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Court: Queen’s Bench Division (Administrative Court)

High Court refuses appeal against extradition to California for murder trial

Miao v Government of the United States of America [2020] EWCA 2178 (Admin)

The Government of the United States had requested the applicant’s extradition to stand trial for the murder of a former business associate. The applicant had resisted extradition, chiefly, on the grounds of mental health and prison conditions in California. The District Judge had decided to send the applicant’s case to the Secretary of State under section 87(3) of the Extradition Act 2003. The applicant appealed on the basis that the Government failed to honour its duty of candour in laying out the problems in the Californian prison estate; the judge should have found that extradition was barred by Articles 2 and 3 of the Convention in consequence of the applicant’s mental illness and risk of suicide and that the judge should have found that extradition is barred by section 91 on the same basis. The question for the High Court was whether there was an arguable basis for saying that the district judge was ‘wrong’ in his conclusions on any or all of the three grounds of appeal.
The High Court refused permission to appeal and held that the District Judge was correct in the conclusions that he reached. The Court was satisfied that the applicant would be properly cared for and his mental health needs and suicide risk appropriately dealt with. The assurances given to that effect were found to be specific and detailed and given in good faith by and on behalf of individuals who have the ability to ensure they are fulfilled.

Adoption and fostering agency’s recruitment policy found to violate the Equality Act and the Human Rights Act for requiring carer applicants to be heterosexual

R (Cornerstone (North East) Adoption and Fostering Service Ltd v Ofsted [2020] EWHC 1679 (Admin)

This case concerned whether it is lawful for an adoption and fostering agency only to accept heterosexual evangelical Christians as the potential carers of fostered children. Cornerstone (North East) Adoption and Fostering Service Ltd sought to judicially review a report by Ofsted, which found its carer recruitment policy to be in violation of equality and human rights laws and required it to change the policy.

Cornerstone operates as an independent fostering agency and is founded on, and operates according to, its perception of evangelical Christian principles. In practice, the only potential carers Cornerstone accepts are evangelical married heterosexual couples of the opposite sex.

The Court held, inter alia, that Cornerstone’s recruitment policy was unlawfully discriminatory in breach of s 29(1) of the EA 2010, alternatively, s 29(6), in both cases read with s 13 and/or s 19, insofar as it requires applicants to refrain from ‘homosexual behaviour’. The policy unlawfully discriminates, directly or indirectly, against gay men and lesbians. The disapplication of the general exemption in [2(3)] of Sch 23 provided by [2(10)] applies because Cornerstone performs functions on behalf of public authorities pursuant to contract.

Cornerstone’s recruitment policy was held to violate Article 14 of the Convention read with Article 8 insofar as it required carer applicants to be heterosexual. Its policy unlawfully discriminated against gay men and lesbians.

High Court quashes DPP decision not to charge employers in domestic servitude case

L v Director of Public Prosecutions [2020] EWHC 1815 (Admin)

The Claimant challenged the decision of the CPS on behalf of the DPP not to bring charges against her former employers for arranging her entry into the UK in circumstances in which they intended to exploit her, contrary to section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
The Claimant had obtained work for a Mr and Mrs Aljaberi in Abu Dhabi through an agency. Mr Aljaberi wanted the Claimant to accompany his family to London and the Claimant contended that he had told her he would reimburse her £1000 monthly for the work done in London. The Claimant was only remunerated £100-£200 per month. The Claimant contended that she was mistreated during her employment. The Home Office had concluded, on the balance of probabilities, that the Claimant had been recruited for the purpose of domestic servitude and had been deceived as to the salary she would receive in the UK and hours she would be required to work. The CPS, however, had decided not to charge Mr and Mrs Aljaberi which the Claimant challenged in the present proceedings.
The Court allowed the claim and quashed the decision not to charge the employers. It held that proper decision making in a charging context requires the prosecutor to assess the available evidence against the elements of the potential offence. In this case the decision maker’s approach was fundamentally flawed.

High Court refuses permission for judicial review challenge to lockdown regulations

Dolan & Ors v Secretary of State for Health and Social Care & Anor [2020] EWHC 1786 (Admin)

The claimants sought permission to bring judicial review proceedings to challenge the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 (as amended) as well as a decision to close schools and educational establishments. The case raised a number of issues for consideration including whether some of the grounds of challenge are now academic and whether the Regulations are unlawful because they are outside the powers conferred by Parliament.

The High Court held that the Secretary of State had the legal power to make the Regulations. In making and maintaining the Regulations, he had not fettered his discretion, had regard to relevant considerations and acted neither irrationally nor disproportionately. The claim to challenge the restrictions on movement and gatherings in the original regulations 6 and 7 were held to be academic as those regulations have been replaced. The challenge to the 18 March 2020 announcement relating to schools was also considered to be academic in the circumstances. Permission to apply for judicial review to challenge those regulations and that decision was therefore refused.

The amended regulation 6 in force on 2 July 2020 requiring persons not to stay overnight other than where they live was held not to be a deprivation of liberty within the meaning of Article 5 of the Convention. Though the Regulations involved a restriction on the freedom of assembly and association, there was no realistic prospect that a court would find that regulations adopted to reduce the opportunity for transmission by limiting contact between individuals was disproportionate. Permission to challenge the Regulations on the basis of Article 8 of the Convention or the first claimant’s property rights under Article 1 of the First Protocol to the Convention was also refused.

High Court determines preliminary issues on the application of article 6 ECHR and disclosure in a judicial review claim concerning the Government’s decision not to establish a public inquiry to investigate allegations of the UK intelligence services’ conduct in the aftermath of 9/11

Reprieve & Ors v The Prime Minister [2020] EWHC 1695 (Admin)

The claimants had applied for judicial review of the Prime Minister’s decision that it was not necessary to establish a public inquiry to investigate allegations of the UK intelligence services’ involvement in torture, mistreatment and rendition of detainees in the aftermath of events on 11 September 2001. At a preliminary hearing the Court heard argument on (1) whether article 6(1) of European Convention on Human Rights applies to the judicial review claim and (ii) if so, whether the claimants are entitled to disclosure to the extent set out in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269.

The court did not rule out the possibility that a party might in some circumstances invoke article 6(1) on behalf of a person unconnected to the proceedings, but the claimants could not do so in the present case. There was no reason why the scope of article 6 should extend to unknown persons who did not appear before the court and the judicial review claim was not determinative of the claimants’ civil rights. Accordingly, article 6 was not engaged. Even if article 6 were to apply, the Court was not willing to accept that AF (No 3) disclosure would be required in this case. The analysis of control orders which underpinned the conclusions in AF (No 3) did not apply. These proceedings do not involve the liberty of an individual in the sense that the proceedings are not concerned with granting release from detention. Nor does the refusal of a public inquiry raise anything akin to deprivation of liberty. The case will be decided on conventional judicial review principles, which will not examine the merits of the defendant’s decision but will consider whether the decision was lawful and the Court was not persauded that the Special Advocates will be unable to deal with, or that the court will be unable fairly to decide, the questions of law in issue.

The Court held that its decision does not mean that the Home Secretary’s reasons for withholding material will avoid independent scrutiny or that there is any lacuna in the rule of law. The process by which the court considers whether the closed material has been justifiably withheld has not yet commenced. The Special Advocates will be able to probe the Home Secretary’s reasons and through that process, the court will be able to ensure the ingredients of a fair trial while upholding the strong public interest in national security.