Alistair Sloan, Advocate

The death of the death penalty in the UK: 50 years on

August 13th, 2014

At 8am on 13 August 1964 at Strangeways Prison in Manchester Gwynne Owen Evans was hanged by executioner Harry Allen for the murder of John Allan West. At the same time 30 miles away in Walton Prison, Liverpool Peter Anthony Allen was hanged by Robert Leslie Stewart, also for the murder of John Allan West. Evans and Allen were to be the last two men executed by the State in the United Kingdom. The Death Penalty was effectively abolished in 1965; however, remained an option until 1998 in cases of Treason and Piracy with violence.

Fifty years on there comes with each high profile murder, and indeed other cases which prove the public’s revulsion, calls to re-instate the death penalty in the UK. Only 50 years ago crowds were taking to the streets in protest at the death penalty. The death of the death penalty in the UK came about from a number of shocking miscarriages of justice in which innocent people were wrongly convicted and executed by the State.

One of those cases was that of Timothy Evans who was executed on 9 March 1950 for the murder of his wife and daughter. His neighbour, John Christie, was later executed for the murder of Evans’ daughter as well as the murder of a number of others, including Christie’s own wife. John Christie had been a witness at Evans trial for the prosecution, and almost certainly saw Evans be sent to the Gallows. On 19 November 2004 the Court of Appeal accepted the Evans did not murder either his wife or his child, but refused to quash his conviction on the basis that the cost and resources of quashing them could not be justified. The case caused public outrage and was one of a number of cases which saw Capital Punishment being confined to history in the UK.
There were other cases that saw the end of the death penalty in the UK, but the Evans case highlights perfectly the very real dangers of Capital Punishment. It is a non-reversible form of punishment; no quashing of the conviction and no financial compensation from the Government can ever rectify an execution. If an innocent man is executed; he is dead and remains dead even after the mistake is discovered. While imprisoning an innocent person can have some devastating effects on that individual, th every fact that they continue to breathe means that they can, when mistakes are uncovered, be released.

There have, of course, been some exceptionally high profile miscarriages of justice over the years. Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power, John Walker, Paul Michael Hill, Gerard Conlan, Patrick Armstrong, Carole Richardson and Sam Hallam are all individuals who have been convicted of Murder, and whose convictions were overturned long after they would have been executed had Capital Punishment remained in the UK.

Of course, investigative techniques have moved along and advances in science have drastically changed the way in which the police investigate crimes. We have also moved on from the days where murder trials are over in a matter of a few short days, with these trials often lasting considerably longer than a week – sometimes even running into months. However, to argue that forensic science, such as DNA, helps prove who is guilty and who is not of murder in a lot of cases is to overstate the value of DNA evidence. DNA evidence is not, as some may thing, the golden bullet in a criminal trial. It cannot, and is unlikely to ever, prove conclusively that the accused is guilty of the crime libled. It helps to build the picture and along with other circumstantial evidence might be able to convince a jury to beyond reasonable doubt; however, as with all systems that involve humans there is room for error. When the end result is going to be the State depriving an individual of their life, there can be no room for error.

The case of Shirley McKie highlights the errors that can be made in examining forensic evidence. Shirley McKie, a form er Detective Constable, was accused of perjury after testifying at the Murder Trial of David Asbury for the murder of Marion Ross that she had not been in the house of Marion Ross, where she had been killed. A scandal erupted following the case and it resulted in changes being made to the comparison and verification of fingerprints in Scotland.

Regardless of whether you take the view that morally someone who takes the life of another should lose their own life or not, or whether you believe executing people is a deterrent to others; the very fact that there is a risk of the State executing an innocent person should be reason enough not to return to the days of capital punishment. Executing an innocent person deters no-body, it’s not justice and should never be considered an acceptable price to pay for executing people who really are guilty.
Valid FOI requests via Twitter?

July 7th, 2014

The Information Commissioner’s Office (ICO) has issued a Decision Notice that the Metropolitan Police failed to comply with section 10 of the Freedom of Information Act 2000 (FOIA) which was made to it through Twitter. In November 2012 the ICO issued a one page document setting out its view on whether a valid request can be made via Twitter. In that document the ICO acknowledged that Twitter was not the most effective way to submit a FOI request; however, it went on to say that requests made via Twitter are not necessarily invalid.

The test for whether a request is a valid one or not is to be found in section 8 of the FOIA; it sets out the requirements as to what constitutes a valid request. The Act provides:

(1) In this Act any reference to a “request for information” is a reference to such a request which—

(a) is in writing,

(b) states the name of the applicant and an address for correspondence, and

(c) describes the information requested.

(2) For the purposes of subsection (1)(a), a request is to be treated as made in writing where the text of the request—

(a) is transmitted by electronic means,

(b) is received in legible form, and

(c) is capable of being used for subsequent reference.

Let us look at each requirement in turn:

The request is in writing

The starting point with statutory interpretation would normally be what is the literal meaning of the word? Here Parliament has given us some assistance in interpreting what is considered to be in writing. This does appear to be one of those ‘for the avoidance of doubt’ provisions and was most probably inserted to take account of E-mail. There is little doubt that when passing the Act Parliament did not think about Facebook or Twitter, indeed when the Act was passed Facebook was barely a thing and Twitter hadn’t been invented. However, as technology changes it is necessary for the law to move with it – whether it is capable of doing so without amendment by Parliament is a different matter!

Is a tweet transmitted by electronic means?

