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House of Lords

Asylum and Immigration restrictions not incompatible with article 8 rights

The House of Lords issued judgment in the case of AS (Somalia) and another v Secretary of State for the Home Department [2009] UKHL 32 on 17th June 2009. The case concerned two Somali appellants who questioned the compatibility of section 85 of the Nationality, Immigration and Asylum Act 2002 c. 41 with schedule 1 to the Human Rights Act 1998 c.42. The appellants argued that as there was no distinction between ‘entry clearance’ and ‘leave to enter,’ there was no logical reason why matters arising after the date of the decision could be considered on an appeal from the latter but not the former. Such a distinction meant the inordinate delay in making certain decisions could not be taken into account.

Dismissing the appeal, the House held that the provisions of section 85 were compatible with the appellants’ rights under article 8, and that the effects of section 85 on the rights under article 8 were proportionate.

Balancing ‘right to privacy’ and ‘freedom of expression’

The House of Lords issued judgment in the case of Attorney General’s Reference No 3 of 1999 (Application to set aside or vary a Reporting Restriction Order) [2009] UKHL 34 on 17th June 2009. This case concerned an anonymity order made under section 35 of the Criminal Appeal Act 1968 c.19, which was issued at an earlier hearing. The defendant had been tried and acquitted of rape and the order prevented the publication or broadcasting of the circumstances of the defendant’s acquittal. The BBC applied to the House to discharge the anonymity order so that it could make a series of programmes designed to explore a number of controversial acquittals.

In deciding whether to continue or discharge the anonymity order the House considered whether an appropriate balance was present between the defendant’s privacy rights under article 8, and the BBC’s right of freedom of expression under article 10, of schedule 1 to the Human Rights Act 1998 c.42. The House held that the anonymity order should be discharged as the balance fell in favour of the BBC, particularly as the broadcast was deemed to be in the public interest..

Damages caused by a party’s own unlawful act

The House of Lords handed down judgment in the case of Gray v Thames Trains and others [2009] UKHL 33 on 17th June 2009. The case involved Mr. Gray, a victim of the Ladbroke Grove rail crash, who had subsequently suffered from Post-traumatic Stress Disorder. Under the effects of this condition he fatally stabbed a man and then handed himself in to the police. After being convicted of manslaughter he was detained in a hospital pursuant to the Mental Health Act 1983 c.20. The Court of Appeal held that Mr. Gray was entitled to compensation for loss of earnings after his arrest for the killing. The appellants appealed and the respondent, Mr. Gray, cross appealed.

The appellants' principal argument invoked a special rule of public policy. They argued a party could not recover compensation for loss which had been suffered in consequence of their own criminal act. In addition, a party could not recover for damage resulting from their loss of liberty, or any other punishment lawfully imposed upon him, as a result of their own unlawful act. The House discussed how the rule was to be interpreted in the light of earlier case law and reversed the decision of the Court of Appeal. As a matter of policy, the appellants could not be held liable for the loss of earnings.

Consumer Hire Agreements

The House of Lords handed down judgment in the case of TRM Copy Centres (UK) Ltd and others v Lanwall Services [2009] UKHL 35 on 17th June 2009. This case involved two photocopier supply businesses who were in competition with each other. The appellants had persuaded a number of retailers, who had agreements with the respondents to replace their photocopiers with their own machines. The appellants’ appealed to the House on a preliminary issue of whether the respondents’ agreements were consumer hire agreements within the meaning of section 15 of the Consumer Credit Act 1974 c.39. If so, they would be unenforceable against the hirer as the respondents were not licensed to offer such agreements.

The House of Lords dismissed the appeal and held that the agreements did not fall under section 15. The obligations which were made did not include an obligation to pay anything in cash or kind for the hire of the photocopier. If no copies were made there was nothing to pay at all. The photocopier itself was not being hired and the decision of the Court of Appeal was affirmed.