Shuaiqi/CLSum huggingface dataset:
The Supreme Court unanimously allows the appeal, holding that the reasonable tolerability test applied by the Court of Appeal is contrary to the Convention and should not be followed in the future. HJ and HTs cases are remitted for reconsideration in light of the detailed guidance provided by the Supreme Court. There is no dispute that homosexuals are protected by the Convention, membership of the relevant social group being defined by the immutable characteristic of its members sexuality [paras [6] and [10] per Lord Hope and para [42] per Lord Rodger]. To compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self expression in matters that affect their sexuality, as people who are straight [paras [11] and [14] per Lord Hope and para [78] per Lord Rodger]. The Convention confers the right to asylum in order to prevent an individual suffering persecution, which has been interpreted to mean treatment such as death, torture or imprisonment. Persecution must be either sponsored or condoned by the home country in order to implicate the Convention [paras [12] and [13] per Lord Hope]. Simple discriminatory treatment on grounds of sexual orientation does not give rise to protection under the Convention. Nor does the risk of family or societal disapproval, even trenchantly expressed [paras [13], [15] and [22] per Lord Hope and para [61] per Lord Rodger]. One of the fundamental purposes of the Convention was to counteract discrimination and the Convention does not permit, or indeed envisage, applicants being returned to their home country on condition that they take steps to avoid offending their persecutors. Persecution does not cease to be persecution for the purposes of the Convention because those persecuted can eliminate the harm by taking avoiding action [paras [14] and [26] per Lord Hope and paras [52] [53] and [65] per Lord Rodger]. The reasonable tolerability test applied by the Court of Appeal must accordingly be rejected [para [29] per Lord Hope and paras [50], [75] and [81] per Lord Rodger]. There may be cases where the fear of persecution is not the only reason that an applicant would hide his sexual orientation, for instance, he may also be concerned about the adverse reaction of family, friends or colleagues. In such cases, the applicant will be entitled to protection if the fear of persecution can be said to be a material reason for the concealment [paras [62], [67] and [82] per Lord Rodger]. Lord Rodger (with whom Lords Walker and Collins and Sir John Dyson SCJ expressly agreed), at para [82] and Lord Hope, at para [35], provided detailed guidance in respect of the test to be applied by the lower tribunals and courts in determining claims for asylum protection based on sexual orientation.
This is an appeal from the Court of Appeal of Northern Ireland. The issue is whether a pupil was unlawfully suspended from his school in County Antrim. His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a Scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The appellant was suspended following a complaint by a girl pupil at the school of misconduct in relation to her which she insisted that the principal of the school should keep confidential. The principal suspended the appellant to protect this pupil pending a risk assessment, stating that he did so as a precautionary measure. Although he purported to suspend the pupil pursuant to the Scheme, he failed to comply with its requirements. The appellant brought proceedings for judicial review, contending that his suspension was unlawful and denied him the right to education guaranteed by the European Convention on Human Rights, contrary to the Human Rights Act 1998. The Court of Appeal held that the principal had lawfully exercised a common law power to suspend the appellant that existed, as part of his managerial powers, in parallel with the power conferred under the Scheme. The Supreme Court reversed this finding to the extent of holding that the principal had had no such power. Sir John Dyson, Lord Phillips and Lady Hale held that the suspension was disciplinary, or at least had been imposed in a disciplinary context, and that no common law power to suspend subsisted in these circumstances. Lord Rodger and Lord Brown held that the suspension was a precautionary measure rather than a disciplinary sanction, but that there was no common law power to suspend outside the Scheme. It followed that the suspension was unlawful. The Court was unanimous in holding that the suspension did not amount to a denial of the right to education guaranteed by the Convention.