It is certainly sent and received by electronic means, but what does ‘transmitted’ mean? According to the literal rule of statutory interpretation we must look at the ordinary meaning of the word transmitted. Let’s turn to the online Oxford English dictionary and its entry for transmit. Only the first two definitions are relevant here. To transmit something is to “cause (something) to pass on from one person or place to another” or “broadcast or send out (an electrical signal or a radio or television programme).” So, is a tweet transmitted by electronic means? Sending a tweet is certainly causing something (the content of the tweet) to pass from one person (the sender) to the other (the recipient). It might also be said that it is being sent from one place (the sender’s computer) to another (the recipient’s computer). It could be said that sending a tweet is not too dissimilar to sending an E-mail. Is it by electronic means? I think that it is clear that it is, for obvious reasons such as without electronics there wouldn’t be the hardware to enable a tweet to be sent. Is a tweet being broadcast or sent out? The dictionary gives an example of an electronic signal or a radio/television programme. What is a tweet? It is essentially a series of digits which put together displays on the screen as an image – it might be said to be similar to a TV programme. Whether it meets the second definition or not, I do think that it is safe to say it meets the first.

Is it received in a legible form?

Well it’s certainly not going to be illegible because it is typeface rather than handwritten. One might be of the view that this was perhaps to cover a handwritten note sent by fax and so probably isn’t relevant here – I think we can tick this box as well.

Is it capable of being used for subsequent reference?

This is where things get slightly more difficult! The Act doesn’t say who has to be capable of referencing it subsequently. Obviously, the Public Authority will have to be able to reference it subsequently in order to check that it is complying with the request made. Furthermore, the requester has to be able to subsequently reference it should they need to make a complaint to the ICO – the ICO will usually want to see the request and where possible evidence of the request having been sent. However it does not seem to be as straight forward as that.

If I tweet a public authority’s official account, my tweets are not protected and I don’t do anything else then it is possible for both the public authority and I to subsequently reference the tweet. On the face of it, this would clearly meet the requirement. Whether or not they know it is there is probably an irrelevant question in the same way someone missing a request in their E-mail inbox doesn’t matter.

The issue becomes slightly more complicated if I protect my tweets later and the public authority is not following me – then only I can subsequently reference the tweet – or if I delete my tweet altogether. In the first of these two situations (protecting my tweets where the authority is not following me) the tweet is clearly capable of being referenced subsequently, but only by me. Does this meet the requirements of the Act? Well I would suggest that in order to establish that we need to understand why Parliament included it. What situations were Parliament envisaging when they enacted this part of the Act? The explanatory notes do not provide any illumination on that question. I don’t have time to, at this stage, wade through the many lines of debate in Handsard on the Bill in the hope that there is an explanation here. I can’t immediately think of a situation which Parliament would have had in its mind when enacting this section. On that basis I don’t think that really takes us any further forward.

The question that immediately springs to mind is for how long does the request have to be capable of being subsequently referenced by the authority? If I protect my tweets on the 20th working day following sending the request is that different to if I protect them immediately following the sending of the request? After all, by the 20th working day the authority should be in a position to respond, or at least have gathered all of the information in scope and simply be conducting the public interest balancing exercise. I’d suggest there is a difference. Quite where the ‘cut off is’ would most probably be a question of looking at the circumstances in each individual case – not an ideal situation though.

What about if I delete the tweet? That might cause problems when making an application to the Commissioner – although taking a screenshot of the tweet prior to deleting it might cure that. Again is it dependent upon when I delete the tweet – e.g. on the 20th working day or immediately after it was sent?

These are difficult questions and ones that don’t have clear answers. However, in at least one case (the first – where the tweet was and remains public after it is sent and is not at any stage deleted or becomes inaccessible to the public authority by way of an individual’s tweets become protected) a tweet appears to meet all of the requirements set out in section 8(2) of the Act.

However, as mentioned earlier section 8(2) does seem to be more of a ‘for the avoidance of doubt’ subsection – a request can be in writing in other ways and it would appear that this has most probably been included so as to ensure that public authority’s treat requests received by E-mail as being valid requests – it would not appear to be the ‘be all and end all’ of the matter.

At the end of the day, what does ‘in writing’ mean? I don’t think we could realistically argue that a tweet is not ‘in writing’ even if it does not meet all of those tests – after all, a letter sent by mail doesn’t meet the requirements of section 8(2) and nobody would sensibly argue or find that such a request is not ‘in writing’ and so section 8(2) is clearly not the complete definition of what is meant by ‘in writing’ within section 8(1).

The request states the name of the applicant and an address for correspondence

Assuming that we have a request made via twitter that meets the definition of being ‘in writing’ the next requirement is that the request must state the name of the applicant and an address for correspondence. If we accept that a public authority’s twitter accounts is an address capable of having correspondence (not necessarily just a FOI request, but any type of correspondence) sent to it, then equally an individual’s twitter account must also be an address for correspondence. If an individual does not need to, for example, include within the body of their E-mail their E-mail address (i.e. it appearing in the ‘From’ field is sufficient) then I don’t see why someone would have to include their own twitter handle in their request – it is there for the authority to see in its mentions.

However, the name issue is more problematic. It is the view of the Commissioner (and I believe that it is the correct one) that the name of the applicant must be their real name – lots of people don’t use their real name (or indeed any of the acceptable forms thereof for the purposes of FOI) in their twitter profile; so there we could have a problem. If it’s not on their profile, then it’s not a valid request – even if we’ve managed to overcome the ‘in writing’ issue.

Describes the information requested

The final requirement is that the request describes the information requested. That has to be in enough detail to enable the authority to identify what is sought. That could be difficult in 140 characters. However with services such as twitlonger it can be done. It could also be possible to send the request over a number of tweets (as was done in the Metropolitan Police case linked to at the outset of this blog post). I don’t see that as being any different to sending it in a number of letters or in a number of separate E-mails. Indeed, when an authority seeks clarification because it is unable to identify what information is being requested it is looking at a request over at least two pieces of separate correspondence, if not more, to create a valid request.

Conclusion

The ICO does not say in its guidance that all requests made via twitter will be valid, only that a request made via Twitter may not necessarily be invalid. I would certainly have to agree: it is possible to make a valid request by twitter. Is it a good idea? I would say that it’s not, and that it is probably best to stick to more conventional methods such as letter or E-mail.
The law and historic cases: sensible or bizarre?

