The hearing of the Assange case in the Supreme Court dominated headlines this week. Assange appealed against his extradition to Sweden arguing the arrest warrant was “invalid and unenforceable”, and that the Swedish prosecutor who issued his European Arrest Warrant did not have the authority to do so. You can read the background to the case here.

The Justice Secretary is to reform the 1974 Rehabilitation of Offenders Act in order to shorten the period during which former offenders are obliged to tell potential employers about their criminal past. The period of time under which the convictions of medium-term prisoners will be ’spent’ reduced from 10 years to four. The convictions of short-term prisoners, serving sentences up to six months, will be spent after two years instead of the current seven. The justice secretary also said this week that sending more people to prison for longer sentences in order to cut re-offending “does not work”.

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The Supreme Court begins a two-day hearing in the high-profile case of Julian Assange v Swedish Prosecution Authority today.

The background to the appeal

The appellant, Julian Assange, is the founder of Wikileaks. Assange is the subject of a European Arrest Warrant (EAW) issued by the Swedish Prosecution Authority, which sets out allegations of four offences of unlawful coercion and sexual misconduct, including rape. Assange surrendered himself for arrest in the UK and, following a hearing, his extradition to Sweden was ordered. Assange appealed to the Divisional Court against his extradition on four grounds. He lost on all four grounds and the order requiring his extradition was upheld.

The High Court refused Assange permission to appeal to the Supreme Court but certified one issue raised by his case as being of ‘general public importance’. The Supreme Court subsequently granted permission to appeal on this issue. [read more]

This case is of enormous significance to those who work in social welfare and community care. It will be heard by a seven judge court on 7 and 8 February 2012. Amongst other things it will give the court the opportunity to retread some of the same ground that it covered only six months ago in R (McDonald) v Kensington and Chelsea LBC [2011] 4 All ER 881. One of the particular features of that case was the serious criticism which some of the members of the court directed at Baroness Hale (see for example “I totally disagree with, and deplore, Lady Hale’s suggestion . . .” from Lord Walker at [32]). KM will see exactly the same court again, plus Lord Phillips and Lord Wilson. Many will be watching to see whether temperatures remain high.

The key question is whether and if so to what extent resources can be taken into account by local authorities when they are deciding whether to provide for community care needs. Those needs may cut right to the heart of human dignity. In McDonald the issue was whether a former prima ballerina, who was not incontinent, could nevertheless be issued with incontinence pads as an appropriate response to her overnight toileting needs. It is easy to see why the decision that she could has proved controversial in many circles (incidentally, for the best thing written on this, see Richard Gordon QC’s Counting the votes: a brief look at McDonald (2011) 14 CCLR 337).  [read more]

Tomorrow will see the hearing of Assange v The Swedish Judicial Authority take place at the Supreme Court, one of the most high profile cases to be heard at the Court since its creation in 2009. While the point at issue in the case, whether a public prosecutor is a valid judicial authority for the purposes of the Extradition Act 2003, is considered by some extradition experts to be one that has already been extensively litigated and clarified (see the comments of Julian Knowles QC in The Guardian here), the case has received a huge amount of media attention.

The Supreme Court has made a distinct effort to be media friendly with regard to the hearing. The Supreme Court is already the most open court in the UK in terms of making details of cases, decisions and proceedings available to the public. Hearings can be watched live via a Supreme Court link on the Sky News site, and the Court expects a significant boost in its viewing figures tomorrow. The Court has also issued a guidance note for the press expected to attend the hearing, with priority being given to organisations reporting for the UK, Sweden and Australia, with those reporting for the United States being given the next level of priority. Journalists who cannot be accommodated in the courtroom will be able to watch the proceedings in “media suite” elsewhere in the building.

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Starting on Monday 30 January  2012 are the appeals of PP v Secretary of State for the Home Department, (formerly VV [Jordan]), PP v Secretary of State for the Home Department, W & BB v Secretary of State for the Home Department and Z, G, U & Y v Secretary of State for the Home Department, scheduled for 1.5 days to be heard by Lords Phillips, Brown, Kerr, Dyson and Wilson. The appellants are foreign nationals in the process of being deported by the Secretary of State on national security grounds, and have challenged the decision in SIAC proceedings on the grounds they would be at risk of detention or torture if deported, contrary to ECHR, art 3.

In each case except W & PP the Secretary of State relied on closed evidence to establish the risk to national security. Additionally, one of the Algerian applicants obtained information said to be relevant to his safety in Algeria were he to be deported, but the source would not allow the information to be used unless a guarantee it will not be reported to the Algerian authorities is in place, and SIAC refused to make this order. It is for the Supreme Court to determine whether the Special Immigration Appeals Commission has the power to direct that evidence relied upon by the appellants should be heard in private, and whether when SIAC adopts a ‘closed evidence’ procedure in proceedings concerning a decision to deport a foreign national on the grounds of national security, the applicant is entitled an ‘irreducible minimum’ of information about the risk which he is said to present. Case details are available here.

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On 30 January, the Supreme Court (Lords Phillips, Brown, Kerr, Dyson and Wilson) will hear the case of PP (Algeria) v Secretary of State for the Home Department (formerly VV (Jordan) and PP (Algeria) v Secretary of State for the Home Department).

