SORE HEADS…AND EXTRADITION

It might not have been the best idea to write this week’s blog the day after the LNTV Christmas party (a Thursday night in November might not seem the obvious choice for a Christmas party, but pop a paper hat on and have a bit of fizz, and all of a sudden you wouldn’t really mind celebrating it in June if needs be!), but luckily this took place after we had the pleasure of welcoming Thomas Gardner, a Solicitor specialising in extradition with Gherson solicitors, into the studio.  Thomas has many years experience of extradition and criminal law, and now specialises exclusively in extradition and mutual legal assistance.

Thomas spoke to us about the changes to extradition legislation as a result of the Anti-social Behaviour, Crime and Policing Act 2014 (the 2014 Act), including a new bar to extradition, a new proportionality test, and the temporary transfer of a requested person.  Here’s a sneak peak at some of his interview as part of our forthcoming Crime channel programme ‘Firearms and Extradition’:

LNTV: The 2014 Act introduces a proportionality test. Now why has this been done, and how significant a change is this?

Thomas: There’s been a lot of criticism levelled at the European arrest warrant scheme for the issuance of European arrest warrants for relatively minor offences, and certainly any practitioners in this jurisdiction will have seen requests made for what we would consider very minor offences. Practitioners will have been used to arguing proportionality under Article 8. The new test which has been introduced applies only in accusation cases and only in Part 1 cases, but introduces a statutory test as opposed to the Article 8 test. In terms of significance, obviously it’s an attempt at addressing the proportionality issue.  One concern that practitioners might have is to whether, in accusation cases where the judge must apply the new provisions, these provisions will, in fact, row back some of the progress that’s been made under Article 8. It remains to be seen if that is the case and it remains to be seen whether practitioners will attempt to still argue Article 8 in those circumstances.

LNTV: So what matters can a judge take in to account when considering proportionality?

Thomas: Well, in contrast with proportionality arguments that may have been run under Article 8 the considerations for the judge under the new s.21(a) [of the Extradition Act 2003] are very restrictive. Sub-section 2 of s.21(a) specifically says the judge can only take in to consideration three matters, that is the nature and seriousness of the offence which is alleged, the likely penalty on conviction and finally the possibility of less coercive measures other than extradition being used to achieve the same measure.  Practitioners should be aware of the guidance which is contained within the Criminal Practice Direction. That guidance includes a table which indicates offences which may be considered to be disproportionate, however, it also includes a list of factors which will act as exceptional factors to allow extraction even in those circumstances. That guidance is likely to become increasingly important when practitioners are making arguments under s.21(a).

LNTV: So do you think these measures for proportionality are satisfactory?

Thomas: I think they are disappointing. The biggest disappointment is the very restrictive nature of the considerations. In the same way as we saw when the forum bar was introduced, the Act has tightly circumscribed the considerations which the judge can take in to account and practitioners will find it much more restrictive than arguments they may have been able to mount under Article 8.

We loved having Thomas in the studio, and want to thank him especially for fitting in the interview around his busy court work.

Now, where are those painkillers…

JURISDICTION IN FOREIGN ROAD TRAFFIC ACCIDENTS

Christmas lights have all been officially turned on now around LNTV HQ, a sign that the time for stuffing our faces, spending time with the family, wishing for snow, watching movies under blankets, and having the most indulgent of things – afternoon naps – will soon be upon us, and so perhaps it’s time we start thinking about the preparations (we have promised that never again will we put ourselves through the nightmare that is the Christmas Eve dash!).

Under the twinkling lights, work continues a pace, and this week we considered the often tricky subject of jurisdiction in foreign road traffic accidents (RTAs).  With the increase in popularity of ‘road trip’ holidays and in hiring cars while abroad, foreign RTAs are more common than ever.  A natural consequence of increased cross border road travel is a greater incidence of traffic accidents where at least one of the parties is not usually resident in the country where the accident takes place.  When these accidents occur, it’s necessary to determine which law will apply to the settlement of any claims arising from them.

The law governing jurisdiction in foreign RTAs is not straightforward.  Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II) determines the governing law of torts.  However, the implementation of Rome II has given rise to a number of grey areas, one of which is the interaction of Article 4 of Rome II with the Hague Convention 1971, both of which deal with the determination of applicable law in foreign RTAs.

