R. v. Lambert [2001] UKHL 37, [2001] 3 W.L.R. 206 and R. v. Kansal (No. 2) [2001] UKHL 62, [2001] 3 W.L.R. 1562 are important decisions of the House of Lords in the field of human rights and criminal justice. Lambert is primarily concerned with a question as to the retrospective effect of the Human Rights Act 1998 in criminal proceedings, and with the question whether a reverse onus provision in section 28 of the Misuse of Drugs Act 1971 is compatible with the presumption of innocence in Article 6(2) of the European Convention on Human Rights. Kansal is primarily concerned with the former question. A majority of the House in Kansal decided that the decision of the majority of the House in Lambert on the issue of retrospectivity was wrong, but nevertheless should be followed.

Appeals in cases noted in earlier numbers of the Journal have now been disposed of as shown:

Aneco Reinsurance Underwriting Ltd. v. Johnson & Higgins Ltd., noted [2000] C.L.J. 446. Appeal dismissed: [2001] UKHL 51.

Turner v. Grovit, noted [2000] C.L.J. 45. Question on the interpretation of the Brussels Convention of 1968 referred by the House of Lords to the European Court of Justice: [2001] UKHL 65, noted [2002] 1 All E.R. 960.

Extradition from the United Kingdom, save to the Republic of Ireland, is now governed by the Extradition Act 1989. It repealed the Extradition Act 1870 and the Fugitive Offenders Act 1967.

War may be hell but it’s a godsend for litigators. Having previously ruled on the threshold questions of effective service of the writ and State immunity, and then in respect of an allegation of perjured evidence, the House of Lords was called on in Kuwait Airways Corporation v. Iraqi Airways Company (Nos. 4 & 5) [2002] UKHL 19, [2002] 2 W.L.R. 1353 to consider the merits of this complicated case arising out of Iraq’s invasion and annexation of Kuwait in August 1990.

In Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), decided on 14 February 2002, the International Court of Justice held that an incumbent Minister for Foreign Affairs was immune from criminal proceedings before a foreign domestic court, even if the charges involved crimes against humanity. Human rights advocates might well regard this decision as a serious setback. Decided against a widespread euphoria brought forth by, and largely due to a neglect of an important dictum in, the historic holding in Pinochet No. 3 [2000] 1 A.C. 147, the case serves further to clarify a crucial point of State immunity in current international law. The Pinochet case dealt with the immunity of a former, as opposed to a serving, Head of State. While the majority of the Law Lords only mentioned in passing that the immunity enjoyed by a serving Head of State ratione personae was absolute, the International Court of Justice stated, in unambiguous language, that:

Challenges to the mandatory life sentence by way of judicial review continue to hit the courts. Among the most dramatic are R. v. Lichniak and R. v. Pyrah [2001] EWHC Admin 294, [2001] 3 W.L.R. 933, where it was argued that the mandatory sentence violated Article 3 of the European Convention on Human Rights (prohibition of torture or degrading treatment or punishment) because it was disproportionate, and that it violated Article 5 of the Convention (right to liberty and security) because it was arbitrary. When Scott Baker J. granted leave to apply for judicial review he ordered that the court should sit both as a Divisional Court and as the Court of Appeal (Criminal Division). Kennedy L.J., giving the judgment of the Court of Appeal, held that “the most attractive route” was for the Court to sit as a division of the Court of Appeal.

The European Court of Human Rights’ decision in Al-Adsani v. UK (2002) 34 E.H.R.R. 273 does not openly reject the view that torturers have become enemies of all mankind. It does however affirm that they can protect themselves abroad with a magic weapon that neither pirates nor slave traders usually possessed. This is the shield of sovereign immunity, which prevents State torturers from being tried before courts of a foreign State. In Al-Adsani, the ECHR, by a bare majority of 9 votes to 8, decided that States and their officials can invoke immunity even where they are accused of breaches of peremptory norms of international law (ius cogens), i.e. norms which, by definition, admit of no derogation (Article 53 of the Vienna Convention on the Law of Treaties).

Apart from the more high-profile questions of public and private international law noted above, Kuwait Airways also raised some nice issues about the often enigmatic English tort of conversion.

