Category Archives: Art. 6 | Right to Fair Trial

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Chakrabarti debates Clarke on secret courts bill

ClarkerabartiThe Constitutional and Administrative Bar Association (ALBA)  hosted an invigorating debate on Tuesday night, pitting Minister without Portfolio Ken Clarke against Shami Chakrabarti, Director of Liberty, over the question of Closed Material Procedures (CMPs) in civil claims, as proposed in the Justice and Security Bill.

The Bill is currently going through the parliamentary process, having reached the report stage in the House of Commons on 4 March 2013. Of particular note to those with an interest in human rights are the proposals to introduce CMPs into civil damages actions, where allegations such as complicity in torture by the UK intelligence agencies are made.

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Everything you need to know about the secret trials coming to a courtroom near you – Angela Patrick

Justice and SecurityWhile the press (and the rest of us) were preoccupied by the debate on equal marriage and the public dissection of the Huhne marriage, the Justice and Security Bill completed its next stage of passage through the Parliamentary process.    Largely unwatched, a slim majority of Conservative members supported by Ian Paisley Jr., reversed each change made to the Bill by the House of Lords restoring the Government’s original vision:  a brave new world where secret pleadings, hearings and judgments become the norm when a Minister claims national security may be harmed in civil litigation.   

The Bill will return to the Commons for its crucial final stages on Monday.   In anticipation of the debate, the Joint Committee on Human Rights (JCHR) has published a third damning critique of the Government’s proposals.  The cross-party Committee was unimpressed by the Government rewrite of the Lords amendments.  Most of Westminster was busy in Eastleigh and few political commentators flinched.

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Shhh…

The Justice and Security Bill, which will allow secret ‘closed material’ hearings to take place in civil trials, has been quietly (almost too quietly) making its way through Parliament. The Bill will allow judges to exclude lawyers, press, the public and even litigants in their own cases from civil hearings which involve national security.

Kafkaesque is a term used in almost every critical article about law ever written. But I have read The Trial (I really have!), and the effect of these proposals is not too far from that.

The key development is that many of the amendments forced through in the House of Lords under the leadership of Lord Pannick have been reversed by the Government. We have a full update coming later on the progress of the Bill, but I thought that in the mean time I would highlight a few up to date resources and developments:

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Prospective adoptive child will not be taken from blind woman, for now

Child-care-007RCW v A Local Authority [2013] EWHC 235 (Fam) (12 February 2013) - Read judgment

This case, described by Cobb J as an “unusual and troubling” case, concerns a 1 year old girl “SB” and a woman “RCW”. SB was born prematurely, at 27 weeks, weighing just 1 kg; almost immediately she was abandoned by her natural mother.

She spent many months in the Special Care Baby Unit. In October 2012 SB was matched with RCW, a single woman who worked as a project manager for the NHS. In January 2013 things took an “unexpected and wretched turn” in the form of RCW’s diagnosis with a brain tumour. Hurriedly, RCW made arrangements with a cohort of friends to care for SB while RCW underwent surgery to remove the tumour which was situated near the optic nerve. The operation, whilst successful in removing the tumour, left RCW without sight; it is not known whether the lack of sight is temporary or will be permanent.

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Extradition injustice remains despite European ruling in Radu – Alex Tinsley

ECJCase C-396/11 Radu [2013] ECR I-0000 - Read judgment

The European Court of Justice’s Grand Chamber has ruled that the Charter of Fundamental Rights does not allow refusal to execute a European Arrest Warrant (EAW) on the basis that the person was not heard by the issuing authority.

With reform of the EAW at the centre of the debate concerning the UK’s big 2014 opt-out decision, all eyes were on the Court of Justice of the EU (CJEU) when it gave judgment in this case widely seen as an opportunity for it to address some key issues in the operation of the EAW system. There is some disappointment at the outcome.

