Monthly Archives: November 2014

Daniel Gauntlett inquest: human rights issues and the ‘Middleton’ procedure

An inquest is to be held (on 10 December 2014 in Maidstone, Kent) into the death of Daniel Gauntlett who died in freezing temperatures outside a derelict bungalow in Kent. The death brought the notorious LASPO anti-squatting legislation into focus. An issue likely to be considered at the inquest is whether Gauntlett’s human rights were breached: did the state owe him a duty regarding his European Convention Article 2 right to life?

Campaigners have blamed his death on the LASPO legislation last year that banned squatting in residential buildings. They say he was barred from entering the building to protect himself from sub-zero temperatures last February [2013]. The inquest opens up the prospect of examining whether the legislation or the authorities acting under it bear any responsibility for Gauntlett’s death.

For that the inquest will have to be held under a “Middleton procedure”. Where public authorities might have been involved in a death, the procedure allows the coroner to examine whether the deceased’s right to life under Article 2 has been breached. As well as a standard finding on cause of death (by what means someone died) the coroner may in effect indicate where blame might lie by considering the circumstances of the death.

Campaigners want the coroner to look at how far Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 might have been responsible for Gauntlett’s death outside the bungalow in Aylesford, near Maidstone. At issue might also be the behaviour of police or social services.
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Judge Dingemans’ defiance: was he right to give Sunita Sisangia legal aid?

 Was Mr Justice Dingemans right to extend legal aid to Sunita Sisangia in her case against the UK’s Legal Aid Agency?  Or does this victory for legal aid indicate how far judges might be willing to go to defy the Government on this issue? His judgment was cleverly crafted to be within the bounds of judicial discretion regarding “statutory construction” – the judicial interpretation of legislation. But arguably it owes quite a lot to his willingness to turn a blind eye to the real intention of the UK Coalition Government’s notorious anti-legal aid LASPO legislation.

The case of R (on the application of Sunita Sisangia v Director of Legal Aid Casework is described here (and see materials below). Dingemans’ High Court judgment allowed legal aid for Ms Sisangia to take a false imprisonment claim against the police without the case having to involve police dishonesty or misfeasance. 

The argument of the Legal Aid Agency (LAA) lawyers had been that this was just the sort of claim (one allegedly involving negligence but not misfeasance) that Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) intended to deny legal aid to along with the general run of private law damages claims. The lawyers offered proof in exchanges in the House of Lords in which the relevant minister made this clear: where the police had not been dishonest or had not intended unlawful detention, legal aid should not be available.

This is what Paragraph 21 of Schedule 1 says: legal aid will not be available for damages claims in general but “civil legal services [will be] provided in relation to abuse by a public authority of its position or powers”. However: 

“(4) For the purposes of this paragraph, an act or omission by a public authority [such as the police] does not constitute an abuse of its position or powers unless the act or omission –
(a) is deliberate or dishonest, and
(b) results in harm to a person or property that was reasonably foreseeable.”

The LAA lawyers wanted those words to be read as if they said “(a) is deliberate and dishonest”. In other words there must be deliberateness as well as dishonesty (or misfeasance as Dingemans interpreted the word) before legal aid is offered. On such a reading legal aid would be reserved only for the more “serious” cases where, for example, police keep someone in detention with malice or for some ulterior motive. Dingemans preferred to stick to the words of the Act; since arresting Ms Sisangia was deliberate (how could it be otherwise?), her claim was covered even though the arrest was not dishonest.

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Government blundering around village greens

Has the UK Government blundered in its attempts to protect landowners from local people applying to turn land into “village greens” to keep development at bay? There is good reason to believe that a new law intended to keep land safe for development could result instead in great swathes of English and Welsh countryside being turned into village greens. In fact landowners who takes advantage of the Section 15A amendment to the 2006 Commons Act to protect their development options may find themselves hoist with their own petard.

Land with village green status cannot be built upon or driven over. Applications to turn a piece of land, public or private, into a village green have been possible using ancient rights of “prescription” at Common Law but now via Section 15(1) of the Commons Act 2006. This (unamended) says anyone “may apply to the commons registration authority [eg county council] to register land to which this Part applies as a town or village green”; and at S.15(2) it explains this applies when

“(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years [the prescription period]; and (b) they continue to do so at the time of the application”.

It is these rights the current Government sought to curb by allowing landowners to register potential town or village greens (TVG) with their county council, with the legal effect of halting the “lawful sports and pastimes” (though not necessarily doing so in practice).

But instead of curbing TVG applications the notices pinned to posts near popular walks or fields will alert locals that the land might be exposed to development if they don’t act. Their only logical response would be to put in village green applications wherever they can justify them. And in England they have only a year to do so from the publication of the notices.

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What are the perceived problems with the European Arrest Warrant?

The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned about human rights issues. Enfield North MP Nick de Bois, for example, has summed up the EAW issue by saying “cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights”. Nick de Bois MP pdf)

Gerard Batten, UKIP MEP calls the EAW “a tick-box defendant transfer form-filling exercise that neuters the discretion any national judge may have had over extradition to European Union countries”.

So what exactly are the perceived problems with the European Arrest Warrant? The issues that come up again and again are:  Continue reading

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