Super injunctions, bin Laden and two key inquests – Human Rights Roundup
9 May 2011
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.
by Graeme Hall
In the news
At the top of the worldwide news agenda is the killing of Osama Bin Laden. In addition to concern over the implications his death will have on the fight against Islamic fundamentalism (click here for some of Adam Wagner’s reflections), the manner in which Bin Laden died has undoubtedly split opinion. Geoffrey Robinson QC strongly condemned the killing when writing in The Independent on Sunday. This is to be contrasted with the assistant editor of the Guardian, Michael White’s opinion, as well as more starkly opposed opinions on the lawfulness of the shooting, an example of which can be found on the Blog of the European Journal of International Law.
This week has also seen the two high profile inquest verdicts. First, As the BBC reported, a jury found that Ian Tomlinson was unlawfully killed during the G20 protests in 2009. Law and Lawyers also reported that the CPS will review whether to prosecute PC Simon Harwood, the officer responsible for Tomlinson’s death. Secondly, the result of the 7/7 Inquest was published this week. Unsurprisingly, the coroner found that the 52 members of the public who died during the bombings had been killed unlawfully. The report also made 9 recommendations which can be found in our post.
There were also some interesting opinion articles this week include Joshua Rozenberg’s discussion regarding the place for a lawyer’s (religious) beliefs when in practice, as well as a considered piece in The Economist about the European supranational courts.
No roundup would be complete of course without this week’s super-injunction saga update. Twitter has apparently been used to break some super-injunctions. Although the horse may have already bolted on this one, given the Attorney General’s recent activity in bringing contempt of court proceedings against online news sources in relation to criminal proceedings, and the courts’ willingness to oblige, it may be that an unlucky tweeter is made an example of. To that end, here are some tips on how to avoid contempt of court.
Joshua Rozenberg, the Garrulous Law blog, Carl Gardner and Inforrm have cut through some of the nonsense, but expect more to come this week with Tuesday’s judgment in Max Mosley’s request that the European Court of Human Rights impose a requirement on journalists to inform the subjects of stories before they publish private information about them. Lord Neuberger’s working group on the topic is also due to report very soon. To that end, also see Adam Wagner’s post: Hyped Up Fuss.
In the courts
TG, R (on the application of) v London Borough of Lambeth [2011] EWCA Civ 526 (06 May 2011): Serious lack of co-operation between authority’s housing and children’s services departments in respect of former relevant child was unlawful (see Nearly Legal’s excellent analysis of the case)
L (A Child: Media Reporting), Re [2011] EWHC B8 (Fam) (18 April 2011): Mother was responsible for breaking her baby’s arm; also, trenchant criticism of Daily Telegraph’s reporting of the ruling. See Adam Wagner’s post
McCarthy v United Kingdom (Case C‑434/09): Dual nationals living in a country of their nationality who have never exercised free movement rights cannot rely on the Citizens’ Directive. See the Free Movement blog.
…and don’t forget to take a look at some of our recent posts:
- 7/7 inquest findings published – 52 unlawful killings May 6, 2011 Adam Wagner
- Judge: Telegraph reporting of family case was “unbalanced, inaccurate and just plain wrong” May 6, 2011 Adam Wagner
- Privacy – the way ahead? Part 3 – Options for the Future – Hugh Tomlinson QC May 4, 2011 1 Crown Office Row
- #lawblogs is back on Thursday 19 May – how to sign up May 3, 2011 Adam Wagner
- Super injunctions go supernova – The Human Rights Roundup May 3, 2011 Melina Padron
- Adoption, same-sex couples and religion – again May 3, 2011 Rosalind English
- UK would have been obliged to use torture evidence to find Bin Laden May 3, 2011 Adam Wagner
- Does death of Bin Laden mark end of age of terrorism? May 2, 2011 Adam Wagner
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It rather seems to me that all the arguments about Bin Laden (including many I made myself) are based on an assumption, namely that it would have been possible to take him alive in the circumstances of the raid. The White House hasn’t helped with its confused account in the immediate aftermath. But it is all very well for lawyers sitting safely thousands of miles away to lecture about what special forces’ soldiers should have been doing in the middle of what was on any view a very risky operation.
If Bin Laden had walked into a police station in New York with his hands up, then no-one would doubt he should have been put on trial. Arguments about how hopeless the international tribunals tend to be (and the Nuremberg trials weren’t a model of exemplary jurisprudence, incidentally) are irrelevant; the answer is to get better tribunals.
For what it’s worth, I think they actually did try and take him alive – otherwise why undertake such a risky operation rather than a drone strike? – but on such facts as are known that would have become very difficult once the first helicopter crashed or was shot down. The plan would have been for some of the soldiers to abseil down and enter the top floor, in which case they would have had a much better chance to take Bin Laden by surprise. But by the time they had fought their way up from the ground floor, Bin Laden would have know what was going on, and would have known that unless he lay prostrate on the floor they were going to shoot him – and shoot him justifiably too unless we are going to demand the impossible of the soldiers.
In the circumstances of the raid as known – a very risky operation which had gone wrong at the start with a crashed helicopter – it seems to me that the soldiers acted with very great skill and restraint not to inflict far more casualties than they did.
Of course I may have the facts all wrong, and either way I would certainly argue that the US should hold a proper inquiry into the operation. Ultimately, however, it is nothing more than intellectual arrogance for lawyers to demand that they have all the expertise to determine whether the killing was justified or not; how well the soldiers executed their orders is something only other experienced soldiers can properly judged. Therefore there would need to be some military expertise on any inquiry panel.