Prisoner Rehabilitation

February 1st, 2017 by admin in Human Rights and Public Sector Equality Duty

In Ansari v Aberdeen City Council (2017) CSIH 5 the Inner House of the Court of Session held that the Council owed no relevant duty to Mr Ansari under ECHR 5 to provide a reasonable opportunity for him to rehabilitate himself, in accordance with R (Haney) v Secretary of State for Justice (2015) AC 1344.  He claimed that both Scottish Ministers and the Council were in breach of that duty.  The issue was whether a relevant case had been made against the Council.  He argued that all public authorities were bound to act compatibly with ECHR rights, and that for the rights he claimed to be effective, both respondents should be subject to the duty to provide him with a reasonable opportunity for rehabilitation, having regard to the various statutory responsibilities on the Council. There was a risk of a gap he argued between the obligations arising in statute and the prisoner making progress in the phase of being partly in prison and partly outside prison.

Delivering the opinion of the Court, Lord Bracadale, who sat with Lady Paton and Lord Malcolm, said, at paragraph 26, that the duty in question was imposed on the State. It had the power to detain the prisoner relying on Article 5(1)(a), and implicitly also the duty to provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. The Scottish Ministers accepted that the duty is incumbent on them.

“In our view”, he continued, at paragraph 27, “the Lord Ordinary was correct to hold that the local authority is in a different position. It is not responsible for the detention or release of the prisoner. It is not required to justify the continued detention for public protection reasons. The role of the local authority is to provide assistance in certain areas of the rehabilitation process before and after release. In carrying out its role in relation to rehabilitation of a prisoner the local authority operated on behalf of the Scottish ministers”. Since the Ministers accepted the duty on them, “no question of a duty gap arises”.

The fact that the Council was a public authority “does not create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances in which the [council is] not responsible for his imprisonment or release… The local authority having no responsibility for the decision to continue the detention of the petitioner, there is no basis for reading into article 5 an implied duty incumbent on it to facilitate his release”: paragraph 29.

 

Elected Mayors

February 1st, 2017 by James Goudie KC in Decision making and Contracts

The Combined Authorities (Mayors) (Filling of Vacancies) Order 2017, SI 2017/69, provides (Article 3) for the filling of vacancies in the Office of Elected Mayor of a Combined Authority, (Article 4) for the date on which the vacancy occurs, (Article 5) for giving public notice of a vacancy, (Article 6) for by-elections, and (Article 7) for the term of office of the person filling the vacancy.

 

Combined Authorities

January 31st, 2017 by James Goudie KC in Decision making and Contracts

The Combined Authorities (Overview and Scrutiny Committees, Access to Information and Audit Committees) Order 2017 (SI 2017/68) makes provision for the membership and proceedings of Overview and Scrutiny Committees, and Audit Committees, of Combined Authorities. Part 1 makes general provision for overview and scrutiny provisions of a Combined Authority.  Article 3 makes provision for the membership of the Overview and Scrutiny Committee.  Article 4 makes provision for the appointment of members to an Overview and Scrutiny Committee and to a sub-committee of such a committee. Article 5 makes provision for the persons who may be Chair of an Overview and Scrutiny Committee.

 

Bylaw Validity

January 31st, 2017 by James Goudie KC in Elections and Bylaws

The issue in the unsuccessful appeal by way of case stated in Akerman v Richmond LBC (2017) EWHC 84 (Admin) was as to the validity of bylaws made by the Council under Section 235 of the Local Government Act 1972 making it a criminal offence to moor a boat against specified land for longer than a maximum period specified.  The appellant contended that the bylaw is unlawful at common law because it was made for an improper purpose and was irrational. It was submitted on his behalf that the material generated by the consultation process showed that the basis for making the bylaw was anti-social behaviour but the bylaw did not address such behaviour and was such an excessive response to the evidence of that behaviour that it was ultra vires at common law. It was also submitted that making the bylaw was a disproportionate infringement of his rights under Article 8 of the ECHR.
The questions the district judge stated for the Divisional Court were:- Read more »

 

Election Petition

January 30th, 2017 by James Goudie KC in Elections and Bylaws

The Court hearing an Election Petition should not hypothesize as to how people might vote. A psychological approach is not appropriate. The foregoing was reaffirmed in Richards v Devenish (2017) EWHC 37 (QB).

 

Accommodation

January 30th, 2017 by James Goudie KC in Social Care

The Children Act 1989 (“CA 1989”) contains coercive powers.  Section 20, however, is not intended to, and does not create powers of compulsion.  Section 20 falls within Part III of CA 1989, the essence of which is an emphasis on the assumption of responsibility for care and the provision of accommodation in circumstances which are voluntary.  Section 20(1) imposes a duty upon a local authority to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of defined situations.  However, Section 20(6) states that, before providing accommodation, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare, ascertain the child’s wishes and feelings regarding the provision of accommodation, and give due consideration to such wishes and feelings as they have been able to ascertain; Section 20(7) states that (in the case of a child under 16) a local authority may (generally) not provide accommodation if any person who has parental responsibility for the child and is willing and able to provide accommodation for the child or arrange for accommodation to be provided for the child, objects; and Section 20(8) provides that any person who has parental responsibility may (generally) at any time (without any requirement for notice) remove the child (under 16) from accommodation provided by or on behalf of the local authority.  Section 20 imposes a duty on the relevant local authority to provide accommodation to children if the conditions of subsection (1) or (3) are met; and a discretion to do so if the conditions of subsection (4) or (5) apply; but all this is subject to subsections (7) to (11). There is a vital distinction between voluntary assumption of care and the provision of accommodation on the one hand, and compulsory care, for example by an Emergency Protection Order pursuant to Section 44, or police powers under Section 46, on the other. Read more »

