Lord Doherty rejects Interim Interdict regarding prorogation of Parliament

Following an urgent hearing on Thursday 29 August 2019, Lord Doherty has rejected Interim Orders sought by 75 Petitioners on the illegality of proroguing Parliament and interim interdict against UK ministers to prorogue and made no comment on whether the Petitioners have a prima facie case, preferring to wait until the Substantive hearing.

The case was due to be heard at a Substantive hearing on 6th September, but was ‘overtaken by events’ by the Queen’s Order in Council to prorogue Parliament, leading to the request for interim interdict. Following today’s decision, the Substantive hearing has been brought forward to Tuesday, 3rd September 2019, due to the interests of justice and the public interest.

Ampersand’s Aidan O’Neill QC is lead counsel for the Petitioners, instructed by Balfour + Manson.

Opinion of Lord Doherty here.

Summary of arguments at the Interim Interdict hearing can be found on the Scottish Council of Law Reporting website here.

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BD v Scottish Police Authority [2019] CSOH 53

Case comment by Michael Way, Advocate

Lord Woolman rejects police officer’s claim that refusing him medical retirement, while misconduct proceedings were ongoing against him, was irrational

Facts

The petitioner was a serving police constable of over 25 years’ service. He became signed off from work in April 2017 with various medical problems, including hyperthyroidism, which causes his hormone levels to fluctuate and includes symptoms of agitation, anxiety and depression.

In 2017, the petitioner received a summary conviction for sexual assault, stemming from incidents in late 2016. A £500 fine was imposed. The petitioner’s name was placed on the Sex Offenders’ Register.

In May 2018 the petitioner applied for retirement on the grounds of permanent disablement. The SPA refused this request and recommended redeployment within the police service. The petitioner took steps to challenge the decision, but the SPA withdrew the decision and undertook to retake it.

In August 2018 the decision under challenge in these proceedings was made. The SPA refused the application because there were live misconduct proceedings pending against him. It was the Interim Chief Officer’s view that, “on public policy grounds police officers should not be granted medical discharges whilst there are live misconduct proceedings against them, as he concluded that there could be a loss of public confidence in the service if police officers were seen to be evading misconduct proceedings by exiting the service on medical discharges before those proceedings had concluded.”

Subsequently, medical opinions concluded that the petitioner was mentally unfit to take part in disciplinary proceedings. Disciplinary proceedings are currently suspended.

Issues

In analysing the decision, the Court identified 3 key issues:

Did the SPA take into account irrelevant material?
Was the decision irrational?
Did the SPA fetter its discretion?

Decision

The Lord Ordinary dismissed the petition (at [38]). His reasoning on the issues was as follows.

Issue 1 – Did the SPA take into account irrelevant material?

This issue is considered at [22]-[24]. The Lord Ordinary disagreed with the petitioner’s contention that the SPA erred by assessing the misconduct as serious, ignoring the compassionate circumstances, and implying that the petitioner was trying to evade the disciplinary proceedings. On the contrary, the existence of misconduct proceedings was a relevant and important factor (at [24]).

Issue 2 – Was the decision irrational?

The petitioner advanced several grounds which led inevitably to the conclusion that the decision was irrational. The first group were dealt with at [27]-[28]:

(A) The petitioner’s mental condition renders him unable to face proceedings.

(B) He should not be required to remain in the police service when he will never be able to fulfil his duties.

(C) His career and pension entitlement should not be left indefinitely in limbo.

(D) There was no question of evasion on the part of the petitioner, who is in wretched condition and does not have the mental capacity to exercise a conscious choice in this matter.

The Lord Ordinary considered that these factors were based on the subsequent medical evidence and were not properly before the decision-maker.

The petitioner advanced a further argument. Police officers can only be stripped of their pension, when in receipt of it, for a very serious criminal conviction or a conviction certified by the Secretary of State as “gravely injurious to the interests of the State” or liable to lead to a serious loss of confidence in the public service (at [29]).

The petitioner argued that if he had retired immediately after committing the offences, he would have kept his pension. The offending was at the lower end of the spectrum of seriousness. It would be inequitable if, by pleading not guilty and standing trial, he risked losing his full pension rights.

