Category: News

Uganda’s Court of Appeal sets out test for the discretionary application of the death penalty

In a significant judgment handed down in the case of Kakubi Paul and Muramuzi David v Uganda (Criminal Appeal No. 126 of 2008) on 22 August 2016, Uganda’s Court of Appeal overturned the death sentences imposed on the Appellants and substituted sentences of 20 years’ imprisonment. The Appellants, two brothers, had been convicted of murder and were sentenced to death on 20 October 2008.

The Court of Appeal set out the test for the discretionary application of the death penalty stating “the death penalty should only be imposed in circumstances which establish the gravest of extreme culpability and where a Court determines that individual reform and rehabilitation consequent to a custodial sentence would be impossible. This assessment should only be made upon consideration of expert evidence”.

This appears to be the first time an appellate court in Uganda has set out the circumstances in which the death sentence can be imposed, since the Supreme Court judgment in Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 03 of 2006), which upheld the decision of the Constitutional Court that an automatic death sentence, without affording a defendant the chance to mitigate is unlawful.

The Appellants were represented by Alex Chakmakjian and Tanya Murshed pro bono at the Supreme Court in May 2015. The case was remitted back to the Court of Appeal as the Court had failed to consider the original appeal against sentence. At the hearing before the Court of Appeal, Alex and Tanya filed written submissions on sentence through Evolve: Foundation for International Legal Assistance referring to the appropriate test for the discretionary application of the death penalty according to international law.

The case has already been relied upon in the re-sentencing hearings of Susan Kigula beneficiaries in the High Court of Kampala on 25 and 26 August 2016.

 

Court of Appeal allows rare disputed British nationality/deportation appeal

The Appellant succeeded before the Court of Appeal in what can only be described is a very rare case, both procedurally and substantively.

Whilst serving a term of imprisonment he was notified by the Secretary of State that she would not be pursuing deportation against him, on the basis that he was a British citizen. In due course he was released on licence and resumed life with his wife and two children. However, 5 years after her original decision not to deport the Appellant, the Secretary of State did commence the procedure, stating that she did not accept that he was a British citizen, and subsequently made a deportation order.

The Appellant appealed to the First-tier Tribunal (Immigration and Asylum Chamber), which allowed his appeal, accepting that he had been naturalised. However, the Secretary of State then appealed to the Upper Tribunal, which overturned the First-tier Tribunal’s determination, and substituted its own determination dismissing the Appellant’s appeal, as it did not accept that he was a British citizen, or that deportation would breach his rights under Article 8 of the ECHR.

The Appellant then applied for permission to appeal to the Court of Appeal. Bean LJ granted permission to appeal on paper against the Upper Tribunal’s consideration of the nationality issue, as well as permission to adduce fresh evidence in respect of it, but refused permission on the Article 8 grounds. But at a renewed oral permission hearing, Gloster LJ accepted that the Secretary of State’s prior decision not to deport was an unusual factor having an effect on the Article 8 balancing exercise, and so gave permission on the outstanding grounds as well.

The full appeal was heard by Jackson, Gloster and Floyd LJJ on 30 June 2016. Unusually, by this stage the Secretary of State had also adduced her own fresh evidence, including three witness statements and documentary evidence not before either the First-tier or Upper Tribunals.

However, having considered the arguments, the Court ultimately decided that the Upper Tribunal had been wrong to overturn the First-tier Tribunal’s determination in the first place. The First-tier Tribunal’s assessment had been careful and detailed and its findings and conclusion open to it on the evidence. What the Upper Tribunal had considered to be a material error of law was in truth no more than its own disagreement with one aspect of the factual assessment. The Upper Tribunal should not have interfered with the First-tier Tribunal’s determination or reheard the appeal, hence its own determination would be set aside, and the First-tier Tribunal’s determination restored.

The Court also refused the Secretary of State’s application for permission to appeal to the Supreme Court.

The Upper Tribunal’s determination overturned by the Court of Appeal is here.

The Appellant was represented by Benjamin Hawkin.

 

“The judge was a gobshite”: Nick Bano interviews Ricky Tomlinson

Nick Bano recently interviewed Ricky Tomlinson for The Justice Gap.

The veteran actor, best known for his role in The Royle Family, is one of the surviving members of the Shrewsbury 24, a group prosecuted for offences relating to intimidation and damage to property whilst picketing during the first nationwide building workers’ strike. The prosecutions are thought by many to have been politically motivated.

Read the interview here.

To find out more about the Shrewsbury 24 Campaign, see here.

 

Challenge to use of royal prerogative to cancel passport on grounds of suspected involvement in terrorism

XH and AI had had their passports cancelled on the basis that they were likely to travel abroad and engage in terrorism related activities. The Court found that the use of the royal prerogative to cancel the passports was lawful and rejected the argument that the Terrorism Prevention and Investigation Measures Act 2011 had displaced the prerogative: there were major differences between the two powers and it was not to be implied that parliament had intended to abrogate the prerogative power by enacting the statute.