The appellants are 14 lead claimants in claims by over 600 Iraqi citizens who claim to have suffered unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009. The claims are brought in tort in England against the Ministry of Defence. The torts are governed by Iraqi law. The Foreign Limitation Periods Act 1984 provides that where a claim is brought in England which is governed by a foreign law, the English courts are to apply the foreign law of limitation. In a substantial number of these cases the action was begun more than three years after the relevant claimant became aware of the injury and the person who caused it, and was therefore time barred under article 232 of the Iraqi Civil Code. The appellants argued that time had been suspended for limitation purposes under article 435(1) of the Civil Code, which suspends the time limit during any period when there is [an] impediment rendering it impossible for the plaintiff to claim his right. They said that Coalition Provisional Authority Order 17 (CPA Order 17), which gave coalition forces immunity from Iraqi legal process and jurisdiction and still has force of law in Iraq, was such an impediment. The first instance judge directed the hearing of a preliminary issue, namely whether the suspensory proviso in article 435(1) applied to the claimants proceedings in England. He held that the limitation period was suspended under article 435(1). The Court of Appeal allowed the Ministry of Defences appeal, holding that article 435(1) was not engaged, because the English courts are not bound to apply CPA Order 17, which is a mere procedural bar that is irrelevant to proceedings in England. The Supreme Court unanimously dismisses the appeal by the Iraqi civilians, and affirms the Court of Appeals conclusion that the limitation period was not suspended under article 435(1) of the Iraqi Civil Code. Lord Sumption gives the only judgment, with which the other Justices agree. The Foreign Limitation Periods Act 1984 requires an English court to apply to English proceedings a foreign law of limitation which will have been designed for proceedings in the foreign country. This requires a process of transposition. Facts that the foreign law would have treated as relevant to the foreign proceedings might be irrelevant to the proceedings in England [13]. Where the Iraqi law of limitation depends on some fact about the proceedings, the English court must ask whether that fact is applicable to proceedings brought in England, and not to hypothetical proceedings that might have been brought in Iraq [15]. CPA Order 17 applies only in Iraq. It is not an impediment to the only relevant proceedings, which are in England. It does not therefore suspend the running of the Iraqi law limitation period [16].
The appellant is a Sri Lankan national who arrived in the UK in January 2005 aged 28. He was given leave to enter as a student and his leave to remain was extended to 30 September 2008. His application for an extension was refused. He claimed asylum on 5 January 2009 on the grounds that he had been a member of the Liberation Tigers of Tamil Eelan (LTTE) and had been detained and tortured by Sri Lankan security forces. He contended that on return he was likely to suffer similar ill treatment. The issue is whether he is a person eligible for subsidiary protection under the EU Council Directive 2004/83/EC (the Qualification Directive). He is such a person if there are substantial grounds for believing that upon return to Sri Lanka he will face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself or herself the protection of that country (article 2(e)). Serious harm in this case means, under article 15(b), torture or inhuman or degrading treatment or punishment. On 23 February 2009 the Secretary of State for the Home Department refused his application for asylum on the basis that he would not be at risk of further ill treatment despite his membership of LTTE. The applicant appealed. The Upper Tribunal (UT) had evidence from a psychiatrist that he was suffering severe post traumatic stress disorder and severe depression and showed a high degree of suicidality. The UT accepted that the appellant had a genuine fear of return to Sri Lanka. It accepted that the mental health provision in Sri Lanka was insufficient. But it did not accept that he was of any continuing interest to the authorities in Sri Lanka. Therefore the UT rejected his appeal under the Qualification Directive. In the Court of Appeal, Maurice Kay LJ rejected his appeal on the basis that the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country (paragraph 43). The Appellant appealed to the Supreme Court on the grounds that this is too narrow a view of the scope of the Qualification Directive and that his mental illness should not be regarded as naturally occurring because it was caused at the hands of the Sri Lankan authorities. He argued it makes no difference to his entitlement to such protection that there is no longer a risk of repetition of the ill treatment which is the cause of his current state of health. None of the authorities from the Court of Justice of the European Union or the European Court of Human Rights are precisely on point [13]. Therefore the following question will be referred to the Court of Justice of the European Union: Does article 2(e), read with article 15(b), of the Qualification Directive cover a real risk of serious harm to the physical or psychological health of the applicant if returned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible?
