Monthly Archives: October 2010

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Case comment: Cadder – Presence of a lawyer at police interview required by Strasbourg rights of defence

Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43 Read judgment

We  posted earlier on the Supreme Court’s ruling that  an accused person’s rights under Article 6 of the Convention are breached if the prosecution leads and relies on evidence of the accused’s interview by police, if a solicitor was not present for that interview.   Indeed Lord Hope thought it “remarkable”  that

until quite recently, nobody thought that there was anything wrong with this procedure. Ever since ..1980, the system of criminal justice in Scotland has proceeded on the basis that admissions made by a detainee without access to legal advice during his detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption. Continue reading →

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Straw should not apologise too quickly for New Labour’s civil liberties policies

Jack Straw, the former New Labour Justice Secretary, has marked the 10th anniversary of the passing into law of the Human Rights Act with an article in the Guardian.

There are two points of interest from the article. The first is that, by my reading at least, the article runs close to an apology for the previous government’s much-criticised anti-terrorism policies. Straw, who amongst other front line roles was Home Secretary from 1997 to 2001 and Justice Secretary from 2007 to 2010, says “It is hard to exaggerate the pressures that those with responsibility encounter when a population, or part of it, is scared.” This meant that the government were under pressure and “sometimes the same people who might have been seeking greater controls on the intelligence services will want to know why we didn’t have more intelligence”.

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Scots six hour detention without access to lawyer breached human rights convention

Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43 – Read judgment / press summary

The UK Supreme Court has ruled unanimously that Scottish criminal law, which allows a person to be detained and questioned by the police for up to six hours without access to a solicitor, breached the European Convention on Human Rights. The decision will not allow closed cases to be reopened but will affect cases which have not yet gone to trial.

The court ruled that whilst the Scottish High Court’s decision was entirely in line with previous domestic authority, that authority cannot survive in the light of the Grand Chamber of the European Court of Human Rights’ decision in Salduz v Turkey (2008) 49 EHRR 421 and in subsequent cases. Properly interpreted, Salduz requires a detainee to have had access to a lawyer from the time of the first interview unless there are compelling reasons, in light of the particular circumstances of the case, to restrict that right.

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Detaining and deporting the mentally ill

Anam v Secretary of State for the Home Department [2010] EWCA Civ 1140 – Read judgment

This appeal raises interesting questions about the approach the courts should take when considering whether detention pending deportation is legal in a case involving an ex-convict with serious psychiatric illness. A failure to implement a Home Office policy on the subject did not automatically make the decision to detain unlawful. However, the Court of Appeal was not unanimous on what the correct test for legality was.

This was an appeal against a deportation decision by the Secretary of State for the Home Department. The Appellant had a long criminal record and in 2007 was sentenced to 4 years in prison for robbery. Later that year, the deportation decision was made. However, the Appellant also had a history of serious psychiatric illness.

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Human rights and judicial review in the past year – Part 4/4: Article 12, the right to marry

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here, part 2 here and part 3 here.

Today, in the final part of this series, I concentrate on recent cases involving Article 12, the right to marry and a couple of other notable cases. You can find previous posts on Article 12 here.


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Human rights and judicial review in the past year – Part 3/4: Article 6, the right to a fair trial

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts.

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here and part 2 here.

Today I concentrate on Article 6: the right to a fair trial (click here for previous posts on Article 6).

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Human rights roundup: Cuts cuts cuts, international human rights and QCs on film

For your weekend reading pleasure, some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here.

The Inevitable Racial Effect: Counter-Terror Stop and Search Powers – Human Rights in Ireland: Rachel Heron, a PHD candidate at Durham Law School, argues that stop and search power under section 44 of the Terrorism Act 2000 has failed to yield significant results, except one: it has provided a further example of how racially neutral laws have a seemingly inevitable racial effect. Our most recent post on stop and search, which has been the subject of a decision of the European Court of Human Rights followed by a climb-down by the UK government, is here.

Case Law: Bernard Gray v UVW – privacy injunctions and anonymity – Henry Fox – Inforrm’s Blog: Mr Justice Tugendhat has returned to the subject of anonymity in privacy actions. These cases consistently test the interrelationship between Article 8 (right to privacy) and Article 10 (freedom of expression) of the European Convention on Human Rights.

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Human rights and judicial review in the past year – Part 2/4: Articles 3 and 5

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here.

Today I concentrate on Article 3: inhuman and degrading treatment (click here for previous posts on Article 3).

A range of cases – as ever, mostly arising in the context of immigration, extradition, and prisons – have been decided in the last year, but most are fact-specific, and few have given rise to particularly significant developments of principle.

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Human rights and judicial review in the past year – Part 1/4: Article 2, the right to life

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts.