The Lord Ordinary considered this to be a “powerful argument, persuasively presented” (at {31]). However, his Lordship did not consider that it met the test of irrationality: “a sensible person could have arrived at the same decision” (at [32]).

Issue 3 – Did the SPA fetter is discretion?

This issue turned on whether the SPA had adopted a blanket approach of refusing to grant a medical discharge to any officer while disciplinary proceedings were outstanding. The decision letter stated that it had given “careful consideration of all the circumstances” but then relied on a public policy decision (at [34]).

The Lord Ordinary considered that there was “no foundation for holding that the SPA did not consider all the circumstances of the petitioner’s case” but simply that the SPA considered “public policy as tipping the balance” (at [36]).

Analysis

Despite the powerful and persuasive submissions advanced by senior counsel for the petitioner, and the likely harsh consequences that will follow the petition’s refusal, the Lord Ordinary concluded that the decision was within the range of reasonable responses from the decision maker.

This decision reinforces the difficulty that can arise when challenging administrative decision-making on the grounds of irrationality. It is not enough simply that the decision is harsh or is one that the Court might disagree with; the absurdity has to leap off the page.

Representation

Ampersand’s Craig Sandison QC appeared as senior counsel for the petitioner.

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AS (India) v Home Office [2019] CSOH 43

Case comment by Michael Way, Advocate

Lady Wise allows immigration ‘fresh claim’ judicial review

Facts

The petitioner was a national of the India. He sought judicial review of the Home Office’s decision to refuse to accept his further submission as a fresh claim, under Immigration Rule 353.

The petitioner had entered the UK as a visitor in 2006 and overstayed. He formed a relationship with a British national in 2010 and they would go on to marry in 2013. After their marriage, the petitioner applied to regularise his immigration status on the basis of this relationship. This application was refused and an appeal to the First-tier Tribunal was unsuccessful. The petitioner then made further submissions to the Home Office in August 2017, which were swiftly rejected.

This case concerned further submissions made in October 2017. The Home Office again swiftly rejected the submissions. What set these further submissions apart were that they included an expert report from an Indian advocate (“Expert Report”), as well as references to the Home Office’s Country Information and Guidance on India (“Country Guidance”), highlighting issues of gender discrimination and violence that women can face.

Issues

The petitioner’s central contention was that given his wife’s health and work status, alongside the difficulties obtaining a visa and other cultural difficulties, there would be insurmountable obstacles for them to have to move to India as a couple. The Home Office refusal letter had failed to even acknowledge the Expert Report and made only scant reference to the Country Guidance. This was said to be a material error. The petitioner contended that there had been a failure to consider the further submissions with the requisite “anxious scrutiny”.

The respondent’s position was that any failure to properly demonstrate consideration of the Expert Report and the Country Guidance was not a material error. It was not an error to fail to demonstrate consideration of material that would not have been created a realistic prospect in front of an immigration judge. The respondent contended that there was nothing in the new material that would have led to a different conclusion.

The questions for the Court were therefore:

Was there a failure by the Home Office to substantively consider the Petitioner’s further submissions?
If yes, would the outcome in front of a hypothetical Immigration judge have inevitably been the same?

Decision

Lady Wise allowed the petition and reduced the Home Office’s decision (at [25]). Her ladyship concluded that the failure to give any proper consideration to the new documentation was a material error.

The respondent had, quite fairly, conceded that there was nothing to demonstrate that the Home Office had given substantive consideration to the new documents. The error was, in effect, conceded. On the question of materiality, Lady Wise was satisfied, however, that had the documents been properly scrutinised that “the outcome may not have been the same on the issue of insurmountable obstacles” (at [21]). The error was, therefore, material.

This was because the Expert Report would have been admissible evidence in the Tribunal and could not be dismissed as “simply implausible” (at [20]). The Expert was qualified to give his opinion on visa and social welfare requirements in India. Moreover, his comments on the treatment of women in Indian society largely echoed the Country Guidance. An Immigration judge would have required to give this all careful consideration – in particular the Home Office’s own Country Guidance (at [20]).

