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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Reprieve & Ors, R (On the Application Of) v The Prime Minister  EWCA Civ 972 (30 June 2021)
Cite as:  WLR(D) 365,  EWCA Civ 972
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ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
The President of the Queen's Bench Division and Mrs Justice Farbey
Strand, London, WC2A 2LL
B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON LORD JUSTICE STUART-SMITH
THE RT HON LADY JUSTICE ELISABETH LAING DBE
| THE QUEEN ON THE APPLICATION OF
(2) RT HON DAVID DAVIS MP
(3) DAN JARVIS MBE MP
|- and -
|THE PRIME MINISTER
Sir James Eadie QC, Mr Ben Watson QC and Mr James Stansfeld (instructed by The Government Legal Department) for the Respondent
Hearing date: 28 April 2021
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:00am on 30 June 2021
Lord Burnett of Maldon CJ:
a) Does article 6(1) of the European Convention on Human Rights ("the Convention") apply to the claim for judicial review? and, if it does,
b) Are the claimants entitled to disclosure in accordance with the standard set in Secretary of State for the Home Department v AF (No 3)  UKHL 28;  2 AC 269 ("AF (No 3)")?
The Divisional Court answered 'no' to each question.
The factual background
The Human Rights Act 1998
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."
"Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
Both are set out in Schedule 1 to the 1998 Act.
The Judgment of the Divisional Court
The scope of article 6
a) Civil rights can be described as "rights in private law": R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions  UKHL 23;  2 AC 295, para 79).
b) A decision by a public authority which is decisive of the enforceability of a contract governed by private law determines a civil right (Alconbury, para 80, citing Ringeisen v Austria (No 1) (1971) 1 EHRR 455).
c) A personal claim for compensation, including a claim for compensation for ill treatment by agents of the state, is a claim about a civil right (Aksoy v Turkey (1997) 23 EHRR 553 (para 92)).
d) A right protected by the 1998 Act may be a civil right in so far as its breach would amount to a statutory tort (QX v Secretary of State for the Home Department  EWHC 1221 (Admin);  3 WLR 914, paras 42-44, per Farbey J).
AF (No 3)
The Grounds of Appeal
a) The court erred in holding that article 6 does not apply to the claim. The Secretary of State did not argue that the claimants are not "victims" for the purposes of the 1998 Act, yet that was the basis of the court's analysis. The claimants have an enforceable civil right to an effective investigation under article 3, which is actionable under the 1998 Act as a claim for breach of statutory duty. Article 6(1) is therefore engaged.
b) The court erred in its approach to AF (No 3) which applied in this case because article 3 is a fundamental right, there is a need for public confidence in the system of justice and because the claimants cannot give effective instructions to the Special Advocates without AF (No 3) disclosure.
Submissions on the appeal
The Prime Minister