I posted recently on the continuing legal see-saw in France arising from the prosecution of Total and other parties for their responsibility for the loss of the Erika on 12 December 1999. The Erika sank off the Brittany coast, spilling some 20,000 tonnes of heavy fuel oil, polluting  some 400 km of the French coastline, and killing this poor guillemot, amongst many

Last week, on 24 May, this criminal case reached the highest French court, the Cour de Cassation. Some thought that the court was going to rule immediately on whether Total and the others were criminally liable for the oil pollution. Previously, the Criminal Court of First Instance, and the Court of Appeal in Paris  had said that Total and others were responsible. But now the prosecutor, Advocate-General Boccon-Gibod, was of the view that Total had no criminal liability. His written opinion appears not to have surfaced on the ‘net, but from the decision of the Court of Appeal (for the brave, and not for those with slow broadband, all 487 pages), you can see the points that Total was making, and which he seems to have accepted.

Total said that the 1983 French law under which it and the others were prosecuted  purported to transpose an international oil pollution convention, MARPOL, but in fact imposed a more rigorous standard upon those responsible. Interestingly, for us Anglo-Saxons, the French Constitution insists on the primacy of treaty law, once ratified, over domestic law. We, on the other hand, do not. We can, and occasionally do, ignore ratified international obligations wilfully, unless we have sought to make them part of our own domestic law (and that is not the same as simply signing up to them), or unless some ambiguity arises in our own law. Human rights veterans who tangled with the ECHR before the Human Rights Act 1998 will recall the various attempts to suffuse domestic law with ECHR principles. Indeed, no amount of HRA abolition can get away from the fact that we still have signed up to the Convention, and it would still operate to impose rights standards where the answer in domestic law was not clear (actually quite a lot of the time).

At the recent oral hearing, Boccon-Gibod was aware of the waves which his opinion was making. The result offended consciences and may appear scandalous, he said. But that is what the law amounted to, there needed to be an applicable text, and there’s the rub. On the other side of the argument were a whole array of civil parties who under French law can intervene in a criminal case and seek compensation. They were seeking to uphold the decision of the Court of Appeal below, not only on principle, but also because it ordered the payment of very considerable sums of money to those affected by the pollution, including, interestingly, substantial sums to be paid to the coastal municipalities due to the reputational damage which they had suffered.

So, just four months to wait until the Cour de Cassation decides the case. A mere blink of the eye, I suppose, given that the incident occurred well over 12 years ago

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Related posts:

• The Erika disaster – why we need an international environmental court
• Climate change human rights litigation: is it so radical? Nicola Peart
• Is climate change a human rights issue?
• EU Court upholds greenhouse gas scheme against US airlines challenge
• Climate change science in the dock – US-style
• Oil spills and tar sands: ecocide questions

Publishing the Justice and Security Bill this morning, the Secretary of State for Justice said ”I have used the last few months to listen to the concerns of … civil liberties campaigners with whom I usually agree.”

There are many people who today would sorely like to agree that Ken has listened and has taken their concerns on board.  Unfortunately, the Government’s analysis remains fundamentally flawed.  The Green Paper was clearly a “big ask”.  There have undoubtedly been significant changes made from the proposals in the Green Paper.  However, the secret justice proposals in the Justice and Security Bill remain fundamentally unfair, unnecessary and unjustified.

In Al-Rawi, the Supreme Court held it did not have a general power to use closed material procedures as an alternative to public interest immunity.  The introduction of closed material procedures – where one party and his representatives could be excluded from any or all parts of a case, including the hearing and the judgment – would be such a fundamental shift away from the principles of open and adversarial justice that the Court would not take that step without direction from Parliament.  Lord Dyson explained:

The common law principles…are extremely important and should not be eroded unless there is a compelling case for doing so.  It this is to be done at all, it is better done by Parliament after full consideration and proper consideration of the sensitive issues involved (Al-Rawi, [48]).

The Bill asks Parliament to make precisely the same kind of fundamental shift that the Supreme Court would not countenance.  Clause 6 introduces a general duty on the Court to impose closed material procedures in any case where any person – either a Government body or any third party – could be required to disclose material which “would be damaging to the interests of national security”.

It is now for Parliament to consider whether the Government has produced a compelling case for wide-ranging reform of the kind proposed in the Bill as introduced.

Inquests

The Bill will apply to all “relevant civil proceedings”, defined as proceedings in the High Court, the Court of Appeal and the Court of Session (Clause 6(1)).

The Government has decided not to include inquests in the scope of the Bill.  This decision is unsurprising: two previous proposals to introduce similar secret inquest provisions having been defeated in Parliament or withdrawn in the face of opposition in the past five years.  However, if adequate steps can be taken to protect the interests of national security in the context of an inquest, it makes it more difficult for the Government to argue that the existing measures for the protection of national security are inadequate in civil proceedings.

However, the issue of inquests is not definitively settled.  The Bill proposes a power for the Secretary of State to extend the scope of the Bill by secondary legislation (Clause 11(2)).  This opens the door to the further expansion of secret justice in the future, without the benefit of full parliamentary scrutiny.  Secret inquests may yet rise again.  

The judge decides

The Secretary of State has conceded that the original proposal that a Minister should trigger closed material procedures at his or her discretion was “too broad”.  The “final say” will now be with a judge.  The Bill provides that the Court must make a declaration that closed material proceedings may be introduced in any case where a party will be required to disclose material which “would be damaging to the interests of national security”.   Applications may then be made to the Court for certain material – or types of material – to be subject to closed material proceedings.  When that application is considered, the Court may only order disclosure of any material – or any summary – if it is not damaging to national security.

That the final decision is made by a judge is indisputable.  Unfortunately, in substance the shift from the proposals in the Green Paper is not as significant as it first might seem.  The Green Paper talked about public interest, but Ministers were always firm that they only intended these proposals to apply to a limited number of cases concerning national security.  Although the Bill is not limited to national security cases, “national security” remains undefined.

In the original Green Paper proposals, it was clear that the Minister’s discretion would be subject to judicial review, albeit on ordinary grounds.  The broad degree of deference afforded by the Courts to the Executive on the assessment of national security risk is well-documented.  The application to introduce closed material procedures will take place ex-parte and it is likely the judge will hear only from the Secretary of State and the party seeking the closed material proceedings, if different.  In practice, these changes are unlikely to provide for a significant degree of scrutiny.

The role of the judge changes significantly under the proposals in the Bill.  Under the existing public interest immunity procedure the judge will balance the competing public interests: the interest in open, adversarial justice and any immediate national security interests.  It will be for the judge to determine where the public interest lies.

Under the proposals in the Bill, no balance is drawn.  The so-called Wiley balance is abandoned.  The judge must introduce closed material procedures where there will be damage to the interests of national security.   There is no discretion to consider alternatives, such as anonymity orders or confidentiality rings.  The Court is instructed to ignore the possibility that public interest immunity might be applied and the material excluded altogether (Clause 6(3)(a)).  Although the Secretary of State must consider whether to make a claim for public interest immunity, he is not required to do so.  He may seek closed material proceedings as an alternative to public interest immunity, not a supplement (Clause 6(5)).

There are many other features of the Bill which will be dissected in far greater detail in the coming months.  For example, the Bill does not deal directly with enhanced disclosure, as required by AF (No3) to secure the right to a fair hearing.  Instead, it empowers the Court to make any disclosure or summary available it sees fit, provided it would not damage national security (Clauses 7(1)(d) – (e)).  There is no corresponding duty on the Court to proactively order such disclosure as is necessary to secure a fair hearing.

However, the Bill provides a rider to supplement the requirement that the Court would read the provisions compatibly with the Convention rights guaranteed by the HRA 1998 (s3).  Clause 11(5) provides that nothing in the Bill will require the Court to act inconsistently with Article 6 ECHR.  It is unclear what the Court will be required to do in circumstances where under AF (No3) enhanced disclosure would have been necessary to secure a fair hearing compatible with Article 6 ECHR, but the Secretary of State argues that disclosure would be damaging to national security.

A case for reform?

In introducing the Bill, the Government has failed in its first task: to produce a compelling case for reform.

Ken Clarke rightly points out that no-one wants intelligence personnel to be endangered by giving evidence in open court.  However, this never been a realistic prospect.  There is no suggestion that the operation of public interest immunity – and other protections such as screening, anonymity or confidentiality rings – have endangered lives or national security.  If a judge is satisfied that the public interest is in favour of non-disclosure, the relevant material is excluded.

