Two recent posts on this blog have brought deserved attention to the question of the European Court’s handling of admissibility decisions. In the course of criticising the substantial misrepresentation of the statistics for UK petitions to the European Court, Andrew Tickell’s piece highlighted the significant contribution of “highly discretionary concepts” in the filtering of the Court’s caseload.

Alongside clearer procedural hurdles such as the six month time bar and exhaustion of domestic remedies, the “manifestly ill-founded” criterion may be a clear and meaningful legal term but certainly isn’t manifest exactly what obstacle it sets.

On the basis that 60% of inadmissibility decisions were attributed to this heading in 2010 (the first year in which any statistics have been released) and reinforced by anecdotal reports that practitioners have found arguable cases “miffed”, Tickell suspects that the ill-founded test poses a higher hurdle than might be obvious at first sight.

That this is the case is further supported in Paul Harvey’s response, which notes that even cases attributed to the other inadmissibility categories fail the ‘manifest’ criterion as well, suggesting that a significant majority of applications fall foul of the concept. Harvey’s article helpfully unpacks reasons why most applications are ditched but seems more oriented towards promising that no bad case will survive the Court than answering Tickell’s concern that good, or marginal cases, are potentially being deprived of a full judicial process.

In defence of the use of the ‘manifest’ criterion, Harvey states that while broadly applied, it is no more discretionary than domestic criteria such as “no reasonable prospect of success” and that “in the hands of an experienced Single Judge, assisted by Non-Judicial Rapporteurs, should give no cause for concern”.

This demands a lot of faith in the robustness and rigour of the Court’s legal and administrative processes, its Judges and its ‘non-judicial rapporteurs. Now that questions are being asked I do not believe he can afford to presume such confidence in the public. In the absence of greater transparency and more revealing statistics it is hard to imagine those who harbour concerns will be reassured.

In the absence of further data I must also appeal to anecdote. During a research visit to the Council of Europe this past Summer I was surprised to discover that input into admissibility decisions was not the sole preserve of qualified lawyers, trained human rights specialists, nor even the Court’s full time staff. Stagiaires (unremunerated interns, principally law students) were apparently a regular part of the admissibility process, drafting arguments for rejection of applications and, provisionally, applying the ‘manifestly ill-founded’ label to cases. This was ostensibly standard practice, as was allocating to stagiaires petitions that originated from their own home state.

For temporary workers, however able, to be able to perform this daunting task to the very high standards demanded in the context must necessitate a clear appreciation of the meaning and application of this “manifestly ill-founded” criteria. However there was little time for the stagiaires I met to develop any such subtle understanding, with their being put to consideration of applications on only their second day of work. What was clear to those I informally spoke with was that a high rejection rate was, if not expected, then, at the least, understood to be par for the course and that for an application to be found admissible was a relative rarity.

Stagiaires are supervised and the full-time legal officers are no doubt attuned to identifying mistakes. However, that even amongst those who are involved in the decision making process, there may be a less than complete understanding of the bounds of the ‘manifest’ concept makes unwavering faith in the system hard to maintain. Even if one section of the public can be confident that no ill-founded claims will come to fruition, there is nothing in Harvey’s argument to reassure those that fear the Court’s filtration system is not fine grained enough to ensure no case of merit is missed.

Under such circumstances I think the Court and its registry need to do something more to secure public confidence in the effectiveness of the process than simply appeal for our trust. A black box mechanism for rejecting applications without explanation does not demonstrate a problem but, once questions have been raised the integrity of one’s processes, it does little to help defend them.

I do not doubt that the great majority of these “manifestly ill-founded: applications are indeed unmeritorious but if the Court is to maintain the confidence of the public then the onus is on it to demonstrate that this is the case.

As the Court’s caseload continues to grow and as the Conservative Government calls for even further filtration of applications, steps must be taken to ensure that expeditious handling of applications leads neither to the cutting of corners nor risking the perception that corners are being cut. Providing greater transparency in the admissibility decision-making process is an important element of avoiding both outcomes.

If justice is to be seen to be done then some more sophisticated system of monitoring must be seriously and urgently considered. Harvey states the “vast majority” of these manifestly ill-founded cases fall into four, clear, categories. If this is the case then is it unreasonable to ask that during the rejection process they be marked and reported as such (at least in aggregate)?

If the “manifestly ill-founded” concept is clear and decisions are being made not discretionarily but through its careful application to the facts of individual petitions then the extra step of registering, or simply tallying, those conclusions cannot be that onerous a task. In releasing some limited data for the first time it has taken a step in the right direction but they will need to add further granularity to these statistics if they are to show that the Court takes the task of demonstrating its integrity seriously.

Ben Jones is a doctoral researcher at the University of Oxford Faculty of Law.

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Related posts:

• Mr Cameron goes to Strasbourg [updated]
• Is Strasbourg obsessively interventionist? A view from the Court – Paul Harvey
• Is the European Court of Human Rights obsessively interventionist? – Andrew Tickell
• UK loses 3 out of 4 European human rights cases? More like 1 in 50, actually

The Queen on the Application of Medical Justice v Secretary of State for the Home Department  [2011] EWCA Civ 1710 - read judgment

People who make unsuccessful claims to enter or remain in the United Kingdom cannot be removed without being given sufficient time for a lawyer to prepare a proper challenge to their claim.   The government has failed in its appeal against the Administrative Court’s finding that government policy unlawfully provided for expedited removal procedures in certain pressing circumstances – for example where there was a risk that the person concerned, if given advanced notification of his removal, might attempt to frustrate those measures of removal. The policy was quashed because it interfered with people’s right of access to a lawyer.

