What – if anything – can a claimant do when she suspects that the domestic law is not only out of kilter with Strasbourg jurisprudence but is also denying her even an opportunity to bring a claim? Taking arms against a whole legal system may be an heroic ideal, but the mundane reality is a strike out under CPR rule 3.4 by a district judge in the County Court. It is a long way from there to the European Court of Human Rights.
This was the position in which Patricia Reynolds and her daughter Catherine King found themselves following the sad death of (respectively) their son and brother. David Reynolds suffered from schizophrenia. On 16 March 2005 he contacted his NHS Care Co-ordinator and told him that he was hearing voices telling him to kill himself. There were no beds available in the local psychiatric unit, so Mr Reynolds was placed in a Council run intensive support unit. His room was on the sixth floor and at about 10.30 that night Mr Reynolds broke his (non-reinforced) window and fell to his death. Continue reading →
65 responses to the Justice and Security Green Paper consultation, which proposes introducing “Closed Material Procedures” – secret trials – into civil courts, have been published on the official consultation website. According to the site there are potentially 25 more to come.
Whilst it is a good thing that the responses have been published at all, the low number of responses is a little depressing. In a country of over 60 million people, and given the proposals could amount to a significant erosion of open justice, 90 responses seems a little thin. Granted, many of the responses are from organisations or groups of individuals, such as the 57 Special Advocates who have called the proposals a “departure from the foundational principle of natural justice“. But the low number surely represents the fact that as yet the proposals have failed to capture the public imagination.
In my previous blog on the Supreme Court’s judgment in Rabone I discussed the central feature of the case, the extension of the operational duty on the state to protect specific individuals from threats to their life, including suicide. Here, I consider the other elements of the case that Melanie Rabone’s parents had to establish in order to succeed in their claim for damages under the Human Rights Act 1998 (“HRA”).
Existence of the operational duty in Melanie’s case
Having established that the operational duty could be applied in Melanie’s case, her parents then had to establish, on the facts, that it was – by showing that there was a “real and immediate” threat to her life from which she should have been protected. Ever since the notion of an operational duty was first enunciated in Osman v United Kingdom (2000) 29 EHRR 245, it has become something of a judicial mantra that the threshold for establishing a “real and immediate” threat was high (see for example Re Officer L UKHL 36, and Savage v South Essex Partnership NHS Foundation Trust  AC 681  and ,). There are good reasons for not imposing the operational duty lightly, given the enormous pressures and complexities involved in running police, prison and mental health services for the community as a whole. However, an overly-stringent test risked making the operational duty an obligation that was more hypothetical than real.
A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the consultation into whether “closed material” (secret evidence) procedures should be extended to civil trials.
Of the responses that I have read, there is very little support for the proposals as they stand and, as journalist Joshua Rozenberg has pointed out, the most damning criticism has come from the very lawyers who are currently involved in “closed” proceedings.
If you are interested in the issue, the Joint Committee on Human Rights is hearing evidence on it today from two special advocates, including my co-editor Angus McCullough QC (see his post on the topic), as well as the current and former independent reviewers of terrorism legislation. The session begins at 2:20pm and can be watched live here.
As I did with the Bill of Rights Commission consultation, I asked people to send me their consultation responses. What follows is a wholly unscientific summary of the ones I received:
Associated Newspapers Ltd, R (on the application of) v Rt Hon Lord Justice Leveson  EWHC 57 – Read judgment
On Friday 20 January 2012 the Administrative Court dismissed the second application for judicial review of the Leveson Inquiry. The Court dismissed an application by Associated Newspapers (supported by the Daily Telegraph) to quash the decision of the Chairman, Lord Justice Leveson. decision to admit evidence from journalists who wish to remain anonymous on the ground that they fear career blight if they identify themselves.
Lord Justice Toulson commented “that the issues being investigated by the Inquiry affect the population as a whole. I would be very reluctant to place any fetter on the Chairman pursuing his terms of reference as widely and deeply as he considers necessary”.
1 Crown Office Row’s Philippa Whipple QC was leading counsel to the Gibson Inquiry. She is not the writer of this post
The Justice Secretary has told Parliament that the Gibson Inquiry tasked with considering whether Britain was “implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11” has been scrapped.
Ken Clarke announced that the police investigations into rendition, which were always to come before the formal start of the inquiry’s hearings, would take so long that the current inquiry could not continue. He said the Government remained committed to a judge-led inquiry, but presumably the current inquiry team could not be kept twiddling their collective thumbs for years longer.
The Crown Prosecution Service announced last week that it would not be bringing charges in relation to some of the historic allegations – particularly in relation to Binyam Mohammed and a 2002 incident at Bagram Air Base in Afghanistan. It would, however, begin to investigate more recent allegations in relation to Libya and “a number of further specific allegations of ill-treatment“. Continue reading →
The proposals have been little reported, save for journalist Joshua Rozenberg, channeling Dinah Rose QC, warning that they will “undermine a fundamental constitutional right:”. Perhaps legal correspondents prefer to pick over testimony from the glamorous Leveson Inquiry as opposed to complicated government proposals involving clunky phrases – some would say fig leaves – like “Closed Material Procedure” and “Special Advocate”.