The Secretary of State argues that the current system is failing because the Government can’t rely on information excluded subject to immunity.  If it could, it would be able to resist claims it would otherwise settle.  Instead, the Government would prefer to put all the information before a judge.  However, the simplicity of that argument was wholly rejected by the Supreme Court.  As Lord Kerr explained, evidence unchallenged can positively mislead.   Requiring the Court to determine these claims after hearing only one side of the case – often the Government’s unchallenged evidence – could skew the proceedings in favour of the Government and against the excluded party.   The Special Advocates have themselves stressed that their involvement cannot redress the inherent unfairness in this type of closed proceeding.

The Government has produced no new evidence that the current system is failing.  The Parliamentary Joint Committee on Human Rights stressed in their influential report that this justification must precede any detailed proposals for reform.  The JCHR considered the Government claim that it had been forced to settle cases it could have resisted but for the operation of public interest immunity.  It rejected the Government’s claims.  Importantly, the cases in Al-Rawi were settled before public interest immunity had been explored.  The material accompanying the Bill makes no new case for change, nor does it appear to produce any further evidence.

The Justice and Security Bill can be firmly removed from the list of recent Government “U-turns”.  The changes proposed by the Government represent little more than a bump in a road which appears to be charging steam-roller like to a predetermined destination: the introduction of closed material procedures as a standard tool in the civil justice tool-box.  That, we believe, would cause irreparable damage to public confidence in our civil justice system and could potentially undermine the credibility of our judiciary.

Parliamentarians must ask: where is the compelling case for change?  That the Government continues to make the same arguments which were rejected by the Parliamentary Joint Committee on Human Rights must be cause for concern.

Angela Patrick is Director of Human Rights Policy at JUSTICE

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Monsters are born, not made: the latest round in the debate about criminal responsibility questions the very  existence of intuitive morality.

US neuroscientist Sam Harris claims in a new book that free will is such a misleading illusion that we need to rethink our criminal justice system on the basis of discoveries coming from the neurological wards and MRI scans of the human brain in action.

The physiologist Benjamin Libet famously demonstrated in the 1980s that activity in the brain’s motor regions can be detected some 300 milliseconds before a person feels that he has decided to move. Subjects were hooked up to an EEG machine and were asked to move their left or right hand at a time of their choosing. They watched a specially designed clock to notice what time it was when they were finally committed to moving left or right hand. Libet measured the electrical potentials of their brains and discovered that nearly half a second before they were aware of what they were going to do, he was aware of their intentions. Libet’s findings have been borne out more recently in direct recordings of the cortex from neurological patients. With contemporary brain scanning technology, other scientists in 2008 were able to predict with 60% accuracy whether subjects would press a button with their left or right hand up to 10 seconds before the subject became aware of having made that choice (long before the preparatory motor activity detected by Libet).

Clearly, findings of this kind are difficult to reconcile with the sense that one is the conscious source of one’s actions.  The discovery that humans possess a determined will has profound implications for moral responsibility.  Indeed, Harris is even critical of the idea that free will is “intuitive”: he says careful introspection can cast doubt on free will. In an earlier book on morality, Harris argues

Thoughts simply arise in the brain. What else could they do? The truth about us is even stranger than we may suppose: The illusion of free will is itself an illusion (The Moral Landscape)

But a belief in free will forms the foundation and underpinning of our enduring commitment to retributive justice. The US Supreme Court has called free will a “universal and persistent” foundation for our  entire system of law.

Implications for the criminal justice system 

Any scientific developments that threatened our notion of free will would seem to put the ethics of punishing people for their bad behaviour in question.In Free Will Harris debates these ideas and asks whether or not, given what brain science is telling us,  criminal justice, in focusing on retribution,  rests on an entirely false basis.  An example he gives is a murderer who kills because of a brain tumour. This person is a victim not a criminal. The tumour is the cause of his crimes. People imagine that the normal brain is a different story. But in fact the study of any criminal brain, says Harris, is the equivalent of finding a tumour in it – the wrong genes being transcribed, the brain being dictated by events over which he has no control. Human choice, says Harris,

is as important as fanciers of free will believe. But the next choice you make will come out of the darkness of prior causes that you, the conscious witness of your experience, did not bring into being.

Clearly we need to lock up dangerous people. But there is no sense to the idea that the somehow deserve it. Retributive justice is like requiring us to hate, as well as shoot, a wild animal who escapes from the zoo. His short book opens with an account of an horrific crime which mesmerised America with its cruelty  - the home invasion in Connecticut by two men in 2007. Two career criminals first brutally bludgeoned the father (the only survivor), then raped and murdered the mother, and finally killed the two young daughters when they set the house on fire. As one reviewer says,

Harris gives voice to most everyone’s worry when he writes that, without (contra-causal) free will, monsters like these men are “nothing more than poorly calibrated clockwork,” and therefore they aren’t really responsible for their actions. They’re just damaged goods.

Speaking on an WNYC interview, Harris explains that the brain precedes a motor plan before our consciousness of our planning of it, even while we think we’re still free to decide which way to go.

You can’t really take credit for your unconscious predelict. This reaches back into everything we think and do and decide. There is no place in which we can say, the buck stops here. The buck just never stops. Your wants themselves emerge out of a wilderness of causes which you yourself cannot inspect. The only tools at your disposal are those which you inherit from your past. There are certain things about morality and about the legal system which do shift when you take on board that there is no free will.

The evolutionary biologist Stephen Pinker reminds us that our sense of justice tells us that where someone commits a crime, the perpetrator’s culpability depends not just on the harm done but on their mental state, what any first year law student knows is the mens rea, the subjective state of intentionality prerequisite to establishing criminal liability. In his recent study of the decline of violence in human history, he gives the following example:

Suppose a woman kills her husband by putting rat poison in his tea. Our decision as to whether to send her to the electric chair very much depends on whether the container she spooned it out of was mislabelled DOMINO SUGAR or correctly labelled D-CON: KILLS RATS – that is, whether she knew she was poisoning him and wanted him dead, or it was all a tragic accident. A brute emotional reflex to the actus reus, the bad act (“She killed her husband! Shame!”) could trigger an urge for retribution regardless of her intention. (The Better Angels of our Nature: Ch8, Inner Demons, p 547)

This type of retributive impulse of course we all condemn as unpardonable in civilised society. But if we follow Harris’s argument to its logical conclusion, the correct label should no more condemn the murderer to retribution than the misleading one, for the proclivity to do harm is at large, and is in no wise governed by rational choices immediately preceding the actus reus. He is not making a case for exculpation on the basis of identifiable brain lesions or particular genetic mutations, which the psychologist Harold Schechter showed were notably absent from all the notorious subjects of his authoritative compendium The Serial Killer Files.

Are we really rational actors?

Where does this leave human rights? Harris’ prescription for rethinking criminal justice may lead to a compassionate outcome: the criminal cannot help himself, restrain him but don’t hate him; but let us remind ourselves of the first provision of the Universal Declaration of Human Rights, endorsed in 1948 by forty-eight countries:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

But if we cannot even be sure that our conscious minds can dictate the movement of our own limbs, how can we direct the whole macro-organism to behave in a civilised manner to the rest of the world, because some international agreement tells us to? By breaching the boundaries between scientific facts and human values, Sam Harris argues convincingly that most people are simply mistaken about the relationship between morality and the rest of human knowledge. Instead of bowing to secular but quasi-biblical commandments such as the UN Declaration, the Covenant on Civil and Political Rights and so on, we would do better to think about morality in terms of human and animal well-being, viewing the experiences of conscious creatures as peaks and valleys in what Harris calls a “moral landscape.” As the abstract of his exploration of morality proposes, there will be a time when science will no longer limit itself to merely describing what people do in the name of “morality”; in principle, science should be able to tell us what we ought to do to live the best lives possible.

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Read more:

• The evolved mind: rising to the environmental challenge
• Will neuroscience revolutionise the law?

The Justice and Security Bill, which proposes to introduce secret ‘Closed Material Procedure’ (CMP) hearings into civil trials, has been published. Here are some useful resources for picking your way through the controversy:

• The Bill can be found here in ‘clickable content’ format, and here as a single PDF document. You can watch the Bill wind its way through Parliament from here.

• The Ministry of Justice’s page on the Bill, including some ‘myth-busting’ (including ‘This is undermining the centuries old legal tradition’) is here.

• 84 responses to the Green Paper which led to this bill can be found here, and the Government’s response of 29 May is here.

• The Joint Committee on Human Rights’ highly critical report on the proposals is here.

• My post from last week on the key concessions made by the Government since the Green Paper is here. I commented that despite the removal of inquests from scope and the trigger for CMPs changing from “public interest” to “national security”, the key criticisms of the bill remain.

• You can access all of the UK Human Rights Blog coverage of the secret trials proposals here, including our exclusive on the Special Advocates’ opposition to the proposals, which became the most damaging aspect of the case against the Green Paper.

