Judicial review by dentist complaining about proper construction of Dental Regulations and fairness of process for recovery of additional payments; for the petitioner.
Decision here.
Paul Reid for Petitioner.
Kathryn Ferguson joined Ampersand in 2018 and has completed Paralegal qualifications in both Conveyancing and Wills and Executries. Prior to joining the team Kathryn worked for a global law firm supporting the Commercial Real Estate and Litigation teams.
Kathryn brings a can-do approach and is always willing to assist in all aspects of instructing counsel.
Ampersand has again received top tier rankings across a number of areas of practice in the latest published guide to the legal profession, Chambers and Partners UK Bar Guide 2018.
Ampersand received 56 listings across 15 areas of practice, ranking as top tier (band 1) in Clinical Negligence as a Set, and band 2 in Administrative & Public law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Planning & Environment, Personal Injury, Product Liability and Restructuring/Insolvency as a Set. In addition to this Aidan O’Neill QC is ranked in the London Bar Guide. 4 members are noted as “star individuals”.
Noted as a Band 1 set for Clinical Negligence, Ampersand has 18 rankings in this area. The guide says “As far as top Scottish clinical negligence practitioners are concerned, the name Ampersand is synonymous with excellence. This premier stable is acknowledged to have “the widest range of counsel in medical negligence with the broadest range of experience and knowledge.”
Band 2 listings include Administrative and Public law where Ampersand’s high-level public law challenges are noted and is described as “a good stable of advocates”. In Civil Liberties & Human Rights the Band 2 listing notes Ampersand’s “considerable expertise in the civil liberties field, drawing on their experience in employment, equality and EU law”.
In Commercial Dispute Resolution Ampersand is noted as “A highly respected stable with far-reaching experience across the commercial spectrum. It boasts an impressive roster of senior counsel and upcoming juniors, and is home to strong generalists as well as leading insolvency, shipping and real estate advocates”. Ampersand’s Commercial expertise is further noted in Restructuring and Insolvency, which includes “Star Individual” David Sellar QC, stating Ampersand “combines a renowned commercial practice with numerous high-level insolvency specialists” being described as a “go-to set for insolvency matters” and “excellent commercial stable”.
Ampersand’s Personal Injury work is again acknowledged with the guide noting “an impressive breadth of personal injury knowledge to individuals, major insurers, local authorities and other government agencies. The stable’s expertise in medical issues means it is well placed to advise pursuers and defenders on the full range of personal injury cases, including stress at work, motor accidents and clinical negligence claims. The team’s “practical approach to cases” is lauded by clients, who also comment that the advocates are “approachable, good to deal with and prompt at returning calls and emails, which is important.”. The listing includes Maria Maguire QC and Graham Primrose QC as “Star Individuals”.
Ampersand is listed in 2 new areas as a set this year. In Planning and Environment Ampersand is noted as being “A highly respected stable that is emerging as a force to be reckoned with in the arena of planning and environment law. Advocates at the stable are particularly well-versed in matters involving infrastructure and renewable energy. They are frequently instructed in major inquiries, and act for a variety of clients, including developers, promoters, objectors and decision-makers. The stable also vaunts expertise in planning appeals and judicial review proceedings.” This includes “Star Individual” Malcolm Thomson QC. Ampersand is also a Band 2 set in Product Liability stating “Ampersand Advocates enjoys an enviable reputation as one of the top-ranked sets in Scotland. It undertakes product liability work to the same excellent standard as the many other areas of the law it practices in. Members here work across a wide range of industry sectors and act for both claimants and defendants. The set has a particular reputation for handling cases that arise from the healthcare sector”.
The Clerks also receive high praise noting “The whole team is very organised.” and “their clerks are excellent, very responsive and helpful”.
Ampersand’s full listings can be viewed on the Chambers and Partners website here.
The Scottish Civil Justice Council has published a report on the consultation on the draft rules for Protective Expenses Orders. The report summarises the proposals and provides an analysis of the key issues arising from the responses. The SCJC has established a working group to consider the policy issues emerging from the consultation and to make recommendations to the council for revised procedural rules. The working group is made up of:
The report can be viewed here.