Terminally ill with motor neurone disease, Mrs. Diane Pretty wanted her husband to assist her commit suicide. She asked the DPP for an assurance that he would not prosecute her husband. The DPP refused. In proceedings for judicial review she sought an order that the DPP give the undertaking or a declaration that the prohibition on assisted suicide was incompatible with the European Convention on Human Rights.

At common law the penalty for murder was death. This simple rule came to apply to many territories of the Crown. It persisted, sometimes in modified form, in many territories now independent States. At independence such States adopted entrenched Constitutions heavily influenced by the European Convention on Human Rights (ECHR). The final appeal from several of these States lies to the Judicial Committee of the Privy Council.

The House of Lords has now ruled in favour of the Local Government Finance auditor in the well-known “homes for votes” saga involving Dame Shirley Porter and Mr. Weeks, leader and deputy leader of the Conservative Party of Westminster City Council: Porter v. Magill [2001] UKHL 67, [2002] 2 W.L.R. 37. It will be remembered that the auditor found Dame Shirley and Mr. Weeks jointly and severally by their wilful misconduct to have caused the Council to lose approximately £31 million, for which they were liable under the Local Government Finance Act 1982, s. 20. His decision was upheld by the Divisional Court but reversed by the Court of Appeal (Kennedy and Schiemann L.JJ., Robert Walker L.J. dissenting): [2000] 2 W.L.R. 1420. Two sets of issues arose for decision by the House of Lords: procedural issues relating to the conduct of the auditor’s enquiry (on which the leading speech was delivered by Lord Hope) and substantive issues relating to the findings of the auditor and the lower courts (dealt with by Lord Bingham). Three of these issues are of particular interest.

In B (a minor) v. DPP [2000] 2 A.C. 428 (noted (2001) 60 C.L.J. 26) the House of Lords held that mens rea must be established as regards the age element of the crime of gross indecency with a child under the age of 14, contrary to the Indecency with Children Act 1960. It followed that the defendant in that case, who honestly, but mistakenly, believed that the victim was over 14, was not guilty because he lacked the necessary fault. The Court left open the question whether mens rea also had to be established for the age element of indecent assault committed on a child under 16, but it has had the opportunity to consider this in R. v. K [2001] UKHL 37, [2001] 3 W.L.R. 471

When, the European Court of Human Rights decided in Osman v. UK [1999] 1 F.L.R. 193 that striking out a claim in negligence (in Osman v. Ferguson [1993] 4 All E.R. 344) against the police, for failing to prevent a disturbed teacher injuring a pupil and killing the pupil’s father, amounted to a breach of Article 6 of the European Convention, many domestic lawyers felt that human rights law had gone too far. Article 6 protects the right to a fair and public hearing in the determination of one’s civil rights. The ECtHR did not say that the hearing had not been fair, but that it had not really been a hearing at all. By so deciding, the ECtHR subjected the public policy considerations that had been relied on by the Court of Appeal to strike out the claim to the requirements of legitimacy and necessity which have to be satisfied to justify an interference with Article 6.

Mary Cooper was one of thousands of investors who advanced funds to Eron Mortgage Corporation, a licensed British Columbia mortgage broker specialising in large syndicated loans. When Eron went out of business it owed the investors over $180 million more than it was able to pay. Unable to recover from Eron, the investors turned their attention to Robert Hobart, the statutory official in charge of regulating mortgage brokers. The investors alleged that Eron had used their money for unauthorised purposes such as funding interest payments on non-performing mortgages. They further alleged that Hobart had been aware of these problems, all serious violations of statute, but that he had delayed in suspending Eron’s licence and had failed to notify investors that he was investigating Eron. Cooper therefore sought to bring a class action on behalf of the investors against Hobart and the provincial government.