• Some press coverage: Government scraps ‘secret inquests’ plan (BBC), Climbdown on secret justice: Victory for the Mail’s campaign as Clarke says inquests WON’T be held behind closed doors (Daily Mail), Secret courts plan: it’s still justice in the dark (Guardian), Clarke listens to Daily Mail on secret justice proposals (Press Gazette)

• The University of Reading’s excellent resources page from its Law, Terrorism and the Right to Know team

More to come on the proposals soon…

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On Wednesday 27 June, One Crown Office Row is hosting an informative and entertaining evening examining the present state of the law relating to freedom of speech in the workplace. The centrepiece will be a mock trial, set in the employment tribunal, which will cover whistleblowing, dismissal and human rights obligations.

Last week Rosalind English did a summary post on the important Supreme Court case of Lukaszewski and others, R (on the application of Halligen) v Secretary of State for the Home Department [2012] UKSC 20 - read judgement.

The technicalities of this decision about extradition time limits are set out in her post. Here, I explore the potential implications for other cases.

The Extradition Act contains firm rules that appeals need filing and serving within 7 or 14 days, depending on the procedure. The Supreme Court decided that there should be a discretion in exceptional circumstances for judges to extend time for service of appeal, where the statutory time limits would otherwise operate to impair the right of appeal and therefore be in breach of  the right to a fair trial afforded by Article 6(1) of the Human Rights Convention. And it is this discretion which is important for a whole range of appeals  where mandatory time limits are laid down by statutes.

Of the four cases decided, the key one for this point is Halligen. Halligen is a UK citizen whose extradition was sought to the US. He made two Convention arguments in order to get over the fact that he had not given notice  of his extradition appeal to the Crown Prosecution Service within 14 days, as the statute required. Given that the only reason for his lateness was a failure by his then solicitors, it is unsurprising that the Supreme Court was inclined to start from the position that some way through the mandatory time limits should be found. Halligen ran two arguments. The first was that Article 5(4) of the Convention gave him a right to challenge the lawfulness of his detention. The Court decided that this argument did not fly. The extradition did not go to his detention; the fact that he was detained was incidental to the extradition. Hence, he could not challenge the extradition on the basis that it involved a detention capable of challenge under Article 5(4).

The more interesting, and wide-ranging, argument came next, namely his claim to a right to a fair trial under Article 6(1). Here the arguments between Halligen and his fellow appellant Poles (seeking not to be sent back to Poland) diverged. The Court decided that the Poles had no Article 6(1) right in play. Relying on ECHR cases, for which see [27]-[31] of Lord Mance’s judgement, it said that extradition did not involve the determination of a criminal charge falling within Article 6(1). But Halligen was a UK citizen. He had a common law right to come and remain within the jurisdiction (cue Blackstone and Lord Denning for ringing statements of this entitlement). The extradition proceedings affected that right and that freedom. Hence the extradition proceedings fell within Article 6(1), and the Court had thereby found the vehicle via which it could modify the statute, given that a literal interpretation of the statute threatened to impair the very essence of the right. So the Court could decide whether or not to override the time limit if the justice of the case so provided.

The Court considered how this should be done. It could have declared the statute incompatible with Article 6(1), in which case this would not have helped Halligen but would have guided the law thereafter – assuming Parliament had followed the lead of the declaration of incompatibility and legislated to remedy it. This limitation on the effect of the ruling on the particular litigant inevitably must have steered the Court into reading the extradition statute consistently with Convention rights under section 3 of the Human Rights Act,and thus render it compatible with the Convention. To do so, the Court had to insert quite a lot of words into the extradition provision, in order to read it “down” compliantly with section 3:

the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously.

This is very important. A whole host of statutes mandates appeals within a set time, and many of them do not refer to rules which enable the courts to take a common sense attitude to their breach. This involves asking whether there was a good reason for the appeal being late. If  yes, let the appeal in late. But bureaucrats do not like that sort of discretion, because it requires judgment (which cannot be computerised), and we end up with this continuous dance between unconditional statutes and the courts who have to deal with individual deserving cases which justify a case-by-case rather a blanket approach. So current score sheet: courts 1, bureaucrats 0.

The starting point in any of these statutory appeals where the appeal is late will be to identify an Article 6(1) right which triggers this right to have appeals determined in exceptional circumstances. An example might be the case of Modaresi, (see my previous post) where a mental health patient was subject to stringent time limits. Certainly, any case which involves the determination of proceedings which affect a professional’s right to practice falls well within the rule. But the really tantalising one is the fate of the three Poles appealing in the present case. Their appeal was allowed on other grounds. But what would have happened if the other grounds had not been available? They did not have the UK common law right to remain in the UK, though (unremarked by the Court) they had a potentially equivalent EU right of freedom of movement within the EU, and why should a UK citizen be in a better position before the UK courts than a Polish one when it comes to analysing the benefits of citizenship? Lord Mance remarks in [40] that the position of the Polish litigants appear to deserve attention, including

specifically whether they are currently provided with meaningful and effective legal assistance in relation to the whole extradition process, including any appeal they may wish to bring.

But this, though helpful, simply sets up the next case in which EU rights meet domestic statutes against the background of Strasbourg case law. And no UK lawyer can give sensible advice unless they have a reasonable command of the three elements of this triangle.

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Related posts:

• Time extended for appeals under Extradition Act
• BEWARE statutory time limits to appeal: if you are late, you are out
• No extradition for Shrien Dewani – for now
• Don’t try for me, Argentina

“I believe that it should be a matter for parliament to decide, not a foreign court.”

Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

The biggest news of the week this week was the decision of the European Court of Human Rights in the Scoppola v Italy case; the latest in the long-running prisoner voting saga. The Court refused to overrule its 2005 decision in Hirst No. 2 but also found that proportionality does not require individual determination by a judge on a case by case basis. There was predictable anger from the tabloid press plus some more cogent articles, some of which have been set out below.

In the news

Prisoner voting

The European Court of Human Rights issued its long-awaited decision in Scoppola v Italy this week. The UK had been permitted to postpone its implementation of Hirst until this judgment was handed down and so it now has six months to do so. A number of blogs have posted on this topic.

Joshua Rozenberg wrote a piece in the Guardian this week before the judgment was announced, discussing the dialogue between the UK and Strasbourg and the role of the Commission on a Bill of Rights. Of the post-judgment commentary, see Adam Wagner’s comprehensive post for the UKHRB  here which sets out the reasoning and discusses the consequences for the UK of non-compliance, as well as suggesting a third way for the Government. Marko Milanovic has written a very thoughtful piece on the EJIL: Talk blog that is well worth a read. For those who would like to know what the tabloid papers have to say about the judgment but don’t actually want to read them, Obiter J has conveniently picked the most lurid headlines and included them in his blog here.

David Davis and Jack Straw have jointly written a bold piece in the Telegraph, declaring “we must defy Strasbourg on prisoner votes”. They dispute the assertion that because the UK has accepted the jurisdiction of the Strasbourg Court, it must obey all its decisions. They allege that there would be no penalties for non-compliance, stating that Britain cannot be forced to give prisoners the vote or to pay compensation to prisoners who sue the Government over this issue, and that the Court does not have the power to fine Britain for non-compliance. They also consider it unlikely that the UK would be expelled from the Council of Europe for non-compliance, citing the examples of Bulgaria, Moldova and Russia, who have not been expelled for much worse breaches of the Convention.

The Economist has also written on this issue as has Carl Gardner on the Head of Legal blog, which is recommended for those who want to know exactly what the judgment says and how it distinguished itself from Hirst. There is another article from the Guardian, this time after the judgment was handed down. This reveals that government sources have stated that a concession by the court giving each state discretion on how to implement the ban will allow them to report back every year for an indefinite period on how the process is going, thus allowing Cameron to dodge the issue for the duration of his time in Downing Street. Finally, Reuven Ziegler makes the case in the UKHRB for allowing prisoners to vote – recommended.

Justice and Security Bill this week?

The controversial Justice and Security Bill is likely to be published this week, possibly as early as Tuesday. The Government is looking to expand the use of “Closed Material Procedures” – secret court hearings – into the civil courts. We will of course be analysing the Bill; see Adam Wagner’s post for the background. A secret justice climb down? Perhaps not

What happened to peaceful protest?

David Mead has written an excellent article on the fact that the right to dissent and to protest has almost disappeared from the political map. He asks why the same respect is not accorded to the right to protest as to freedom of speech, noting in particular the amount of press coverage given to libel law and suggesting that this may be because libel law naturally affects newspapers directly. He also points out the beating the right to protest has taken, from Strasbourg (Austin v UK) as well as at home (Moos and McClure) and noted the thorny issue of finding physical space to hold a protest with the increasing commercialisation of formerly public land. Well worth a read.