Following the UK Supreme Court’s historical first sitting in Edinburgh earlier this year, a prisoner who complained he was not provided with appropriate rehabilitation courses has had his appeal unanimously dismissed. The justices in the UK Supreme Court held that he suffered no violation of his article 5 rights and that domestic interpretation of article 5(1)(a) ECHR should be consistent with that of the European Court of Human Rights, with such a duty applying to life prisoners and those detained in the extension period of extended sentences.
The appellant was sentenced to an extended sentence of ten years’ imprisonment, comprising a custodial term of seven years and an extension period of three years. He was released on licence after serving two-thirds of the custodial term, but was recalled to custody after committing a further offence. He then remained in prison until the sentence had been served in full. In these proceedings, he complains that he was not provided with appropriate rehabilitation courses following his recall to prison, contrary to article 5 of the European Convention on Human Rights (“the Convention”), as given effect in domestic law by the Human Rights Act 1998. The principal issue in this appeal is whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applies to prisoners serving extended sentences. The lower courts found that there was no violation of article 5.
The Supreme Court unanimously dismisses the appeal, upholding the decision that there was no violation of article 5(1)(a). Lord Reed, with whom Lord Neuberger, Lady Hale, Lord Hodge and Lord Carloway agrees.
Previous decisions on Article 5(1)(a)
In James v United Kingdom (2013) 56 EHRR 12 (“James”), the European Court of Human Rights (ECtHR) applied the general principle that article 5(1) requires the conditions of detention to be consistent with the purpose of the detention. Based on that principle the court concluded that after the punishment part (the “tariff period”) of an indeterminate sentence for public protection (“IPP”) has been served and the prisoner remains in detention for reasons of public protection, a real opportunity for rehabilitation should be provided.
The Supreme Court (“UKSC”) in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 (“Kaiyam”) accepted there was an obligation to provide life and IPP prisoners with a real opportunity for rehabilitation, but held this was not imposed by article 5(1). Rather, the duty was an ancillary duty in the overall scheme of article 5 and existed throughout the prisoner’s detention. James was not part of a clear and constant line of decisions. The UKSC was concerned that the approach in James might give prisoners a right to immediate release under the Convention.
The ECtHR in Kaiyam v United Kingdom (2016) 62 EHRR SE 13 rejected the article 5(1) complaint in Kaiyam as inadmissible on the basis that article 5(1)(a) does not require a real opportunity for rehabilitation during the tariff period, since this represents the punishment part of the sentence. The ECtHR declined to adopt the UKSC’s analysis, and adhered to the approach in James. On the facts of Kaiyam, a real opportunity for rehabilitation had been provided to the applicants.
Whether the UKSC should align its approach with the ECtHR
The question of whether the obligation to provide rehabilitation opportunities arises under article 5(1) (as the ECtHR held in James and Kaiyam), or is immanent in article 5 as a whole (as the UKSC held in Kaiyam), affects the substance of the obligation, including: the period during which the obligation applies, the standard of the duty, and the weight to be placed on the Secretary of State’s assessment of what amounts to a reasonable opportunity. In light of this, the UKSC’s approach in Kaiyam has resulted in the imposition of a duty on the prison authorities which is significantly different from, and more demanding than, the duty imposed by the Convention. This position is a departure from the usual situation in which the jurisprudence of the UK and the EU aligns. As to the UKSC’s concern in Kaiyam, noted above, the ECtHRs approach does not entail an obligation under the Convention to secure the applicant’s immediate release, as other remedies exist which can remedy the lack of opportunity for rehabilitation. Accordingly, the UKSC should now adopt the same approach to the interpretation of article 5(1)(a) as the ECtHR in James, and cease to treat the obligation to provide opportunities for rehabilitation as an ancillary obligation implicit in article 5 as a whole. It is noted, however, that a high threshold has to be surmounted in order to establish a violation of the obligation.
Application to extended sentences
Whereas the previous cases on the duty to provide an opportunity for rehabilitation concerned life or IPP sentences, the present case concerns extended sentences, which may be imposed pursuant to section 210A of the Criminal Procedure (Scotland) Act 1995. An extended sentence comprises a custodial term and an extension period for which the offender is to be on licence beyond the licence period under the custodial term. A court may impose an extended sentence if it considers the licence period under the custodial term to be insufficient for the protection of the public. When the prisoner subject to the extended sentence is released on licence, the licence remains in force until the end of the extension period. The licence may be revoked if the offender commits a further offence.