July 5th, 2014

It has been reported by the BBC today that president of the ‘Association of Child Abuse Lawyers’ has said the way in which Rolf Harris was sentenced was ‘bizarre’. He is referring to the fact that in historic cases the judge passing sentence is limited to the maximum sentence that was available at the time of the offence. In the Harris case this was 2 years (or 5 years in the cases where the victim was under the age of 13).

There are a lot of historic sexual assault and abuse cases trundling their way through the justice system. It is right that, no matter how many years later, the perpetrators of these crimes face justice. However, there is a significant issue in such cases; whether it is a sexual offence or not. As time progresses and as Government’s change, the law too goes through change. If you’re prosecuting an individual 20 or 30 years after the offence was committed it is highly likely that the law has undergone several significant changes: that is true with the law surrounding sexual offences. In all cases historic offences will be prosecuted according to the law at the time the offence was committed. The other alternative is to prosecute them under the law at the time they are prosecuted.

Why do we prosecute historic cases at the time they were committed? Well, it’s about what is fair and just. Justice is not just about the victim, but it must equally be about the offender. It would be oppressive if the law were to treat offences committed decades ago as if they were committed today. It is a general principle of law in democratic countries around the world, especially in the realm of criminal law, that the law is not retrospective. That means that current changes in the law should not affect future consequences of past conduct. In other words, if you did something that was a particular criminal offence which attracted a particular maximum penalty, but by the time you are prosecuted the law has changed, you should be treated (as far as is reasonably practicable) as you would have been when you committed the crime. The same would be true if you committed a crime today, but the law changed substantially tomorrow: you would be dealt with as the law was today and not as the law changed tomorrow – even if there was no substantial delay in arresting, charging and prosecuting you.

In the Rolf Harris case he was prosecuted for the offences that he committed at the time. As such, the maximum penalty that was available to the court was that which would have been available at the time the offence was committed (2 years, or 5 in the case of offences relating to children under the age of 13). Specifically, in the case of Rolf Harris his sentence of 5 years and 9 months was made up of a mixture of concurrent and consecutive sentences for the various charges that he was convicted of. The sentencing remarks of Mr Justice Sweeny are available online and detail what the charges were and what the sentence was for each charge (and whether it was to be served concurrently or consecutively). You can read the sentencing remarks here.

When it comes to sentencing cases like this one where there has been such a delay in bringing the offender to justice, it is not the job of the court to try and fix the sentence that would have been given at the time. The judge must have regard to the sentencing guidelines that are currently in place; however, they cannot pass a sentence which would exceed the maximum available at the time the offence was committed. I blogged in this issue last year looking specifically at the law of England and Wales, you can read that blog here.

Sentencing is always a complex matter, but it is even more complex in these cases. While there will, quite understandably, be no sympathy for people like Rolf Harris; the law must be fair and it must be just. That applies to victim and offender and so the law must not be oppressive by prosecuting people for more serious offences than what they committed (while under the current law they may well have committed the more serious offence, they did not actually commit that offence because they offended at a time when the law was quite different) or by giving them a sentence that is in excess of the maximum that was available at the time they committed the offence.

I won’t make any comment on whether I think the sentence Rolf Harris received was too harsh, too lenient or about right. I understand that the sentence has been referred by someone to the Attorney General and it is now for him to decide whether he thinks that it is unduly lenient and whether it ought to be referred to the Court of Appeal. When he is doing so he will have regard to the sentences passed, the law as it was at the time the offences were committed the present sentencing guidelines and no doubt the totality of the sentence passed. My understanding of the law is that the Attorney General has 28 days to decide whether he is going to refer it to the Court of Appeal. Even if the Attorney General decides to refer it to the Court of Appeal they may refuse to hear the case or decide that the sentence should remain the same: a referral does not mean that the sentence will increase or that it was unduly lenient.
Costs in the FTT: Snee v Information Commissioner & Leeds City Council

May 28th, 2014

Under the Freedom of Information Act 2000 a decision by the Information Commissioner is capable of being appealed to the First Tier Tribunal (Information Rights) by either the public authority involved or the Complainant. There is no cost in brining an appeal and parties are generally responsible for paying any legal costs that they incur (public authorities will often be represented as will the Commissioner; sometimes by Counsel). Under The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 the Tribunal has, on the application of a party, the power to award costs. It can do so where the appellant has acted unreasonably in brining or pursuing the appeal.

Earlier this month the First Tier Tribunal issued a decision, Mark Snee v the Information Commissioner and Leeds City Council, in respect of an application for costs against an Appellant by Leeds City Council. The Council were seeking their £20,000 costs in full, having applied to be joined to the appeal and having been represented by Queens Counsel. The Appellant in the case, Mr Snee, was represented by Counsel. The Tribunal’s decision contains some useful information with regards to heir approach to such applications.

Mr Snee’s requests had been refused by the Council on the grounds that they were vexatious (section 14(1) of the Freedom of Information Act 2000). The Commissioner and the Tribunal agreed that they were vexatious, and it was at that stage the City Council applied under Rule 10(1)(b) of the Tribunal Rules for costs.

One of the Council’s arguments, which was not accepted by the Tribunal, would have had a fundamental effect upon an individual’s right to appeal to the Tribunal. It was argued that, because Mr Snee’s requests were vexatious he had acted unreasonably in bringing the case to the Tribunal. The Tribunal did not agree. It pointed out that the Commissioner had the opportunity to refuse to issue a decision notice where he found the complaint to be frivolous or vexatious, and the Tribunal had the power to Strike out an appeal upon the application of a party where it has no hope of succeeding. The Tribunal stated that it was right to remember these protections against vexatious or hopeless appeals. Automatically making appeals against a decision that requests are vexatious subject to the costs provisions where the appeal fails would have a significant impact upon the appeal rights of an individual. The Tribunal considered that “it must be possible, depending on the circumstances, for the maker of a request regarded by everyone else as vexatious, to defend his or her position on that point without automatically being treated under the costs Rules as behaving unreasonably.” In other words, it must be possible for an individual who makes a request which is considered to be vexatious to defend their position in the Tribunal.