Torture victims under detention

The Mulberry Finch Blog has posted this week on the holding of torture victims by the UK Border Authority (“UKBA”) and its failure to follow its own policy on this matter, suggesting that either the UKBA gets its act together and implements carefully thought out procedures or risk not only breaching domestic law, but also the European Convention on Human Rights.

Refugees and the meaning of “contrary to the purposes and principles of  the UN”

Joanna Buckley posts on the Supreme Court blog on the two cases heard this week concerning the interpretation and application of article 1F(c) of the 1951 Geneva Convention Relating to the Status of Refugees, which states that the provisions of the Convention will not apply to any person with respect to whom there are serious reasons for considering that “…he has been guilty of acts contrary to the purposes and principles of the United Nations.”  Watch this space.

Gay marriage

Geraldine Morris on the Halsbury’s Law Exchange blog discusses the backtracking of the Government on this issue, and noted the incongruity in the legislation treating civil partners in the same way as married spouses upon the breakdown of their relationship (further to the judgment in Lawrence v Gallagher [2012] 1 FCR 557) but not at the commencement of their relationship.

Next British judge in Strasbourg

The process of choosing a replacement for Sir Nicholas Bratza has begun, with the names and CVs of 3 candidates having been put forward – these are Raquel Agnello QC, Paul Mahoney and Ben Emmerson QC. The ECHR blog has posted on this as has Adam Wagner on the UKHRB. He notes that if MPs really wanted to improve democratic accountability, they would hold public appointment hearings where the British public could scrutinise the process and in the process become more knowledgeable about the Court and less susceptible to the claims made in papers such as the Daily Mail.

Dishonesty in entry applications

More from Mulberry Finch, this time on the ruling from an Upper Tribunal that, where an application for entry clearance is “marred by dishonesty” – whether in the applicant’s knowledge or not and even where the applicant is presently eligible for entry – it is not a disproportionate response for the Home Secretary to refuse the application, even in light of the Article 8 ECHR right to family life.

FOIA requests and the Iraq war

Panopticon has published a post on the recent decision in Plowden and FCO v Information Commissioner EA/2011/0225 and 0228 which concerned a FOIA request for the record of a telephone conversation that took place on 12th March 2003 between President Bush and Mr. Blair.  The Tribunal largely upheld the ICO’s decision notice, and ordered that part of the record should be disclosed.

And finally…

Hot off the presses is the first part of Charon QC’s excellent new Blawg Review, rounding up the best of UK legal blogging.

In the courts

Scoppola v Italy (No. 3) – 126/05 [2012] ECHR 868 (22 May 2012). ECtHR Grand Chamber rules that automatic and indiscriminate disenfranchisement of prisoners is unlawful but that it is up to individual states how to implement changes where such a ban exists.

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UKHRB posts

• The case for letting prisoners vote – Reuven Ziegler May 24, 2012 1 Crown Office Row
• Police denied TV footage of Dale Farm evictions May 24, 2012 Rosalind English
• Time extended for appeals under Extradition Act May 23, 2012 Rosalind English
• Why no public appointment hearings for UK’s new European Court of Human Rights judge? May 23, 2012 Adam Wagner
• Don’t rely on human rights in a dismissal claim May 22, 2012 Martin Downs
• European Court of Human Rights retreats but doesn’t surrender on prisoner votes May 22, 2012 Adam Wagner
• Pssst… no secret hearings in naturalisation cases May 22, 2012 Isabel McArdle
• Anemometers and wind farms once more: PINS now win the day May 21, 2012 David Hart QC
• Convention should not be a basis for demanding unnecessary public inquiries – Court of Appeal, May 21, 2012 Rosalind English
• A secret justice climb down? Perhaps not May 21, 2012 Adam Wagner

Last Tuesday saw the latest episode in the prisoner voting legal saga with the European Court of Human Rights’ Grand Chamber’s judgment  reversing the Chamber judgment which found Italy’s automatic ban on voting for prisoners serving over 3 years in prison (and a lifetime ban with the possibility of future relief for those sentenced to more than 5 years) in breach of Article 3 of Protocol 1 to the European Convention on Human Rights.

Adam Wagner has compared  the prisoner voting issue to a ping-pong ball in a wind tunnel, noting that ‘the ball is now back on the UK’s side of the table’. Indeed, the UK must still allow at least some prisoners the vote, as required by the 2005 judgment in Hirst v UK (No.2) and the 2010 judgment in Greens & MT v UK.  Over at EJIL: Talk!, Marko Milanovic rightly accounts for the unholy mix of law and (inter)national politics that has generated the Grand Chamber’s unprincipled judgment. Indeed, as Carl Gardner suggests on the Head of Legal blog all that logically remains of the Hirst judgment is that automatic disenfranchisement of prisoners that are sentenced for less than 3 years (probably) breaches the convention.

The debate in this country has unhelpfully tied together concerns that the Strasbourg Court is exceeding its competency with the substantive question, namely whether prisoners ought to have the right to vote. This conflation was most evident in the House of Commons Debate last February. Indeed, reflecting on Tuesday’s judgment, the Telegraph states that ['t]his is no longer about prisoner votes but national sovereignty.’

So let us imagine that, rather than in Strasbourg, the ruling had been made in Parliament Square, by the UK Supreme Court: indeed, courts in South Africa, Canada and post-British Hong Kong have handed down judgments annulling state legislation disenfranchising prisoners. While a global consensus has yet to emerge (the clearest outlier being the United States) disenfranchisement has become a suspect practice and, as my full-length paper on the subject suggests, rightly so.

Civic death

Britain has thankfully moved from a Victorian era perception of “civic death” and of convicts as “slaves of the State” whose deprivation of liberty entails revocation of all (other) rights. Convicts are instead increasingly perceived as rights-bearers who retain after their conviction all the rights “which are not taken away either expressly or by necessary implication”. Restrictions on the exercise of rights that are not an inevitable consequence of lawful detention, like disenfranchisement, thus require independent justifications.

Those who support disenfranchisement as a regulatory measure frequently argue that it is a societal reaction to breaches of the ‘social contract. However, if law-abidance becomes a voting qualification, then contractarians may seem arbitrary when they support selective disenfranchisement of law breakers. Moreover, the legitimacy of punishments, arguably, depends on the legitimacy of political processes that produce and enforce criminal law which, in turn, depends on citizens’ ability to participate equally in choosing representatives who decide which behaviour to outlaw, which individuals to prosecute, and which punishments to impose.

Concern is also raised that convicts possess negative character traits and that the body politic should be protected from corruption, immorality, and untrustworthy behaviour. However, in the twenty-first century, universal suffrage suggests that voters are a heterogeneous lot, and possess diverse personal traits; voting eligibility is based on political equality, rather than on particular moral virtues.

An additional punishment

Fundamentally, disenfranchisement follows a criminal conviction and should first and foremost be viewed an additional punishment. As such, disenfranchisement is more likely to exacerbate feelings of marginalization and alienation and inhibit re-integration into society, negating possible rehabilitative effects of other punishments. While incapacitation generally aims to prevent convicts from committing future offenses, paradigmatically by incarceration which limits their interaction with general society, no correlation has been proven between committing non-electoral offenses (the vast majority of imprisonable offences), and propensity to commit electoral offenses; moreover, prisons provide surveillance conditions which may decrease the likelihood for electoral offences.

The case for disenfranchisement is thus essentially one about retribution; this is where the Grand Chamber has (mis)applied the proportionality and individuality requirements, which require taking into account both the gravity of the offence and the personal circumstances of the offender; automatically tying disenfranchisement to sentences of more than 3 years, as the Italian legislation does, is impersonal and arbitrary.

Cutting off thieves’ hands

I want to argue, however, that even if disenfranchisement can be shown to satisfy one or more of the penal goals considered above, it is a punishment that a liberal democracy like Britain ought not to impose due to its adverse effects and normatively flawed nature. Despite the direct link between stealing televisions and cutting off thieves’ hands, physical mutilation is considered abhorrent. Similarly, even if it can be shown that the infliction of torture as a punishment is effective, the imposition thereof is prohibited in widely ratified international treaties. On this side of the Atlantic, the use of the death penalty is proscribed even in the most heinous cases before the international criminal courts. Penal systems which display disrespect, indignity or degradation are objectionable, because these are intrinsically inappropriate ways for societies to treat their members.

