M, R(on the application of) v The Parole Board and another  EWHC 1360 (Admin) - read judgment
Reporting restrictions on proceedings concerning a life prisoner should be discharged since the public interest in allowing media organisations to publish reports outweighed the prisoner’s human rights.
The claimant had been convicted of the brutal murder of three infant children in 1973. Subsequent to his incarceration in open prison, his movements had come to the attention of the press. Inmates made threats and the claimant was moved to secure conditions. When he sought judicial review of a decision by the parole board in 2011 (declining his return to open conditions), the judge granted an order restricting reporting of the claimant’s identity, the details of his offences and his current location. In this hearing, various media organisations intervened to request the discharge this order. Continue reading
R (on the application of Sandiford) v Secretary of State for Foreign & Commonwealth Affairs  168 (Admin) – read judgment
On 22 April 2013 the Court of Appeal upheld the decision of the Foreign and Commonwealth Office in refusing to pay for a lawyer to assist Lindsay Sandiford as she faces the death penalty for drug offences in Indonesia. Last Wednesday, they handed down the reasons for their decision.
On 19 May 2012 Lindsay Sandiford was arrested at Ngurah Rai International Airport in Bali following the discovery of almost five kilograms of cocaine in the lining of her suitcase. A number of southeast Asian countries take a notoriously hard line on drugs offences, and following her conviction on 19 December 2012, Ms Sandiford was sentenced to death. Many media outlets have reported that in Indonesia, death sentences are generally carried out by a firing squad.
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.
One of the most contentious proposals in the Consultation Paper on the transforming legal aid is the removal of client choice in criminal cases. Under the proposals contracts for the provision of legal aid will be awarded to a limited number of firms in an area. The areas are similar to the existing CPS areas. The Green Paper anticipates that there will be four or five such providers in each area. Thus the county of Kent, for example, will have four or five providers in an area currently served by fifty or so legal aid firms. Each area will have a limited number providers that will offer it is argued economies of scale.
In order to ensure that this arrangement is viable the providers will be effectively guaranteed work by stripping the citizen of the right to choose a legal aid lawyer in criminal cases. Under the new scheme every time a person needs advice they will be allocated mechanically by the Legal Aid Agency to one of the new providers. It may not be the same firm the person has used before. The citizen will therefore not be able to build up a relationship with a solicitor. From a human rights perspective this, of course, begs the question would the removal of choice be compatible with the ECHR?
Korobov and others v. Estonia, 28 March 2013, ECtHR read judgment
At one level, this is a story of Estonian police over-reaction to major disturbances on the streets of Tallinn, which will be found reproduced in various incidents throughout ECHR countries at various times of civil strife. But a good deal of history and politics lies behind it, and Russia’s intervention in Strasbourg, in support of the applicants’ claims under Article 3 (excessive force) and 5(1) (unlawful detention) against Estonia is of some interest.
The Bronze Soldier, originally named “Monument to the Liberators of Tallinn” was unveiled there on 22 September 1947, on the third anniversary of that “liberation” in 1944. Not all – including ethnic Estonians – saw it as a liberation. The Germans had retreated before the Red Army arrived, and on 18 September 1944 the Provisional Estonian government had declared independence – short-lived as Estonia was rapidly incorporated into the Eastern bloc courtesy of the Red Army. So “takeover” might be a term closer to Estonians’ hearts.
J1 v Secretary of State for the Home Department, 27 March 2013 – read judgment
A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post
Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.
The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).
Othman (aka Abu Qatada) v Secretary of State for the Home Department  EWCA Civ 277 – read judgment
The Home Office last night assured its 70,000 Twitter followers that “it is not the end of the road”. Yet by the time she had reached page 17 of the Court of Appeal’s dismissal of her latest attempt to deport Abu Qatada, it might well have seemed that way to Theresa May.
In November, the Special Immigration Appeals Commission (SIAC) ruled that Qatada could not be deported to face a retrial for alleged terrorism offences due to the real risk of “a flagrant denial of justice”. Read my post on that decision here. Yesterday, Lord Dyson – the Masters of the Rolls and second most senior judge in England and Wales – together with Lord Justices Richards and Elias, rejected the Home Secretary’s appeal.
Thanks to Caoilfhionn Gallagher of Doughty Street Chambers for alerting me to this.
The new striker in Real Madrid
Comparing different countries’ legal systems is a dangerous game, but three cases came to light this week which beg to be compared. The criminalisation of criticising political leaders has always been a hallmark of illiberal societies, and it seems that the tradition is still going strong today: in France, the West Bank and the UK too.
First, the European Court of Human Rights ruled that a man should not have been convicted of a criminal offence for waving a placard at (as he was then) President Sarkozy reading “Casse toi pov’con” (“Get lost, you sad prick”). He was prosecuted for insulting the president, an offence under an 1881 Act, even though the phrase was one of Sarkozy’s own, uttered a few months previously. The Court rightly found a violation of the applicant’s rights to free expression protected under Article 10 ECHR, stating that satire, including satirical impertinence:
David Anderson QC, the Independent Reviewer of terrorism legislation, has released his first report into the operation of Terrorism Prevention and Investigation Measures, introduced in 2011 with the aim of protecting the public from persons believed to have engaged in terrorism, but who can neither be prosecuted nor deported.