The duty to provide an opportunity for rehabilitation established in James should apply equally to prisoners detained during the extension period of an extended sentence, having regard to the indefinite (albeit not unlimited) duration of detention during the extension period, its purpose of protecting the public from serious harm, and the possibility of change in response to opportunities for rehabilitation. The rationale in James that rehabilitation opportunities had to be available to IPP prisoners where they were detained solely because of the risk they pose to the public, applies to prisoners detained during the extension period of an extended sentence.
Application to the present case
In light of the various opportunities for rehabilitation provided to the appellant in the present case, there can be no doubt that he was provided with a real opportunity for rehabilitation during his custodial sentence and his extended sentence. The appellant was not left in limbo without sentencing planning and without any attempt to provide him with an opportunity to rehabilitate himself. On the contrary, there were courses provided and completed, regular planning meetings, efforts made to find appropriate rehabilitative work, and transfers to less restrictive conditions. The problem which resulted in the appellant’s serving the whole of his sentence was not the failure of the prison authorities to provide appropriate courses, but his own misconduct. There is no question of his detention during the extension period, or at any other point during his sentence, having been arbitrary.
The full judgment and press summary can be viewed here.
Ampersand’s Douglas Ross QC acted for the Respondent, the Scottish Ministers and Dorothy Bain QC for the Appellant.
Ampersand is delighted to be once again be recommended as a top-tier set by The Legal 500 UK Bar Directory.
The guide says “Ampersand houses ‘an excellent group’ of advocates, who handle a broad spectrum of practice areas, including commercial, planning, property and public law. The stable is particularly noted, however, for its very strong personal injury and clinical negligence team.”
32 Ampersand advocate’s are listed in The Legal 500 UK 2017 guide to outstanding counsel published on 11 October 2017.
Civil liberties, human rights, public inquiries, and public and administrative law (including local government) – Civil liberties, human rights, public inquiries, and public and administrative law (including local government) – Leading silks
– Aidan O’Neill QC A natural orator.
– Dorothy Bain QC Hardworking, determined and confident in court
– Douglas Ross QC Very intelligent and personable.
– Laura-Anne van der Westhuizen Very bright and a pleasure to work with.
Commercial litigation
– Alan Dewar QC A formidable practitioner.
– Craig Sandison QC A standout silk.
– Robert Howie QC An incredibly bright and extremely talented silk.
– Ronald Clancy QC Highly recommended for a broad spectrum of commercial cases.
– Eoghainn MacLean Determined in court.
Company and insolvency
– David Sellar QC A first-choice silk for complex company and insolvency matters.
Employment – Employment
– Russell Bradley Very experienced in TUPE, restrictive covenants and whistleblowing cases.
Intellectual property, information technology and media
– Craig Sandison QC Brilliantly clever and tenacious in court.
– Usman Tariq He has considerable experience on his feet.
Personal injury and medical negligence
– David Stephenson QC He is great to work with due to his unflappable demeanour.
– Euan Mackenzie QC A meticulous silk with a first-class intellect.
– Graham Primrose QC He has impressive technical knowledge.
– Hugh Campbell QC Very experienced across the spectrum of disease and injury cases.
– Lauren Sutherland QC A highly dedicated silk.
– Lisa Henderson QC She has fantastic attention to detail and notable client empathy.
– Maria Maguire QC Her remarkable grasp of the facts enhances her focus on a case.
– Simon Di Rollo QC A very effective court performer.
– Archie MacSporran Very experienced in complex and high-value clinical negligence cases.
– Christian Marney Well known for acting in personal injury matters.
– Fiona Drysdale Hardworking with a very detailed approach.
– James Dawson He has a sound understanding of complex scientific material.
– Una Doherty Reliable and well organised
Planning, environmental and licensing
– Ailsa Wilson QC Highly experienced in regulatory environmental disputes.
– Malcolm Thomson QC A patrician of planning law.
– Marcus McKay QC Recommended for cases involving renewable energy.
– Laura-Anne van der Westhuizen Painstaking and great with clients.
Property, construction and agriculture
– Christopher Haddow QC Recommended for a broad range of property matters.
– Robert Howie QC A go-to silk for construction law matters.
– Eoghainn MacLean Willing to explore every possibility to assist his clients.
Full listings can be viewed here.