The background to the appeal

The appellants are Algerian or Jordanian foreign nationals. The Secretary of State seeks to deport them on the basis of national security. They claim that, if deported to their countries of origin, they will be at risk of torture, and that their deportation would therefore violate the United Kingdom’s obligations under Article 3 of the ECHR.

Each of the appellants has challenged their deportation before the Special Immigration Appeals Commission (“SIAC”). SIAC was set up by the Special Immigration Appeals Act 1997. This followed the decision in Chahal v United Kingdom [1996] 23 EHRR 413, where the European Court of Human Rights held that the previous system for challenging deportation in national security cases breached Article 5(4) of the Convention. Appeals were not heard by an independent tribunal, but by a shadowy ‘advisory panel’.

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David Cameron this week warned that the European Court of Human Rights is in danger of turning into a “small claims court” that fails to deal with serious violations of human rights, unless it embarks on reforms. While Cameron praised the principles of the court, he said that it was undermining its reputation by unnecessarily overturning judgments reached in credible national courts. Cameron suggested a number of reforms which will be discussed at a ministerial conference in Brighton in April.

Cameron’s comments drew a substantial response, in The Guardian Francesca Klug retorted “So which of these UK cases validates the prime minister’s claim that Strasbourg has been acting like a “small claims court”? When journalists were forced to reveal sources; when police could stop and search any of us without suspicion in a designated area; when innocent people’s DNA was retained indefinitely; when social services failed to act on complaints of child abuse; when foreign terror suspects were detained indefinitely without charge or trial?” Sir Nicholas Bratza, the ECHR president warned political leaders against using “emotion and exaggeration” to criticise the court’s workings. The president made his comments as he released figures detailing the court’s rulings during 2011. The figures reveal that the court ruled against the UK on just eight occasions, compared with 159 violations found against Turkey, 121 against Russia and 105 against Ukraine.

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The constitutional issues arising from the Scotland Bill did not command huge interest from all citizens of Scotland. That was until, of course, Scottish and UK politics became melded into a fight about referenda – who holds it, when and what questions are posed. These have all become the lingua scotia with the mingling of political expedience, polled outcomes and questions of principle. Up until the referendum question burst onto the scene, the Scotland Bill attracted interest, in the main, from lawyers, especially Scottish criminal lawyers. The proposed changes to the scheme of devolution, and most importantly the definition of ‘devolution issues’, was as good as it got. That was not without controversy, especially in light of the comments of Nationalist politicians about the role of the Supreme Court doubting its very existence in the new devolution scheme. The Supreme Court’s decision in Cadder v HM Advocate inspired a great deal of controversy.

In November 2010 an Expert Group, appointed by the Advocate General for Scotland, completed its task to look at the basis of the Supreme Court’s involvement in Scottish criminal cases and – a real focus for many of its consultees – the cumbersome procedure that goes along with the raising of a ‘devolution issue’. The report of the Advocate General’s Expert Group can be read here. It favoured the retention of the jurisdiction but in a refined way – seeking to streamline the procedural route to the Supreme Court and highlighting what it thought was the ‘inept’ treatment in the Scotland Act of the role of the Lord Advocate

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On 17 to 19 January 2012, the Supreme Court heard an appeal in the case of Homer v Chief Constable of West Yorkshire Police and Seldon v Clarkson Wright and Jakes. This case concerned a 61 year old employee who alleged that he was indirectly discriminated against on the grounds of age by the introduction of a policy in his workplace that stipulated that those employed in its top tier should have a degree; which the claimant did not have and was unable for reasons of timing to obtain before he retired.

The central issue to be considered by the Supreme Court was whether the Court of Appeal came to the wrong conclusion in determining that the introduction of this policy – and the “particular disadvantage” at which it put the claimant – did not indirectly discriminate against the Claimant on the grounds of his age, but simply put him at the disadvantage because he was due to retire soon; part of the “general unfairness of age”. [read more]

First Minister Alex Salmond will give the annual Hugo Young lecture tonight, on the topic of Scottish independence and constitutional change. In light of the current debate, the UKSC Blog will be posting a series of pieces this week on the Supreme Court and Scotland, the first of which is below.

Conrad Russell once observed that the essential problem of the relationship between Scotland and England “could be defined by saying that England could brook no equal, and Scotland no superior.” (James VI and I and his English Parliaments (2011) at 124)  Russell described the eventual Parliamentary Union between the two countries thus (ibid. at 126-7):

“In 1707 the English got the unitary sovereign power which they wanted and got it in the form based upon the existing English parliament, with an English majority within it.  The Scots got their recognition as a separate sovereign State, both from the form of the Union of 1707 as an international treaty, and from the survival of Scots law and the Scottish church.  It is that claim that Scotland is a sovereign nation state which is reasserted whenever the English forget that 1707 was not a ‘perfect Union’….   Scotland in accepting the Union in 1707 remained a nation and as a result any sovereignty in the British parliament could not be national sovereignty.  This has always been hard for the English to understand.” [1]

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