In the Tribunal individuals who are appealing against the Commissioner’s decision in respect of their FOI request will often not have the benefit of legal advice. Thus, what might appear to a fully trained lawyer to be “futile or wrongheaded”, the Tribunal considered that “it would be wrong to assume that the challenge is inevitably an unreasonable one for the citizen to bring.” The comments had a much more general application than that and equally well apply to a range of other Tribunals within the First Tier Tribunal structure where Legal Aid is not available, or is available only in very limited circumstances.

It seems, from this decision, that the chances of an appellant facing a costs order for an Appeal against a decision of the Information Commissioner are unlikely; although it remains a possibility that costs will be awarded in exceptional circumstances; quite what those circumstances will be remains to be seen. It seems more likely that an unreasonable appeal will be struck out during the early case management stages than for it to progress to a full hearing, thus preventing the generation of significant costs for all involved.
‘Prisoners’ are people too

May 11th, 2014

There is rarely a day that goes by without there being some story in the press about prisoners or prisons. When we do, we often hear them described as ‘thugs’, ‘beasts’ and ‘monsters’ (among other things). There is a large (and sadly influential) section of the population who view prisoners as second-class citizens, as things which are not worthy of being considered as or respected as human beings. We see it clearly, first they are de-humanised and then it becomes possible to justify all sorts of abuses and ill-treatment upon them. Indeed, we can see certain sections of the population advocating treating prisoners in ways that we wouldn’t be allowed to treat animals. However, prisoners are people. Yes they are people who have done bad things, but they are people nonetheless.

As a group they are identified by what they have done wrong, and the fact that they are in prison. They’re considered as a homogenous group of people; something which they are not. Within the prison population you have some of the most vulnerable and broken people in society. You have people with multiple mental health problems, people who have suffered the most horrendous abuse as children (and often as adults too), you have people who were neglected by the adults who were supposed to have looked after them while they were children and I could go on. Of course, none of these reasons is an excuse for what they have done; though, it can offer an explanation as to why they offended in the way that they did. As well as those who are vulnerable and broken, there are people who have simply made bad choices in their lives or been caught up in situations that got out of hand (it’s not just “bad people” who end up in prison; anyone can, in the right circumstances, find themselves on the wrong side of the law). We’re not dealing with a homogenous group of people; we’re dealing with a wide variety of people who all have one thing in common: they’re in prison.

It is a legitimate aim of society to want to be safe, and to be free from crime. It is also a legitimate aim of society to punish those who offend against the community. The mess that can be left behind after a crime has been committed can be huge; and it will often be the community that’s been impacted who are left to pick up the pieces. However, punishment alone is not enough. We need to look at radical ways of dealing with crime if we are going to see the changes in society that we want to see. Simply warehousing people in prisons for set periods of time isn’t going to bring about the changes that we want to see.

When it comes to prison we seem to be confused, as a society, about what it is for. We are all agreed one of the justifications for prison is as a form of punishment. However, is prison itself the punishment or is prison a place that we send people to be punished. There is a subtle difference in wording, but in practice this makes a massive difference to how prisons are operated. We frequently hear the line that prisons are like holiday camps being trotted out (which, when you actually think of it is an absolutely ridiculous saying; prison is about as far from Butlins or Centre Parcs as you can get). We see regular calls for prisons to be unpleasant places (they already are) where harsh regimes are the order of the day. In England and Wales that view seems to be winning out as the prison regime is being continually made more harsh and more unpleasant by Justice Secretary Chris Grayling MP. Those who favour such policies say that if we make prison a harsh and unpleasant place then people won’t want to go back and thus when they’re released they won’t commit another crime. It’s utter nonsense and has little or no scientific backing to it whatsoever. In any event, in my experience, people who leave prison in the UK today genuinely don’t want to go back when they walk out the gates. The problem is though they often walk out of the prison gates into homelessness, unemployment and back into the chaotic lifestyles that they lived before they went to prison.

Let me tell you the story of Jimmy (not his real name). Jimmy was released from prison; while he was in prison he lost the home that he had been living in before he went into prison. However, a place for him to stay had been arranged. Due to failures in the prison system, he was released later than expected. It was a Friday afternoon. By the time he made it to the housing association the person who had the key for his flat had gone home and wouldn’t be back in until Monday morning. He was simply told to come back on Monday morning. He went to the Council to present as homeless and to try and get emergency accommodation. He was told that there we no places to give to him. Faced with spending the weekend sleeping rough, Jimmy committed a minor crime knowing that he would be held in the police station until court on Monday. So, he put a brick through the window of a shop and waited until the police turned up. He was duly arrested and held in police custody over the weekend.

This is the type of thing that happens time and time again. People undergoing methadone treatment for heroin addictions are released with a doctor’s appointment three days away; of course in that time there is nothing treating the cravings and they end up feeding their habit with heroin, which puts them back into the revolving prison gates. People are released from prison unemployed and often have to wait weeks to get any form of benefits payment, by which time they’re back in prison having either stolen to try and feed themselves or simply committed a crime to get back into prison where they know they’ll be fed. These situations are not uncommon either, they happen all the time. It’s particularly bad for people released from prison on a Friday because all of the services that they can turn to close for the weekend. Foodbanks, for example, often require you to have been referred to them from organisations like Social Work, the Job Centre, Citizens Advice etc. All services that either close down for the weekend, or are so overstretched that they can’t assist everyone that needs it.