Disenfranchisement degrades convicts by intentionally denying them political rights, which they previously possessed, and which are retained by all other mentally competent adult citizens. It arguably institutionalizes a double polity: the first, consisting of fully enfranchised, politically equal citizens, rules over the second, consisting of the disenfranchised. As the post-Apartheid South African Constitutional Court articulated ’[t]he vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.’ Denying prisoners their right-to-vote amounts to partial exclusion from their political communities, on either a temporary or permanent basis, and they are effectively unable to join an alternative community.

Disenfranchisement harms not only individuals, but also marginalized groups which are over-represented amongst the disenfranchised; it may exacerbate pre-possessed feelings of alienation and distrust of institutions among convicts who belong to such groups. Disenfranchisement may also skew political processes by distorting group representation (as it arguably did in a few election campaigns in the United States, most notably the 2000 Bush v. Gore Florida fiasco), and by shutting out convicts, a group most adversely affected by society’s most coercive power. Incarcerated convicts are a particularly unpopular ‘discrete and insular’ minority for whom voting is pertinent: prisoners are no politician’s constituents, and are unlikely to have other groups vouch for them, while the interests of Prison authorities will often clash.

The ins and the outs

Finally, disenfranchisement seems like a paradigmatic case of the ‘ins’ (parliamentary majorities) excluding the ‘outs’ (convicts) from the political game. The Canadian Supreme Court held that ‘it is precisely when legislative choices threaten to undermine the foundations of the participatory democracy…that courts must be vigilant’.

Defending the rights of convicts is hardly a popular task. Yet, defending the right-to-vote of convicts entails defending democratic processes that label individuals as convicts by proscribing their acts and permit States to inflict punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed.

BSkyB and another, R(on the application of) v Chelmsford Crown Court [2012] EWHC 1295 (Admin) – read judgment

The police failed to satisfy the court that their need for footage taken by TV organisations was likely to be of substantial value to criminal investigations and therefore would be a justified interference with the rights of a free press under Article 10 of the Human Rights Convention.

Sky, BBC, ITN etc. succeeded in quashing an order to produce of 100+ hours of video footage to Essex Police of  the Dale Farm protesters on the grounds that there were no “reasonable grounds” for believing that the footage of over 100 hours included material likely to be of substantial value to the investigation.

Background facts

After the Dale Farm evictions and the disorder that ensued, the police sought an order for the recordings taken by the claimant organisations to help identify those who had committed indictable offences when attempting to prevent the eviction.  They submitted that it was necessary, not least for the prevention of similar disorder on future occasions, to identify as many as possible of those who committed indictable offences in attempting to frustrate the lawful enforcement procedures. Production orders were duly made by Chelmsford Crown Court, defendant in this action. The claimants applied for judicial review of the production orders made against them, with the police joining the proceedings as an interested party.

The media organisations submitted that it was a speculative exercise and there had been insufficient evidence for the judge to conclude that the recordings were likely to be of substantial value to the police investigations under the Police and Criminal Evidence Act 1984 Sch.1 para.2(a)(iii), and therefore the orders constituted an unjustifiable interference with their right to freedom of expression under Article 10. They contended, in particular, that  there had been an increasing number of police applications for wide-ranging production orders in circumstances of this kind:

Reference was made, for example, to student protests in 2010 and the notorious riots which took place in August 2011. There is widespread concern that such applications are being made, impermissibly, on an unfocused and scattergun basis. This case is said to provide an example where the production orders sought did not relate to specific indictable offences, alleged to have been committed at particular times and at particular places, but rather to “fishing” for any evidence there might be of such offences occurring over the many hours of visual recording.

The judgment

The default position was the claimants’ right to freedom of expression. Therefore the burden was on the police to demonstrate that the degree of interference and the wide scope of the production sought was necessary and proportionate because of the substantial value attaching to the recordings in the context of the investigation.   Indeed, both under PACE and the Convention, in seeking material from the press for this purpose

There is a burden to be discharged and disclosure orders against the media, intrusive as they are, can never be granted as a formality.

Whilst there was clearly a real public interest in tracing any of those persons who were involved in public disorder or violence, that had to be set against the level of interference with the claimants’  rights under Article 10 rights.

A “close and penetrating examination” of the facts advanced by way of justification is required (Lord Hope in R v Shayler  [2002] UKHL 11). Contrary to this, the judge below, in granting the production orders to the police, had taken a “compendious, not to say formulaic”, approach towards his deliberation on the access conditions. No reasons of substance are given as to why any of this footage, let alone all of it, would be of substantial value to the outstanding police investigations. There was nothing to justify such his conclusion that access should be given to this material:

There was no intense focus upon, or scrutiny of, any evidence of substantial value, because there was none. There was no material to enable the judge to carry out the necessary balancing exercise [of public interest versus the claimants' Article 10 rights].

Further, the judge had failed to give any sufficient weight to the inhibiting effect of production orders on the press.

The police’s reluctance to reveal what information they had meant that the media organisations were denied a fair opportunity to demonstrate why their recordings were unlikely to be of any assistance. There had to be cogent evidence as to what the footage was likely to reveal, how important such evidence was to carrying out the investigation, and why it was necessary and proportionate to order the intrusion by reference to other potential sources of information. That burden had not been discharged, and accordingly the judge was unable to justify ordering disclosure against the claimants and the production orders were quashed.

Related posts:

• Peace campaigner evicted from Parliament Square using new laws
• Analysis: Occupy London loses final eviction court challenge
• The law should not become “over precious” about human rights, says the Divisional Court
• Climate Camp protesters did not threaten breach of the peace, says High Court
• Blow to Parliament Square protest camp

Lukaszewski and others, R (on the application of Halligen) v Secretary of State for the Home Department [2012] UKSC 20 - read judgement

The Supreme Court has ruled that there should be a discretion in exceptional circumstances for judges to extend time for service of appeals against extradition, where the statutory time limits would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1) of the Human Rights Convention

The following report is based on the Supreme Court’s press summary. A full analysis of the case will follow shortly.

Background facts

Lukaszewski (“L”), Pomiechowski (“P”) and Rozanski (“R”) are Polish citizens who are each the subject of a European Arrest Warrant (“EAW”) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (“H”), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the “Act”) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates’ Court. L, P and R’s extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. H’s case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, H’s extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of State’s reasons were sent by post and fax (at either 15.48 or 16.48) to H’s solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time-period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H.

L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (“CPS”), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7-day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7-day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non-extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time.

H’s solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14-day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did H’s solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to “accept the letter as notice & service of my intent to appeal that decision” and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear H’s appeal, that H’s letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time.

All four appellants appealed the decisions of the High Court to the Supreme Court, which allowed the appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment.

The Court’s reasoning

The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19].

The Court regards H’s letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that H’s solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and H’s appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22].

Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect H’s freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the “determination” of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1).

Accordingly, the Court remitted each appeal against extradition to the High Court to be heard there.

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• BEWARE statutory time limits to appeal: if you are late, you are out
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Bratza is off

The Guardian reported yesterday that “MPs aiming to claw back powers from Europe have secretly interviewed candidates to become Britain’s next judge at the European court of human rights”. Oliver Heald MP said that a group of MPs from the three main political parties met the 3 candidates, Raquel Agnello QC, Paul Mahoney and Ben Emmerson QC. The aim is “to improve democratic accountability”.

What would really improve democratic accountability is to hold such meetings in public, and broadcast them online. Currently, the UK public  knows frighteningly little about how the Strasbourg Court works in practice. This is hardly surprising given that it is regularly misrepresented in the popular press, for example the Daily Mail and Telegraph’s recent uncritical coverage of a report which wrongly stated the UK loses 3 out of 4 cases there (the real figure is about 1 in 50).

Contrary The Sun’s claim that they are “unelected dictators”, European Court of Human Rights judges are elected – see my previous post for the details. This is also in stark contrast to our domestic judges, which are usually appointed by committee and are almost impossible to sack.

The current recruitment round is to replace Sir Nicolas Bratza as the UK’s judge at the court. As Joshua Rozenberg has reported, Emmerson is the clear frontrunner, given his stellar reputation as a barrister and judicial experience in the High Court. This seems to be accepted by all commentators. Why not give the public an insight into why?

In the United States, Supreme Court Justices go through a rigorous public confirmation process after they have been nominated by the President. Some, such as one of George W. Bush’s nominations Harriet Miers, don’t survive under the pressure.

It is quite wrong for MPs to complain that the European Court of Human Rights is opaque and distant, whilst at the same time failing to allow the public to scrutinise every stage of the UK’s judicial appointment process. It doesn’t happen very often, and it is not too late to open up the process to the public who are, as we are constantly reminded, the ones who have to live with  rulings from Strasbourg.

