Digest
Case-law Digest
Procedural errors did not cause unfairness
R v Guraj
[2016] UKSC 65
This appeal considered, where a deprivation or forfeiture order is wrongly made during a period of postponement of confiscation proceedings (contrary to Proceeds of Crime Act (PCA) 2002 s15(2)) , whether the effect of section 14(12) is that a subsequent (and substantial) procedural error may, in itself, deprive the court of jurisdiction to make a confiscation order.
The Supreme Court unanimously allowed the Crown’s appeal. The court held that no unfairness had arisen in consequence of the irregularities which occurred, and there was no obstacle to the making of the confiscation order.
‘Best interests’ did not require parent to remain in UK
Makhlouf v Secretary of State for the Home Department (Northern Ireland)
[2016] UKSC 59
In this appeal against an order for deportation of a foreign criminal, who has children who are citizens of and residents in the UK, the appellant’s case was dismissed. While separate consideration of the children’s best interests is required and this must rank as a primary consideration, in this case the appellant had no relationship with his children. Though there was a possibility of such a relationship developing, the court saw this as extremely unlikely and recognised that while children are rights-holders on their own account, their rights are not a passport to another person’s rights. Thus, there was nothing to suggest that the best interests of these children required the appellant to remain in the UK.
Article 7 and the lex mitior principle
R v Docherty
[2016] UKSC 62
This appeal considered whether domestic courts ought to recognise and apply within the body of European Convention on Human Rights (‘ the convention’ ) article 7 the principle of lex mitior (where the law most favourable to the defendant should apply where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered).
The Supreme Court unanimously dismissed the appeal. It held that the Commencement Order bringing into force the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was lawful, and does not violate article 7 of the convention. As sentencing is a matter for the judge in English law, giving the sentence of imprisonment for public protection (IPP) rather than an extended sentence for public protection (EPP) was lawful, and did not offend against the principle of lex mitior as the maximum sentence for the appellant’s crime was the same under either IPP or EPP.
No leave to remain under section 3C where original application invalid
R (Mirza) v Secretary of State for the Home Department; R (Iqbal) v Secretary of State for the Home Department; and R (Ehsan) v Secretary of State for the Home Department
[2016] UKSC 63
These appeals considered whether Immigration Act 1971 s3C automatically extends a person’s leave to remain pending the determination of an application to extend leave to remain, notwithstanding that the original application is invalid. The Supreme Court unanimously dismissed the appeals.
The court held that its approach must be based on the legislation as it stands, since there has been no challenge to the legality or rationality of the rules and regulations using ordinary principles of statutory interpretation. The court held there to be no ambiguity in the words of regulation 37 of the Immigration and Nationality (Fees) Regulations 2011 SI No 1055: if an application is not accompanied by the specified fee it ‘is not validly made’ , and therefore can have no substantive effect.
The Supreme Court followed the Court of Appeal in rejecting the second appellant’s ground of appeal, based on alleged unfairness, as the secretary of state had not failed to publicise the change of fees.
When public interest in offender’s deportation offsets private or family life
Ali (Iraq) v Secretary of State for the Home Department
[2016] UKSC 60
This appeal related to a challenge to a deportation order made in respect of the appellant following his unlawful entry into the UK, his failed asylum claim, and his conviction for Class A and C drug possession with intent to supply for which he was imprisoned for four years. By a majority of six to one, the Supreme Court dismissed the appellant’s appeal.
The court held that the Immigration Rules were a relevant and important consideration, which should have been taken into account when assessing the proportionality of the interference with the appellant’s article 8 convention rights. Thus, per the Rules, there is a presumption in favour of deportation of foreign criminals in the public interest. Absent compelling reasons in the alternative, which were not found in this case, public interest in the offender’s deportation outweighs countervailing considerations of private or family life where there has been a custodial sentence of four years or more.
Professional liabilities versus trading liabilities
Impact Funding Solutions Ltd v AIG Europe Insurance Ltd (formerly known as Chartis Insurance (UK) Ltd
[2016] UKSC 57
The appellant, AIG Europe Insurance Ltd, sought to establish that Barrington Support Services Ltd (solicitors) liability to Impact Funding Solutions Ltd for unrepaid loans was caught by the ‘debts and trading liabilities’ exclusion contained in the Minimum Terms and Conditions of Professional Indemnity Insurance for Solicitors and Registered European Lawyers in England and Wales. AIG, therefore, sought to establish that it was not liable to cover Barrington’s liability to Impact under its professional indemnity insurance agreement as per the Third Parties (Rights Against Insurers) Act 1930.
On 13 December 2013, the High Court held that Impact’s claim against AIG for an indemnity failed. In a judgment dated 3 February 2015, the Court of Appeal allowed Impact’s appeal.
AIG’s appeal to the Supreme Court was allowed by a majority of four to one. The court considered that the general doctrine of narrow construction of exemption clauses does not apply in the instant policy, and therefore it was necessary to consider the construction of all relevant terms.
The court found that the respondent provided a service to Barrington in the loans made to Barrington’s clients as Barrington contracted as a principal with the respondent, not an agent for its clients, and it obtained a benefit which was neither incidental nor collateral from the funding of its disbursements. Barrington paid an administration fee for this, and undertook to repay the respondent should a client breach the credit agreement.
Thus, there was no basis for implying additional words into the exclusion to limit its scope. This is because the breach of duty relied on by the respondent is that by Barrington to its clients. However, the respondent’s claim against the appellant is not derived from the clients’ claims, and is rather an independent cause of action. Excluding the claim maintains the coherence of the policy, and is consistent with the purpose of the policy, which is to protect the clients of solicitors.
Powers of disciplinary panel to regulate professional conduct
Khan v General Pharmaceutical Council
[2016] UKSC 64
This appeal considered whether there is an intermediate sanction open to the General Pharmaceutical Council Fitness to Practise Committee, which allows it to indicate that a period of suspension should exceed 12 months, and whether the original sanction of removal from the Register of Pharmacists was wrong in principle, clearly inappropriate or plainly disproportionate. The Supreme Court unanimously allowed both the appeal and cross-appeal .
The court found that it was wrong to have referred the case to the Extra Division of the Court of Session, and this Extra Division was wrong to have stated that the original 12-month suspension of right to practise could subsequently be extended. As a review committee, it could not impose a further suspension to reflect the original committee’s conclusion that the gravity of the registrant’s misconduct demanded a longer period of suspension (indeed, removal altogether) than the 12 months it was permitted to impose.
However, the original committee itself acknowledged that its direction for removal might appear harsh, and the Supreme Court, allowing the respondent’s cross-appeal , held that a direction for suspension should be substituted in place of the original committee’s direction for removal from the register.
- See also 'Immigration law update' of this issue