Mousa & Ors, R (on the application of) v Secretary of State for Defence  EWHC 1412 (Admin) (24 May 2013) – Read judgment
Remember the Iraq War? Following the 2003 invasion Britain remained in control of Basra, a city in South Eastern Iraq, until withdrawal over six years later on 30 April 2009. 179 British troops died during that period. But despite there over four years having passed since withdrawal, the fallout from the war and occupation is still being resolved by the UK Government and courts.
Thousands of Iraqis died in the hostilities or were detained by the British. Thanks to two decisions of the European Court of Human Rights in July 2011 (Al-Skeini and Al-Jedda – our coverage here), the state’s duty under the Human Rights Act to investigate deaths and extreme mistreatment applied in Iraq at that time. It is fascinating to see how the UK authorities have been unravelling the extent of that duty. The Baha Mousa Public Inquiry has reported and the Al-Sweady Public Inquiry is ongoing (I acted in the former and still do in the latter). In this major judgment, which may yet be appealed, the High Court has ruled the manner in which the UK Government is investigating deaths and perhaps mistreatment is insufficient to satisfy its investigative duty.
Sandiford, R(on the application of) v Secretary of State for Foreign & Commonwealth Affairs  168 (Admin) – read judgment
In this highly publicised case, the Administrative Court has come up with some firm criteria for the scope of the Convention’s protective reach for UK citizens abroad. The judgment is also something of a body blow for those who are looking to the EU Charter of Fundamental Rights and Freedoms for a wider human rights umbrella.
Lindsay Sandiford, the 56 year old claimant, was arrested for drug smuggling in Indonesia and sentenced to death. She issued judicial review proceedings seeking an order requiring the FCO to provide and fund an “adequate lawyer” on the basis that she had not had proper representation in Indonesia. The broad basis of this claim was that the UK government should back up its opposition to the death penalty by putting its money where its mouth is. Continue reading
This guest post is by Sanchita Hosali, Deputy Director at the British Institute of Human Rights. A number of 1 Crown Office Row barristers represented parties to the Inquiry, none of whom has contributed to this post.
Hundreds of people have died; others have been starved, dehydrated and left in appalling conditions of indignity, witnessed by their loved ones. Surely this is what Chris Grayling, Justice Secretary, had in mind when he recently cautioned to need to “concentrate on real human rights”?
Yet the rights, legal accountability, and practical benefits of the Human Rights Act are rarely mentioned in discussions about the shocking failures of care such as those featured in today’s Public Inquiry Report in events at Staffordshire Hospital between 2005-2008.
As Mr Francis makes clear, what happened at Staffordshire Hospital was a breach of basic rights to dignity and respect, and what is needed now are stronger lines of accountability and culture change which places patients at the heart of healthcare. Human rights speak to the fundamental standards that the Report says are needed to achieve this transformation in care.
The Mid Staffordshire NHS Foundation Trust Public Inquiry report has been published. Robert Francis QC was tasked to investigate the role of the commissioning, supervisory and regulatory bodies in the monitoring of Mid Staffordshire Foundation NHS Trust.
Read the report:
The report built on the work of Francis’s earlier independent inquiry into the care provided the hospital between January 2005 and March 2009. A number of 1 Crown Office Row barristers, including me, represented various participants at the Inquiry. They were:
- Sally Smith QC and Christopher Mellor for the Strategic Health Authority;
- David Hart QC for the CQC
- Owain Thomas for the NHSLA;
- Jeremy Hyam and Kate Beattie for a number of the families;
- Shaheen Rahman and Peter Skelton for AVMA and the Patients Association;
- Adam Wagner for the Department of Health.
Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors  EWHC 2768 (Admin) – read judgment
The High Court – including the new Chief Coroner – has held that the enhanced investigative duty under Article 2, the right to life, is not engaged in an inquest into the death of a 14 year old boy, despite “many missed opportunities” for intervention by social services being identified.