Let us start with what seems like an easier question: how long should a prison sentence be? The Criminal Justice Act 1991 confirmed that the basic rule is that the length should be commensurate with the seriousness of the offence committed (section 2(2)(a) of the 1991 Act, now section 80(2)(a) of the Powers of the Criminal Courts (Sentencing) Act 2000). Exceptionally a sentence may be longer, in order to protect the public from serious harm (section 2(2)(b) of the 1991 Act, now section 80(2)(b) of the Powers of the Criminal Courts (Sentencing) Act 2000). Discretionary life sentences fall into this latter category: the indeterminate sentence is imposed because of the risk that the offender is perceived to present to the public (see section 80(4) of the Act of 2000; Baker [2001] 1 Cr.App.R.(S) 551). These longer than commensurate life sentences are seen to fall into two parts: one, the “tariff” (though the Lord Chief Justice in a Practice Statement on 31 May 2002 stated that the term “minimum term” should now be used), commensurate with the seriousness of the offence, and the second for public protection. Because the factors which cause an offender to be dangerous may vary over time, the European Court of Human Rights has long held that those detained for such reasons are entitled to a review of that part of their sentence at regular intervals by a “court”. After years of reluctance the British Government agreed in the 1991 Act to create panels of the Parole Board, chaired by judges, to review whether post-tariff discretionary lifers are still dangerous. But the detention of those sentenced simply for “punishment” is justified by the original sentencing decision, even though their release date is fixed in accordance with a flexible and discretionary early release scheme.

Contributory negligence has never been a defence to an action in deceit. Of the dozen or so authorities to this effect, the dictum most often cited is that of Sir George Jessel M.R. in Redgrave v. Hurd (1881) 20 Ch.D 1 at 13–14:

The European Court of Human Rights recently confirmed that the exceptionless prohibition of assisted suicide under section 2(1) of the Suicide Act 1961, which had been unsuccessfully challenged by the applicant in the House of Lords because of its effects on persons physically unable to commit suicide unassisted by another (R. (Pretty) v. DPP, [2001] UKHL 61, [2001] 3 W.L.R. 1598, noted by Keown (2002) 61 C.L.J. 8), is compatible with the United Kingdom’s obligations towards the applicant under the European Convention on Human Rights: Pretty v. United Kingdom, judgment of 29 April 2002. As she had before the House of Lords, Mrs. Pretty put forward arguments under Articles 2, 3, 8, 9 and 14 of the Convention. Important differences between the decisions of the European Court of Human Rights and the House of Lords emerged only in the assessment of the merits of Mrs. Pretty’s case with regard to Article 8 and Article 14.

In Bradford-Smart v. West Sussex County Council [2002] EWCA Civ 07, Leah Bradford-Smart, a former pupil of a school maintained by West Sussex County Council, based her claim for damages for psychiatric injury and consequent loss on the school’s failure to prevent fellow pupils bullying her outside the school. It is clear that “a school is under a duty to take reasonable care for the health and safety of the pupils in its charge” (Van Oppen v. Clerk to Bedford Charity Trustees [1990] 1 W.L.R. 235, 250), and that it also assumes responsibility for a pupil’s educational needs (X v. Bedfordshire County Council [1995] 2 A.C. 633, 766, per Lord Browne-Wilkinson; Phelps v. Hillingdon London Borough Council [2000] 2 A.C. 619). In Bradford-Smart, the Court of Appeal held that a school is generally responsible for its pupils only when they are inside the school, but that exceptional circumstances might arise when failing to take reasonable steps to combat bullying occurring outside the school would give rise to a breach of its duty of care to a pupil.

In O’Brien v. MGN Ltd. [2001] EWCA Civ 1279, the Court of Appeal gave a significant decision dealing with the issue of incorporation of onerous or unusual terms.

Once upon a time, the Crown faced almost no difficulties in securing convictions for breaches of the Official Secrets Act 1911, particularly section 2. After the somewhat embarrassing decision to proceed had been taken, it was like shooting fish in a barrel. Occasionally, the jury revolted, as they did in Ponting [1985] Crim. L.R. 315, producing something like a perverse verdict in the face of the judicial direction that it was no defence that the defendant believed himself to be acting in the public interest. That decision, and the ruling of the House of Lords in the Spycatcher litigation [1990] 1 A.C. 109 to the effect that the former security service agent Peter Wright did not commit an actionable breach of confidence by making his allegations of improper practices within the services, prompted the government of the day to promote legislation that purported to impose life-long obligations of confidence upon members and former members of the security intelligence services. “Purported” because, with the enactment of the Human Rights Act 1998, it is now open to the courts inter alia to declare that Parliament has acted incompatibly with one of the rights protected by that Act.