The Court also held that the prerogative powers were sufficiently precise to be lawful.

The Court further accepted that the cancellations engaged EU law but held that the restriction on free movement was justified and in the interests of national security and that judicial review of the Home Secretary’s decision was an adequate remedy and there was also no violation of the right to good administration. It reached similar conclusions on the ECHR arguments.

Finally, it was held that there was a theoretical risk only that information protected by legal professional privilege had been obtained and there was no violation of the right to a fair hearing.

However, the Court granted permission to appeal to the Court of Appeal in relation to whether the royal prerogative had been displaced and whether there had been a breach of EU law.

Barnabas Lams represented XH.

The full judgment is here.

 

1MCB Chambers sponsors the launch of Evolve: Foundation for International Legal Assistance

1MCB Chambers was proud to sponsor the launch of Evolve: Foundation for International Legal Assistance at The Gherkin this summer.

Evolve’s objective is to improve access to justice and promote fairness, efficiency and integrity within the criminal justice system of Uganda. The organisation was founded by Tanya Murshed who has been undertaking pro bono work in Uganda since 2013. The initiative is supported by several members of Chambers.

The event, hosted by international law firm Kirkland and Ellis and sponsored by 1MCB Chambers, was attended by many eminent members of the legal profession and heads of organisations within the human rights and development sector. The speakers were Tanya Murshed, Sir Fazle Hasan Abed (Founder and Chairperson of BRAC) and Lord Alton of Liverpool (Vice Chair of the All-Party Parliamentary Uganda Group).

Our Head of Chambers John Benson QC hailed the event as “inspirational” and a “tremendous success”.

 

STL Appeals Chamber ruling results in termination of proceedings against Mustafa Badreddine

Defence Counsel for the late Mustafa Badreddine have successfully appealed a decision of the Trial Chamber of the Special Tribunal for Lebanon (STL) that insufficient evidence had been presented to prove Mr Badreddine’s death “to the requisite standard”. Iain Edwards and two other Counsel representing the rights and interests of Mr Badreddine persuaded the Appeals Chamber that the entirety of the available evidence pointed to the fact that he was dead.

Mr Badreddine was a senior military commander of Hezbollah, charged with being the mastermind behind the 2005 assassination of the former Prime Minister of Lebanon, Rafik Hariri, and the murder of 21 others in Beirut. The trial opened in January 2014. Together with four co-accused, he was being tried in his absence before the STL; it is the first international case to deal with terrorism as a distinct international crime, and the first to be held in the absence of the accused since Nuremberg.

Mr Badreddine was killed in Syria in May 2016 in unclear circumstances. After many weeks of litigation, the STL’s Appeals Chamber agreed with the Defence that the Trial Chamber had erred in law by reaching its decision on whether or not it was satisfied that the fact of Mr Badreddine’s death had been established without knowing which standard of proof it was to apply.  For the first time in international criminal law, the correct standard of proof to be applied in such circumstances was identified and applied by the Appeals Chamber to the facts that had been made available to the Trial Chamber.

The conclusion that Mr Badreddine’s death had been proved to the appropriate standard resulted in proceedings being terminated against him without prejudice and with his presumption of innocence remaining intact.

Supreme Court clarifies landlords‰’ obligations to repair flats

John Benson QC acted for the Respondent tenant in Edwards v Kumarasamy [2016] UKSC 40, in which the Supreme Court clarified landlords’ obligations to repair in relation to flats.

Mr Kumarasamy was the lessor of a second floor flat in a block of flats. He let his flat to Mr Edwards. On the 1st July 2010 Mr Edwards was taking rubbish from his rented flat to the communal dustbins, when he tripped over an uneven paving stone and was injured. He issued proceedings against his landlord, Mr Kumarasamy, contending that his injury was caused by Mr Kumarasamy’s failure to keep the paved area in repair, in breach of covenants implied into the tenancy by sections 11(1)(a) and 11(1A)(a) of the Landlord and Tenant Act 1985. The tenancy included a grant of the “right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives” of the building.

His claim was successful at first instance, with Mr Edwards being awarded £3,750 in damages. However, Her Honour Judge May QC allowed Mr Kumarasamy’s appeal on the basis that (i) the paved area was not within the ambit of the section 11 covenant and (ii) in any event, Mr Kumarasamy was not on notice of the disrepair and could not therefore be held liable. That decision was subsequently overturned by the Court of Appeal, which held that the path was part of the exterior of the demised property as it formed part of the exterior of the demised flat. Further, it was an area in which the landlord had an estate or interest as he had an implied easement to cross that area in order to reach his flat, regardless of whether he owned the path. Finally, the Court of Appeal rejected the argument that the landlord was liable only if he had notice of the defect, holding that this applied only to disrepair within the property expressly demised to the tenant – that is, within the flat itself.