Our forthcoming training television programme on this area will therefore deal with:

• The general rule relating to jurisdiction in Rome II and the key exemptions to that rule.
• The extent of Rome II, in particular its non-application to ‘evidence and procedure’.
• The main provisions of the Hague Convention.
• The issues that arise in terms of jurisdiction when an English claimant is injured in a foreign RTA in terms of whether Rome II or the Hague Convention applies.
• The issues facing claimant solicitors and barristers in terms of jurisdiction and choice of forum in foreign RTAs.
• The recent cases of Wall v Mutuelle de Poitiers Assurances (2014) (http://www.bailii.org/ew/cases/EWCA/Civ/2014/138.html) and Cox v Ergo Versicherung (2014) (http://www.bailii.org/uk/cases/UKSC/2014/22.html).

If you are interested in seeing this programme, or any others from our extensive range, please call our lovely Gerry Frost, on 01483 216379, who will be happy to talk to you about this, his holidays to Greece, or his love of lasagne…he’s not fussy really.

Until next time…

CAPACITY TO CONSENT

It’s that time of year when it’s dark now every time we leave LNTV HQ after a day’s work, but that hasn’t dampened our spirits as we look forward to some great upcoming studio interviews, and a little thing called Christmas (although ask us how we feel about the dark afternoons in February, and we might answer differently!).

Our attention this week has turned to a CPD programme we recently released which looked at capacity to consent, both in terms of marriage and sexual relations, and our conversations focussed around the occasions when the Court of Protection is faced with the question of whether a person has the capacity to consent to sexual relations and, where a person does not, the serious consequences that can follow under the Sexual Offences Act 2003, it being an offence to compel, incite or facilitate someone that does not have the capacity to consent to engage in sexual relations. Much has been said in the courts as to whether the issue is an abstract test or one to be decided with reference to the specific circumstances; i.e. whether it is act specific or person specific, and the courts are also concerned with when it is appropriate to interfere with a person’s freedom.

In particular we looked at the case of A Local Authority v TZ [2014].  In this case, TZ had various mental issues. He was homosexual and did not have an identified partner but wanted to enjoy sexual relations.

TZ was clear that he wanted to meet and be intimate with other men and the professionals in his case said it should be supported. The issue was whether or not he had the capacity to deal with the decisions that would arise in these situations.

Baker J emphasised that there were difficulties where there was a possibility of future contact and sexual relations between TZ and an unknown individual(s).  TZ had capacity to generally consent to contact and as there was no identifiable person that he wished to have sexual relations with, the Local Authority said that the question to consider was whether TZ had the capacity to assess the risks from such contact with other men. The Official Solicitor stated that the main issue was whether or not TZ was able to decide if he needed support and care when meeting with men he did not know as opposed to it being about general contact or with a specific person. He was of the opinion that being able to assess risk was one part of being able to make a decision.

Baker J disagreed on the basis:

“… that the relevant decision can be characterised merely as whether TZ can decide what support he requires when meeting unfamiliar adults. The question of support required when meeting unfamiliar adults only arises if he lacks capacity in making decisions when meeting unfamiliar adults”.

He also said that the factual context to consider was where TZ came into contact with people he might want to have sexual relations with. Taking the relevant decision as whether to have contact with people generally was too broad. As no individual was named, it was too narrow to suggest that the decision was whether to have contact with a named individual. The relevant decisions were as to whether an individual TZ might want to have sexual relations with was safe, and whether TZ had the capacity to make a decision as to the support he needed when having contact with such an individual.

Baker J concluded that TZ had neither. However, in reaching his decision, Baker J also considered the Court’s duty to take into account TZ’s human rights including his right to private life under Article 8 of the European Convention on Human Rights which included a right to establish relationships with other human beings.  He stated that the obligation on the State was to take steps to ensure that TZ was supported in having a sexual relationship if he wished to do so; and said that a care plan for TZ should include identifying that support as well as identifying how to educate and empower TZ to make decisions and listing circumstances in which care workers would intervene for TZ”s protection and what actions they were able to then take.  Baker J rejected the suggestion that a welfare deputy could make decisions on TZ’s behalf.

Until next time…

HOLIDAY PAY RULING HANDED DOWN

On 4th November, as well as buying up all the sparklers we could find and preparing the bonfire toffee, the Employment Appeal Tribunal’s (EAT) landmark ruling in the conjoined cases of Bear Scotland Ltd and others v Fulton and others (UKEATS/0047/13/BI), Hertel (UK) Ltd v Woods and others (UKEAT/0160/14/SM), and AMEC Group Ltd v Law and others (UKEAT/0161/14/SM) was handed down.

