Category: Article 6 | Right to Fair Trial
12 May 2011 by Adam Wagner
The Director of Public Prosecutions has told the Society of Editors that more court hearings should be televised. The Ministry of Justice have responded by saying that they are considering changes but would want to consult the senior judiciary before making any “firm proposals”.
Starmer is right to say that “shining a light on the workings of the court room can only serve to boost its efficiency and effectiveness”. But before spending time and money opening up more courts to cameras, footage from the supreme court, which is already filmed at great expense, should be made more widely available.
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28 April 2011 by Isabel McArdle
A juror has found herself facing contempt of court charges, it being alleged that she communicated on Facebook with a defendant who had already been acquitted.
These types of proceedings can have human rights implications in two ways: Article 6, providing the right to a fair trial can be infringed upon by improper communicaton by jurors, and to a lesser extent, Article 10, which provides the right to freedom of expression may be engaged. As Article 10 includes a large number of circumstances where freedom of expression may be lawfully restricted, raising freedom of expression arguments to challenge the bringing of contempt proceedings would be very unlikely to succeed in these circumstances.
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26 April 2011 by Martin Downs
R (on the application of Rajiv Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin) Judgment of Mr Justice Blair given on 15 April 2011 – Read judgment
This claim for judicial review is the latest skirmish in The Wars of the HC [90] 9 Succession between doctors and NHS trusts about what procedural safeguards they are entitled to if investigated, suspended or dismissed for misconduct since the introduction of Maintaining High Professional Standards in the Modern NHS (MPHS) in 2005.
It is also a blow for those who believe that professionals facing serious allegations that may have adverse consequences for their ability to practise in their chosen field should be entitled to be judged by a panel independent of their employer.
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15 April 2011 by Rosalind English
In a very short judgment about asset freezing orders the Court of Appeal has made some tart observations about the inchoate nature of Strasbourg’s rulings. These will no doubt have a certain resonance given the current fervid discussion about the competence of that court.
It was all in the context of an apparently esoteric argument about the precise nature of judicial review proceedings and whether or not they are covered by the fair trial guarantees of Article 6. The respondents’ names been placed on a United Nations list of persons believed to be associated with terrorism. The purpose and effect of listing was to freeze the listed person’s assets, to place the release of any funds at the discretion of the executive, and thereby to make him a prisoner of the state.
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13 April 2011 by Adam Wagner
Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (07 April 2011) – Read judgment
What happens when the money for medical treatment runs out? The National Health Service has a limited budget. It also is obliged by law to provide necessary medical services to the public. Inevitably, some treatments will be considered unaffordable, and this sometimes leads to court challenges.
Two such challenges have arisen recently. One is interesting because it has been rejected (unless it is appealed) by the High Court, and the reasoning behind that rejection highlights how difficult it is to succeed in such claims, especially on human rights grounds. The other, because of the way it, and in particular its human rights aspects, has been reported. Not quite bad enough to merit placing on the legal naughty step, but not far off.
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7 April 2011 by Adam Wagner
BM v Secretary of State for the Home Department [2011] EWCA Civ 366 (05 April 2011) – Read judgment
Another control order has been ruled unlawful and quashed by the court of appeal, on the basis that the evidence relied upon to impose it was “too vague and speculative”.
Control orders are a controversial anti-terorrism instrument (see this post) which are soon to be replaced with Terrorism Prevention and Investigation Measures. These will impose less onerous restrictions upon a terrorist suspect. No doubt they will be approached by the courts at some stage. In the meantime, there are still 9 control orders in operation under the current regime. One has just been quashed by the court of appeal.
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5 April 2011 by Guest Contributor
The decision of the Supreme Court in Jones v Kaney (see earlier post by Rosalind English) removes the immunity previously enjoyed by those who have acted as experts from suit by their former clients. To understand the significance of the decision, a number of important points should be kept in mind.
- The immunity from suit for damages for a former client in respect of the retained expert’s activity in a civil action was already a limited one. In Palmer v Durnford Ford, [1992] QB 483, the High Court held that an expert witness was not immune from suit in respect of work done primarily for the purpose of advising the client.
- Expert witnesses have, since the decision of the Court of Appeal in Meadow v General Medical Council [2007] QB 462, been liable to disciplinary sanction in respect of their activity and evidence as experts in courts and tribunals. That flows from the public interest in the fitness to practice of the professional (particularly, but not only, a medical practitioner).
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4 April 2011 by Matthew Flinn
The proposition that burglars have rights incites debate, and sometimes anger, which is often directed towards the Human Rights Act 1998 and the European Convention of Human Rights. However, on closer examination, the idea of “burglars’ rights” is not a new phenomenon in English law, and nor has it been imposed upon us by Strasbourg. The rights that burglars enjoy have long been part of the fabric of English common law.
There is nothing new about the idea that criminals in general, and burglars in particular, have forfeited their human rights by virtue of their criminality.
As Michael Cholbi of the University of New York has described in his article discussing felon disenfranchisement in the United States, “A Felon’s Right to Vote”, the strong conviction held by some that criminals should not enjoy the benefit of human rights is founded upon a basic intuition that “criminal acts alter the moral status of wrongdoers, permitting us to do to them what is otherwise unjust”. Essentially, having demonstrated an unwillingness to regulate their own conduct, criminals cease to be an object of moral concern.