I aim to summarise the most important judicial review cases concerning Articles 2, 3, 5, 6 and 12 of the ECHR during the last year. I have also included two other cases of interest, although they cannot be categorised under any of these Articles. Today, Article 2: the right to life (click here for previous posts on the right to life).

The substantive Article 2 duty owed to mental patients

Rabone v. Pennine Care NHS Trust [2010] EWCA Civ 698 – read our post

The CA have clarified the scope and application of Savage. The HL in Savage had left unclear – to say the least – whether its finding that an operational ‘Osman’ type duty applied to a compulsorily detained mental patient extended to a voluntary mental patient.

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The legal blogger shall inherit…

Updated x 2 | Alex Aldridge has written an excellent and very comprehensive article about the rise and rise of UK legal blogging on Legalweek.com.

The article is worth reading in full, as it highlights the strong growth of the legal blog in the past few years, and interviews a number of key legal bloggers. He says of the “new wave” of legal blogs which have appeared over the past couple of years:

Then, over the last couple of years, a new wave of law blogs has appeared. Characterised by an interest in media law, this group includes Jack of Kent, CRITique (by law firm Charles Russell), Inforrm (from the International Forum for Responsible Media), the UK Supreme Court Blog (run jointly by Olswang and Matrix Chambers), the UK Human Rights Blog (by 1 Crown Office Row) and Bootlaw (by Winston & Strawn technology lawyers Barry Vitou and Danvers Baillieu).

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Supreme Court pre-nup decision: the human rights angle

Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42 (On appeal from the Court of Appeal [2009] EWCA Civ 649) Read judgment

The Supreme Court has ruled that ante-nuptial arrangements should be binding and enforceable in ancillary proceedings.  Thus in future it will be natural to infer that parties who enter into an ante-nuptial agreement to which English law is likely to be applied intend that effect should be given to it.

Although human rights were not in issue in this litigation, there is an interesting question to explore here in relation to the parties’ rights to peaceful enjoyment of their possession without interference by the state (in the form of a court order reversing the provisions of a private settlement).  Now the Supreme Court has given nuptial agreements considerably more weight in the fall-out folllowing marital breakup the likelihood of a Convention-based challenge in this context falls away but does not disappear altogether because the statutory regime still obliges courts to interfere with agreements if they are considered unfair in any way, or prejudicial to the children of the marriage.

First, the following summary is based on the press release of the case published on the Supreme Court website.

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Pre-nuptial agreements have force in English law as long as they are “fair”, say Supreme Court

Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42 On appeal from the Court of Appeal [2009] EWCA Civ 649 – Read judgment / press summary

The Supreme Court has ruled by an 8-1 majority (Lady Hale dissenting) that a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.

The court robustly dismissed Mr Granatino’s appeal against a Court of Appeal decision to enforce his pre-nuptial agreement with Ms Radmacher. The agreement provided that if they were to separate, he would receive none of her considerable independent wealth.

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Non independent tribunal can curtail young offenders’ rights

Ben King and Secretary of State for Justice [2010] EWHC 2522 (Admin) – Read Judgment

True or False: 1. A non-independent tribunal can determine your civil rights? 2. A non-independent tribunal can curtail your civil rights?

The high court has answered “true” to both of these questions . The non-independent tribunal in this case was the adjudication system in young offender institutions (YOI). The high court ruled that whilst the governor adjudicator was not an independent tribunal for the purposes of Article 6(1) ECHR, it could still determine and ultimately curtail an inmates civil rights.

The case of “King” raises important issues concerning the regime for adjudication of disciplinary charges brought against inmates at prisons and young offender institutions across England and Wales. In 2008 alone 190,192 punishments were imposed for disciplinary offences in young offender institutions.

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Lords clash over prisoner voting and European meddling

Updated | The House of Lords debated the vexed issue of prisoner voting yesterday, leading to a somewhat bad-tempered clash between a former Lord of Appeal and the new minister of state for justice.

The debate related to the 2005 decision of Hirst No 2, in which the European Court of Human Rights held that preventing prisoners from voting breached their human rights. The judgment has not yet been implemented in the UK, leading to repeated condemnations from the Council of Europe, which monitors compliance the Strasbourg court’s rulings. The CoE will reexamine the issue on 30 November, when it may decide to sanction the UK.

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Justice cuts to be 50% more than first thought

Updated x 2 – full details of review below |  The much-heralded Ministry of Justice budget cuts will be announced shortly as part of the government spending review. Previously, it had been reported that the department’s budget would be cut by around 20%, or £2bn (see our post). However, over the weekend the Observer reported that the cut would be much larger, running to £3bn – around 30% of the total budget – which represents a 50% increase on the original figure.

The justice minister Ken Clarke is believed to have had to take an extra hit “after the defence secretary, Liam Fox, and Michael Gove at education won more generous agreements than previously expected“.

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