On 30 November 2016 the Court of Appeal (Lewison LJ, Beatson LJ, Sir Stephen Richards) handed down judgment in R (British American Tobacco and others) v Secretary of State for Health [2016] EWCA Civ 1182. The Court rejected all of the tobacco companies’ grounds of appeal and confirmed the earlier conclusion of the High Court that the Standardised Packaging of Tobacco Products Regulations 2015 are lawful.

Ian Rogers QC, Julianne Kerr Morrison and Nikolaus Grubeck acted for the Secretary of State for Health on appeal and in the High Court before Mr Justice Green.

The judgment is available here.

The United Nations Human Rights Committee has ruled in Saxena v. Canada (Communication no. 2118/2011, 3 November 2016) that the consent by Canada to the prosecution of Mr Rakesh Saxena for two offences after his extradition to Thailand to face criminal charges for conspiracy to embezzle money from the Bangkok Bank of Commerce had resulted in a violation of Article 13 of the International Covenant on Civil and Political Rights. Article 13 requires that any alien lawfully present in a State Party’s territory be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Mr Saxena had been extradited to face criminal charges for conspiracy to embezzle money from the Bangkok Bank of Commerce but the two offences to which Canada subsequently gave its consent to his prosecution had not been listed in the original extradition request and surrender order.

The finding of a violation of Article 13 arose from the fact that Mr Saxena had been deprived of the possibility to comment on the request to waive the specialty rule and that the possibility for him to seek a review of such request by the courts had been foreclosed.In reaching this conclusion the Committee noted that:

• during the extradition proceedings, Mr Saxena had raised concerns that he could be charged, prosecuted and tried for offences other than those for which he was surrendered;
• Canada had not denied that it would not have granted the waiver of specialty had it known that he would be charged for other offences committed prior to issuing the extradition order which had not been covered by the surrender order;
• the waiver was granted notwithstanding the repeated and emphatic assurances by Canada’s judicial and administrative authorities that there would be no breach of the specialty rule, i.e. that Mr Saxena would not be tried in Thailand for offences other than those for which he was extradited;
• Mr Saxena had not been given the opportunity to challenge the decision on granting consent to the waiver of specialty, thereby depriving him of the due process guarantees he was entitled to in compliance with Article 13 of the Covenant, and that, as a consequence of the procedure, he might have been exposed to a much longer detention and imprisonment; and
• during the proceedings related to the request by Thailand for granting consent to a waiver of specialty Mr Saxena had remained within the jurisdiction of Canada.

In the view of the Committee, Canada was now obliged, inter alia, to revise and amend its extradition legislation by including a procedure for consent to a waiver of specialty, in full compliance with its obligations under the Covenant and the finding in this case.

Mr Saxena was represented before the Committee by Jeremy McBride.

To view the Committee’s Views, please click here.

The Court of Justice of the EU today ruled (here) that fees charged by Westminster City Council to an applicant for a licence to operate as a sex shop were unlawful.

Mr Hemming, trading as “Simply Pleasure Ltd”, challenged the application fees he had to pay to Westminster for a licence to operate a sex shop.  Those fees amounted to over £29,000.  The fees broke down into two parts: about £2,500 covered the cost of processing the application, while the remaining £26,500 odd covered Westminster’s costs of policing compliance with licensing requirements and tackling unlicensed operators.  That latter amount was refundable if the licence was refused.

Mr Hemming relied on Article 13(2) of the Services Directive (Parliament and Council Directive 2006/123/EC), implemented into UK law by regulation 18(4) of the Provision of Services Regulations 2009.  That provision requires that charges which an applicant may incur from its application shall not exceed the cost of the procedures (and must also be proportionate and reasonable).

In a judgment given in May 2015 ([2015] UKSC 25), the Supreme Court agreed that Article 13(2) excluded costs of enforcement, such as tackling unlicensed operators, from the scope of costs for which an application charge could be made.  But it held that Article 13(2) did not prevent a body which was successful in its application from then being charged a further fee to cover enforcement costs: such a fee was not a charged incurred from the application but, rather, a fee incurred for the possession of a licence.  However, the Supreme Court considered that there was doubt as to whether a fee charged at the time of application but which was refundable if the application was unsuccessful – which was the position in the case before it – amounted to a charge, and referred that question to the Court of Justice.

The Court of Justice has today ruled that an application fee payable at the time of submitting an application is a “charge” under Article 13(2) even if it is refundable if the application fails.  It remained a “financial obligation” that must be discharged before an application could be considered.

The Supreme Court judgment sharply distinguished between an application fee and a fee payable once the application is successful.  The Court of Justice did not deal with that distinction.  However, it may be noted that in his Opinion (here), Advocate General Wathelet stated that if, having succeeded in its application, the successful applicant’s permission to operate was then made conditional on payment of a fee designed to cover enforcement costs, then in reality that further fee should be regarded as a charge falling under Article 13(2).  He also expressed doubts that a fee designed to cover enforcement costs – which he described as a “fee enabling members to benefit from the certainty that membership of the ‘club’ will remain restricted” – could ever be reasonable or proportionate.  The Court of Justice, however, did not express a view on those points.

The case has implications going beyond the sex shop industry: indeed, a number of professional bodies that charge fees for authorisation to practise (including the Law Society and the Bar Council) intervened before the Supreme Court, as did HM Treasury.

George Peretz QC appeared in the Supreme Court for HM Treasury.