Mr Louca is a Cypriot national resident in the UK. His extradition is sought by the Office of the Public Prosecutor of Bielefeld, Germany, for six offences of tax evasion under a European Arrest Warrant (EAW) dated 14 July 2008. Two previous EAWs had been issued by the German Prosecutor, each resulting in the arrest of Mr Louca in April 2008, but were successively withdrawn because of minor technicalities. The current EAW refers to the domestic German arrest warrant but not to the previous, withdrawn, EAWs. Mr Louca argued that it was unlawful to extradite him under an EAW which did not refer to all the previous EAWs. The Supreme Court holds that, when a European Arrest Warrant is issued by the authorities of one Member State for execution in another, it must include a reference to the domestic warrant upon which the European Arrest Warrant is based, but need not include references to any other European Arrest Warrant which may have been issued on the basis of the domestic warrant. The appeal is therefore dismissed. (Paragraph [15]) Lord Mance gave the judgment of the Court, upholding the reasoning of the Divisional Court. The words any other warrant in section 2(4)(c) of the Extradition Act 2003 must be construed in the light of the European Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States of the European Union. (Paragraph [3]). The Framework Decision does not require any other warrant to include previous EAWs. The relevant part of the Decision article 8(1)(c) does not use the phrase European arrest warrant as it does elsewhere. The reference to an enforceable judgment, an arrest warrant or any other enforceable judicial decision (article 8(1)(c)) cannot sensibly be limited to an EAW. One EAW is most unlikely to be based upon another. (Paragraphs [9] [10]) There was no other reason to require the EAW to include information about prior EAWs upon which no reliance was being placed. Not doing so would not prevent Mr Louca arguing that extradition was an abuse of process, and other due process factors were comprehensively covered by the Extradition Act. (Paragraphs [13] [15]) Judgments
The Information Commissioner ordered the disclosure of information held by Ofcom concerning the precise location of mobile phone masts. On appeal, the Information Tribunal found that the public interest in public security, and in the protection of intellectual property rights, were both engaged but that under each separate exception the public interest in disclosure outweighed the interest alleged by Ofcom. It dismissed the argument of Ofcom that under the Environmental Information Regulations 2004 the Tribunal should conduct a third balancing test weighing all the interests in favour of disclosure against all the public interests in refusing disclosure. The High Court upheld the Information Tribunal. On appeal, the Court of Appeal overturned the Tribunal. It held that the Regulations must be construed in the light of European Directive 2003/4/EC, which they implement. The language of both documents supported an aggregate weighing exercise to assess the overall public interest. The Supreme Court unanimously holds that the appeal raises an issue of general principle and that the answer is not obvious. Different members of the Court hold different views on the correct construction of Environmental Information Regulations 2004, and Directive 2003/4/EC which they implement. Consequently, the Supreme Court is under a duty to refer the question in the appeal to the European Court of Justice (paras [3], [10], [14]). The question referred to the European Court under Article 267 of the Treaty on the Functioning of the European Union is: Under Council Directive 2003/4/EC, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception (in casu, the interests of public security served by article 4(2(b) and those of intellectual property rights served by article 4(2)(e)), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, does the Directive require a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure? (para [15]) A majority of the Court would have upheld the judgment of the Court of Appeal. The majority consider that there are certain linguistic clues in the Directive which favour an aggregate weighing exercise which considers the overall public interest. The diversity of reasons is a positive reason to accumulate them, and certain heads already involve more than one public interest (paras [10], [12]). The minority of the Court also finds linguistic clues in the Directive to suggest that no cumulation of factors is possible given the disparate public interests involved which considered together would produce incongruities and be impractical (para [13]).