TPIM subjects in 2012 were subject to restrictions including overnight residence at a specified address, GPS tagging, reporting requirements and restrictions on travel, movement, association, communication, finances, work and study. Like their predecessor, control orders, TPIMs have been highly controversial and, as Anderson points out, “vigorously attacked – from opposite directions – by civil libertarians and by the more security-minded.” However, his conclusion is that they are broadly acceptable: Continue reading
Dominic Raab MP has tabled an amendment to the Crime and Courts Bill which if passed would stop foreign criminals from using Article 8 of the European Convention on Human Rights (the right respect for private and family life) to prevent their deportation. The amendment has significant support.
As regular readers of this blog will know, the deportation of foreign criminals has become something of an obsession for opponents of the Human Rights Act, most notably the Home Secretary Theresa May who has attempted, thus far unsuccessfully, to downgrade the effect of Article 8 through the Immigration Rules. The campaign to prevent foreign criminals avoiding deportation has had strong support from the right-wing press, particularly the Daily Mail as well as the Telegraph.
The Home Secretary, Theresa May, is no stranger to ill-founded outbursts concerning the evils of human rights. Against that background, her recent article in the Mail on Sunday (to which Adam Wager has already drawn attention) does not disappoint. May’s ire is drawn by certain recent judicial decisions in which the deportation of foreign criminals has been ruled unlawful on the ground that it would breach their right to respect for private and family life under Article 8 of the European Convention on Human Rights. Some of these judgments, May contends, flout instructions issued to judges by Parliament about how such cases should be decided.
Those instructions consist of new provisions inserted last year into the Immigration Rules, the intended effect of which was to make it much harder for foreign criminals to resist deportation on Article 8 grounds. The Rules – made by the executive and endorsed by Parliament, but not contained in primary legislation – provide that, where certain criteria are met, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The assumption appeared to be that this would prevent judges – absent exceptional circumstances – from performing their normal function of determining whether deportation would be a disproportionate interference with the Article 8 right.
BETTERIDGE v. THE UNITED KINGDOM – 1497/10 – HEJUD  ECHR 97 – Read judgment
On 29 January the Chamber of the European Court of Human Rights held that convicted rapist Samuel Betteridge’s Article 5(4) rights had been breached due to delays in his cases being considered by the Parole Board, and awarded him damages for his ‘frustration’. The media furore, at varying degrees of accuracy, here and here.
The issue, by the time the matter reached the ECtHR, was whether the High Court (and the Government’s) “acknowledgment” of that Mr Betteridge’s Article 5(4) rights had been violated was sufficient redress. In short, the ECtHR held that it wasn’t, particularly in circumstances where the systemic delays on the Parole Board Review System were caused by the Government’s failure to recognize and plan for the full effects of the IPP sentence (brought into force in the Criminal Justice Act 2003). The ECtHR accepted that putting Mr Betteridge to the front of the Parole Board queue wasn’t the answer: that would simply jump him ahead of those who hadn’t sought judicial review. However, damages could meet the ‘frustration’ he had been caused.
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
T, R on the application of) v Chief Constable of Greater Manchester, Secretary of State for the Home Department and Secretary of State for Justice; AW, R (on the application of) v Secretary of State for Justice and JB, R (on the application of) v Secretary of State for Justice  EWCA Civ 25 - read judgment
The Court of Appeal has ruled that the statutory requirement that criminal convictions and cautions must be disclosed in an enhanced criminal record check (“ECRC”) in the context of particular types of employment interfered with the appellants’ right to respect for private life under Article 8.
Neither of the disclosure provisions, under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, were proportionate since they went beyond the legitimate aims of protecting employers and vulnerable individuals.
See Panopticon’s post on the ruling and their previous post (republished on our blog) on the dismissal of T’s application for judicial review in the Administrative Court. We add a few words of our own. Continue reading
Section 5 of the Public Order Act 1986, which outlaws the use of “threatening, abusive or insulting words or behaviour” will be amended to remove the word ‘insulting’. The amendment is the result of a successful, high-profile campaign which asked “Do we really need the police and the courts to deal with insults?“
That campaign, supported by major organisations and many MPs, prompted a successful House of Lords vote to amend the wording in December. That vote was supported by the Crown Prosecution Service, with Director Keir Starmer writing that his organisation was “unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as ‘abusive’ as well as ‘insulting“. The Home Secretary has now, rather grudgingly, said she will not oppose amendment.
So, we will be able to insult in public. But thanks to section 127 the Communications Act 2003, it is still up to the police and the courts to decide whether we have sent grossly offensive messages on Facebook, Twitter and in practically any other communications medium. Continue reading