As a society we need to begin to change our attitudes because as it currently stands we set up people coming out of prison to fail. We’re not willing them to give them a chance; we’re happy to discriminate against them in terms of employment opportunities and wonder why they commit further crime or label them layabouts because they remain on benefits long-term. We’ll let our prejudice and discrimination get in the way of policies known to work and to cut re-offending because they don’t give us the retribution that we consider to be just. The system is broken and its brokenness is creating fresh victims and costing us as a society dearly emotionally, physically and financially. The first thing that we need to do is recognise that people who have offended, regardless of how heinous their crime, are human beings. Only then will we be able to have sensible discussions about justice and penology; only then can we ensure that we have a justice system that ensures the public are protected long-term by transforming the lives of those who have caused harm to their communities.
Case Note: City of Edinburgh Council against a decision of the Lothian Valuation Appeal Committee

April 12th, 2014

On 9 April 2014 the Court of Session issued its decision in an appeal by the City of Edinburgh Council against a decision of the Lothian Valuation Appeal Committee. The Courts judgment can be read in full here. The case concerns liability for council tax while a property is uninhabitable as the result of renovation and construction works.

Facts

Mr Miller purchased a residential property in March 2007. The property was unfurnished and unoccupied. Following his purchase he requested that the Council assess the property to determine whether the property was habitable or uninhabitable. In May 2007 the Council duly carried out that assessment and found that the property was uninhabitable due to the major construction works being undertaken.

In December 2007 Mr Miller applied to the City of Edinburgh Council for a Building Warrant in order that he could construct an extension to the property. After delays, the Building Warrant was granted in November 2008. In July 2011 the City of Edinburgh Council determined that the property was still “unfit for human habitation…due to the extensive renovation work underway”. However, no statutory prohibition notice was served on Mr Miller.

In December 2012 the Lothian Valuation Appeal Committee held a hearing concerning the liability for Council Tax in respect of this property. Mr Miller’s solicitors argued that as it would have been an offence under section 21(5) of the Building (Scotland) Act 2003 for Mr Miller to inhabit the property, occupation of the property was prohibited by law and paragraph 7(a) of Schedule 1 to the Council Tax (Exempt Dwellings) (Scotland) Order 1997 was engaged. Mr Miller’s Solicitors argued that the property was exempt from council tax.

The Council argued before the Lothian Valuation Appeal Committee, and the Court of Session, that Section 21(5) of the Building (Scotland) Act 2003 was not engaged. It relied upon the fact that the works that the Building Warrant authorised had not been registered as having by the issuing of a Start of Works notice to the Building Standards department. The Council also argued that there had been no evidence that the works which the Building Warrant authorised (that is the construction of the extension) had commenced.

The Lothian Valuation Appeal Committee accepted Mr Miller’s argument and found that the property was exempt from Council Tax. The Council appealed.

Decision and reasoning of the Court

The Court of Session quashed the decision of the Lothian Valuation Appeal Committee.

The Court of Session accepted that the exemptions from the payment of council tax are located in Schedule 1 to the Council Tax (Exempt Dwellings) (Scotland) Order 1997 and that liability does not require there to be a person living in the property. The Court did not accept that section 21(5) of the Building (Scotland) Act 2003 was engaged in this case. However, the Court went on to say that even if section 21(5) of the Building (Scotland) Act 2003 was engaged it considered that occupation could include occupation for the purposes of carrying out renovations to a property. The Court did not accept that occupation could only mean habitation, indeed section 21(5) of the 2003 Act clearly draws the distinction by excluding occupation for the purposes of construction or conversion. The Court went on to say that paragraph 7(a) of the Council Tax (Exempt Dwellings) (Scotland) Order 1997 was not engaged as occupation was not prohibited by law; the property would have been occupied for the purposes of the renovation.

The Court also considered that the Council Tax (Exempt Dwellings) (Scotland) Order 1997 provided a specific exemption for the purposes of major repair work or structural alteration. These can be found in paragraphs 2 and 4 of Schedule 1. Paragraph 2 relates to dwellings which are under repair, and since 2000 has been limited to a period of 12 months since the day that the property was last occupied while paragraph 4 relates to dwellings which are both unfurnished and unoccupied. The Order places a restriction of 6 months since the last period of 3 months in which it was occupied. The Court considered that as there were specific statutory provisions, which were time limited, in respect of properties like that in this case, it would not be appropriate to read paragraph 7(a) in the way that the Lothian Valuation Appeal Committee had. The Court agreed with the City of Edinburgh Council that Parliament’s intention would be defeated with such an interpretation of the provisions.

Comment

This case deals with the statutory interpretation of the Council Tax (Exempt Dwellings) (Scotland) Order 1997. It is clear that properties that are undergoing substantial repair work, which prevents them from being inhabited, are entitled to an exemption from council tax only for a period of 12 months following the date at which they are vacated for the purposes of that work. It is not possible to escape the payment of council tax by simply obtaining a Building Warrant and then never obtaining the required Completion Certificate. While Section 21(5) of the Building (Scotland) Act 2003 prevents an individual living in a property which is undergoing conversion or construction and where no completion certificate has been accepted, it does not prevent its occupation in a way that would engage paragraph 7(a) of the Council Tax (Exempt Dwellings) (Scotland) Order 1997.
ICO to appeal HS2 veto

April 10th, 2014

It has been reported that the Information Commissioner is to make an application for Judicial Review of the decision by the Secretary of State for Transport to issue a certificate under section 53 of the Freedom of Information Act 2000 (‘the FOIA’) in respect of the Commissioner’s decision that the project assessment report pertaining to the HS2 project should be released under the Environmental Information Regulations 2004 (‘the EIRs’).

The Commissioner’s decision to make an application for judicial review is undoubtedly underpinned by the decision of the Court of Appeal in the case of R (Evans) v Attorney General and Information Commissioner in which the Court of Appeal decided that the use of the ‘veto’ under section 53 of the FOIA was unlawful in respect of information which is environmental in nature. I have written on the Evans decision here, and so don’t propose to repeat anything that is contained in that post.

