More poor human rights reporting on Somali foreign criminals case

In today’s Daily Express, Stephen Pollard has written an article entitled We must regain right to kick out foreign criminals. There is a lot wrong with the article, not least the misrepresentation – not for the first time, either – of a 2007 case involving the failed deportation of headmaster Philip Lawrence’s killer.

Pollard is responding to the European Court of Human Rights ruling in Sufi and Elmi v UK, in which the court ruled that the situation in Somalia was so dire that except in very limited scenarios it will not be possible to deport people back to the country. Rosalind English has already examined the case in more detail.

As I say, there are many problems with the article, which follows the standard anti-human rights act playbook. It is worth addressing them as they are likely to be repeated elsewhere. Here are just a few.

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No removal of foreign criminals to failed states

Sufi and Elmi v United Kingdom – 8319/07 [2011] ECHR 1045 (28 June 2011) – Read judgment

Somalia has been without a functioning government since 1991, riven, since then, by violence between rival clans and sub-clans and largely at the mercy of extreme Islamist groups with one aim in common: sabotaging any efforts by the international community to install a transitional government.

The tragedy is that the combination of resource scarcity, natural disasters and rapacious human activity are so enmeshed, particularly in Africa, that the separation of state-sponsored violence (which does involve humanitarian responsibilities under the European Convention) and harm emanating from naturally occurring disaster (which does not) no longer makes any sense. The kind of conditions that give rise to treatment prohibited under Article 3 of the Convention can be said to prevail in many parts of the continent. How are signatory states to cope?

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Human rights in some but not all disciplinary hearings at work, rules Supreme Court

R (on the application of G) (Respondent) v The Governors of X School (Appellant) [2011] UKSC 30 – Read judgment / press summary

The Supreme Court has ruled unanimously that Article 6 of the European Convention on Human Rights, the right to a fair trial, is engaged in internal disciplinary proceedings if the will have a “substantial influence” on future proceedings which are likely to determine a civil right.

However, in this case of a teaching assistant sacked for sexual misconduct with a child, the court ruled by a majority that article 6 rights were not available at a school’s internal disciplinary hearing and the man was therefore not entitled to legal representation. This was because the result of the hearing would not have a substantial influence on the secretary of state’s decision whether to place the man on the list of people barred from working with children. Simply, the Independent Safeguarding Authority (ISA) was obliged to make its own independent judgment.

As Martin Downs posted in April, this decision – which supports the previous decision of the court of appeal – will have an important effect on all internal disciplinary hearings held in the public sector, not just those held at schools. It will now be easier for teachers, doctors, dentists, nurses and others to secure the right to legal representation, alongside other rights such as the right to an impartial panel, at disciplinary hearings which will have a substantial influence on their career.

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Lady Hale on access to justice, legal aid and staying at The Ritz

As reported by Guardian.co.uk, Lady Hale, one of the 12 UK Supreme Court justices, has said in a speech to The Law Society that the government’s proposed reforms to legal aid will have a “disproportionate effect upon the poorest and most vulnerable in society“.

Although the current crop of senior judges has not been afraid to express opinions on controversial issues, it is unusual for a sitting senior judge to criticise current and controversial government plans. The Legal Aid, Sentencing and Punishment of Offenders Bill has only just been published, and is being debated tomorrow in Parliament. The Guardian.co.uk article presents the comments as a “direct challenge” to the policy. However, upon a closer reading, Lady Hale cleverly steered clear of criticising the plans in her own words, but rather quoted the government’s own analysis of the bill.

The speech was entitled Equal Access to Justice in the Big Society, and was in memory of solicitor Henry Hodge, and can be downloaded in full here (PDF). It is also republished below the page break.

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Lord Rodger passes away

Supreme Court justice Lord Alan Rodger of Earlsferry sadly passed away on Sunday at the age of 66 after a short illness. 

Lord Rodger was in the first group of 12 Supreme Court justices and was one of the two Scottish judges at the court. The Supreme Court broadcast a tribute today via its new Supreme Court Live service. The transcript can be read here.

