealt with an application by two claimants, who had been convicted for serious crimes but were successful on appeal against conviction. They applied for judicial review of the justice secretary’s decision to refuse to pay them compensation under the Criminal Justice Act 1988 (CJA), as amended
by the Anti-social Behaviour, Crime and Policing Act 2014.

Section 133 of the CJA allows for awards of compensation for miscarriages of justice where
a new or newly discovered fact renders the conviction unsafe. The justice secretary refused
to award compensation to the claimants on the basis that their convictions had not been rendered unsafe by a new or newly discovered fact, but rather by unsafe questions raised about the identification evidence that had formed the basis of their convictions.

The claimants considered that section 133 violated the presumption of innocence articulated in article 6(2) of the European Convention on Human Rights (ECHR) when
read with the Strasbourg decision in Allen v United Kingdom [2013]. The justice secretary considered that the Supreme Court’s decision in R (Adams) v Secretary of State for Justice [2011] UKSC 18 was authority for the fact that article 6(2) had no bearing on section 133.

The High Court disagreed with the claimants. Adams remained the binding authority and the starting point for consideration. Specifically, the High Court stated it was ‘bound by the rules of precedent to follow the decisions of the Court
of Appeal and Supreme Court (or House of Lords). Even were we satisfied in the context of a decision on the meaning of the ECHR that the Strasbourg court had clearly disagreed with the domestic courts by which we are bound, we are obliged
to adhere to our rules of precedent.’

It may be a sentiment frequently uttered when the HRA is criticised for allowing Strasbourg to dominate domestic law, but it is encouraging to see the explicit underlining from the courts that it is understood the jurisprudence needs to be critically analysed, and ultimately the rules of precedent oblige the UK to take account of Strasbourg jurisprudence and apply domestic jurisprudence.

QASA challenge

Another dialogue has come to an end with the conclusion of the action in R (Lumsdon) v Legal Services Board [2015] UKSC 41 in the Supreme Court. Readers will remember this was the challenge to the quality assurance scheme for advocates (QASA). This challenge went forward from the Court of Appeal purely on a point of European law: whether QASA failed to meet the conditions set out in the Provision of Services Regulations 2009, derived from Directive 2006/123, in that the scheme was not justified
by an overriding reason relating to the public interest and that objective cannot be attained
by a less restrictive measure.

The Supreme Court found that QASA was a lawful scheme, as the assessment scheme was a way of reducing the risk to service users and ensuring that poor performance in criminal advocacy was filtered out of the system, and as such the scheme was a proportionate method
to meet that objective. This will clearly be a disappointing outcome for criminal practitioners, compounded recently by the 8.75 per cent reduction in fees for litigators.

Fast-track asylum claims

Immigration judicial reviews remain abundant, and this quarter has seen a few interesting judicial review outcomes. The determination to conclude asylum claims, presumably with the intention that illegitimate claims are dealt with rapidly, resulted in the detained fast-track procedure, which became the subject of a judicial review taken by Detention Action, a charity supporting those in immigration detention and campaigning in relation to such issues.

In Detention Action v First-Tier Tribunal [2015] EWHC 1689 (Admin), Mr Justice Nicol considered the lawfulness of the fast-track regime. Detention Action argued the procedure imposed a timetable to conclusion that was so short, and gave the tribunal such limited case management powers, that it prevented the fair and just disposal of cases. It was submitted that the fast-track rules were consequently in breach of the requirement in section 22(4)(b) of the Tribunals Courts and Enforcement Act 2007 that proceedings be accessible and fair. The fast-track rules were applied where the individual was in detention, which arguably gave rise to further access difficulties for represented persons.

Nicol J found that the fast-track rules were structurally unfair and put appellants at a serious procedural disadvantage. He thoroughly set out the timetable and powers under the fast-track rules and the principal rules (the ordinary procedure), and noted that the curtailed timetable and case management powers
gave rise to such unfairness.

Moreover, the fact that the appellant was always detained placed additional obstacles for lawyers, requiring them to prepare simultaneous applications within the confines of a restrictive timetable. Although the 2007 Act permitted the creation of different rules for different purposes, the objective that justice must be done had an element of priority; there was an irreducible minimum level of fairness that needed to be met. Although Nicol J order a stay on the effect of his judgment, that was subsequently lifted by the Court of Appeal.

Human trafficking

Short timescales and competing regimes were also considered in R (HAM) v Secretary of State
for the Home Department [2015] EWHC 1725 (Admin), which considered the parallel asylum proceedings with the considerations of the Council of Europe’s Convention on Action
against Human Trafficking. The case concerned
a Vietnamese national, who arrived in the UK
via Russia and claimed he had been a victim of human trafficking. His asylum claim was refused.

The judicial review arose out of the home secretary’s conclusion that there were no reasonable grounds to conclude that he had
in fact been a victim of trafficking. The claimant sought to argue that the home secretary had failed to apply her guidance and, as a result,
failed to comply with her duty to identify
and support victims of trafficking.

The process was in two stages, where at the preliminary stages there was consideration of whether there were reasonable grounds to believe that a person had been the victim of human trafficking, and, after 45 days, a substantive decision would be taken.

Helen Mountfield QC, sitting as a deputy high court judge, quashed the home secretary’s conclusion on the basis that the she had failed
to follow her guidance. The court provided guidance on the proper approach. The court noted that the threshold was one of suspicion and not proof, and so at the initial stages it ought to be considered whether there were reasonable grounds to support the claim or not. There was
a short timescale within which a reasonable grounds decision needed to be taken, that being five days of referral to the home secretary, with the intention that it be an initial filter to a fuller determination.

It was considered that the home secretary
had approached her task incorrectly and set
the evidential threshold too high. Although
some account may be taken of credibility, at this preliminary stage it should not be elevated to a final determination of the credibility of the case.

Both Detention Action and HAM may be seen
to demonstrate that speed and efficiency are not equivalent in the immigration system, especially while the obligations of fairness and justice remain. Although immigration was not one of
the prime minister’s six priorities in the election battleground, there’s no doubt that reform of
the immigration system will continue to be a prevailing theme in the next government. SJ

Saara Idelbi is a barrister practising from 7 Bedford Row