Three questions were referred to the Supreme Court:

(i) whether, in the light of the wording of sections 11(1)(a) and 11(1A)(a) of the 1985 Act, the paved area could be described as part of the exterior of the front hall;

(ii) whether Mr Kumarasamy had an “estate or interest” in the front hall for the purposes of section 11(1A)(a); and

(iii) whether Mr Kumarasamy could be liable to Mr Edwards for the disrepair to the path notwithstanding that he had had no notice of it before Mr Edwards’ accident.

The first question was resolved squarely in the landlord’s favour, the Court declining to agree that a path which was far removed from the property could form part of its exterior: instead, it held that there was a distinction to be drawn between the actual outside surface of the property and a path which was removed from the property itself, even where that path was a key approach to the property.

It is the Supreme Court’s ruling on the third question, however, which has been most eagerly awaited by those acting for tenants and landlords alike. Having conducted a thorough review of the authorities in his area, the Court settled on a very qualified extension to the established rule that a landlord is not liable to repair premises which are in the possession of the tenant unless and until he or she has notice of the disrepair in question. Where a landlord agrees to repair the structure and exterior of a flat, the rule would apply only to the extent that the structure is included in the demise and the tenant is accordingly in possession of that part of the structure; where a landlord has a covenant to repair the structure and exterior but that structure and exterior is sublet to another tenant, the rule would not normally be applied, with the effect that notice of the defect to the landlord would not normally be required. In this case, the Court was concerned with a scenario whereby the area to be repaired was not demised to the landlord or the tenant, but was one over which both landlord and tenant had a right of way. The Supreme Court held that in such a scenario, the requirement of notice would apply. Not only was the tenant in a better position to be aware of the state of disrepair of the common areas, but in addition, the landlord’s right of access was effectively without value because he had no right of repair as against the superior landlord (Practitioners should note that if the landlord also owned the property, the notification requirement would not apply).

To read the judgment, click here.

High Court reviews Control Order

The Respondent sought a quashing of the control order on the basis that the making of the order was flawed. A previous review by the High Court had found that the order was lawful, but reconsideration was required in accordance with the House of Lords’ ruling in SSHD v AF (No.3) [2010] 2 AC 269, which had held that increased disclosure was necessary in order for the controlled person’s rights under Article 6 of the ECHR to be respected.

The Court considered the basis on which the original decision was made, which was that the Respondent had encouraged another individual to engage in terrorism and assisted him in travelling to Pakistan to do so; it also considered evidence that some of the Respondent’s associates were extremists.

The Court analysed the evidence possessed by the Secretary of State, and concluded that she was reasonably entitled to suspect that the Respondent had actively encouraged another to travel for terrorism related purposes. The closed and open evidence led the Court to conclude that the Respondent had intended to travel abroad and that he had taken action to further this intent. None of the further disclosure or Respondent’s statements disturbed the finding that the order had been based on a reasonable suspicion and properly imposed.

Although the Court did find that the renewal of the order was incorrect, this was not the subject of the appeal, and the renewed order had not impacted the Respondent at this time, as he was in prison serving a sentence for criminal offences.

The full judgment is here.

Barnabas Lams acted for the Respondent, AL.

 

CESCR declares UK’s austerity policies incompatible with human rights

The UN Committee on Economic, Social and Cultural Rights has declared that the UK’s austerity policies are incompatible with human rights after hearing submissions from civil society organisations, including Just Fair.

Vyaj Lovejoy and Siobhan Lloyd are trustees of Just Fair and participated in a delegation to Geneva to raise concerns about the impact of austerity measures on the right to food, housing and social security.

1MCB welcomes four more new tenants

1MCB is delighted to announce that four more barristers have accepted invitations to join Chambers.

Ariane Adam is a multidisciplinary civil practitioner, accepting instructions in employment and discrimination, regulatory, housing, and immigration matters.  Alongside her domestic practice, she undertakes human rights evaluations for a number of international governmental and non-governmental bodies.

James Cartwright is a highly regarded leading junior, bringing with him over forty years’ experience in crime and mental health law.  He joins 1MCB from Artesian Law.

Ishan Dave is an established practitioner in crime, immigration and asylum, property litigation and commercial and contractual disputes (with a focus on insurance matters).  He also brings with him a niche practice in Indian/Hindu customary law.

Catherine Picardo qualified as a solicitor within one of the UK’s top commercial firms, before gaining experience as a criminal duty solicitor, a Senior Crown Prosecutor and a Crown Advocate.  She is currently on secondment to the Serious Fraud Office.

Their profiles will be available shortly.  In the meantime, please contact the clerks for further information.

For further information about joining 1MCB, please see here.