See obituaries in The Scotsman, The Telegraph, the Herald Scotland and Aidan O’Neill QC on the UK Supreme Court Blog. O’Neill says:

It was a pleasure and a privilege to appear before him as a judge. He could spot a weak argument at a hundred paces. But his questioning and testing of counsel’s submissions were at all times courteously done, and always got straight to the heart of the issue. If he had a weakness as a judge it was that in his judgments he would often find on a precedent or a point that had not been raised by either side in argument. But he was almost invariably right on these points, even if reached without the benefit of counsel’s submissions… His untimely death robs us of a great jurist, and of a good man. His passing diminishes all of us who had the privilege to know him and to work with him.

A “shameful” bill? – The human rights roundup

Welcome back to 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.

Beginning with sad news, Lord Alan Rodger of Earlsferry, one of the justices of the Supreme Court, died yesterday. A detailed obituary has been published by HeraldScotland.

Last week Ken Clarke’s criminal justice system reform proposals were hit by a change of mind/u-turn (or as Prime Minister David Cameron put it, ‘a sign of strength’) on the part of Government. The most radical features of the proposed criminal justice reforms were dropped, chiefly amongst them the attempt to increase the 33% discount to sentences for guilty pleas to 50%. The move was arguably made as a result of public consultations and in particular pressure from the tabloid press. The announcement came alongside the publication of the Legal Aid, Sentencing and Punishment of Offenders Bill. Joshua Rozenberg gives a brief outline of some of the new proposals which seek to lower the statistics on reoffending.

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Bill of Rights Commission on politics, preconceptions and football metaphors

Members of the UK Bill of Rights Commission, an independent body asked by the government to investigate the case for a UK Bill of Rights, has been giving evidence to the Political and Constitutional Reform Committee (transcripts here: part 1, part 2). The sessions give an interesting if predictable insight into the likely discussions between the Commission’s members.

The group has made slow progress so far, and little is known about how it will operate, save that any proposed bill must “incorporate.. and build.. on all our obligations under the European Convention on Human Rights“. It is under no great time pressure, having been asked to report by the end of 2012. It is comprised of 9 people, mostly Queen’s Counsel and not all of whom are human rights experts. It also has a website, which provides little information beyond the dates of meetings. Given the importance of the process and lack of information so far, the evidence sessions are of interest.

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Judicial review golden goose has narrow escape in Supreme Court

R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011 – read judgment; press summary here

Unappealable decisions of the Upper Tribunal are still subject to judicial review by the High Court, but only where there is an important point of principle or practice or some other compelling reason for the case to be reviewed. Unrestricted judicial review in this context is unnecessary and a waste of resources.

This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three was the extent to which decisions of the Upper Tribunal,  established under the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”), are properly subject to judicial review by the Administrative Court in England and Wales and the Court of Session in Scotland.
In all of them the claimant failed in an appeal to the First-tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First-tier Tribunal and by the Upper Tribunal. In all three the claimant sought a judicial review of the refusal of permission to appeal by the Upper Tribunal. Continue reading

Admissibility of hearsay evidence at General Medical Council hearing breached right to fair trial

R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin) – read judgment

This post was coauthored by Richard Mumford and Joanna Glynn QC. Kieran Coonan QC and Neil Sheldon of 1 Crown Office Row appeared for the claimant in this case.

On 21 June 2011 the Divisional Court held to be “irrational and … a breach of the Claimant’s Article 6(1) right to a fair hearing” a decision by the Fitness to Practise Panel of the General Medical Council to admit hearsay evidence under its own rules, having determined that such evidence would not be admissible under the criminal rules of evidence .

Professor Bonhoeffer, described in the judgment as “an eminent consultant paediatric cardiologist of international repute”, was charged by the GMC with impairment of his fitness to practise arising from alleged serious sexual misconduct towards boys and young men in Kenya. It was alleged that over a number of years the Claimant travelled to Kenya to undertake charitable medical work and that the victims were children and young men to whom he had provided sponsorship by paying for their education and accommodation.
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Legal Aid, Sentencing and Punishment of Offenders Bill – the aftermath

Updated | Yesterday saw the release of the Government’s flagship justice bill, the Legal Aid, Sentencing and Punishment of Offenders Bill.