Another sad case on when and how the enhanced investigative duty under Article 2 ECHR is engaged. EB, a troubled 14 year old, died of a methadone overdose in November 2009. He was known to the claimant’s social services department, who were the subject of criticism in a serious case review following his death. The review found that there had been “many missed opportunities” to intervene, but felt that: “It cannot be concluded that a different approach … would have prevented [EB]’s death, but there is a possibility that there may have been a different outcome.” The council have since apologised unreservedly to the family.
Last month 1 Crown Office Row hosted a fascinating panel debate on the Court of Protection and the incredibly difficult issues surrounding assisted dying. The panel included Philip Havers QC, the philosopher A.C. Grayling and Leigh Day & Co.’s human rights partner Richard Stein. You can now view the video here or below. Also see here for Rosalind English’s report of the event.
The Coroners and Justice Act 2009 has created the office of Chief Coroner, plucked at the very last minute from the Coalition’s ‘bonfire of the quangos’. On Friday, the first Chief Coroner, His Honour Judge Peter Thornton QC, delivered The Howard League for Penal Reform’s 2012 Parmoor Lecture.
Six weeks into his post, Judge Thornton presents a frank exposition of the challenges facing the system he now heads, sets out what he considers to be its purpose, and charts its remarkable genesis.
Coroners have, it seems, occupied for the best part of a millennium a peculiar pocket of public life, adapting their function and purpose over time in a manner not always understood by those working outside the system, or even by they themselves. From the Articles of Eyre to the 2009 Act, via Robin Hood and Richard the Lionheart (the latter does not come out well), the Chief Coroner describes how ‘crowners’, as they were originally known, have evolved from lay magistrates or collectors of fines, to the judges they are today. Continue reading
Last month I posted on the troubling case of Rachel Corrie, a 23-year-old protester killed by an Israeli military bulldozer in 2003. In August, an Israeli court ruled that the Israeli Defence Ministry bore no responsibility in civil law for her death.
I complained that the reporting of the ruling had been poor, despite a reasonably good summary in English produced by the court. One of the main problems undoubtedly was the lack of an English translation of the 73-page Hebrew ruling. Until now, that is. Through the magic of the internet – and a huge amount of work – Irène Solomon, a legal advisor at Ofgem and reader of this blog, has translated the judgment from Hebrew into English. She has taken on this mammoth task for free in her personal capacity and has given me permission to publish her work online as a UKHRB exclusive.
You can download the translation here (PDF) and it is also reproduced after the break below. I should emphasise that this is not an official translation, but it does appear to me to be a very good effort indeed.
Communist prisoners held during the Malaya emergency Photograph: Jack Birns/Time & Life Pictures
Chong Nyok Keyu and ors v Secretary of State for Foreign and Commonwealth Affairs and another  EWHC 2445 (Admin), read judgment
Although the High Court has rejected an attempt to force the Government to hold a public inquiry into an alleged massacre of unarmed civilians by British troops in 1948, the case represents a further example of the use of the Courts to redress historical grievances.
There are two German words for dealing with the traumatic recent past, neither of which has a direct equivalent in English. This linguistic quirk reflects history and national self-identity. The defeats of the Kaiser, the Nazis and the GDR Communists led to national introspection in Germany, whereas the United Kingdom, on the winning side in each of the those three struggles, evaded such soul-searching. The post-war decline was relatively gentle and easy to fit in to the national myth of historical continuity. An Empire absent-mindedly acquired was considered to be the subject of an orderly and benevolent liquidation, with lasting benefits of railways and the rule of law left to the inheritors.
Almost ten years after the death of Rachel Corrie on 16 March 2003, her case still raises troubling questions. How was a 23-year-old protester killed by an Israeli military bulldozer? Did the driver do it deliberately, as the family have claimed? Were the Israel Defence Forces (IDF) responsible in some other way?
Those questions were all in play in a civil negligence claim brought against the Israeli state by Corrie’s family, who claimed $1 in damages. Having exhausted other avenues, the family were looking for answers, not a pay out. The Haifa District Court examined the issues over 15 days of oral testimony, and two weeks ago Judge Oded Gershon released a 73-page ruling (Hebrew) as well as a detailed summary of the Judgment (English).