In his decision dated 6 June 2013 the Commissioner found that the information contained within the report was Environmental Information, and consequentially it fell to be considered under the EIRs rather than the FOIA. The Cabinet Office, who were the public authority concerned, relied on Regulation 12(4)(e). The Commissioner found that the exemption was engaged, in that the information concerned amounted to internal communications. However, he decided that the public interest in maintaining the exemption did not outweigh the public interest in releasing the information. As a result the Information Commissioner ordered the Government to release the information contained within the report.

As the information amounts to Environmental Information, and following the decision of the Court of Appeal, the Secretary of State’s certificate under section 53 is unlawful. It should be noted that the Evans decision is subject to an appeal to the Supreme Court by the Attorney General. It is possible that the Supreme Court could over-turn the Court of Appeal’s decision in that case which states that the veto is unlawful in respect of Environmental Information.

Some interesting times ahead in the world of FOI.
The new Scottish Public Authorities: Who are they?

March 26th, 2014

On 1 April 2014 the Freedom of Information (Scotland) Act (Designation of Persons as Scottish Public Authorities) Order 2013 (‘2013 Order’) enters into force and it is the first such Order made by the Scottish Ministers under section 5 of the Freedom of Information (Scotland) Act 2002 (‘FOISA’) since FOISA entered into force.

The 2013 Order will make new bodies subject to the provisions of FOISA, and by extension* to the Environmental Information (Scotland) Regulations 2004 (‘Scottish EIRs’). The 2013 Order does not list specific bodies which will become subject to FOISA and the Scottish EIRs, rather it describes the bodies that are to be made subject to FOISA and the Scottish EIRs. The Schedule to the 2013 Order has two columns, and the bodies which fall within the description in Column 1 will becomes subject to FOISA and the Scottish EIRs for their functions described in Column 2.

Column 1
By virtue of Column 1 a body which has been established or created solely by one or more local authorities who on behalf of any of those authorities developed and/or deliver recreational, sporting, cultural or social functions and activities, and are wholly or partially funded by any of those authorities will become subject to FOISA and the Scottish EIRs.

This refers to Arms Length External Organisations (ALEOs) established by one or more of the 32 local authorities in Scotland to develop and/or provide recreational, sporting, cultural or social functions and activities which receive funding from those local authorities. It is much wider than the section 6 provisions which relates only to companies wholly owned by one or more Scottish public authorities. This modification to FOISA will cover many different structures of organisations from Partnerships, Limited Liability partnerships, Trusts and many other different business structures.

Column 2
The bodies covered by the definition in column 1 will only be subject to FOISA and the Scottish EIRs in relation to their functions mentioned in Column 2. Column 2 refers to a number of sections of legislation which give local authorities the power to carry out certain factions. The functions are listed below with a brief explanation of what they mean.

Section 90 of the Local Government (Scotland) Act 1973
This section gives local authorities the power to carry out certain functions in respect of tourism. This includes the provision, or encouragement of any other person to provide, facilities for leisure, conferences, trade fairs and exhibitions or improve, or encourage any other person to improve, any existing facilities for those purposes; the promotion, by advertisement or otherwise, of facilities provided by that local authority (whether such facilities are owned by the authority or otherwise); and the organising, or assisting others in the organisation of, and promotion, by advertisement or otherwise, conferences, trade fairs and exhibitions.

Section 163 of the Local Government (Scotland) Act 1973
This section (or what is left of it) gives local authorities a duty to provide adequate library facilities for all persons resident in their area.

Section 14 of the Local Government and Planning (Scotland) Act 1982
Broadly speaking, this section places upon local authorities a duty to provide adequate provision of facilities for the inhabitants of their area for recreational, sporting, cultural and social activities.

Section 20 of the Local Government in Scotland Act 2003
This section provides for a general power for local authorities to do anything that it considers is likely to promote or improve the well-being of its area and/or any persons in its area.

What does it actually mean?

I am not so sure that any of the above actually brings us closer to understanding just who will be subject to FOISA and the Scottish EIRs following the entering into force of the 2013 Order. Some of the most notable examples though will include leisure trusts (which are not companies, who are already subject to FOISA and the Scottish EIRs) and bodies responsible for the provision, maintenance and development of library facilities.

There are certainly benefits to drafting the 2013 Order in this way. Had the Scottish Ministers simply listed specific bodies it would have become out of date very quickly. The provision of services by local authorities is very fluid and can change overtime. ALEOs can exist and then be merged or wound-up, their functions can be taken back in-house only to later be put out to another ALEO. It will largely protect against the fluidity of ALEOs and should hopefully ensure that we don’t see (at least in respect of services provided by local authorities) the reduction in information access rights that has been seen since the introduction of FOISA in 2005.

How to know if a body is covered
In the first instance it is going to be largely up to the individual body to determine if it is covered by the extension, and if so to what extent. In theory they should already have been making preparations by putting in place a publication scheme (which in practice will likley be simply to adopt the Commissioner’s Model Publication Scheme) and a framework for dealing with requests. However, there might have to be some testing of the law in respect of some bodies.

The easiest way to find out if a body is covered is probably to approach the body. If they say that they are then you can go ahead and make your request like you would to any other Scottish Public Authority (‘SPA’). However, if they say they are not you might have to be a bit more persistent. Ultimately, it will be for the Scottish Information Commissioner (as the person responsible for enforcing FOI law in Scotland) to determine whether a body is a SPA or not. She can only accept an application after a request for information has been made and a request for internal review has also been made. This will mean that it will be necessary to go through the process of submitting a request and either waiting for word from the body that they won’t respond or for 20 working days to elapse without a response before then submitting your internal review and again waiting for word from the body that they won’t respond or for 20 working days to elapse without a response.

A determination by the Commissioner that a body is (or isn’t) a SPA by virtue of the 2013 Order wouldn’t necessarily be the end of the road. A decision by the Commissioner that an application cannot be accepted by her is open to the possibility of an application for Judicial Review, while a decision notice issued against a body that disagrees with the determination that it is covered could be open to appeal to the Court of Session under section 56 of FOISA (and then to the Supreme Court).