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4 April 2011 by Graeme Hall
In an interesting post, Aidan O’Neill QC concludes that the European Court of Human Rights is “in danger of imminent collapse” due to its backlog of 140,000 applications with around 1,600 arriving every month; a conclusion compounded by inherent delays. He suggests that the way to draw back Strasbourg from the brink of judicial Armageddon is to abolish the individual right to petition Strasbourg and to introduce a referral system whereby national courts request Strasbourg’s opinion on human rights issues, akin to the Court of Justice of the European Union (CJEU).
by Graeme Hall
I must disagree. Strasbourg’s jurisdiction spreads across 47 contracting States, ranging from diverse populations such as Liechtenstein and Malta to Russia and Turkey. In turn, the Court is the guardian of the European Convention on Human Rights for over 800,000,000 individuals. The 61,300 valid applications which Strasbourg received in 2010 represent applications from 0.0077 per cent of the population to which the Convention applies. Given the importance of the Convention to the protection of fundamental human rights and freedoms, I find it surprising that Strasbourg does not receive more applications.
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23 March 2011 by Adam Wagner
Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011) – Read judgment / press summary
The Supreme Court has ruled that it was unlawful and a “serious abuse of power” for the Home Office to follow an unpublished policy on the detention of foreign national prisoners which contradicted its published policy. Two convicted prisoners were therefore unlawfully detained.
This fascinating 6-3 majority decision could be important in respect of setting the boundaries for the courts’ scrutiny of executive powers. It is also, for the record, not a decision which is based on human rights. The appellants are both convicted criminals (and foreigners too), so the court may be criticised for upholding their human rights despite their criminal actions. But this is a case decided on traditional public law grounds, which preceded the human rights act by many years. As Lord Hope put it:
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16 March 2011 by Adam Wagner
The Attorney General has warned publishers that the law may be changed to prevent them revealing the names of criminal suspects before they are charged. He also blamed the “massive” and “frenzied”coverage of pre-charge suspects in part on pressure on newspapers from the blogosphere.
Dominic Grieve told Joshua Rozenberg on yesterday’s Law in Action (listen here):
We seem to be living a world where because of competing interests on newspapers, perhaps in part because of the internet, because of the fact they are competing with the blogosphere where people are publishing a great deal of material, national newspapers are keen to give as much background detail to their readers as possible at early stages of criminal investigations. (09:25)
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14 March 2011 by Alasdair Henderson
R (BB) v. Special Immigration Appeals Commission and Home Secretary – Read judgment.
The Divisional Court has ruled that bail proceedings before the Special Immigration Appeals Commission (“SIAC”) are subject to the same procedural standard under Article 5(4) of the European Convention (the right to liberty) whether they take place before or after the substantive judgment. That standard is that the applicant must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations, as set out in A v United Kingdom and R (Cart) v. SIAC.
This decision forms the latest in a string of cases considering the extent to which the Government can rely on secret or ‘closed’ evidence in defending appeals by individuals challenging decisions made against them. A judgment by the Supreme Court is imminently expected in the conjoined cases of Al-Rawi v. Security Service and Tariq v. Home Office (see helpful summary here and our analysis of the broader issue of open justice here), which consider this issue in relation to civil damages claims and employment law claims. However, BB is the High Court’s most recent pronouncement on the position in the fraught area of immigration and national security.
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9 March 2011 by Adam Wagner
Updated | CPS -v- Mohammad Razaul Haque and Emdadur Choudhury – Read judgment
A man has been found guilty of public order offences for burning poppies and chanting “British soldiers burn in hell” on Remembrance Day. He was fined £50.
The ruling, and in particular the fine, has led to public anger. The Sun called the fine “pathetic” and asked whether Britain is now “deep in a quicksand of political correctness and hand-wringing over human rights“. The Prime Minister has said that we should be “making a stronger statement that that sort of behaviour is completely out of order and has no place in a tolerant society”
The Sun is wrong that Emdadur Choudhury’s low fine had anything to do with human rights; Chief Magistrate Riddle made clear that “invoking the criminal law to interfere with freedom of expression is proportionate“. But two important questions do arise. First, whether the conviction represents a disproportionate breach of Emdadur Choudhury’s right to freedom of speech. Secondly, if the £50 fine was adequate.
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7 March 2011 by Adam Wagner
Update 9/5/11 – for more on super injunctions, see Gagging on privacy, the Human Rights Roundup and Unelected, underqualified and frankly bonkers.
Last week the High Court convicted two newspapers, the Daily Mail and the Sun, of contempt of court for the publication on their websites of a photograph of a man toting a gun during the ongoing criminal trial of that man. They are now likely to face large fines.
It was the first such case of contempt relating to an online publication. By way of background, Alex Bailin QC has posted an excellent comment piece on the Inforrm blog. I have also already discussed the judgment, and the ominous warning by the court that “instant news requires instant and effective protection for the integrity of a criminal trial“.
My post generated comments from concerned bloggers and tweeters asking what this meant for contempt and online publishing going forward. This is a hard question to answer as it mostly depends on which cases the Attorney General choses to prosecute. But, although the following is not legal advice, reviewing the case-law on contempt provides some indication of may be to come, and common-sense ways in which publishers, including tweeters and bloggers, can avoid being prosecuted.
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3 March 2011 by Adam Wagner
Attorney General v Associated Newspapers Ltd & Anor [2011] EWHC 418 (Admin) – Read judgment
For the first time a court in England has convicted two newspapers, the Daily Mail and the Sun, of contempt of court in breach of the Contempt of Court Act 1981, for the publication of a photograph relating to an ongoing criminal trial on their websites.
The judgment contains an important warning for bloggers, tweeters and journalists who use instant news to report on criminal trials: “instant news requires instant and effective protection for the integrity of a criminal trial“.
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