CR2-09-12-01-Judgements_IMX30_1.mxf

Session: judgment
Session date: 2009 Dec 01

CASE ID: UKSC 2009/0119
Case name: R (on the application of Barclay and Others) (Appellants) v Secretary of State for Justice and Others (Respondents)
Case summary:
Judgment: The Supreme Court held that the unelected position of the Seigneur and the Seneschal was not incompatible with Article 3 of the First Protocol to the European Convention on Human Rights. It held also that the restriction on Dr Slivnik’s standing for election complied with his Convention rights. The appeals were unanimously dismissed.
Reasons for the judgment: The leading judgment was given by Lord Collins, with whom the other Justices (Lords Hope, Scott, Brown and Neuberger) agreed. [References in square brackets are to paragraph numbers in the judgment]. As to whether the position of the Seneschal and the Seigneur in the Chief Pleas of Sark, as provided for in the Reform Law, was a breach of Article 3 of the First Protocol to the European Convention on Human Rights: There was no invariable rule in Article 3 of the First Protocol that all members of a legislature had to be elected irrespective of their powers and irrespective of the circumstances [67], [70]. Until 1922 the composition of the Chief Pleas reflected the feudal system in Sark and between 1922 and 2008 the feudal Tenants dominated the Chief Pleas. Against that background, and in light generally of the constitutional history and the political factors relevant to Sark, the position of the Seigneur and the Seneschal was well within the margin of appreciation given to Contracting States to the Convention under Article 3 of the First Protocol. The free expression of the opinion of the people of Sark was not impeded by their membership of the Chief Pleas [71]-[72], [74]. The Seigneur’s power temporarily to veto legislation was proportionate and consistent with Article 3 of the First Protocol. In reaching that conclusion, it was legitimate to take account of the fact that the power had not been used in modern times, and that the Seigneur had indicated it would only be used in very limited circumstances [78]. The Seneschal’s powers were those which any presiding officer would be given or would need. His position could not realistically be said to impair the essence of the rights under Article 3 of the First Protocol [83]. As to whether the prohibition imposed by the Reform Law on persons who are “aliens” from standing for election to the Chief Pleas of Sark is a breach of the right under Article 3 of the First Protocol, read alone and / or in conjunction with Article 14 of the Convention: Under the European Convention, as reflected in the decisions of the Strasbourg Court and in the practice of the members of the Council of Europe, it is citizens, and not non-resident aliens, who have the right to vote and stand for election. There may be some exceptions, but the general rule is clear [93]. Article 3 of the First Protocol does not require a justification for qualifications which are stricter for standing for election than for voting. Historical and political factors have determined the definition of “alien” in UK law. Eligibility for standing for election in Sark was limited to those with a genuine connection with Sark in the form of residence or ownership of property. It was clear that in the light of those factors and the breadth of the margin of appreciation, the exclusion of aliens from eligibility to stand for election was justifiable [95].