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Related posts

• Bratza bites back
• Be careful what you wish for? UK takes over in Strasbourg
• British judge to head European Court of Human Rights
• European Court of Human Rights retreats but doesn’t surrender on prisoner votes

Mattu v University Hospitals of Coventry and Warwickshire NHS Trust - read judgment 

For a government much divided about rights of employees and the Beecroft Report that proposes curtailing them, some relief is provided by this Court of Appeal ruling, a further blow to those who have argued that Article 6 can be deployed against their employers.

The judgment represents the latest round in the saga of Dr Mattu’s dispute with his former employers which commenced with his suspension in 2002 and included an unsuccessful attempt to force the Trust to prevent disciplinary proceedings and then a challenge to his dismissal.The Court unanimously concluded that the procedure by which Dr Mattu was dismissed did not attract the protection of Article 6 as an employer who dismisses with or without the benefit of a formal hearing is not determining the employee’s civil rights. Rather the employer is exercising a contractual power. The disciplinary proceedings of an employer and a decision to dismiss summarily may give rise to civil rights, namely proceedings for unlawful dismissal and unfair dismissal and those concerned with professional and regulatory standards but they do not determine such rights. In those circumstances Article 6 will be engaged before the Courts, Tribunals and Regulatory Panels but not in disciplinary proceedings before an employer. 

Background Facts

Dr Raj Kumar Mattu was a consultant in non-invasive cardiology and general medicine employed by the Defendants. He also had an Honorary Research post at Warwick University.

Disciplinary proceedings against Dr Mattu had continued for six years until in April 2008 when he received a six month first warning. Through most of this period he had been suspended. Unsurprisingly, the Trust was then was confronted with the problem that he required re-skilling. However, the two sides failed to reach agreement about an action plan, in part because Dr Mattu believed he also required six month academic re-skilling in addition to his clinical re-skilling and that this should be completed in the US.

This culminated in 3 charges being made against Dr Mattu that: he was failing to comply with reasonable instruction concerning re-skilling; that he had made disclosures to the press which were false; and he misrepresented the extent of his illness at a time when he was off sick for ill-health.

A hearing was conducted by the Chief Executive of the Trust which concluded that he was guilty of gross misconduct and he was summarily dismissed. His appeal, before a panel of three persons (none of them employed by the Trust) dismissed his allegations.

The Claim

Dr Mattu sought to argue that Article 6 applied to his circumstances and he was entitled to an independent and impartial tribunal which (the Court of Appeal agreed) the Chief Executive of the Trust was not (even the appeal had the problem that they were largely conducting a review exercise).

Dr Mattu did not rely on the argument that the findings of the Trust would have a substantial influence on any GMC proceedings as to whether he could continue to practise as a doctor as per R (on the application of G) v The Governors of X School [2011] UKSC 30. Rather he sought to argue that a decision to dismiss him would effectively determine his right to work in his chosen profession and no subsequent scrutiny by a court or Tribunal could remedy this as they could not revisit the facts. Alternatively he argued that the right to enjoy a good reputation was a civil right and this was impugned by the Trust.

The Decision

While all the judges agreed that Article 6 did not apply for the reasons mentioned above, Sir Stephen Sedley preferred not to assent to more detailed reasoning.

However, Stanley Burnton LJ went on to doubt (with Elias assenting) the obiter remarks by Smith LJ in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789 that,” Article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS (at Para 67)” on the basis that they were an invitation to uncertainty and costs. .

Burnton LJ does not explicitly engage with the reputation argument but states he agrees the judgment of Elias LJ who does. The latter concludes that the Trust in this case was not determining any right to reputation but was exercising its contractual powers. Dr Mattu’s reputation may have been damaged as a result of the decision but it was not determined by it.

He also agreed with Blair J in Puri  (see our post )that in domestic law there is no general right to reputation of the kind replied up by Dr Mattu and Article 6 cannot create such a right.

They also concurred that any court would not readily imply a term into a contract which would limit the power of the court to determine whether or not there has been a breach of contract.

Those concerned only with fundamental rights and freedoms need read no further. Readers at the coalface of the NHS or in employment law will note that the appeal also determined the “categorization issue.”This is the problem arises where a disciplinary procedure provides for different procedural safeguards depending on the category of presenting problem. In this case, the Trust decided that the allegations did not concern professional misconduct and so they were not required to seek independent professional advice during the investigation and the Chief Executive did not have the benefit of a medically qualified member independent of the Trust when he deliberated as to whether to dismiss Dr Mattu. By the time of the appeal only the classification of the allegation concerning his refusal to comply with reasonable instructions concerning the re-skilling process was in issue. A majority of the Court of Appeal decided that this was not a matter of professional misconduct.

The Court’s Reasoning

“Categorisation” problems arise frequently and judgments on the subject are scrutinised closely by practitioners.

In analysing the judgment it is worth noting again that Stanley Burnton LJ stated that he entirely agreed with the judgment of Elias LJ. Taking that as a starting point, it would appear that it was part of the ratio of the judgment that the Court of Appeal disagreed with the analysis of Andrew Smith J when he dealt with a categorization problem in Hussein v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670.

In that case the Court had decided that a contract could (and in that case did) give the discretion to the Trust to decide the category of allegation themselves – which discretion they had to exercise reasonably. Elias LJ noted that the argument that, “it is for the authority to decide under which category a case falls” failed in Skidmore and the Judgments of all three Judges proceeded on the basis that it was a matter for the Court to decide.

In this case both Stanley Burnton and Elias LLJ were fortified in their opinion that the allegations against Dr Mattu did not concern professional misconduct by the concurring conclusions of the Appeal Panel (who were independent of the Trust).

Elias LJ and Sir Stephen Sedley agreed that professional misconduct should not always be equated with clinical misconduct but Sir Stephen was alone in finding that that which the Trust was concerned required the input of a Doctor as his refusal to co-operate with the re-skilling plan was conduct and it was professional because it concerned an aspect of his job, namely research

Comment

Although this was one more 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 http://this looks like the end of the road for arguments that Article 6 is engaged in dismissal procedures.

Whilst it might still be possible to argue that the R (on the application of G) v The Governors of X School [2011] UKSC 30 test applied in a case, it is difficult to think what that might be given the fact that the set of facts in  Re G was so strong and yet it was still found that the connection was not strong enough because of the finding that the ISA would arrive at its own independent judgement.

Ingenuity of a high order would be required.

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CASE OF SCOPPOLA v. ITALY (No. 3)(Application no. 126/05) – Read judgment / press release / press release on UK implications

The Grand Chamber of the European Court of Human Rights has ruled that states must allow for at least some prisoners to vote, but that states have a wide discretion as to deciding which prisoners. This amounts to a retreat on prisoner votes, but certainly no surrender. As I predicted, the court reaffirmed the principles set out in Hirst No. 2, that an automatic and indiscriminate bans breach the European Convention on Human Rights, but also reaffirmed that it was up to states to decide how to remove those indiscriminate bans.

I have compared the prisoner voting issue to a ping-pong ball in a wind tunnel. Today’s ruling means that the ball is now back on the UK’s side of the table.

Although Scoppola is a case which arose in Italy, the decision is of critical important to the UK for two reasons. First, the Court has made clear to the UK Government that it now has six months from today to bring forth legislative proposals which will end the blanket disenfranchisement of prisoners – see the Court’s helpful press release which explains the effect on the UK. Secondly, the Grand Chamber has now clarified the basic outline of how it expects states to comply with the original prisoner votes ruling, also of the Grand Chamber, in Hirst No. 2. For the full background, see my post from last week or Joshua Rozenberg’s excellent article on Guardian.co.uk.

Retreat but no surrender

The Grand Chamber reversed the Court’s Chamber’s ruling in Scoppola No. 3, on the basis that a life-long ban on certain prisoners voting still fell within Italy’s wide margin of appreciation to decide which criminals are allowed to vote. In short, because some Italian prisoners are allowed to vote, Italy does not have an “automatic and indiscriminate” ban which the Court rejected in Hirst No. 2. This was because it was applied only in connection with certain offences against the State or the judicial system, or with offences which the courts considered to warrant a sentence of at least three years.

Importantly, the Grand Chamber has now clarified its until now somewhat contradictory position on what states must do to ensure they do not breach Article 1 of Protocol 3 of the European Convention on Human Rights, the obligation to “hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature“.

It chose not to deviate from the decision in Hirst No. 2, as the UK had argued for. Indeed, the UK’s argument received short shrift; see paragraph 93 to 96. The Grand Chamber stated that there was even more reason now to support its 2005 decision:

93. In its observations, the third-party intervener affirmed that the Grand Chamber’s findings in the Hirst (no. 2) case were wrong and asked the Court to revisit the judgment. It argued in particular that whether or not to deprive a group of people – convicted prisoners serving sentences – of the right to vote fell within the margin of appreciation afforded to the member States in the matter.