I was particularly interested in the judgment as a significant proportion of my work recently has involved public inquiries into allegations against the British Armed Forces over events which happened in Iraq in 2003/4. Unfortunately, the reporting of the ruling has been fairly poor. The Guardian published eight articles and a cartoon about the ruling (by comparison, the appointment of a new Justice Secretary generated four). But despite the sheer volume of commentary, I had no sense from reading the articles that the writers had attended the oral hearings, read the judgment (which is long and in Hebrew) or even consider the court’s English summary. The Guardian’s legal section is very good so it is disappointing that the legal interest of the story was largely ignored.
With this in mind, I thought I would post a summary of the judgment and brief discussion of how an equivalent claim would work in the UK.
Updated – Tony Nicklinson, one of the two claimants in this case, died on 22 August 2012.
This is Richard Dawkin’s battle cry in response to the recent High Court rejection of the challenge by locked-in sufferers to the murder and manslaughter laws in this country that have condemned them to an unknowable future of suffering.
As explained in my previous posts, Nicklinson, who suffered a catastrophic stroke in 2005, argued for an extension to the common law defence of ‘necessity’ for murder because the alternative – forcing him to stay alive – is worse. His lawyers also submitted that the government is in breach of his Article 8 right to ‘privacy, dignity and autonomy’, a right he cannot exercise independently because of severe disability.
The court rejected the “bold” submission, stating that there was no precedent anywhere in the world and such socially controversial changes were only for Parliament.
But the courts can’t keep ducking away from the problem, because Parliament is never going to address this issue. Why? Because, as Dawkins points out, once again, religion turns out to be the major culprit. Every attempt in the House of Lords “to do something about the right to seek professional (or even amateur) assistance in dying when you are too incapacitated to kill yourself” has crashed and burned, despite huge public support for reform in this area. Continue reading
Amidst the root and branch opposition to socio-economic rights from some quarters, the idea that the Bill of Rights might contain an environmental right seems to have got lost in the smoke of this rather unedifying battle. The July 2012 Consultation on a Bill of Rights summarises the rival contentions well – see below.
I am ducking well away from the underlying question – should there be a Bill of Rights at all? – but support the proposition that, if there is to be such a Bill, it should contain some provision about the environment. Answers on a postcard to the Commission by 30 September, please, whether you agree or disagree with me, but in the interim, here is my penn’orth.
The Queen(on the application of Tony Nicklinson) v Ministry of Justice  EWHC 2381 (Admin) – read judgment
Lord Justice Toulson, sitting with Mrs Justice Royce and Mrs Justice Macur, has handed down judgment in the case of Tony Nicklinson and that of another “locked-in” syndrome sufferer, “Martin”. On all the issues, they have deferred to parliament to take the necessary steps to address the problems created by the current law of murder and assisted suicide.
Philip Havers QC of 1 Crown Office represented Martin in this case.
Tony Nicklinson sought a declaration of immunity from prosecution for a doctor who would give him a fatal dose of painkillers to end his life in Britain. He also sought a declaration that the current law is incompatible with his right to respect for private life under article 8, contrary to s1 and 6 of the Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.
Martin’s claim was slightly different as his wife does not want to do anything which will hasten his death. He therefore asked for permission for volunteers to be able to help him get to the Dignitas clinic in Switzerland (under recent guidelines from the Director of Public Prosecutions only family members or close friends who are motivated by compassion are unlikely to be prosecuted for assisting a suicide). In the alternative he sought a declaration that section 2 of the Suicide Act is incompatible with the right to autonomy and private life under Article 8 of the European Convention. Continue reading
The Independent Reviewer of Terrorism Legislation has released his report into the operation of terrorism law in 2011. The press release is here.
The report puts the case for continuing the process already begun by the Coalition Government of rolling back some of the laws instituted in the decade following 9/11 to address the threat of terrorism. The justification for this is that the threat has reduced in size. Notably, he argues that it may be possible to grant certain terrorist suspects (“the peripheral players”) bail when arrested. David Anderson QC said of his report:
The threat from both al-Qaida related and Northern Ireland related terrorism is a real one. To meet it, we have some of the most extensive and effective counter-terrorism laws in the world. All the more need to keep them under review so that they impinge no further than is necessary on individual liberty.