The respondent further argued that, even if the Expert report could be accepted and it would not be possible for the petitioner’s wife to go with him to India, the decision letter had considered the article 8 implications of the petitioner being removed and his wife remaining. The petitioner accepted that he would have to demonstrate “exceptional circumstances” for an article 8 claim to succeed in those circumstances. Lady Wise, however, did not consider that that there was “any discernible conclusion” on the proportionality of such an option and she could not be satisfied that an article 8 claim would necessarily fail (at [22]). However, given the conclusion at [21] it was not necessary to reach “any definitive conclusion on this point” (at [23]).

Analysis

This is a not atypical example about how the Court will deal with a judicial review following a refusal of further submissions under Immigration Rule 353. The requirement for “anxious scrutiny” means that there is generally scope of a petitioner to argue that, when the Home Office has rejected their claim, they have not had the benefit of the requisite standard of decision-making care.

Where, on the face of the decision, there has been a failure to consider potentially relevant material, as in this case, all the respondent can sensibly argue is that the error was immaterial. In the circumstances, Lady Wise appeared to be content to give the benefit of the doubt to the petitioner.

Representation

Ampersand’s Graham Maciver appeared for the respondent.

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LB (Gambia) Petitioner [2019] CSOH 45

Case comment by Michael Way, Advocate:

Lord Pentland refuses judicial review in “foreign criminal” deportation case

Facts

The petitioner was a national of the Gambia. He sought judicial review of an Upper Tribunal (“UT”) decision to refuse him permission to appeal against a decision of the First-tier Tribunal (“FTT”).

The petitioner was 39 years old. His claim was that he had been granted refugee status in Italy in 2008. However, he had subsequently received drug-related convictions in Sweden in January 2012 and July 2013, resulting in 4-month and 24-month sentences of imprisonment. He was deported from Sweden in 2013 and banned from re-entering for 10 years.

Having left Sweden, the petitioner appears to have travelled from the Gambia through Senegal and Spain to the Republic of Ireland. He claimed asylum in Ireland. He appealed the initial rejection, but left for the UK before his appeal was heard.

Ultimately, the petitioner was detained by police in the UK in May 2016. His Swedish convictions were discovered. The Home Office issued a deportation order some 15 months later. The petitioner responded by making a human rights claim and applying to transfer his refugee status from Italy to the UK. The petitioner’s claims were rejected by the Home Office and so he appealed to the FTT.

Issues

There were two broad attacks on the FTT’s decision. First, the FTT had arguably erred in finding that the petitioner did not have refugee status in Italy. Moreover, it was incumbent on the Home Office to take steps to verify the petitioner’s alleged refugee status. Second, the FTT had arguably erred by wrongly treating the petitioner as a “foreign criminal” as defined in s.32 UK Borders Act 2007. The UT had adopted these errors in refusing permission.

The questions for the Court were therefore:

Did the FTT arguably err by finding the petitioner did not have refugee status in Italy?
Was it incumbent on the Home Office to take steps to verify the petitioner’s alleged refugee status?
Did the FTT arguably err by wrongly treating the petitioner as a “foreign criminal” as defined in s.32 UK Borders Act 2007?

Decision

Lord Pentland was not with the petitioner on any of the questions. The petition was refused (at [29]).

The Court found that the issue of the petitioner’s alleged refugee status was a factual finding which was “amply supported by the evidence before the FTT” (at [18]). The FTT judge had made sustained adverse criticism of the petitioner’s credibility (see {12]-[17]). He did not accept any of the documents produced were genuine and gave reasons for disbelieving anything the petitioner said in support of his case (at [17]). No error arose.

Neither was it incumbent, in the circumstances, for the Home Office to verify the petitioner’s refugee status documentation. Such a duty may arise where it would be “simple and straightforward” to verify, the documents were crucial and were said to come from an otherwise unimpeachable source. Lord Pentland upheld the respondent’s submission that in this case verification would have been “far from straightforward” (at [20]). This point fell to be rejected.

As to the erroneous label of “foreign criminal”, this was dismissed by Lord Pentland as being a “purely technical and theoretical” point (at [28]). The FTT judge had “complied with the Guidance in substance and in spirit”. The court noted the significance of Guidance to the effect that those convicted of sentences in the UK and those convicted abroad should be treated alike in order to give proper effect to Article 8 ECHR (at [25]). The UT was entitled to refuse leave and no error arose.

Analysis

This decision will be welcomed by the Home Office. It provides a reminder that the Court will be slow to entertain technical or theoretical errors in such circumstances.