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Does the state owe a duty to inform the wronged? And Ullah revisited


timthumb.phpThe Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice, G4S and Serco plc, 6 February 2013 - read judgment 

The Court of Appeal dismissed this claim by a children’s NGO for an order that the Secretary of State provide information to certain children to the effect that the SoS and his contractors had unlawfully used bodily restraint upon them whilst they were “trainees” in Secure Training Centres. The facts and Foskett J’s judgment under appeal was fully analysed by Rosalind English in her post, so I shall concentrate on the two points of wider interest: 

1. is there a duty on the state to tell someone of their legal rights against the state?

2.  should domestic human rights case law ever go wider than its Strasbourg equivalent?

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No cash from the UK to avoid Indonesian firing squad

Lindsay SandifordSandiford, R(on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] 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 →

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Another Iranian bank released by the EU – Wikileaks here as well

Bank_SaderatBank Saderat Iran v Council of the European Union, EU General Court, 5 February 2013 read judgement

Last week I posted on the Bank Mellat case where an Iranian Bank succeeded in persuading the General Court to unfreeze its assets from orders made by EU institutions. The Bank Saderat case is virtually identical, and annulment was duly granted by the General Court. But it is troubling that the EU Council should go so wrong in wielding its draconian powers more than once. It does rather support the suspicions of the Bank (common to this and the Bank Mellat case) that pressure was brought to bear on the Council ultimately emanating from the US – hence the Wikileaks cables again – such that the EU did not robustly analyse the assertions made to them before making the orders. Basic errors were made again, and, as will emerge, the EU had no evidence for much of what it said.

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Government’s ‘war’ on Judicial Review panned

Waronwaron copyRemember Pearl Harbour? Not the 1941 attack which propelled the USA into World War II, but the awful 2001 film starring Ben Affleck. What really sticks in the mind wasn’t the film itself, but the critical reaction. It is hard to remember a more gleeful spectacle, captured here, than reviewers falling over themselves to see who could produce the most withering response.

No doubt inspired by the Prime Minister’s own World War II analogy (on reflection, something of a hostage to fortune), legal commentators and organisations have also been falling over themselves, if not gleefully, to express their collective displeasure and disbelief at the poor quality of the Government’s proposals to reform Judicial Review.

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EU Court annuls EU freezing orders on Iranian bank – and Wikileaks again

bank_mellat-2Bank Mellat v Council of the European Union (supported by EU Commission), EU General Court, 29 January 2013 read judgment

In October 2009, Bank Mellat, an Iranian bank, was effectively excluded from the UK financial market by an Order made by the Treasury, on the basis that it had or might provide banking services to those involved in Iran’s nuclear effort. The Bank challenged the Order, and the challenge failed in the Court of Appeal, albeit with a dissent from Elias LJ: see Rosalind English’s post and read judgment.  The Bank’s appeal to the Supreme Court is due to be heard in March 2013; it raises some fascinating issues about common law unfairness, Article 6, and the right to property under A1P1 , given that the Bank was not told of the intention to make the Order prior to its making. 

The current case concerns an EU set of measures initiated in 2010, which led to the freezing the Bank’s assets on essentially the same grounds, namely involvement with the Iranian nuclear effort. And the EU General Court (i.e. the first instance court)  has just annulled the measures – for lack of reasons, lack of respect for the rights of the defence, and for manifest error. So keep an eye on these two parallel cases, in the Supreme Court and in the EU Court of Justice on appeal from this decision.

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Justice and Security Bill: no balance, no public interest – Lawrence McNamara

Justice and SecurityThe government’s Justice and Security Bill has this week entered a new phase of debate in the House of Commons as it is considered in detail by a 19-member Public Bill Committee over the next month.  The critics of this Bill – and there are many – argue that it will make “secret justice” a standard part of our legal process.  The latest set of amendments proposed by the government were revealed yesterday and within them lies a crucial and unjustifiable secrecy provision.  The significance of the amendments becomes apparent when one looks at how the Bill has progressed so far.  

In its original form the Bill said that a court “must” use closed material proceedings if there would be a disclosure of information that would harm national security interests.  It would not matter how small the damage, it would not matter whether there were other public interests in disclosure of the material, and the court had no discretion.