But these proposals are extremely important. If they become law, which is likely given the lack of opposition from any of the main parties, the justice system will look very different in the coming years. Many civil hearings could be held in secret, and although (as the Government argues anyway) more justice may be done, undoubtedly less will be seen to be done.
Ali Zaki Mousa v Secretary of State for Defence & Anr  EWCA Civ 133 - read judgment
Philip Havers QC of 1 Crown Office Row represented the respondent secretary of state in this case. He is not the author of this post.
The Court of Appeal has ruled that the Iraq Historic Allegations Team, set up to investigate allegations of ill-treatment of Iraqi detainees by members of the British armed forces, lacked the requisite independence to fulfil the investigatory obligation under Article 3 of the Convention.
The claimant was representative of a group of Iraqis numbering about 100 who brought judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces – see our post on the permission hearing.
The so-called ”Iraq Historic Allegations Team” (IHAT) was set up to investigate these allegations. The IHAT included members of the General Police Duties Branch, the Special Investigation Branch and the Military Provost Staff. A separate panel, the Iraq Historic Allegations Panel (IHAP), was appointed to ensure the proper and effective handling of information concerning cases subject to investigation by the IHAT and to consider the results of the IHAT’s investigations, with a view to identifying any wider issues which should be brought to the attention of the Ministry of Defence or of ministers personally.
A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.
In his interesting article last week (‘Will the Detainee Inquiry be human rights compliant?’, 8 August) Matthew Flinn queried our claim that the Protocol fails to meet the requirements of article 3 ECHR. Notwithstanding the government’s own statement that it doesn’t intend for the Inquiry to comply with article 3, Flinn set out various arguments to suggest that the Protocol might nonetheless comply with article 3 in any event.
Ten human rights campaign groups and the lawyers for a number of detainees alleging UK involvement in their mistreatment have confirmed that they will be boycotting the impending Detainee Inquiry.
We recently posted on the publication of the Terms of Reference and the Protocol for the Detainee Inquiry and set out some of the reaction to it. At the time, a number of lawyers representing those who claimed to have suffered mistreatment threatened to boycott the inquiry, claiming it would be a whitewash. As the BBC has reported, they have now been joined by a number of Human Rights organizations, and it seems that the clear intention is for the boycott to go ahead.
The Terms of Reference and the Protocol for the Government’s impending Detainee Inquiry have recently been published. The Protocol makes clear that the Inquiry is to be granted unfettered access to a broad range of information, but the limitations on the publication of that information have prompted criticism from human rights groups.
On 6th July 2010, Prime Minister David Cameron announced to the House of Commons that an independent inquiry would be held into whether or not the UK Government was implicated in or aware of the improper treatment of detainees held by other countries in the aftermath of the September 11th terrorist attacks. On the same day, he wrote to Sir Peter Gibson inviting him to lead the inquiry, and appointed as his fellow panel members Dame Janet Paraskeva and Peter Riddell. Philippa Whipple QC of 1 Crown Office Row has been appointed as counsel to the inquiry – she is not the writer of this post.
The Human Rights Act applies in the UK. That much is clear. Whether it applies outside of UK territory is a whole other question, and one for which we may have a new answer when the Grand Chamber of the European Court of Human Rights gives judgment in the case of Al-Skeini and others v. the United Kingdom & Al-Jedda v. the United Kingdom next week.
The court is to give its long-awaited ruling at 10am (Strasbourg time) on Thursday 7 July. In short, the 7 applicants in the case were killed, allegedly killed or detained (Al-Jedda) by British forces in Iraq between 2003 and 2007. Both of the claims reached the House of Lords in the UK (now the Supreme Court), and in all but one case, which involved a death in a military detention centre, the court found that the Human Rights Act did not apply in Basra at the time, and therefore the UK military had no obligation to observe the requirements under the European Convention on Human Rights, and in particular article 2 (the right to life) and article 5 (right to liberty).
McCaughey & Anor, Re Application for Judicial Review  UKSC 20 (18 May 2011)- Read judgment
The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?
The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length. The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.
Unsurprisingly, the coroner has found that the 52 people who died as a result of the bombings were unlawfully killed. She also found that they would have died “whatever time the emergency services reached and rescued them”. The coroner made 9 recommendations (using her power under Rule 43 of the Coroners Rules) for the future prevention of such events, which are reproduced in full below.
R (Ali Zaki Mousa) v. Secretary of State for Defence  EWHC 3304 (Admin) (21 December 2010) – read judgment
The High Court has dismissed a challenge to the government’s decision to ‘wait and see’ if another public inquiry into abuse of Iraqi detainees is necessary, pending the outcome of internal Ministry of Defence investigations. The court looked in detail at the obligation on states under Article 3 to conduct an independent and effective investigation into allegations of torture, before concluding that what is required by Article 3 essentially depends on the facts of any given case.
The judicial review application was brought on behalf of some 127 Iraqis who claimed that they were tortured and ill-treated by members of the British Armed Forces while being held in detention in Iraq. They demanded that the Secretary of State order an immediate public inquiry, and said that only a public inquiry would effectively investigate both their individual allegations and any wider systemic issues arising out of the individual claims (the background to the claim and a short summary of the permission stage can be found here).