The case also demonstrates the difficulties that petitioners face where they have been fixed with an adverse credibility finding in the FTT. Having been found incredible, even otherwise objective evidence supportive of your case can be rejected where you are the primary source of the information.

Once Counsel is involved at the stage of a judicial review the damage may be too severe to rehabilitate even a once promising claim. Agents should bear in mind that Counsel can be instructed to appear in the FTT. While nothing can be guaranteed, by front loading the preparation, such difficulties further down the line may be avoided.

Representation

Ampersand’s Graham Maciver appeared for the respondent.

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Lord Bannatyne acknowledges common law right to privacy in Scots common law

Case comment by Michael Way, advocate

Lord Bannatyne acknowledges in the Petition of C v Chief Constable of the Police Service of Scotland [2019] CSOH 48 a common law right to privacy in Scots common law.

Facts

The petitioners were ten police constables. Misconduct proceeding had been brought against them following the discovery of messages contained within private WhatsApp group chats. A police officer, who was investigating alleged sexual offences in a matter otherwise unrelated to the petitioners, saw the messages, passed them on to the police Professional Standards Department and misconduct proceedings followed. The petitioners sought declarators that the use of this private correspondence to found misconduct proceedings was unlawful and a breach of their Article 8 rights, and accordingly interdict preventing their unlawful use should follow.

Issues

The Court identified 4 key issues:

Does the respondents’ disclosure and use of the messages interfere with the petitioners’ common law right to privacy et separatim Article 8 Convention rights?
If so, does that disclosure and use have any clear and accessible legal basis so as to be “in accordance with law”?
If so, is that interference necessary and/or proportionate.
What would constitute an effective remedy for the petitioners?

Decision

Issue 1 – Interference with common law/Article 8 privacy rights

The first issue required the Court to consider (at [100] – [126]) a logically prior question – does a right to privacy exist in the common law of Scotland?

The Supreme Court has emphasised in recent years (notably in Lord Reid’s speech in R.(Osborn) v Parole Board [2014] AC 1115) that there is no need to immediately resort to ECHR jurisprudence when considering fundamental rights; the common law protects such rights.

Lord Bannatyne took as a start that a right to privacy is a “core value and one which is inherent in a democratic and civilised state” (at [106]). This right had already been recognised as forming part of the common law of England in Campbell v MGM Ltd [2004] 2 AC 457 and had developed by reference to Article 8 jurisprudence since then. It was “inherently unlikely” that the courts in England and Scotland would come to opposite conclusions on the recognition of a fundamental right (at [116]). Further, there was Scottish authority which (tentatively) appeared to recognise a right to privacy such as Henderson v Chief Constable of Fife 1988 SLT 361 and Martin v McGuinness 2003 SLT 1424, and no authority which explicitly or implicitly excluded such a right. Accordingly, the Court was satisfied that a right of privacy exists in terms of the common law of Scotland (at [126]).

The Court turned to consider whether Article 8 was engaged in the petitioner’s situation. There was no dispute that the method of communication was within Article 8’s ambit and the alleged interference was sufficiently serious (at [129]-[130]). The dispute turned on whether, viewing the particular circumstances objectively, the petitioners had a “reasonable expectation of privacy”.

Lord Bannatyne considered the nature of WhatsApp, noting that its private character can be contrasted with much more open and public modern messaging and social media platforms. The Court rejected the submission that because WhatsApp allowed moderated group chats this inherently undermined any expectation of privacy (at [139]-[140]). The fact that the content of WhatsApp group chats had been divulged and had led to administrative/disciplinary action in other contexts was similarly of no assistance to the respondent; the fact that a person might breach confidence does not undermine any reasonable expectation of privacy (at [142]). In conclusion the Court found that an ordinary member of the public using WhatsApp would have a reasonable expectation of privacy (at [150]).

The Court rejected a submission that the “abhorrent” nature of the messages removed any reasonable expectation of privacy in general terms. This was not generally a relevant consideration at this stage (at [160]); a right to privacy would have little point if it did not protect private expression that some might find abhorrent (at [158]).

However, Lord Bannatyne then considered the position of the petitioners as police officers, subject to particular regulations and Standards of Conduct, and against a background where public confidence in the police must be maintained.

