Unravelling threads

In contrast to the last quarter, the world
of judicial review has been a little quieter. Nevertheless, it has brought some diverse decisions.

Immigration Rules applicability

The changes to the Immigration Rules in July 2012 in respect of article 8 (right to private and family life) of the European Convention on Human Rights (ECHR) brought an extraordinary increase in challenges to the home secretary’s decisions in that arena. One of the challenges of particular contention concerned which decisions the new rules were applicable to, as subsequent revisions meant that it was not entirely clear whether the rules would apply to applications for leave to enter or remain made before July 2012.

In Singh and Khalid v SSHD [2015] EWCA Civ 74, the Court of Appeal concluded that the family
and private life rules would apply to applications made before 9 July 2012 if the home secretary’s decision was made after 6 September 2012, because of the effect of a further statement of changes promulgated on 5 September 2012. Although the rules were supposedly designed to introduce simplicity into the article 8 assessment, with an emphasis on the public interest element, one cannot escape the irony of the complexity that had to be resolved in the course of this judicial review.

Prison delays

In three decisions concerning long-term prisoners, the courts have decided that the decisions to keep the claimants in prison at various points were not unlawful. In Knights and O’Brien v Parole Board for England and Wales and Secretary of State for Justice [2015] EWHC 136 (Admin), the claimants were imprisoned for the public protection. In this judicial review, they contended that their detention was arbitrary because they were detained for too lengthy a period, were denied the proper opportunities for rehabilitation and review, and were not released sufficiently promptly following the Parole Board’s direction for release. The claimants also argued that they had suffered differing treatment which could not be justified, because they were sentenced before July 2008, when new
statutory provisions were introduced.

The claimants’ applications in the most part were refused, although part of the second claimant’s application was granted. This was because imprisonment for public protection had a purpose separate from being punitive. It was necessary for a claimant to demonstrate a causal connection between sentence and detention, otherwise there was unlikely to be a breach of article 5(1) (the right to liberty). In considering the delay for the provision of rehabilitation courses, the entire period and backdrop of alternatives offered should be considered. In the first claimant’s case, although there had been a delay, he could have been transferred to a different prison. However, in the second claimant’s case, the delay of three months in holding a review of his case breached article 5(4) and he was awarded £300 in damages.

In R (on the application of Dilks) v Secretary of State for Justice [2015] EWHC 11(Admin), the claimant was a life prisoner who sought judicial review of the justice secretary’s failure to allow him to demonstrate his safety for release by providing him with access to an open placement and overnight release in a reasonable time period. The application for judicial review was refused. Although the justice secretary was under a public law duty to ensure prisoners could demonstrate to the Parole Board that the protection of the public did not mandate their continued detention, and there had been a delay in providing the placement to open conditions to the claimant, that had not resulted in the prisoner being exposed to any unreasonable delay and
so there had been no breach of the claimant’s article 5 rights.

Finally, in R (Hall and Koselka) v Parole Board for England and Wales [2015] EWHC 252 (Admin),
the claimants were imprisoned for the public protection. They sought to judicially review
the decisions of the Parole Board not to direct
their release. During the course of the claimants’ detention, the regime for imprisonment for
the public protection was abolished. As a consequence, the court was asked to consider whether the board was required to consider the impact of this on article 8. However, the court reiterated that the consideration for the Parole Board remained under the Crime (Sentences)
Act 1997 (i.e. whether detention was no longer necessary for the protection of the public), and
it was not open to the Parole Board to consider
other competing interests unrelated to risk.

The common concerns about delay may be reflective of how prisoners are struggling to cope with the strains on the prison system, owing both to overcrowding and to cuts to prison staff. Unfortunately, there has not yet been a judicial review that will draw together all of the necessary strands to confirm the growing concerns.

QASA controversy

Many will be aware that the Supreme Court granted permission in R (Lumsdon) v Legal
Services Board [2014] EWCA Civ 1276 to carry
on the challenge to the controversial Quality Assurance Scheme for Advocates (QASA). However, permission has been granted on the grounds that the scheme is not within the scope
of the Services Directive, rather than because it impeded the independence of the advocate.

Data retention

The Supreme Court has also brought to an
end a judicial review thread in relation to the retention of data in R (Catt and T) v Commissioner for the Police of the Metropolis [2015] UKSC 9.
By a majority, the Supreme Court held that
the continued retention of data relating to a 91-year-old activist’s presence at political
protests was lawful and did not breach the claimant’s article 8(1) rights.

The claimant sought to argue that the retention of information about his attendance at protests in a searchable database breached his article 8 rights. However, the court noted that information
was kept regarding protestors involved in demonstrations which were part of a regular campaign that might give rise to criminal offences. The data kept was minimal, restricted to name, date of birth, and address. Further, the police’s powers to retain the data were subject to the Data Protection Act 1998 and the claimant’s details were sufficiently protected and were retained for the administration of justice or performance of
the police’s other functions. Taking all factors into account, the retention of data was justified.

Lord Toulson dissented, considering that,
as Mr Catt had not himself been considered to have acted violently and was not involved in the co-ordination of such events, there was no explanation as to why it was necessary to keep his details, and consequently it was not proportionate to retain the data.

Reality TV

Finally, to round off this month, it is rare that judicial review and reality TV go hand in hand. But, in Traveller Movement (TM) v Ofcom and Channel 4 [2015] EWHC 406 (Admin), the series
Big Fat Gypsy Weddings and Thelma’s Gypsy Girls became the focal point of the Administrative Court’s consideration. TM brought a complaint to Ofcom about the portrayal of the traveller community in the programmes, particularly suggesting this was unfair, negative, and racially stereotypical. Ofcom considered that Channel 4 had exercised due care to ensure that the programmes were not harmful or causing damaging stereotypes.

TM attacked the decision on procedural grounds, suggesting that they should have
been afforded the opportunity to comment on the preliminary view taken by Ofcom on breaches of the Standards Code (whereas Channel 4 had been so informed). Had they been notified, they argued, they would have submitted further representations and the failure to give them
that opportunity was procedurally unfair. However, the court did not agree. It considered that, in respect of the breaches of the Standards Code, because a complaint could be made under that head by anyone and the issue was an objective one, there was no reason to depart from the procedure to consider breaches of the Standards Code and notify TM of the preliminary view.

It seems that there will always be a real tension between the freedom of the media and the degree of responsibility the media bears in terms of public perception. It is undeniable that the way the media reports an issue will have a powerful impact on how it is perceived. Indeed, judicial review is one of those ideas. Nevertheless, there remains a reticence to drill down to what the net effect of this is, and the failure of TM in this judicial review continues that trend. SJ

Saara Idelbi is a barrister practising from 7BR Chambers

Copyright & permissions