[...]

95. It does not appear, however, that anything has occurred or changed at the European and Convention levels since the Hirst (no. 2) judgment that might lend support to the suggestion that the principles set forth in that case should be re-examined. On the contrary, analysis of the relevant international and European documents… and comparative-law information… reveals the opposite trend, if anything – towards fewer restrictions on convicted prisoners’ voting rights.

As to the famous ‘margin of appreciation’, that the right of states in certain situations to decide for themselves how to incorporate controversial rulings involving social policy, the court affirmed – indeed, following Frodl v Austria, effectively put back in place – the principle that states should be able to decide for themselves how to remove indiscriminate bans on prisoners voting. These are the crucial paragraphs, and forgive me for quoting at length as they are important (emphasis added):

In addition, according to the comparative-law data in the Court’s possession (see paragraphs 45-48 above), arrangements for restricting the right of convicted prisoners to vote vary considerably from one national legal system to another, particularly as to the need for such restrictions to be ordered by a court…

102. This information underlines the importance of the principle that each State is free to adopt legislation in the matter in accordance with “historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into their own democratic vision” (see Hirst (no. 2) [GC], cited above, § 61). In particular, with a view to securing the rights guaranteed by Article 3 of Protocol No. 1 (see Hirst (no. 2) [GC], cited above, § 84, and Greens and M.T., cited above, § 113), the Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied. In this latter case, it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction. It will then be the role of the Court to examine whether, in a given case, this result was achieved and whether the wording of the law, or the judicial decision, was in compliance with Article 3 of Protocol No. 1. 

In reestablishing the wide margin of appreciation for states, the Court rolled back on its much-criticised decision in Frodl v Austria. It did so by, first, limiting the conclusions in that case to the particular situation in Austria (para 87), but also rejected the notion that a judge must decide which prisoners to vote on a case-by-case basis:

9.  That reasoning takes a broad view of the principles set out in Hirst, which the Grand Chamber does not fully share. The Grand Chamber points out that the Hirst judgment makes no explicit mention of the intervention of a judge among the essential criteria for determining the proportionality of a disenfranchisement measure….While the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners’ voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge.

So, the UK now has 6 months to “bring forward legislative proposals” to remove the indiscriminate ban on prisoners’ voting. It now seems clear that the UK could take a very minimalist approach as to which prisoners receive the vote, for example only those serving 6 month sentences or less, and still be compliant with the Hirst No 2 ruling.

What if the UK does not comply?

In short, it will be expensive. It is now almost 7 years since the ruling in  Hirst No 2, which by the terms of the Article 46 of the ECHR the UK has promised to “abide by”. In Greens and M.T. v. the United Kingdom the Court told the UK that if it did not make progress in implementing the Hirst judgment, around 2,500 cases brought by prisoners which the Court has before it including around 1,500 which had been registered, can be “unfrozen”, that is reinstated.

If it does not implement the judgment, the UK would face thousands of financial claims against it potentially totalling millions of pounds. For the full background, see my previous post.

The third way

There is another possibility. The Government may put a bill before Parliament by 22 November 2012 but do no more than that. That is, the bill would be presented as a means of satisfying the European Court but not a policy which the Government (or, arguably, the nation) supports. This will almost certainly result in the Bill being defeated, and the court being forced to unfreeze the other claims [update - another option has been suggested by the BBC's Nick Robinson: "It may try to argue that the existing law does not involve a blanket ban since, for example, remand prisoners retain the right to vote." In my view, this would almost certainly result in a further legal challenge].

However, is hard to see how this option would accord with the spirit or indeed the letter of the UK’s obligations under international law. The Government should now accept its responsibilities under the ECHR or risk poisoning public opinion even further against the court. Indeed, given the significant retreat of the Court, the UK can afford to take a minimalist and relatively pain-free approach. But in doing so, it must make the case for implementation of the ruling to Parliament and the public too. Any other reaction to today’s ruling may serve short-term political ends, but it will also probably do significant harm to the rule of law, which would be bad for prisoners, the public and even politicians too.

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Related posts

• European Court Grand Chamber to rule on prisoner votes next Tuesday
• Prisoner votes and the democratic deficit
• UK may not have to give prisoners the vote after all
• Is the Attorney General right on prisoner votes and subsidiarity? – Dr Ed Bates
• Tick tock tick tock
• Prisoner votes: a ping pong ball in a wind tunnel

AHK and Others v The Secretary of State for the Home Department [2012] EWHC 1117 (Admin) – Read judgment

Secrecy and secret justice are rarely out of the public eye. The Queen’s speech included plans to allow secret hearings in civil claims, at a time when their use is highly controversial. The government argues they are necessary to safeguard national security. Civil liberties groups and even the Special Advocates who help administer them, regard them as a bar to real justice and fair hearings.

So it seems appropriate at this time that the High Court has handed down an important decision on the use of Closed Material Procedures (CMP) in Judicial Review claims relating to naturalisation (the process by which foreigners can be ‘naturalised’ as British citizens). In simple terms, this is a variety of procedure where the government can rely on evidence which it has not disclosed to the opposing party, in a closed hearing. In the closed proceedings, the Claimants are represented by Special Advocates, who are subject to strict rules relating to what they can and cannot tell their clients.

Background

This decision of Mr Justice Ouseley deals with four cases where applications for British citizenship through naturalisation had been refused on the basis that the Secretary of State did not consider them to be “of good character” (something which she is required to consider them to be under the British Nationality Act 1981 before she may grant them British nationality), where few or no reasons for the refusal have been given on the basis that to reveal those matters would be harmful to national security.

The hearing considered the impact of the decision in Al Rawi, described in detail here, another closed material case. The Court began by noting that there are several duties imposed on the Secretary of State when making a decision on good character: a duty of fairness, requiring the Secretary of State to identify to the applicant areas of concern so she may make submissions on those topics before the decision is made; a similar duty to give reasons for the decision after it has been taken; a duty of candour in judicial review proceedings requiring disclosure of relevant documents and a full explanation of the decision and background facts. The Court explained:

The essence of the various Claimants’ grounds is that, before any adverse decision is made on an application for naturalisation, the applicant should be told of the SSHD’s areas of concern so that they can be addressed as far as possible. After an adverse decision is made, the applicant should be told the reasons and basis for the refusal of naturalisation, or at least sufficient of them, so that he can respond effectively to them. The absence of sufficient information at either stage makes the refusal unfair. The essential and immediate purpose of the proceedings is to obtain a remedy in respect of the absence of sufficient notice of the areas of concern and of the reasons to enable them to be responded to effectively…The cases are far more about the fairness of the procedure thus far adopted by the SSHD than about the substantive merits of a decision the basis for which the Claimant has not been told much about. Disclosure is effectively the substantive relief. (Paragraph 23)

The litigation has reached the stage where a Public Interest Immunity hearing is necessary, to decide what relevant material could be withheld by the government on the basis that it would be in the public interest to do so.
The Court considered that whether a CMP procedure would later occur should have no effect on how the PII process is carried out.

Th real CMP problem

The Court went on, “The real CMP problem relates to substantive challenges, which are likely to arise in subsequent actions after representations on any disclosed material have led to a further adverse decision by the SSHD.” (Paragraph 53).

Supposing that the Secretary of State complied with her duties of disclosure, but there remained material which was properly not disclosed yet which was relevant to the case. In this situation, without CMP, the court cannot fairly review the decision, because it does not have access to all the information upon which the decision was taken. Were the Court to attempt to do this, and the government lost, then the same decision would be taken again, on the basis of material including that which was not disclosed, and the same result would occur. A CMP could be a way round this, as the only real alternative is for the Claimant to lose because the Court could not find that the Secretary of State had made an unlawful decision, given that not all the material underlying the decision was seen by the Court.

The Court found that there were compelling reasons why Al Rawi did not prevent a CMP being held in this case: there was no finding in Al Rawi that CMP hearings could not be held in judicial review proceedings. Al Rawi had involved claims for damages in tort and for breaches of the Human Rights Act 1998.

However, the Court considered that the decision did mean that legislation was required for a CMP in judicial review proceedings, and consent of the parties was insufficient for a CMP to be held.