There is a lot in the bill. In terms of its long term effect on the justice system, the most important parts relate to legal aid and litigation funding; that is, the options available to claimants to fund their cases – for example, no-win-no-fee arrangements or government funding. The reforms have been long-heralded, and the government has now responded to its consultations on both (see here for legal aid and here for litigation funding).

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Tiny cells, violence and language barriers: the life of a European prisoner?

The European Commission has begun a consultation process to explore the impact of pre-trial detention in the European Union (EU). The particular focus, summarised in its Green Paper, is how pre-trial detention issues affect judicial co-operation generally within the EU.

The issue is being debated at the moment in the UK, with a group of MPs urging an overhaul to international extradition rules. The Joint Committee on Human Rights has published its report on The Human Rights implications of UK extradition policy (read summary here), in which it concludes that the current statutory framework does not provide effective protection for human rights.

The EU has an interest in these questions, given the fundamental rights which is seeks to uphold. Article 4 of the EU Charter mirrors Article 3 of the European Convention on Human Rights, prohibiting torture and inhuman and degrading treatment.

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Legal Aid, Sentencing and Punishment of Offenders Bill published

The long-awaited Legal Aid, Sentencing and Punishment of Offenders Bill has been published. I have reproduced it below via Scribd. The Ministry of Justice’s press release is here.

The Ministry of Justice has also released its response to its formal consultation on legal aid reforms (also reproduced via Scribd below the page break).

The Bill contains:

  • the government’s proposals on civil (section 7 onwards) and criminal (section 12 onwards) legal aid;
  • new arrangements for litigation funding and costs (section 41 onwards);
  • The (controversial) proposals for criminal sentencing reforms.

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Beanstalks, bad press and the death of juries? – The Human Rights Roundup

Welcome back to 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.

In the news:

Continuing with their assessment of the UK’s law and legal system, the Law and Lawyers’ blog has produced the latest in its series, No. 4:  Juries. This comes at an opportune moment given the recent jailing of a juror for contempt of court after using Facebook to contact an acquitted defendant. This case has seen a possible dichotomy of opinion arise: passionate supporters of trial by jury, such as barrister Felicity Gerry and Tory politician David Davis; or that of Joshua Rozenberg who poses the thorny question; “Whom would you prefer to be judged by – a highly trained, publicly accountable circuit judge? Or 12 people like [jailed juror] Joanne Fraill?”.

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The last tango of the fag packet machine?

Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health [2011] EWCA Civ 437 read judgment here

Sinclair Collis own cigarette machines, some 20,000 of them. So when cigarette machines were banned by law, there was nowhere for their owners to go, apart from the Courts. On Friday, the Court of Appeal dismissed their challenge to the ban, but there was a powerful dissent from Laws LJ on both the law and its application. This makes the prospect of an appeal to the Supreme Court all the more likely. Even that might not be the end of the line, if the SCt refer the case to Europe.

The case – all 70+ pages of the decision – is an object lesson in how to challenge a ban. But, hang on, some of you will say, how can you challenge a ban once it has become the law? Well, until 1973 you couldn’t. That is when we gained the first way of challenging a law, through joining the EEC and thus taking on the obligation to make our laws EEC-compliant. This was Sinclair Collis’s first string to its bow.  In 2000, the second string arrived – the coming into force of the Human Rights Act.  But there is still no third string – no purely domestic challenge to legislation once enacted – Parliament is still sovereign.

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Hey, teacher! Leave those cornrows alone

Updated | SG v St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin) (17 June 2010) – Read judgment

Most people have their first taste of injustice at school. This is hardly surprising: an institution containing hundreds of teenagers for whom rebellion is a biological imperative is always going to be difficult to control. In trying to do so, teachers sometimes impose petty rules.

Many children fantasize of an external authority intervening to expose the injustice of those rules, particularly in relation to modes of dress. But few take their school to court to challenge a policy on hairstyle. And even fewer win, as a young boy – known in this case as SG – has just done in the High Court. SG took his school, St Gregory’s Catholic Science College of Harrow in Greater London, to court to challenge its ban on boys wearing their hair in “cornrows“, or braids.

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