Court : House of Lords
LORD HOPE OF CRAIGHEAD My Lords, 1. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury. I agree with them, and for the reasons they give I would dismiss the appeal. 2. Although this does not affect the outcome of the appeal, I wish like my noble and learned friend Lord Scott of Foscote to associate myself with what Lord Brown says in the last paragraph of his opinion. It is perfectly clear that the appellant would have succeeded in her application as the rules stood in January 2006 when she submitted it together with the prescribed fee. It is equally clear that, had she known what the rules were to say by the time the application came to be considered several months later, she would have seen that it was pointless to apply and she would not have parted with her money. I have no doubt that counsel for the Secretary of State was right not to give an undertaking that it would be retur...
Tag this Judgment!Court : House of Lords
LORD HOPE OF CRAIGHEAD My Lords, 1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons he gives I would dismiss the appeal. I also agree with the observations which have been added by my noble and learned friend Lord Scott of Foscote. LORD HOFFMANN My Lords, 2. Mr Nasseri is an Afghan national who crossed into Greece in December 2004 and claimed asylum. The application was rejected on 1 April 2005. By then he may already have been on his way to the United Kingdom, which he entered on 5 September 2005 concealed under a lorry. When detected he again claimed asylum. 3. Council Regulation (EC) No 343/2003 (“the Dublin II Regulation”) provides in article 10 that if an asylum seeker has crossed the border from a third country into a Member State, that Member State, and only that Member State, shall be responsible for examining his application. Pursuant to the Regulation, the Home Office asked...
Tag this Judgment!Court : House of Lords
LORD HOPE OF CRAIGHEAD My Lords, 1. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Brown of Eaton-under-Heywood and Lord Judge, the Lord Chief Justice. I gratefully adopt their admirable description of the legislative and factual background. For the reasons they give, with which I agree, I would dismiss all three appeals. 2. It may helpful if, by way of an introduction to the issues that they examine in much greater detail, I were to provide a sketch of the landscape within which the arguments that are before the House must be considered and give some brief reasons of my own for the conclusions that I have reached. Submissions were made about the Secretary of State’s duties in public law and the appellants’ rights under articles 5(1) and 5(4) of the European Convention on Human Rights. The scope for argument differs under each of those heads, and so does the opportunity that each offers for an effective remedy. The public law...
Tag this Judgment!Court : House of Lords
LORD PHILLIPS OF WORTH MATRAVERS My Lords, 1. Under the Drug Trafficking Act 1994 (“the 1994 Act”) the assets of a defendant convicted of a drug trafficking offence are liable to confiscation to the extent that he has benefited from drug trafficking. The benefit in question is not restricted to the benefit derived from the offence or offences in respect of which the defendant has been convicted. In confiscation proceedings the prosecution has to satisfy the court that the defendant has benefited from drug trafficking and the extent of such benefit. The normal way of doing this is to prove that the defendant possesses, or has possessed, property and to invite the court to assume that the property in question represents or represented benefit derived from drug trafficking. The Act expressly provides that the court must make this assumption unless it is shown to be incorrect or would involve a serious risk of injustice. 2. The appellant is subject to a confiscation order impo...
Tag this Judgment!Court : House of Lords
LORD HOFFMANN My Lords, 1. The appellant David Thorner is a Somerset farmer who, for nearly 30 years, did substantial work without pay on the farm of his father’s cousin Peter Thorner. The judge found that from 1990 until his death in 2005 Peter encouraged David to believe that he would inherit the farm and that David acted in reliance upon this assurance. In the event, however, Peter left no will. In these proceedings, David claims that by reason of the assurance and reliance, Peter’s estate is estopped from denying that he has acquired the beneficial interest in the farm. The judge found the case proved but the Court of Appeal reversed him. 2. Such a claim, under the principle known as proprietary estoppel, requires the claimant to prove a promise or assurance that he will acquire a proprietary interest in specified property. A distinctive feature of this case, as Lloyd LJ remarked in the Court of Appeal (at paragraph 65), was that the representation was never made expres...
