Category Archives: Art. 7 | Retrospective Punishment

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Courts should take note of Strasboug’s doctrine of deference

R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment

This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.

Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.

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Why Stephen Lawrence killers were sentenced as juveniles and under old law

Updated | Two of Stephen Lawrence’s killers Gary Dobson and David Norris have been sentenced to minimum life terms “at her Her Majesty’s Pleasure” of 15 years 2 months and and 14 years 3 months respectively.

There has been surprise, from the Daily Mail amongst others that Dobson and Norris, now in their mid-30s, were sentenced as juveniles. Curiously, they have also been sentenced under historic law dating back to around 1993, which means they cannot be sentenced under harsh new guidance for racially aggrevated crimes.

This may all sound a bit strange, but as readers of this blog will know, the sentencing of criminals convicted in “cold cases” which have heated up can be much more complicated than if the crime happened a short while before trial. This may upset Daily Mail readers, but the reason is partly the European Convention on Human Rights. As Alasdair Henderson posted last month, Article 7 prohibits retrospective punishment, that is punishment using law which was not applicable at the time of the crime:

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What to do with ‘cold cases’ when they eventually heat up

R v. H & others [2011] EWCA Crim 2753 – read judgment.

One of the most popular ideas in crime fiction is the ‘cold case’; the apparently unsolved crime which, through various twists and turns, is brought to justice many years after it was committed. Indeed, at least two recent long-running TV dramas (the American show ‘Cold Case‘ and the more imaginatively and morbidly named British show ‘Waking the Dead‘) have been entirely based on this concept.

But what happens when such cases do turn up in real life, get to trial and the perpetrator is found guilty? In particular, how does a judge approach sentencing for a crime which might be decades-old, in the light of Article 7 ECHR? The Court of Appeal recently provided some answers to those questions.

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Master of the Rolls calls for more restraint from Strasbourg judges

The Master of the Rolls Lord Neuberger has given the first lecture to the meeting of the newly-formed the European Circuit of the Bar. Along with the contributions of Lord Judge, Lord Hoffmann and Lady Justice Arden, this address forms part of an elegant but increasingly intense debate that reflects unease about Strasbourg.

At the end of his speech Lord Neuberger calls for a “dialogue” with the European Court of Human Rights that

will require from Strasbourg a more acute appreciation of the validity of the differential approaches by Convention states to the implementation of rights…Strasbourg might well benefit from developing the margin of appreciation to take greater account of practical differences which arise between Convention states and their implementation of high level principles. Continue reading →

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Illegal video supply convictions stand despite failure to comply with European law

Regina v Budimir and another; Interfact Ltd v Liverpool City Council [2010] EWCA Crim 148; [2010] EWHC 1604 (Admin); [2010] WLR (D) 166

CA and DC: Lord Judge CJ, David Clarke, Lloyd Jones JJ: 29 June 2010 – read judgment

A new High Court decision has struck a blow for legal certainty and enforced the sometimes forgotten right under human rights law against retrospective criminal sanctions, which applies even in cases where the UK had failed to enact European Community legislation. In this case, the lack of retroactivity meant that a company and two men could not have their convictions for supplying videos illegally quashed.

The High Court held that where defendants had been convicted of criminal offences under national legislation which was unenforceable owing to a failure by the UK to comply with a pre-enactment procedural requirement imposed by EU law, it was not incumbent upon the Court of Appeal to re-open their cases out of time unless their convictions had given rise to any substantial injustice.

The Video Recordings Act 1984 made it an offence to supply pornographic videos “from” rather than “in” a licensed sex shop (Section 12); it was also an offence under the Act (Section 10 (1)) to supply videos with no classification certificate. The applicants had been convicted under these sections in 2004 and 2008 respectively.

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Beginning of the end for the “Super Injunction”?

A high profile panel has been formed to review ‘super injunctions’, which have recently been used with varying success to halt media coverage of controversial legal disputes.

Super injunction applications have seen two competing European Convention rights fighting it out; Article 8 (right to privacy) versus Article 10 (freedom of expression).

We have previously posted on the super injunction which was imposed and then swiftly lifted in relation to press coverage of Chelsea footballer and England Captain John Terry’s extra-marital affair.

The committee is to be led by Lord Neuberger, the Master of the Rolls, and will be composed of legal and media experts. One notable absence, as Joshua Rozenberg blogs, is Mr Justice Eady, who has been responsible for many of the more controversial super injunctions.

According to the Judicial Communications Office, The Master of the Rolls has set up the committee following the recent report by the Culture, Media and Sport Committee’s report on press standards, privacy and libel and concerns expressed to the judiciary.

Read more:

  • Mr Justice Tugendhat decision in the John Terry case
  • The Judicial Communication Office announcement (including the names of the committee members)
  • Commentary from Liberty Central in The Guardian