CASE ID: UKSC 2009/0075
Case name: I (a child)
Case summary:
Judgment: The Supreme Court unanimously allows the appeal and declares that the courts of England and Wales have jurisdiction in this case. The Supreme Court holds that article 12 of Brussels II Revised applies to a child who is lawfully resident outside the European Union. In this case it was clear that the criteria of article 12.3 were satisfied and therefore that the parties had opted in to this jurisdiction. Lady Hale gave the leading judgment. There was a difference of opinion between the Justices on the precise meaning of article 12.3(b) but it was not necessary to decide this issue in order to decide the case.(Paragraphs [17], [35], [45])
Reasons for the judgment: On the first issue, if parents opt in to the jurisdiction of an EU court under article 12.3, that court can exercise jurisdiction even if the child does not lawfully reside within the territory of a an EU Member State. Lady Hale reached this conclusion using ordinary principles of construction, concluding that nothing in article 12 limits jurisdiction to children who reside in an EU Member State. This was confirmed by the conclusion that the term “third State” in other parts of the Regulation (notably articles 12.4 and 61) means a state outside the EU. This is supported by the Practice Guide to the Regulation, as well as other sources emanating from the EU. [17]-[20] The Pakistan Protocol (referred to by the Court of Appeal), in which the judiciaries of Pakistan and England agreed it will generally be best for jurisdiction to be exercised in the country of the child’s habitual residence, was not directly applicable. In any event such an agreement between judges could not affect the proper interpretation of Brussels II Revised. [41]-[44]On the second issue, the criteria under article 12.3 were clearly satisfied in this case. Firstly, under 12.3(a), the substantial connection was satisfied by the fact the child’s parents are habitually resident in the UK and they and the child are British citizens. [21] Secondly, jurisdiction had been expressly and unequivocally accepted by the parties under 12.3(b), both before and after proceedings commenced. In particular, the father had accepted jurisdiction by undertaking to bring the child back here if required to do so by the Court. [33]-[34] Finally, the exercise of jurisdiction was in the best interests of the child given the presumption in article 12.4 that where a child is resident in certain non-EU States it will be in his best interests for jurisdiction to be exercised under this article. It was also relevant that the child’s guardian in the High Court considered that the child’s future was best decided in this country. [37]-[38]The Justices expressed different views on the meaning of the words in article 12.3(b) requiring express or unequivocal acceptance by all of the parties to the proceedings “at the time the court is seised”. Did this mean before, when or after the relevant proceedings were begun It was also unclear whether these words describe the time at which parties have accepted jurisdiction or, as argued on behalf of the interveners Reunite, describe the parties whose acceptance is required. The Justices do not express a concluded view as it was not necessary to do so in order to decide this appeal. In this case all the parties had given unequivocal acceptance both before and after the proceedings had begun. The diversity of views indicates that the interpretation is not acte clair and if a case arises where the issue has to be decided it may have to be the subject of a reference to the European Court of Justice under articles 68 and 234 of the EC Treaty. (Lady Hale at paragraphs [23]-[32]; Lord Collins at [51]-[64]; Lord Kerr at [66]-[74]; Lord Clarke at [75]-[92]).

CASE ID: UKSC 2009/0087
Case name: Secretary of State for Environment, Food and Rural Affairs (Respondent) v Meier and another (FC) (Appellant) and others and another (FC) (Appellant) and another
Case summary:
Judgment: The Supreme Court unanimously allowed the defendants’ appeal to the extent of setting aside the wider possession order made by the Court of Appeal.
Reasons for the judgment: Two main questions were before the Supreme Court: (1)Whether a court could grant an order for possession in respect of distinct land not yet occupied or possessed by a defendant. (2)Whether a court should grant an injunction restraining a defendant from trespassing on other land not currently occupied by him. On the first main question, the Supreme Court unanimously agreed that a court could not make such an order. Lord Rodger considered that such an order would be inconsistent with the fundamental nature of an action for recovering land because there was nothing to recover (Para 12). Lord Neuberger, who agreed with Lord Rodger on this question, thought that it did not make sense to talk about a defendant being required to deliver up possession of land where the defendant did not occupy such land in any conceivable way, and the claimant enjoyed uninterrupted possession of it (Paras 64, 74 and 78). Lords Rodger, Walker, Neuberger and Collins all thought that the Court of Appeal in Secretary of State for the Environment, Food and Rural Affairs v Drury [2004] 1 W.L.R. 1906had illegitimately extended the circumstances in which an order for possession could be made (Paras 5, 20, 72 and 96). Lady Hale’s main objection to extending an order for possession in respect of distinct land which had not actually been intruded upon was one of natural justice. According to Lady Hale, the main problem with the current form of the usual order was that it was not specifically tailored against known individuals who had already intruded upon the claimant’s land, were threatening to do so again, and had been given a proper opportunity to contest the order (Paras 38 and 40). On the second main question, Lord Rodger, Lady Hale and Lord Neuberger agreed that the majority in the Court of Appeal were right to grant an injunction in this case. Lord Neuberger, with whom Lord Rodger agreed on this question, noted that neither the Recorder nor the Court of Appeal had concluded that an injunction should be refused on the ground that it would not be enforced by imprisonment (because the defendants were vulnerable or had young children) or because it would have no real value (since travellers usually have few assets). The Court of Appeal had not erred in granting the injunction (Para 84). Lord Neuberger was also of the view that the failure by the Commission to comply with the “Guidance on Managing Unauthorised Camping” issued by the Office of the Deputy Prime Minister should not preclude the granting of an injunction to restrain travellers from trespassing on other land (Paras 87 and 91). Lady Hale thought that the more natural remedy to deal with separate land which had not yet been intruded upon was an injunction against that intrusion, and one should not be unduly hesitant in granting that (Para 39).Further comments Observations were made to the effect that there may be a need for reform of the remedies available in this area (Paras 18, 40 and 94).