 

Judicial Control, Liability and Litigation

January 27th, 2017 by James Goudie KC in Judicial Control, Liability and Litigation

In Croydon LBC v Lopes (2017) EWHC 33 (QB) Lewis J held that the principles to be applied in deciding whether costs should be awarded in judicial review cases where the parties had agreed on the proper disposition of the underlying proceedings established in M v Croydon LBC [2012] 1 WLR 2607 were applicable to appeals against decisions on entitlement to housing under the Housing Act 1996, Section 204.  A local authority was entitled to its costs of an appeal withdrawn by a claimant where, had the appeal proceeded, it would have been the successful party. The precise approach depends upon the particular facts and circumstances of the case. Where a party has obtained the entire relief sought on the statutory appeal, so that that party can be said to be wholly successful, then, in general, that party should recover his or her costs unless there is some good reason to depart from that position. Where a party has succeeded in part, then a number of factors may be relevant as explained in paragraph 62 of the decision in R (M) v Croydon London Borough Council. In such circumstances, it may be appropriate to make no order for costs, or, if it is reasonably clear who would have succeeded if the appeal had gone to a hearing, that may indicate that that party should be awarded his or her costs. Where a settlement is reached which does not in fact reflect the claimant’s claims, it may be possible in some cases to consider the underlying claims and determine who would have been the successful parties and award costs accordingly. In other cases, that may not be possible and it may be that the appropriate order is no order for costs. It may also be that the appropriate order may be no order for costs where the judge cannot sensibly and fairly make an order in favour of either party without a disproportionate expenditure of judicial time: see per Lord Neuberger M.R., as he then was, at paragraphs 60 to 65 and per Stanley Burnton LJ at paragraph 77 in R (M) v Croydon London Borough Council.

 

 

Non-payment of Council Tax

January 23rd, 2017 by James Goudie KC in Council Tax and Rates

In R (Woolcock) v Bridgend MC (2017) EWHC 34 (Admin) Lewis J quashed a suspended committal order, pursuant to Regulation 47 of the Council Tax (Administration and Enforcement) Regulations 1992, because no proper means assessment had been carried out and the suspension period was manifestly excessive.  Lewis J said:-

“27.   The general principles governing the making of an order under regulation 47 of the Regulations are relatively well established in the case law.  For present purposes, the material principles are these.  First, the power to commit is intended to be used to extract payment of the debt not to punish the debtor.  Secondly, it is clear from the terms of the regulation that the magistrates’ court must conduct a means inquiry in the presence of the debtor and must consider whether the failure to pay is the result of wilful default or culpable neglect.  Thirdly, an order may be made if, but only if, the debtor is guilty of culpable neglect or wilful default. The means inquiry will need to consider the period or periods in respect of which liability is due in order to determine, amongst other things, whether non-payment is the result of culpable neglect.  Further, the means inquiry will need to consider the present position of the debtor to enable the magistrates’ court to determine whether the debtor is in a position to pay the debt and the magistrates’ court will need to consider what enforcement options are available to it to secure payment of the debt: …

  1. In the present case, in my judgment, there has not been a proper and adequate inquiry into the Claimant’s means. First, such an inquiry will need to consider income and expenditure to determine what the reasonable disposal income of the debtor was in relation to the periods in question. …
  2. Secondly, in my judgment, the magistrates did not carry out an adequate assessment of means for the purpose of determining whether to commit for non-payment, or to remit part or all of the debt. … They needed to determine whether or not the Claimant could make such payments or whether part or all of the debt should be remitted …
  3. Thirdly, the period of suspension for payment of the debt should not be an unreasonable or disproportionate period. If the period for repayment is unduly long, a suspended committal may be unlawful. Thus, the courts have indicated that periods of suspension in excess of 3 years are likely to be excessively long and so unlawful: …”

“38.    … The magistrates’ court failed to carry out a proper and adequate means inquiry as required by regulation 47 of the Regulations and were not in a position to determine if non-payment was the result of culpable neglect nor whether the orders were appropriate mechanisms for enforcing the debt. Further, the period of suspension was manifestly excessive and disproportionate. …”

 

Traffic Regulation Orders and the Equality Act

January 19th, 2017 by James Goudie KC in Environment, Highways and Leisure

In Hamnett v Essex County Council (2017) EWCA 6, the Appellant, who is disabled, and the group which she chairs, were concerned at the impact upon them of Experimental Traffic Regulation Orders (“ETROs”), and in particular the removal of disabled parking.  She made an application for statutory review of the ETROs under the Road Traffic Regulation Act 1984 (“RTRA 1984”).  Her case alleged not only breach of the PSED but also breach of Section 29 of the Equality Act 2010 (“the 2010 Act”).  It failed for lack of jurisdiction.  Gross LJ, with whom Tomlinson and King LJJ agreed, said:- Read more »

 

Human Rights Damages

January 19th, 2017 by James Goudie KC in Human Rights and Public Sector Equality Duty

In GD v Wakefield Council and West Yorkshire Police (2016) EWHC 3312 (Fam) Cobb J awarded damages for the significant harm caused by local and police authorities that had breached the ECHR Articles 6 and 8 rights of a mother and her two children in the conduct of investigations and public law proceedings under Part IV of the Children Act 1989.

 

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