CR2-09-12-09-Judgements_IMX30_1.mxf

Session: judgment
Session date: 2009 Dec 09

CASE ID: UKSC 2009/0020
Case name: R (on the application of A) (Appellant) v B (Respondent)
Case summary:
Judgment: The Supreme Court unanimously dismissed A’s appeal. Lord Brown, with whom all the members of the Court agreed, gave the leading judgment. Lord Hope gave a concurring opinion.
Reasons for the judgment: Two alternative arguments were advanced by A: Section 65(2)(a) excludes the section 7(1)(a) jurisdiction of any other tribunal but not that of the courts. Even if section 65(2)(a) is to be construed as conferring exclusive section 7(1)(a) jurisdiction on the IPT, it does so only in respect of proceedings against the intelligence services arising out of the exercise of one of the investigatory powers regulated by RIPA. As to the first argument, Lord Brown noted that the language of section 7(2) of the 1998 Act and the use of the word “only” before “appropriate tribunal” in section 65(2)(a) indicated that it was unlikely that Parliament was intending to leave it to a complainant to choose for himself whether to bring proceedings in court or before the IPT (Para 13). Whilst the IPT rules made under RIPA were restrictive (e.g. in relation to the limited disclosure of information to a complainant), there were various provisions in RIPA and the IPT rules which were designed to ensure that, even in the most sensitive cases, disputes could be properly determined. None of these provisions would be available in the courts (Para 14). A further telling consideration against A’s construction was that there were in fact no other tribunals with section 7(1)(a) jurisdiction over the categories of claim listed in section 65(3) of RIPA (Para 15). As to the second argument, Lord Brown considered that A’s submission would involve reading into section 65(3)(a) (which contains the phrase “proceedings against any of the intelligence services”) words which were simply not there. There were, in addition, other provisions in RIPA which were more obviously directed to complaints of abuse of the intelligence services’ regulatory power which made it impossible to adopt A’s construction (Para 18). It also did not seem right to regard proceedings of the kind intended here as immune from the same requirement for non-disclosure of information as other proceedings against the intelligence services (Para 19). Lord Brown then went on to consider whether there were sufficiently strong arguments available to A which would require the Court to construe section 65 in a way which was contrary to Lord Brown’s initial conclusions as to its construction. For the reasons set out below, Lord Brown concluded that there were no such arguments available to A. Lord Brown rejected A’s argument to the effect that to construe section 65 as conferring exclusive jurisdiction on the IPT would constitute an ouster of the jurisdiction of the courts that would be constitutionally objectionable (Para 21). RIPA, the 1998 Act and the Civil Procedure Rules all came into force at the same time as part of a single legislative scheme and it could not be said that section 65(2)(a) was ousting some pre-existing right (Paras 21-22). Parliament had not ousted judicial scrutiny of the acts of the intelligence services, but had simply allocated that scrutiny (as to section 7(1)(a) proceedings) to the IPT (Para 23-24). Lord Brown also rejected the argument that forcing A’s article 10 challenge into the IPT would result in breaches of article 6 of the Convention. Claims against intelligence services inevitably raise special problems that cannot be dealt with in the same way as other claims and this was recognised both domestically and by the European Court of Human Rights (Para 26). The Court would be going further than the Strasbourg jurisprudence if it were to hold that the IPT procedures are necessarily incompatible with article 6(1) and it would decline to do so here (Para 30). Even if the IPT’s rules are in any way incompatible with article 6, the remedy would be to modify them, instead of adopting some artificially limited construction of the IPT’s jurisdiction (Para 31). The anomalies which A alleged would arise if the Court of Appeal’s construction were to be adopted also did not cast doubt on the correctness of the Court of Appeal’s decision (Paras 32-37).

CASE ID: UKSC 2009/0038
Case name: Barratt Homes Limited (Respondents) v Dwr Cymru Cyfyngedig (Welsh Water) (Appellants)
Case summary:
Judgment: The Supreme Court dismissed the appeal (Lady Hale dissenting). The judgment of the majority was given by Lord Phillips.
Reasons for the judgment: The exercise of the right of a property owner to discharge into a public sewer pursuant to s 106 Water Industry Act 1991 (‘the 1991 Act’) was an absolute right which could not be prevented on the ground that the additional discharge would create a nuisance. That was for the sewerage undertaker to deal with [paras 23-26]. The right to object to the ‘mode of construction’ in s 106(4) did not extend to the point of connection [para 32]. It was significant that in nearly a century and a half since the first enactment conferring this right was passed, this was the first dispute between an owner and sewerage undertaker as to the point of connection to a public sewer to have reached the courts [para 38]. The real problem behind the dispute in this case lay in the requirement to give only 21 days’ notice to a sewerage undertaker before exercising the absolute right in s 106. This was manifestly unsatisfactory in relation to a development which in this case would add 25% or more to the load on the public sewer [para 41]. The only way to achieve a deferral of the right was through the planning process, in which both the sewerage undertaker and OFWAT should be consulted. More thought might need to be given to the interaction of planning and water regulation systems under modern law to ensure that the different interests were adequately protected [paras 57-58]. The 21 day limit for refusing applications to connect to the public sewer in s 106(4) was mandatory, in view of the fact that it was a criminal offence to connect a drain after such notice had been given [para 62]. Lady Hale would have allowed the appeal on the construction of s 106(4). The legislative history led her to conclude that Parliament had not intended to cut down the scope of the local authority’s power to control the place and manner of connection in the Public Health Act 1936 (the predecessor to the 1991 Act), while leaving the position in Scotland unchanged [para 73]. The words ‘mode of construction or condition’ in s 106(4) should be interpreted as including the place of connection to the public sewer [para 79].

CASE ID: UKSC 2009/0073
Case name: R v Horncastle and others (Appellants)
Case summary:
Judgment: The Supreme Court unanimously dismissed the appeal. The judgment of the court was given by Lord Phillips, President.
Reasons for the judgment: The questions before the court were (i) whether the regime enacted by Parliament in relation to the admission of the evidence of an absent witness at a criminal trial will result in an unfair trial and, if not (ii) whether the case law of the European Court on Human Rights nonetheless requires the court to apply that regime in a manner contrary to the intention of Parliament. The requirement to take into account any judgment of the European Court of Human Rights found in s 2 Human Rights Act 1998 would normally result in the Supreme Court applying principles that were clearly established by the Strasbourg court. There would however be rare occasions where the court had concerns as to whether a decision of the Strasbourg court sufficiently appreciated or accommodated particular aspects of the UK trial process. In such circumstances it was open to the Supreme Court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This was likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that was in issue, so that there took place what might prove to be a valuable dialogue between the courts [para 11]. The conclusions of the Court of Appeal were correct and the judgment of the Supreme Court should be read as complementary to that of the Court of Appeal and not as a substitute for it [para 13]. The Supreme Court held that the appellants’ trials were fair notwithstanding the decision in Al-Khawaja for the following reasons: (i)The common law hearsay rule addressed the aspect of a fair trial covered by article 6(3)(d). Parliament had enacted exceptions to the hearsay rule in a regime which contained safeguards that rendered the ‘sole or decisive’ rule unnecessary. (ii)The Strasbourg Court had recognised that exceptions to article 6(3)(d) were required in the interests of justice but the jurisprudence on the exceptions lacked clarity and had introduced a ‘sole or decisive’ rule without discussion of the principle underlying it or full consideration of whether it was justified to impose it equally on common law and continental jurisdictions (iii)The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure. In almost all cases English law would reach the same result without it. Al-Khawaja did not establish that it was necessary to apply the rule in this jurisdiction.