The main controversy in the appeal was whether, under the test laid out in section 446X of ITEPA, the disposal of the shares had been for a price which exceeded the market value of the shares at the time of the disposal [2]. If so, then the excess (less the costs associated with completing the transaction) would be treated as employment income [2]. ITEPA 2003 had adopted the definition of market value set out in capital gains tax legislation [22]. This required consideration of what a hypothetical purchaser would pay to acquire the rights attached to the shares [49]. Two questions emerged: (1) whether Gs shares were to be valued simply as shares whose rights were set out in Grays Groups articles of association, or whether his special rights under the subscription agreement were to be taken into account as if they were set out in the articles and (2) if the latter, what effect those special rights had on the valuation exercise [25]. The first question could be divided into two parts: (a) whether the special rights should be taken as attaching to the shares as a matter of company law and (b) whether Part 7 of ITEPA, which also dealt with other financial instruments, should be taken as consistently requiring such special rights to be taken into account in the assessment of market value [26]. On (a), shareholders mutual obligations were normally set out in the companys articles of association, and Grays Groups articles said nothing about special rights attaching to Gs shares on their disposal [27]. A clause in the subscription agreement did state that the agreements provisions should prevail over the articles, but there was a previous House of Lords case which suggested that such a provision would have no effect [31]. That case had not been cited in argument before the court, and might require further legal submissions, but was not decisive owing to the conclusions reached on other points [32]. On (b), elsewhere in Part 7 of ITEPA, in relation to other financial instruments, similar special rights did affect the market value of the asset in question [33]. The principle that tax is to be charged only by clear words was less potent than it had been, but was still relevant to interpreting tax laws. There was real doubt as to whether Parliament, in Part 7 of ITEPA, had enacted a scheme which drew a coherent distinction between the treatment of rights attaching to shares and those attaching to other financial instruments [37]. The appeal was dismissed on the second question. When P purchased Grays Group Ltd, it was not concerned with the division of the sale price between the vendors, except in so far as that might have adverse tax consequences for Timber Products [38]. Whether it was right to say that Gs special rights did in some sense attach to the shares or not, those rights had no value to the hypothetical purchaser [40, 49]. They were rights personal to G [51] and were extinguished by the payment which G received [50]. The valuation did not have to take account of the actual sale of Gs shares at a special price enhanced for reasons relating to Gs special position as managing director [43].
The Respondents, Barratt Homes Limited, were engaged in building a substantial development of homes and a primary school in Llanfoist, near Abergavenny in Monmouthshire. They sought to exercise the right of a property owner under s 106 Water Industry Act 1991 to connect the drains to the public sewer at a point close to the development. The appellant sewerage undertakers, Welsh Water, argued that it was entitled to insist on a connection at point some 300m further downstream, as the sewer did not have the capacity to deal with the increased load until that point. Welsh Water succeeded in the High Court but the decision was reversed on appeal and Barratt Homes made the connection at the place of its choice. Welsh Water pursued an appeal to the Supreme Court, seeking to establish that s 106 gave a sewerage undertaker the right to refuse to permit connection to the public sewer at an unsuitable point. The Supreme Court dismissed the appeal (Lady Hale dissenting). The judgment of the majority was given by Lord Phillips. The exercise of the right of a property owner to discharge into a public sewer pursuant to s 106 Water Industry Act 1991 (the 1991 Act) was an absolute right which could not be prevented on the ground that the additional discharge would create a nuisance. That was for the sewerage undertaker to deal with [paras 23 26]. The right to object to the mode of construction in s 106(4) did not extend to the point of connection [para 32]. It was significant that in nearly a century and a half since the first enactment conferring this right was passed, this was the first dispute between an owner and sewerage undertaker as to the point of connection to a public sewer to have reached the courts [para 38]. The real problem behind the dispute in this case lay in the requirement to give only 21 days notice to a sewerage undertaker before exercising the absolute right in s 106. This was manifestly unsatisfactory in relation to a development which in this case would add 25% or more to the load on the public sewer [para 41]. The only way to achieve a deferral of the right was through the planning process, in which both the sewerage undertaker and OFWAT should be consulted. More thought might need to be given to the interaction of planning and water regulation systems under modern law to ensure that the different interests were adequately protected [paras 57 58]. The 21 day limit for refusing applications to connect to the public sewer in s 106(4) was mandatory, in view of the fact that it was a criminal offence to connect a drain after such notice had been given [para 62]. Lady Hale would have allowed the appeal on the construction of s 106(4). The legislative history led her to conclude that Parliament had not intended to cut down the scope of the local authoritys power to control the place and manner of connection in the Public Health Act 1936 (the predecessor to the 1991 Act), while leaving the position in Scotland unchanged [para 73]. The words mode of construction or condition in s 106(4) should be interpreted as including the place of connection to the public sewer [para 79].