*by virtue of Regulation 2 of the Scottish EIRs any body listed in Schedule 1 to FOISA or designated under Section 5(1) of FOISA is also subject to the Scottish EIRs.
Princes, letters and Freedom of Information

March 13th, 2014

Yesterday the Court of Appeal issued its judgment in the continuing saga that is the bid by Guardian Journalist Rob Evans to obtain the information contained in a variety of letters sent by HRH Prince Charles, the Prince of Wales to a number of departments of Central Government between 1 September 2004 and 1 April 2005.

The saga has been a long one in which the Information Commissioner agreed with the Government. However, the Upper Tribunal disagreed and ordered a number of the letters to be released. The Upper Tribunal found that the letters fell into two categories: those which were about the Prince of Wales preparing to become Monarch and those which were him advocating in respect of causes which were close to him. It was this latter category of letters that the Upper Tribunal found after determining that they were not covered by the constitutional convention which provides that the heir to the throne be educated in Government business in order to prepare him (or her) for becoming King (or Queen) and that correspondence pertaining to that be confidential and not be released.

After the Upper Tribunal issued its decision the Attorney General issued a certificate under section 53 of the Freedom of Information Act 2000 (FOIA) which sets aside the decision of the Upper Tribunal. Mr Evans judicially reviewed that decision and the Administrative Court upheld the certificate. Mr Evans then appealed to the Court of Appeal which quashed the Attorney General’s certificate.

There are two separate issues to the certificate. The first one that I shall deal with here, is the EU dimension to the case. Some of the information contained within the letters amounts to Environmental Information which falls to be governed by the Environmental Information Regulations 2004 (EIRs). Those Regulations exists to transpose into domestic law a EU Directive on access to Environmental Information which in turn exists to bring into EU law the provisions of the Aarhus Convention. Therefore the principles of EU law apply to the Environmental Information and the domestic law cannot be incompatible with it. In its judgment the Court of Appeal held that the existence of the veto was incompatible with EU law. This effectively means that the veto contained in section 53 of the FOIA cannot be used in respect of information which is environmental in nature (as defined by the Directive and the Regulations).

The Directive which the EIRs transpose into domestic law provide that there should be an independent and impartial tribunal to decide upon whether a public authority has complied with its obligations, and that the decision of this independent and impartial body must be final. The EIRs have, by virtue of the application of the FOIA, an extensive appeals structure which begins with a complaint to the Information Commissioner and subsequent appeal to a specialist tribunal followed thereafter by appeals on points of law potentially all the way to the Supreme Court. While there is no single independent or impartial tribunal whose decision becomes binding, at some stage a decision will be made by an independent or impartial tribunal which is final and binding upon the public authority. However, by virtue of section 53 of the Freedom of Information Act, it can be side-stepped by someone within the Executive (in this case the Attorney General). The Divisional court, in its decision, held that the existence of the right to judicially review the decision to issue a certificate under section 53 of the FOIA. However, the Court of Appeal disagreed. The Master of the Rolls said at paragraph 55:

A judicial review of the certificate of an accountable person is substantively different from a review by a court or other independent body of the acts or omissions of “the public body concerned”. The focus of the two reviews is different.

The Court of the Appeal was of the view that as judicial review was focussed on the act of the person who issued the certificate, rather than on the public authority’s compliance with the EIRs, it was in breach of the requirements of European law; therefore it was unlawful.

The Court of Appeal also considered the Attorney General’s use of the ‘veto’ under section 53 in respect of the information contained in the letters which was covered by the Freedom of Information Act. The Court held that in order for a section under section 53 to be valid, it had to be based on reasonable grounds. The Court of Appeal decided that for the grounds to be reasonable there would have to be something more than simply disagreeing with the decision. The Master of the Rolls gave some examples of what ‘something more’ might mean in paragraph 38 of the Court of Appeal’s decision:

a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law.

Such an interpretation of the law clearly significantly affects the power of ministerial veto and its effectiveness. It is also clearly against the intention of Parliament when it passed the Freedom of Information Act. The veto was placed in the Act by the Labour Government that passed it as a central element of the Act – something to act as backstop to protect central government from inappropriate releases. It was intended to place central Government in the position of being the final arbiter of what central government information is released under FOI. It is a constitutional aberration as described by both the Divisional Court and the Court of Appeal, but that is what Parliament determined when it passed the law with section 53 in it.

The Court of Appeal quashed the Attorney General’s certificate which makes the Upper Tribunal’s decision requiring release of certain letters effective again. It held that his certificate was unlawful in terms of all of the information it was intended to cover. This is certainly a key judgment and is very interesting. It engages with some important issues in respect of the ministerial veto, and it is a Court of Appeal decision. However, as much as I agree in principle with the Court of Appeals decision, I think in terms of the legal matters I suspect that it is vulnerable to being overturned, at least in part, on appeal.

I am of the view that the Court of Appeal’s decision should be treated with a bit of caution. In respect of the application of the veto on Environmental Information, the Court of Appeal’s decision appears to be entirely correct. The existence of the veto does not sit well with the requirements of the Directive and is most probably unlawful in terms of European law. However, I suspect that the Court of Appeal has fallen into error in its interpretation of section 53 insofar as it relates to information covered by the Freedom of Information Act. The veto was clearly intended to be used in the way the Attorney General used it when passed by Parliament. It was Parliament’s clear will and it would be inappropriate to read things into the legislation that as so clearly against the will of Parliament.

The Attorney General has been given permission to appeal the Court of Appeal’s decision to the Supreme Court and it will be interesting to see what the Supreme Court has to say. I suspect there will be a great deal of discussion around the meaning of the words ‘reasonable opinion’ in section 53.
Fish, Law and Environmental Information

January 2nd, 2014

Are water companies subject to the Environmental Information Regulations 2004 (the EIRs)? That was the question that the Court of Justice of the European Union set about answering; last month it issued a decision that (in typical CJEU fashion) answered the question without actually answering the question.