Constables’ private lives are explicitly restricted by police regulations. When acting in a manner “likely to interfere with the impartial discharge of his duties or is likely to give rise to the impression amongst members of the public”, a constable can have no reasonable expectation of privacy. Thus, the content of the messages could inform a constable’s reasonable expectation. Where, as here, the messages were sufficiently abhorrent to call into question a constable’s ability to impartially discharge their duties, there was not reasonable expectation of privacy (at 166]). Moreover, there was a duty in the Standards of Conduct incumbent on constables to report any behaviour falling below what is expected of a constable. Police officers are in a different position from ordinary members of the public. Accordingly, the petitioners had no reasonable expectation of privacy in relation to these messages and so no right at common law or in Article 8 terms.

Issue 2 – In accordance with law?

There was no dispute that there was a legal basis, within the context of a criminal investigation to review the messages. The dispute was whether there was a basis to use them for the collateral purpose of misconduct proceedings.

Lord Bannatyne recalled that to be in accordance with law required a measure not only to have a basis in domestic law, but be able adequately accessible and foreseeable in its operation to guard against arbitrariness and to comply with the rule of law.

The Court considered that there was a sufficient recognition within the case law cited to him that the police could share information with regulatory agencies where necessary for them to perform their public duty. The test was whether disclosure was in the public interest and in order to protect the public. Given the public interest in a properly regulated police force (which in turn protected the public), there was a lawful basis for the material to be disclosed in the circumstances (at [188]).

Issue 3 – Necessary/proportionate

The Court considered that “public safety” and “the prevention of disorder and crime” were potentially relevant justifications for any interference in terms of Article 8(2) (at [198]). An officer failing to meet the required standards of conduct might decrease public confidence. Public safety relies on public confidence in the police – without it the police cannot efficiently prevent disorder and crime. To uphold confidence requires proper disciplinary procedures. A necessary part of this is the use of otherwise lawfully obtained information which would be of relevance to such disciplinary procedures (at [201]).

Balancing all the factors, Lord Bannatyne considered that even if the petitioners had possessed a reasonable expectation of privacy, it would have been proportionate to disclose the messages (at [201].

Issue 4 – Effective Remedy

Given the foregoing analysis, this question became academic. Had Lord Bannatyne been with the petitioners on their earlier submission, he would have refused interdict in any event. It would have been “fair in all the circumstances for the material to be admitted for use in the disciplinary proceedings” (at [202]).

Analysis

This decision has attracted attention because of the explicit acknowledgment of a right to privacy at Scots common law. That said, data privacy campaigners may be concerned that the Court nevertheless quite comprehensively refused the petition.

The crucial turning point against the petitioners appeared to come when Lord Bannatyne considered their position as police constables. This will no doubt be taken as a point to distinguish the decision. However, it is arguable that the analysis could be applied to any professional or similarly regulated person. Further, given Lord Bannatyne’s view on proportionality, it might be that in practice any division between police officers and “ordinary” citizens is a distinction without a difference.

Representation

Ampersand’s Craig Sandison QC and Timothy Young appeared for the petitioners; Ampersand’s Maria Maguire QC appeared for the respondent.

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C v Chief Constable of the Police Service of Scotland [2019] CSOH 48

Case comment by Michael Way, advocate

Lord Bannatyne acknowledges common law right to privacy in Scots common law

Facts

Issues

The Court identified 4 key issues:

Does the respondents’ disclosure and use of the messages interfere with the petitioners’ common law right to privacy et separatim Article 8 Convention rights?
If so, does that disclosure and use have any clear and accessible legal basis so as to be “in accordance with law”?
If so, is that interference necessary and/or proportionate.
What would constitute an effective remedy for the petitioners?

Decision

Issue 1 – Interference with common law/Article 8 privacy rights

The first issue required the Court to consider (at [100] – [126]) a logically prior question – does a right to privacy exist in the common law of Scotland?

Issue 2 – In accordance with law?

Issue 3 – Necessary/proportionate

Issue 4 – Effective Remedy

Analysis

Representation

Ampersand’s Craig Sandison QC and Timothy Young appeared for the petitioners; Ampersand’s Maria Maguire QC appeared for the respondent.

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