Law reports

HUMAN RIGHTS

Detention of British national by US government without trial or legal redress - claim to compel foreign secretary to assist and make representations - foreign secretary having absolute discretion as to whether to take action on behalf a citizen abroad

R (Abbasi and another) v Secretary of State for Foreign and Commonwealth Affairs and another [2002] EWCA Civ 1598, CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Waller and Carnwath): 6 November 2002

The first claimant, a British national, was captured by US forces in Afghanistan and detained as an 'enemy combatant' at a US naval base.

He was not afforded prisoner of war status or any opportunity to challenge the legitimacy of his detention before a court or tribunal.

His mother, the second claimant, sought judicial review by way of a mandatory order to compel the secretary of state to assist him by making representations to the US government on his behalf.

Nicholas Blake QC, Philippe Sands and Ben Cooper (instructed by Christian Fisher Khan) for the claimants; Christopher Greenwood QC and Philip Sales (instructed by the Treasury Solicitor) for the secretary of state.

Held, refusing the relief sought, that although it was no answer to a claim for judicial review that the source of the secretary of state's power depended on Crown prerogative, which might in some circumstances be within the scope to the court's jurisdiction, his discretion in matters affecting policy was absolute; that there was no duty arising from the European Convention on Human Rights which required the secretary of state to protect the citizen abroad; that the secretary of state had in fact done all that might be reasonably expected of him in considering the first claimant's case and discussing the position of the British detainees with the US authorities; and that all the remedies which might be open to the first claimant had not been exhausted because the position of the detainees at the base was still to be considered by the appellate courts of the US.

(WLR)

PRACTICE

Claim form - deemed late service - exercise of discretion to dispense with service

Wilkey v British Broadcasting Corporation: CA (Lords Justice Simon Brown, Buxton and Carnwath): 22 October 2002

The claim form in proceedings for libel and malicious falsehood was hand-delivered to the defendants' legal department on the last day allowed for service, so that the form was deemed to have been served late under the Civil Procedure Rules 1998 (CPR), rule 6.7.

The district judge refused to set aside service.

Mr Justice Gray allowed the defendants' appeal.

The claimants appealed.

Andrew Monson (instructed by Osborne Jones & Co, Llantwit-Major) for the claimants; Justin Rushbrooke (instructed by Litigation Department, British Broadcasting Corporation) for the defendants.

Held, allowing the appeal, that the court could dispense with service of a claim form under CPR rule 6.9, where the claimant had sought to serve the form by a permitted method of service and the form in fact had been received by the defendant before the end of the period for service; and that, since the defendants had suffered no prejudice by the deemed late service and there was not shown to be any good reason why the claim should not be allowed to proceed, service would be dispensed with.

(WLR)

ROAD TRAFFIC

Passenger-carrying vehicle driver's licence - conviction of sexual offence against child not rendering driver automatically unfit to hold licence - current employment status to be taken into account

Secretary of State for Transport, Local Government and the Regions v Snowdon: QBD (Nigel Pleming QC sitting as a deputy High Court judge): 4 November 2002

The traffic commissioner refused to renew the driver's passenger-carrying vehicle driver's licence following his conviction on two offences of indecent assault on a 15-year-old girl travelling on a school trip.

Justices allowed his appeal, taking into account the fact that his employers had continued to employ him throughout, and finding that he was a fit person to hold such a licence.

The secretary of state appealed, contending that the conviction and his presence on the Sex Offenders Register automatically led to the conclusion that he was not a fit person within the meaning of sections 112 and 121 of the Road Traffic Act 1988 (as inserted by section 2 of and schedule 2 to the Road Traffic (Driver Licensing and Information Systems) Act 1989), and that the justices were not entitled to take his current employment status into account.

Shaheen Rahman (instructed by the Treasury Solicitor) for the secretary of state; The driver in person.

Held, dismissing the appeal, that Parliament had nowhere provided that conviction of a sex offence and/or presence on the Sex Offenders Register automatically disqualified a bus driver from holding a passenger-carrying vehicle driver's licence; and that, applying the extended meaning of 'conduct' as set out in section 121(1)(b) of the 1988 Act, as inserted, the decision-maker was obliged to take account of any relevant personal details, both private and commercial and including current employment status, when determining both fitness and risk of re-offending; and that, accordingly, the justices had been entitled to reach the decision which they had.

TORT

Cause of action - misfeasance in public office - insufficiency of proximity between wrongdoer and victim not ground for striking out

Akenzua v Secretary of State for the Home Department: CA (Lords Justice Simon Brown, Sedley and Scott Baker): 23 October 2002

An immigration officer colluded with two police officers to set at liberty to become a police informer an illegal immigrant who was a known killer.

The claimants, the administrators of the estate of a deceased subsequently murdered by the informer, issued proceedings against the defendants, the secretary of state and the Commissioner of Police of the Metropolis, for misfeasance in public office of, respectively, the immigration officer and the police officers.

Judge Hornby granted, at Central London County Court, an application by the defendants to strike out the claim.

The claimants appealed.

Nicholas Blake QC and Matthew Ryder (instructed by Christian Fisher Khan) for the claimants; Jonathan Crow (instructed by the Treasury Solicitor) for the secretary of state; Simon Freeland QC and Jeremy Johnson (instructed by Director of Legal Services, New Scotland yard) for the Commissioner.

Held, allowing the appeal, that the question was whether it was arguable in law that the deceased's death at the hands of a known killer was the actionable consequence of acts of misfeasance in public office by officials or officers of the Home Office and the Metropolitan Police; that, in the light of Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2000] 2 WLR 1220, it was immaterial that there was insufficiency of proximity between the victim and the wrongdoers; and that it would be a sufficient pleading, in a case where the consequence of misfeasance in public office was alleged to be personal injury or death, that the harm in contemplation was either to a known victim or victims or to one or more victims who would be unknown unless and until the expected harm eventuated.

(WLR)

The law reports are prepared by the reporters to the Incorporated Council of Law Reporting for England and Wales; telephone: 020 7242 6471; fax: 020 7831 5247; http://www.lawreports.co.uk

WLR means that a report has been submitted for publication in the Weekly Law Reports