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Matrix Judgments & Commentary

Matrix’s Legal Support Service produce summaries of cases that Matrix members are involved in, which you can find below. You can browse these through the search function on the right.

Under PACE, journalists can only be ordered to produce immediately admissible trial evidence

R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin)

DE, a former Newcastle United footballer, was interviewed live-to-air on the Victoria Derbyshire show about sexual abuse by a club coach in the 1990s. A BBC researcher had made a note of a mock interview with DE, recording answers giving his account of the abuse.

DE was to be a prosecution witness at the subsequent Crown Court trial of the coach. After the trial commenced the police obtained a production order for the note from the trial judge under PACE, Schedule 1. The CPS wanted to disclose it to the defence for possible use to attack DE’s credibility at trial, if (depending on its contents) it undermined/contradicted his evidence for the prosecution.

Held: The Divisional Court upheld the judge’s rulings that the police application was “for the purposes of a criminal investigation” under PACE, s.9(1), and that the note was likely to be of substantial value to the investigation. But another PACE, Schedule 1 para 2, access condition requirement was not made out because it was not open to the judge to conclude that the note was “likely to be admissible evidence”. The DC held that this access condition requires that the material the journalist is ordered to produce must be immediately admissible per se, whereas the admissibility of this document was conditional.   

Court of Appeal clarifies how Qualified One Way Costs Shifting applies to mixed claims

Brown v Commissioner of Police of the Metropolis & Ors [2019] EWCA Civ 1724

The Court held that automatic QOCS protection applies to claims for damages in respect of personal injuries, and that this would include all claims consequential upon that personal injury, including a claim for lost earnings as a result of the injury and the consequential time off work. The Court held that claims for other types of damages did not attract automatic protection.

However, LJ Coulson commented that if proceedings can fairly be described in the round as a personal injury case then, unless there are exceptional features of the non-personal injury claims, he would expect the judge deciding costs to exercise his or her discretion in order to achieve a ‘cost neutral’ result. 

Judges do qualify as ‘workers’ for the purposes of whistleblowing

Gilham v Ministry of Justice [2019] UKSC 44

On appeal from: [2017] EWCA Civ 2220

The issue in the appeal is whether a District Judge qualifies as a ‘worker’ or a ‘person in Crown employment’ for the purpose of the protection given to whistle-blowers of the Employment Rights Act 1996, Part IVA. If not, is this discrimination against her in the enjoyment of her right to freedom of expression, protected by the ECHR, art 10 and art 14?

Held: The Supreme Court unanimously allows the appeal and remits the case to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of  of the 1996 Act, Part IVA. The issue is whether the appellant’s work is performed pursuant to a contract with the recipient of that work or services, or pursuant to some different legal arrangement. Judges hold a statutory office, and office-holders do not necessarily hold office pursuant to a contract. It depends on the intention of the parties, which is reflected in the manner of engagement, the source and character of the rules governing service and the overall context. The failure to extend the Part IVA protections to judicial office-holders is a violation of the appellant’s right under article 14 not to be discriminated against in her enjoyment of the rights under the ECHR.

‘Breach of human rights for detainee who was subjected to constant observation for 75 days’

IS (Bangladesh) v SSHD [2019] EWHC 2700 (Admin)

The claimant challenged the legality of his detention for a period of 28 months pending his deportation. He says that it was unlawful to detain him for that period of time having regard to his young age (he was 18 when first detained), his mental health, history of self-harm and risk of suicide, and the conditions of his incarceration. He claims a violation of his rights under the ECHR, art 3, 5 and 8.

Held: The detention of the Claimant between 28 July 2016 and 29 June 2018 was lawful and did not involve a breach of his Convention rights. The detention of the Claimant between 29 June 2018 and 30 November 2018 was unlawful and amounted to a breach of his right to liberty under Article 5 ECHR. His treatment of being subjected to constant observation for a period of 75 days whilst unlawfully detained amounts to a separate breach of the right to respect for private life under Article 8 ECHR. There was no breach of the prohibition on inhuman or degrading treatment under Article 3 ECHR.

Court of Appeal considers UK’s obligations to family members recognised as refugees

Secretary of State for the Home Department v JS (Uganda) [2019] EWCA Civ 1670

This appeal concerns the 1951 Geneva Convention on Refugees (“the Refugee Convention”) and the protection against refoulement afforded to foreign criminals subject to deportation orders, who have previously been granted refugee status linked to the refugee status of a family member.  The case raises issues of construction as to the definition of “refugee” under Article 1A(2) and the true construction of the “cessation” provision under Article 1C(5) of the Refugee Convention.