Laura Profumo serves us the latest human rights happenings.
In the news:
Lurid show-trial of a vulnerable man, the timely vindication of justice being done, and being seen to be done, a CPS volte-face.
Whatever you think of the Janner trial, it’s now in full swing. The former Labour Peer made his first appearance in court on Friday, facing 22 historic child sex abuse charges. The 87 year old’s committal hearing lasted some 59 seconds, after weeks of legal grappling with his defence lawyers. Any doubt over Janner’s dementia was “dispersed instantly” by his arrival, writes The Telegraph’s Martin Evans: flanked by his daughter and carer, Janner appeared frail and “confused”, cooing “ooh, this is wonderful” as he entered the courtroom. The case will now pass to the Crown Court, with the next hearing due on September 1, where a judge will decide whether the octogenarian is fit to stand trial, or whether a trial of fact is a suitable alternative. If the latter course is taken, a jury will decide if Janner was responsible for his charged actions – no verdict of guilt will be found, and no punishment will be handed down. Continue reading
Photo credit: The Guardian
In the news
The Howard League for Penal Reform has called for a review of the “unfair and unrealistic” Criminal Courts Charge, which “ penalises the poor and encourages the innocent to plead guilty”. The mandatory charge of up to £1,200 is imposed on those who admit committing minor misdemeanours, regardless of their circumstances.
The charity has compiled a list of cases where heavy financial charges have been demanded of people convicted of low-level offences. These include the case of a 38-year-old homeless man who admitted persistently begging in Oxford, and breaching an Asbo prohibiting him from sitting within 10 metres of a cash machine. He was jailed for 30 days and ordered to pay a £150 criminal courts charge.
Kiani v Secretary of State for the Home Department  EWCA Civ 776 (21 July 2015) – read judgment
In my last post on UKHRB I commented on developments in UK, ECHR and EU jurisprudence relating to procedural fairness in the context of national security.
The developments in this recent case offer some further interesting thoughts on the topic. To explain the case, and put its ramifications in a broader context, this post will be divided into three parts. In the first I outline my original argument as set out in the earlier post. The second will explain the case itself. The third will offer five brief comments on the broader issues the cases touches upon.
In brief, the court in Kiani followed Tariq and held that AF-type disclosure (see below) was not a universal requirement of fairness; the interests of justice could require a lower standard of disclosure without violating the absolute right to a fair hearing. Continue reading
Serdar Mohammed and Others v Secretary of State for Defence  EWCA Civ 843 – read judgment
The Court of Appeal has held that UK armed forces breached both Afghan law and Article 5 of the ECHR by detaining a suspected Taliban commander for longer than the 96 hours permitted by ISAF policy.
The MOD was therefore potentially liable at both public and private law for the failures to make arrangements for extended detention and to put in place such procedural safeguards as were required by international human rights law. Moreover, the defence of ‘act of state’ was not available against either the public or private law claims. Continue reading
Kent & others v Arun District Council and others  EWHC 2295 – read judgment
Iain O’Donnell of 1COR acted for the Council in this case: he played no part in the writing of this post.
This case concerned the application of the law in relation to future conduct, in particular, the role of the judicial review procedure in determining what precisely is meant by the prohibition on the selling of live animals under the Pet Animals Act 1951.
This is a detailed statutory provision inspired by welfare and conservation concerns. It has a complicated legislative history, and essentially the judge hearing the application was being asked to decide whether certain future activities might be caught by it.
For the record, the statute was introduced to protect the welfare of animals sold as pets. It requires any person keeping a pet shop to be licensed by the local council, which will only license such a business if they are satisfied as to the suitability of the accommodation, nutrition and safety of the animals concerned. Section 2 bans the selling of animals in the street, including on barrows and markets.
Councils are responsible for enforcing the law in this area. Continue reading
R (Tigere) v. Secretary of State for Business  UKSC 57, 29 July 2015 read judgment here
Ms Tigere is 20. She arrived in the UK from Zambia when she was 6. She did very well at school. In 2013, she applied for a student loan to fund a university place.
The current English system does not allow her to apply for a loan, because of her immigration status. In particular, she did not
(1) have Indefinite Leave to Remain (ILR) here (and so did not comply with the “settlement rule”), and
(2) have three years of “lawful” ordinary residence here (so did not comply with “the residence rule”).
In a very close run thing, the Supreme Court decided that the application of the settlement rule was incompatible with her Convention rights, under Article 2 of the First Protocol and/or Article 14. By contrast, the residence rule was not incompatible with her rights.
The result was 3-2, and Lord Hughes (of the majority) disagreed with important elements of the reasoning of Lady Hale and Lord Kerr who found for Ms Tigere.
The case is a perfect example of the difficulties of deciding human rights cases in the context of social benefits, as we shall see.
O’Connell & anor v the Turf Club  IESC 57 – read judgment
This recent judgment of the Irish Supreme Court addressed the issue of whether the decisions of a sport’s organising body should be amenable to judicial review. This is an issue of some vintage and vexation in this jurisdiction’s legal debate, that provides a useful backdrop against which to ask what exactly it is that makes a decision-making duty or power ‘public’.