Tag this Judgment!Court : House of Lords
LORD PHILLIPS OF WORTH MATRAVERS My Lords, 1. Mr King, the respondent to this appeal, is a British subject who has for 30 years been resident in South Africa. He has been charged by the Office of the National Prosecuting Authority of the Republic of South Africa (“the NPA”) with fraud on a very large scale. He was originally arrested in South Africa on 13 June 2002. He was served with an indictment on 29 April 2005, which was amended on 17 March 2006. He now faces 51 counts of fraud, 34 counts of contravening income tax legislation, 234 counts of contravening exchange control regulations, 2 counts of money laundering and 1 count of racketeering. His trial has been adjourned on a number of occasions. He has been granted bail and the return of his passport and has been permitted, on occasion, to travel outside South Africa. 2. This appeal arises out of a Letter of Request sent by the NPA to the United Kingdom Central Authority in London and to the Lord Advocate in Edinburgh ...
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LORD PHILLIPS OF WORTH MATRAVERS My Lords, Introduction 1. On 6 February 2006 a solicitor called Manmohan Sandhu appeared before the Antrim Magistrates’ Court charged with incitement to murder, and four counts of doing acts tending and intended to pervert the course of justice. The court was told that the case against Mr Sandhu was based on covert electronic surveillance carried out by the police of conversations between himself and clients who were purporting to consult him in the serious crime suite at Antrim Police Station. The fact that the case against Mr Sandhu was based upon such evidence received considerable media coverage and comment. It also led to requests being made of the police on behalf of each of the appellants for assurances that no such monitoring was taking place in respect of consultations that they were about to have with their lawyers or, in the case of M, his consultant psychiatrist. The police declined to give such assurances. 2. My noble and learned fr...
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LORD PHILLIPS OF WORTH MATRAVERS My Lords, Introduction 1. These appeals relate to three men whom the Secretary of State for the Home Department wishes to deport on the ground that each is a danger to the national security of the United Kingdom. Each contends that the Secretary of State cannot do so because deportation will infringe his rights under the European Convention on Human Rights (‘the Convention’). RB and U are Algerian nationals. They contend that deportation to Algeria will infringe their rights under article 3 of the Convention in that it will expose them to a real risk of torture or inhuman or degrading treatment. Mr Othman is a Jordanian national. He contends that if he is deported he will face a real risk of torture or inhuman or degrading treatment contrary to article 3 of the Convention, a real risk of a flagrant breach of his right to liberty under article 5 of the Convention and a real risk of a flagrant breach of his right to a fair trial under article ...
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LORD PHILLIPS OF WORTH MATRAVERS My Lords, Introduction 1. The Freedom of Information Act 2000 (“the Act”) provides for a general right of access to information held by public authorities. That right is subject to exceptions. The Act makes provision for its enforcement by the Information Commissioner (“the Commissioner”) and for a right of appeal from a decision of the Commissioner to the Information Tribunal (“the Tribunal”). Schedule 1 to the Act lists the public authorities to which the Act applies. A small number of these are listed in respect only of certain specified information. One of these is the first respondent (“the BBC”), which is listed as “The British Broadcasting Corporation in respect of information held for purposes other than those of journalism, art or literature". 2. The BBC holds a report that it commissioned in respect of its coverage of the Middle East (“the Balen Report”). The appellant, Mr Suga...
Tag this Judgment!Court : House of Lords
LORD HOFFMANN My Lords, 1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Walker of Gestingthorpe. I am in agreement with his conclusion that the House can now dispose of the appeal in accordance with paragraph 23 of his opinion. LORD SCOTT OF FOSCOTE My Lords, 2. I have had the advantage of reading the opinion prepared by my noble and learned friend Lord Walker of Gestingthorpe dealing with the implications and consequences of the manner in which the Court of Justice of the European Communities dealt with the five questions referred to that Court by the House’s order of 12 July 2006. I am in agreement with the conclusion reached by my noble and learned friend that the House can now dispose of the long drawn out appeal, that was heard by the House as long ago as July 2005, by making the order he suggests in paragraph 23 of his opinion. Lord Walker of Gestingthorpe My Lords, The background to the second reference under Article 234 3. On...
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