R (Rowan) v Governor of Her Majesty’s Prison Berwyn & Anor

Divisional Court: Lewis LJ and McGowan J, [2021] EWHC 3114 (Admin), 23 November 2021

The Divisional Court rejected a challenge under Article 14 to the lawfulness of the claimant’s detention following his recall to for failure to comply with the terms of his release on licence. A number of claims were made, including that the application to the claimant of the licence regime imposed by the Criminal Justice Act 2003, rather than its predecessor the Criminal Justice Act 1991, breached Article 14 read with Article 5 and/or 7 of the Convention because he had been treated differently from a prisoner convicted of an identical offence and sentenced to an identical because he had not been in custody at the time that the 2003 Act’s licence regime was imposed, having instead been unlawfully at large.

The Court rejected all the grounds of challenge. As to Article 14, it ruled at §61 that the Claimant was not in fact subject to different treatment by reason of having been unlawfully at large at the material date, rather because of the date on which his offences. At §63, “even assuming differential treatment between the claimant and such a prisoner on grounds of other status, and assuming that they are in an analogous situation, the difference in treatment would be objectively justified. The second defendant wished to move to a different system of release provisions, including increasing the licence period to make it co-extensive with the remainder of the sentence. That was done by making the 2003 Act provisions governing release apply to sentences for offences committed on or after 4 April 2005. The decision to alter the arrangements for early release is objectively justified. The application of the new arrangements to those who committed offences after a certain date is also objectively justified. That conclusion is consistent with the observations of Lord Hughes JSC in R v Docherty (Shaun) [2016] UKSC 62, [2017] 1 WLR 181, cited by Lady Black JSC in Stott at paragraph 62”.

 

Claimant: Philip Rule, instructed by Instalaw

Defendants: Hugh Flanagan, instructed by the Government Legal Department

R (Crowter & Ors) v Secretary of State for Health and Social Care

Divisional Court: Singh LJ and Leiven J , [2021] EWHC 2536 (Admin), 182 BMLR 1, 23 September 2021

This was an unsuccessful challenge based on numerous human rights grounds of the fact that the Abortion Act 1967 s1(1)(d) permits abortion at a later stage of foetuses if there is “a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”. The claimants (persons with and the mother of a person with Down’s Syndrome) argued that it was impermissible to distinguish between pregnancies where there was a substantial risk that, if born, a child would be “seriously handicapped”, and those pregnancies where the risk of such “handicap” was smaller. They sought to rely on Articles 2, 3, 8 and 14 ECHR. The first of these failed on the grounds that the ECHR had never decided that a foetus was the bearer of Convention rights and had ruled in RR v Poland (2011) 53 EHRR 1047 that the decision whether or not to continue with a pregnancy fell within the scope of Article 8. They will not be further considered here. Of more direct relevance to this blog are the Article 14 arguments which the Court considered in some detail despite having found that the discrimination in issue did not in fact fall within the scope of Article 8. Continue reading

Adiatu & Independent Workers Union of GB v HM Treasury

Divisional Court: Bean LJ and Cavanagh J, [2020] EWHC 1554 (Admin), 15 June 2020

The claimants sought unsuccessfully to challenge the approach taken by the Chancellor to the furlough scheme, arguing in particular that the exclusion of self-employed workers from entitlement to furlough payments and the restriction of payments for non-furloughed workers who could not attend work (because they were symptomatic or self-isolating) to SSP discriminated against self-employed workers contrary to Article 14 EHCR, and indirectly discriminated against women and BAME workers contrary to EU law. They also claimed that the Chancellor had failed to pay regard to the PSED in designing the scheme. Continue reading