The decision confirmed that non-guaranteed overtime (i.e. overtime which a worker is required to work but which an employer is not obliged to offer) should be taken into account when calculating holiday pay, at least for the purposes of the minimum four weeks’ statutory annual leave required by the Working Time Directive (the Directive).  The EAT held that payments for non-guaranteed overtime are ‘normal remuneration’ for the purposes of Article 7 of the Directive, and as a result the Working Time Regulations 1998 must be interpreted in such a way that this is achieved.

Bad news for employers, but the EAT did offer a lifeline, limiting the scope for workers to bring claims for historical underpayments to claims brought within three months of the date of underpayment or, if there has been a series of deductions, within three months of the last deduction in the series.  The only exception is if the Tribunal decides that the deadline should be extended because it was not reasonably practicable for the claim to have been brought in time.

The Business Secretary, Vince Cable, has announced that he will be setting up a taskforce to assess the implications of this judgment for employers.

However, the EAT did give leave to appeal on the issue of whether or not the right to bring a claim for underpayment of holiday pay is lost if a worker has gaps of three months or longer between periods of holiday, and so this is certainly not the last we will hear of this case and its implications. Here at LNTV HQ we have been discussing the possible impact on pension schemes that include variable elements, such as bonus and commission, in the pay that is used to calculate benefits and contributions, and this is certainly something that employers will also now need to consider.

We also await the decision in the case of Lock v British Gas Trading Limited and others, which was sent back to the UK Tribunal by the European Court of Justice after they held that holiday pay needed to include commission payments.  The judgment did not explain how businesses are meant to do this, and the case is due to be heard in February 2015.

So, lots for employers to think about and start working on, with much more still to come.

Until next time…

MORE CHANGES TO U.K. COPYRIGHT LAW

As well as celebrating all things spooky at LNTV HQ this week (and also testing how many sweets we could stuff our faces with before children came knocking on the office door), we welcomed the introduction, on 29th October, of more changes to the U.K. copyright laws, this time affecting orphan works, i.e. copyright works where the copyright owner is unknown or cannot be found.  Not being able to use orphan works means that opportunities are not available to use what can potentially be very valuable materials. These new changes mean that, for the first time ever in the UK, the use of certain copyright works will be allowed without the consent of the copyright owner.

In order to create these opportunities, a new UK licensing scheme has therefore been brought into force.  Anyone wishing to use a piece of work which is the subject of copyright can now apply to the UK Intellectual Property Office (IPO) for a licence, as long as they have carried out a ‘diligent‘ search to try and identify the copyright owner.  The licence then grants the licence holder permission to carry out acts that would otherwise infringe UK copyright, for commercial and non-commercial purposes, for up to seven years.

In addition, an EU backed orphan works scheme was also brought into force on the same day.  This runs in addition to the new UK scheme, but it is much more limited, and allows certain cultural institutions in the EU, such as museums, to use orphan works for non-commercial and non-profit making purposes where those purposes follow their public interest objectives.  In real terms, this means they will be allowed to digitalise and upload orphan work they have in their collections to their website, assisting in the aim of making ‘…Europe’s cultural heritage available online across the EU‘, thereby giving greater access to those works.

These changes seem like a good idea, helping to make available a large number of copyright works which otherwise could not be used.  However, would we feel the same if we were an undiscovered/untraced/unknown copyright owner?  Possibly not if we were to miss out on royalties due to us.  However, under the previous rules, if we had not been found, the work could not be used and so we would not be receiving royalties anyway, and a safeguard has been put into the new scheme to ensure that all orphan royalties must be placed in a ring-fenced account held by the IPO for eight years from the date of the licence, to be handed over to the copyright owner if they come forward during that time.  But what if our works were used for a purpose we would never have given permission for?  Again a safeguard put in place means that the IPO has a discretion to refuse the request for a licence on a variety of grounds, one of which is where the proposed use of the work constitutes derogatory treatment.

So we will watch with interest as the new rules bed in, and see how previously unusable materials might now be used.

In the meantime, it’s time to put away the pumpkins and bring out the firewood.  A happy Bonfire Night to all our readers!