On Thursday 19 December 2013 the Grand Chamber issued its judgment in Fish Legal and Emily Shirley v Information Commissioner, United Water Utilities Plc, Yorkshire Water Services Ltd and Southern Water Services Ltd (Fish Legal); while it doesn’t give a definitive answer to the question at the outset of this blog, it is an important judgment in respect of the question as to just who is subject to the EIRs.

Background

The EIRs (like the Environmental Information (Scotland) Regulations 2004 do in Scotland) implements into the law of Northern Ireland and England and Wales Directive 2003/4/EC, which in turn implements the Aarhus Convention into Community Law. The EIRs set out a framework in which members of the public can ask public authorities for ‘Environmental Information’, and to be provided with that information (subject to certain exceptions). Regulation 2(2) of the EIRs defines what a public authority is. The definition given by the Regulations is:

(2) Subject to paragraph (3), “public authority” means—

(a) government departments;

(b) any other public authority as defined in section 3(1) of the Act,
disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding—

(i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or

(ii) any person designated by Order under section 5 of the Act;

(c) any other body or other person, that carries out functions of public administration; or

(d) any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and—

(i) has public responsibilities relating to the environment;

(ii) exercises functions of a public nature relating to the environment; or

(iii) provides public services relating to the environment.

(3) Except as provided by regulation 12(10) a Scottish public authority is not a “public authority” for the purpose of these Regulations.

(In the EIRs “the Act” refers to the Freedom of Information Act 2000, or ‘the FOIA’)

Fish legal is the legal arm of the Angling Trust, and in August 2009 it wrote to two of the water companies concerned asking for information concerning discharges, clean-up operations, and emergency overflow. Emily Shirley wrote to the remaining water company seeking information from them concerning sewerage capacity. The three water companies concerned did eventually provide the information that was requested by the two applicants. However, the matter before the Upper Tribunal was whether the water companies were under a duty to provide the information as public authorities under the EIRs. Unsurprisingly, the three water companies (all private companies) took the view that they are not public authorities within the meaning of Regulation 2 of the EIRs and were thus not under any duty to comply with the EIRs. When the Information Commissioner considered complaints made by the two applicants under Section 50 of the FOIA (as modified by Regulation 18 of the EIRs) he agreed with the water companies and decided that they did not meet the definition of a public authority under the EIRs.

The two parties appealed the Commissioner’s decision to the First Tier Tribunal who eventually dismissed the appeals (following the Upper Tribunal’s decision in Smartsource v Information Commissioner and others), but gave leave to appeal to the Upper Tribunal. The Upper Tribunal decided to make a reference to the Court of Justice of the European Union.

Court of Justice’s Judgment

On the question of whether water companies are public authorities under the EIRs, the Court of Justice stated at paragraph [55] that it is for the Upper Tribunal to answer this question. A very helpful judicially penned sentence. However, the court of Justice did provide some guidance as to how the Upper Tribunal can reach a decision on this question. It went on to say in paragraph [56]:

In the light of the foregoing, the answer to the first two questions referred is that, in order to determine whether entities such as the water companies concerned can be classified as legal persons which perform ‘public administrative functions’ under national law, within the meaning of Article 2(2)(b) of Directive 2003/4, it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.

In essence the Tribunal has to look at the powers that the water companies have and determine from there whether the powers they have extend beyond those that would normally extend from the private law.

The Court of Justice then went on to consider the question of control of the water companies. The Directive, and in turn the EIRs, include any other body or person that is under the control of a body or person covered by the EIRs, and provides public services relating to the environment. There was no disagreement between the parties that the water companies provide public services relating to the environment. The only controversial aspect was whether they were under the control of a body or person covered by the EIRs. Under the Water Industry Act 1991 the privatised water companies are subject to regulation by Ofwat and the Secretary of State, both of whom are public authorities for the purposes of the EIRs; however, the question is whether the water companies are under the control of Ofwat and/or the Secretary of State. If they are, then they are public authorities for the purposes of the EIRs.

On the question of control the Court of Justice did not provide a definitive answer; however, it did give some guidance as to how the Upper Tribunal should determine whether the water companies are under the control of Ofwat and/or the Secretary of State. Where a person or body is not able to “determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field.” [68] So, in essence, if the autonomy that a water company has to decide how it is to carry out its public environmental functions is limited by the power of Ofwat and/or the Secretary of State, it will be under the control of them; and that will have the consequence of making the water company a public authority for the purposes of the EIRs.

The method by which power a public authority has over an entity carrying out public environmental functions is exercised does not matter much. The exercise of power could be as a shareholder; it could be the power to suspend or annul decisions taken by the company, or require prior authorisation before those decisions are taken; or it could the power to remove members of the company’s management (among other things). [70]

What now?

The Court of Justice may not have given a definitive decision as to whether water companies are public authorities; however, it has given an important decision that will enable the Upper Tribunal to answer the question. It also provides important guidance which will apply outside of the question of water companies. It is now up to the Upper Tribunal to make a determination on the water companies front; that decision will turn on two factors: (1) the degree to which the powers water companies have is beyond the scope that would normally be expected under the private law; and (2) the degree of control that Ofwat and the Secretary of State hold over the decision making of the water companies in respect of their public environmental functions.

I won’t venture an opinion on either of those questions; I don’t know enough about the water industry in England and Wales, nor do I care enough to learn, to make a judgment on either of those questions. I’ll happily leave it up to the Upper Tribunal to consider these points and decide upon them.

What about Scotland?

In terms of Scottish Water, the question is already settled. Scottish Water, being a public authority listed in Schedule 1 to the Freedom of Information (Scotland) Act 2002, is covered by Regulation 2 of the Scottish EIRs.