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UK Supreme Court judgment summaries on YouTube… now we need the full hearings

Screen Shot 2013-01-21 at 09.43.46The UK Supreme Court has today launched a YouTube channel showing short summaries of judgments. The summaries are read out by justices when a judgment is released. There are already ten online and more will be uploaded each time a judgment is released.

Since its launch in 2009, the UK’s new Supreme Court has been doing rather well at online access to justice. Its website is clear and elegant, it publishes excellent press summaries at the same time as judgments, it was the first supreme court to join Twitter (@uksupremecourt now has over 27,000 followers) and its hearings can be watched live online thanks to a partnership with Sky News.

Judgment summaries are a good start. Without wanting to sound ungrateful, what would really be useful is to be able to access recordings of full hearings on YouTube, as is provided on the superb Brazilian Supremo Tribunal Federal YouTube channel. Continue reading →

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Human rights claims against undercover police to be heard in secret – Simon McKay

Mark Kennedy

Mark Kennedy

AKJ & Ors v Commissioner of Police for the Metroplis & Ors [2013] EWHC 32 (QB) – Read judgment

The High Court has ruled that the Investigatory Powers Tribunal was the exclusive jurisdiction for Human Rights Act claims against the police as a result of the activities of undercover police officers, authorised as Covert Human Intelligence Sources, where such conduct was not a breach of a fundamental right. The Tribunal did not have jurisdiction to determine proceedings brought by Claimants at common law.  

The decision of AKJ and related litigation is the latest instalment of the fallout from the activities of undercover police officer or Covert Human Intelligence Source (CHIS) Mark Kennedy and another police officer.  Kennedy infiltrated environmental protest groups including those that resulted in convictions following events at Ratcliffe on Soar power station. The convictions were later quashed following revelations about Kennedy’s activities which included allegations he had engaged in sexual relationships with a number of female protestors and other prosecutorial impropriety: R v Barkshire [2011] EWCA Crim 1885 (UKHRB post). A number of those affected by Kennedy’s actions subsequently brought claims in tort (for example alleging deception) and under the Human Rights Act 1998.

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Judicial Review reform and the mystery of the missing evidence

war on JRThe Government’s consultation on Judicial Review ends on Thursday 24 January – please forward your response to the consultation by email  and I will include it in a roundup.

It is fashionable at the moment to speak about ‘evidence-based’ policy. The concept has been imported from the sciences by advocates such as Dr Ben Goldacre. In short, policies should be based on empirical evidence, statistics and perhaps even randomised trials. Very sensible. So sensible, you would hope that Government has been doing it anyway.

Which brings me to the planned reform of Judicial Review, the process by which legislative and executive decisions are reviewed by judges to make sure they are lawful. The Government’s ideas are fairly significant, although not quite as major as defeating Hitler, as the Prime Minister intimated they were when he announced them. I have already looked at the proposals in some detail – see also this excellent post. I wanted to concentrate here on the broader picture; the ‘mood music’, as it has been described by Mark Elliott.

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Identity of social workers may be published following fostering bungle

question-mark-face Bristol City Council v C and others [2012] EWHC 3748 (Fam) – read judgment

This was an application for a reporting restriction order arising out of care proceedings conducted before the Bristol Family Proceedings Court. The proceedings themselves were relatively straightforward but, in the course of the hearing, information came to light which gave rise to concerns of an “unusual nature”, which alerted the interest of the press.

Background

After family court proceedings decided that child A was at risk of violence from her father, an interim care order was implemented and A was moved to foster carers. However some time afterwards the local authority received information from the police suggesting that someone living at the address of A’s foster carers had had access to child pornography. A also told social workers that another member of the foster household (also respondent to this action) had grabbed her around the throat. As a consequence police and social services visited the foster carers, informed them of the concerns about pornography, removed all computers from the house and moved A to another foster home. On the following day the male foster carer was found dead, having apparently committed suicide. Continue reading →