A decision for Parliament

It was recognised that ordinarily, the Court has an inherent jurisdiction to adapt its procedures in order to make them fair. However, in Al Rawi, it was held that even if such a jurisdiction exists, it should not be exercised in an ordinary civil claim for damages. Importantly it was noted that,

… the crucial point, as I see it, was not the form of action, nor even the legal nature of the issues. The crucial point was the nature of the process whereby decisions would be reached in ordinary civil claims for damages, which led the Supreme Court to hold that it was for Parliament to rule on, and devise if it wished the boundaries for such a process. The change was of such a nature, controversy, and so contrary to the normal procedures of a Court that Parliament should reach the decisions on whether and how to make such a change. I also regard the strong but differing views of the Supreme Court Justices about the desirability, fairness, circumstances and operation of a CMP as meaning that the resolution should be Parliamentary rather than of the Court’s devising. (Paragraph 81)

Consent

The Supreme Court in Al Rawi had been divided about whether a CMP could be consented to. In this case the Court considered that it could not. First, the Supreme Court had appeared to proceed on the basis that a Defendant would consent or could be ordered to do so. But “I do not see that this procedure should only be available to the advantage of one party” (paragraph 89).

Secondly, the Courts would be devising the procedure. However, arguments about what form the procedure would take were important to the Supreme Court’s decision. This raises the question, “How far does the consent have to extend: to principle or to every aspect of procedure?” (Paragraph 90)

Thirdly, such consent would necessarily mean that, at least in the narrow sense, the Court has jurisdiction to decide the issues. A process which would otherwise require legislation would become available because of the parties’ consent. This ignores the much wider public interest in the conduct of proceedings of this nature.

Fourthly, the Claimant would have to be advised that the matter was at least arguable, to the extent that it is worth holding a CMP. But the PII judge could not advise whether or not there was something in the closed material which made a CMP worthwhile. A Special Advocate might advise, but the Secretary of State may object to disclosure of the degree of knowledge which the Security Service has of the Claimant, which might be touched upon in that process.

“I therefore hold that in the naturalisation cases, there can be no CMP even by consent, save as is inherent in the PII process. The cases will have to be considered in the light of anything which emerges from the PII process.” (Paragraph 97).

The case therefore proceeds to a PII hearing without a decision about what may occur thereafter. That will be dependent upon the result of the PII process.

Conclusion

Given the difficult questions which CMP poses, involving national security, the right to fair trial and the public interest in justice being transparent, it seems entirely appropriate for the Court to have regarded the use in these proceedings of CMP as a matter for Parliament. When such fundamental issues are at stake in a democratic society, which have a bearing on the rule of law, public interest and very important rights of the individual, the legislature is the appropriate forum for the decision to be taken.

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Read more:

• Secret evidence v open justice: the current state of play
• A secret justice climb down? Perhaps not
• Secret evidence proposals- time to reflect
• Should more trials be held in secret? Part 2: a Special Advocate’s comment

DCLG v. Information Commissioner & WR [2012] UKUT 

I have previously posted on the decision leading to this successful appeal by the Planning Inspectorate, against an order that they produce their legal advice concerning a planning appeal. The decision of the First-Tier Tribunal in favour of disclosure was reversed by a strong Upper Tribunal, chaired by Carnwath LJ in his last outing before going to the Supreme Court. So the upshot is that PINS can retain whatever advice which led them to refuse this request for a public inquiry in a locally controversial case.

Now for a bit of background. The claim for disclosure of documents arose out of a planning application by a wind farm operator to install an 80m tall anemometer (and associated guy wires radiating over about 0.5ha) near Fring in North Norfolk. This was to assess the viability of a wind farm near the site. The local planning authority refused permission for the anemometer, and the wind farmer  appealed.  There are three ways of deciding such an appeal – a full public inquiry with oral evidence and submissions, an informal hearing or written representations. The locals people wanted a public inquiry. They were supported in that by the council, and the local MP thought that the council was the best body to judge that.  PINS said no; no complex issues arose for which a public inquiry was necessary.

WR, acting for local objectors,disagreed; he said  that an anemometer would itself have an impact on local populations of pinkfooted geese, a protected species in nearby coastal areas; hence, any development would need an Environmental Impact Assessment before it could be approved by the planning authority, whether or not the wind turbines proceeded.The issue was not simply about visual amenity, as PINS thought it was. Hence a public inquiry was required.

When PINS announced its view, and said that its view was based on legal advice, WR unsurprisingly said – show us your advice. PINS refused, hence this litigation.

 Lawyers will know that such advice is covered by legal professional privilege. But such privilege does not necessarily prevent it from being disclosed by a public authority. Under the Freedom of Information Act (FOIA) regime, it is a ground for refusing to produce documents, but only when that is in the public interest: s.42. Under the exemptions in reg 12(5)(b) of tlhe Environmental Information Regulations  privilege is not even a ground of exemption; the public authority must show a rather different thing, namely that disclosure of the legal advice would adversely affect the course of justice, and in all the circumstances of the case, the public interest in maintaining that exemption outweighs the public interest in disclosure. In addition, there is a presumption in favour of disclosure.

WR appealed the Information Commissioner’s decision to refuse disclosure of the appeal. The First Tier Tribunal ordered disclosure. And it is that order which the Upper Tier Tribunal has now reversed.

The FTT had concluded that the EIR regime, based upon Directive 2003/4/EC on public access to environmental information, is a more permissive regime that the domestic freedom of information regime. Hence,  it was not consistent with either that Directive or FOIA

to carve out what amounts to a de facto absolute exemption for legal advice. Nor is it consistent with the presumption in favour of disclosure expressly articulated in Regulation 12(2) EIR.

69. The information being requested was used by PINS as the basis for depriving the Appellant and members of the public of their ability to participate effectively in environmental decision-making. Considering the information itself, even if this exception  was fully engaged (and the Tribunal, in the circumstances of this case, concludes on the balance of probabilities that it is not,) then the public interest balancing test could not produce a result which would prevent disclosure.

Hence, even if the exemption relied upon was engaged by the advice in question,

the public interest elements in this case were sufficiently compelling to override the considerations which usually favour withholding legal advice. [74]

On appeal, the UTT considered that regulation 12(5)(b) enabling disclosure to be refused on privilege grounds was engaged.  The advice was given at a time when judicial review had been threatened; disclosure would have had an adverse effect on the course of justice, by weakening general confidence in Legal Professional Privilege.  This was said to be a strong factor in favour of maintaining the exemption, though, in the light of the FTT’s remarks abut the advice in question, and indeed the UTT’s words quoted below, this was evidently a point about general public interest, rather than the specifics of the case. The UTT also said  that it was unfair to require PINS to reveal its legal advice in circumstances where those seeking to overturn its decision would not have to do so.

In the UTT’s words

(i) Would disclosure of the information adversely affect the course of justice?

67.       In our judgment the answer to that question is plainly “yes”. The advice was given at a time shortly after proceedings for judicial review had been threatened…. At the time when the information was requested, and when the request was refused, proceedings (either by way of judicial review or, if the planning appeal was successful, by way of statutory appeal) were still very much a possibility. We do not consider that it was probable that there would be some such proceedings, and we therefore do not find that it was probable that there would be some adverse effect on the course of justice in relation to proceedings concerning this planning application. But we do find that at the material time disclosure would have had an adverse effect on the course of justice by reason of the weakening of general confidence in the efficacy of LPP which a direction to disclose advice given in the circumstances of this appeal would cause. There were in our judgment no particularly special or unusual factors of this case which would have justified public authorities and their legal advisers in thinking, were disclosure in this case to be directed, that they would not be at risk, in the broad generality of cases, of having to disclose communications seeking or giving legal advice.

Leaving aside general considerations about the desirability of upholding LPP, one wonders whether the facts of the case come anywhere near establishing that disclosure “would” harm the interests of justice. Say, the case had gone to judicial review or statutory challenge, and WR had produced the, apparently, scanty advice underlying PINS’ stance. What then? If PINS has a rubbish case, then it deserves to have lost. If it had a good case, but weak legal advice, it is difficult to see how the former can have been affected by the latter. Quite how any of this would have been affected by general weakening in the confidence of LPP, is unclear.

That all said, the UTT decided that the factors in favour of disclosure were relatively weak: the presumption in favour of disclosure was rebutted. The fact is, that the strong grounds for upholding LPP generally, which have been repeatedly invoked by the highest courts in the UK in defence of the subject, were now being used to interpret a provision which was not in all truth drafted so as to align with those general policy considerations. The UTT did not decide that every privilege case would automatically engage regulation 12(5)(b); but they also doubted whether regulation 12(5)(b) could be confined to cases where there was a threat of litigation. In summary, the UTT appear to have been paying lip service to the specific statutory regime in deference to the wider policy issues in play. Whether the European Court of Justice would agree is questionable, not least because the rules about privilege for in-house legal advice are somewhat variable over the EU.

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