The Home Secretary is responsible for granting or refusing leave to remain in the United Kingdom for those who do not have the right of abode in this country in accordance with the Immigration Rules. It is an important aspect of maintaining immigration control that a credible enforcement process is in force and that those with no right to remain in the United Kingdom are removed from the jurisdiction while not infringing the accepted rights of those about to be removed.

On the other hand, she has to take in to account the countervailing factor is the right of those about to be removed to challenge the removal directions because they infringe their rights under common law, under statute or under the ECHR.  Over the years the temptation became overwhelming to set in train ill-conceived threats of legal proceedings in order to prevent removal. By 2002, it was taking on average more than six weeks for potential claimants even to obtain permission for judicial review and the authorities were unable to hold an individual in detention for that period of time with the result that the individual would be released.In consequence, considerable public funds were wasted in incurring expenditure in respect of detention and escort costs as well as of flight bookings for removals that did not take place. The immigration authorities were concerned that they were later unable to trace individuals who had been released from detention as their removal was no longer imminent.

Background to this case 

As a result, in January last 2010 the Home Department introduced a document entitled “Judicial Review and Injunctions” (“the 2010 policy document”). In essence, under this policy there would be in most cases a minimum period of 72 hours between the setting of removal direction and actual removal during which time an application for judicial review might be made with two working days being included in the 72 hours. The part of this policy under attack is that which gives individuals, who fall into certain specified categories and who have made unsuccessful claims to enter or to remain in the United Kingdom, little or perhaps no notice of their removal directions, which are the specific arrangements made for their removal from the United Kingdom.

So the 72 hours rule was not itself the target of this challenge. What the claimants argued was unlawful were these exceptions, where removals could be effected in a shorter time, for instance where in “where swift removal is required to maintain order in removal centres”.  This was no doubt the consequence of the 2007 disturbances occurred at a Removal Centre, which were triggered by detainees with prior notice of removal inciting others to riot. It was felt that this and other exceptions should be created to the general rule of 72 hours notice in circumstances where the detainee or a family member, who was also detained, had a history of non-compliance with removal directions and there was strong evidence to suggest an attempt to remove that person with advanced notification posed a risk to the good order and discipline of the Immigration Removal Centre.

In 2010 Silber J in the Administrative Court quashed this part of the government’s policy as being unlawful because it breached the right of access to justice of persons facing imminent removal. The Home Office appealed.

The Appeal 

The main ground of appeal was based on the common law right of access to court, established in  Raymond v Honey [1983 1 AC.1, 13] and a series of pre Human Rights cases such as R v Secretary of State for the Home Department, Ex parte Leech [1994] QB 198, and R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 at 621[26].  The appellant submitted that the judge impermissibly extended the substantive content of the common law right of access to the courts by concluding that the common law principle required the provision of legal advice to a person served with removal directions and that, absent the provision of such advice, removal from the United Kingdom would be unlawful. The effect of Silber J’s conclusion, it was submitted, was that

 in order to ensure the right of access to a court every individual who wishes to access that court must be able to receive legal advice, possibly even paid for by the state. It would have significant implications for the provision of legal services in this country and for the availability of public funding for legal advice.

Another issue was the extent to which to a policy could be made subject to a challenge rather than a claim by a particular individual claimant, who has been adversely affected by the policy under challenge.  In essence, the question was whether instead of quashing the policy, the court should  merely await challenges in individual cases. Silber J’s response in  the court below was that this approach would be “inappropriate” because

 in many cases where access to justice is not available to those served with abridged notice pursuant to the 2010 exceptions, they will be deported and will be unable to pursue their claim from abroad.

A similar issue arose in R (Refugee Law Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219, where Sedley J concluded that judicial intervention is justified to obviate in advance a risk of injustice or potential unfairness. Indeed he went further in that case, indicating not only that a challenge could be brought before the policy has actually been applied, but that the burden was not on the claimants to show that the 2010 exceptions had actually infringed the right of access to justice, but that the burden was on the Secretary of State to show that there was

no serious possibility or an unacceptable risk of infringement of the right of access to justice. A more potent form of evidence would be if the Secretary of State could establish by cogent evidence that the 2010 exceptions have been operated in a way in which it has not interfered with the right of access to justice.

Notoriously difficult as it is to prove a negative, apparently the immigration authorities have a deeper pocket in order to set about doing so.

Another somewhat ironic reason why it was felt that removal could not be expedited beyond the 72 hour rule was that removal directions may be delayed by the legal process itself. The removal order may be subject to a challenge under the ECHR or the Refugee Convention, and the lengthy process of establishing this may unfold against different circumstances obtaining in the country of origin, or changes in the subject’s personal (ie family) life, leading to potential claims under Articles 3 or 8 of the Convention.  Then there is the matter of the doctrine of internal relocation which means that the Tribunals and the Immigration Judges might consider evidence that the person concerned can safely relocate to another part of that country.  The business of obtaining legal advice about all this ‘cannot be short-circuited” and usually inevitably takes “substantial periods of time”.

The Appeal Court’s decision

The Secretary of State’s appeal was dismissed and ruling of the Administrative Court upheld.  The 2010 exceptions, unlike the standard policy of a minimum 72 hour time frame, failed to include provisions ensuring that there was access to the courts by those against whom it is invoked and there was no safeguard for those subject to the 2010 exceptions so as to ensure that their right of access to justice was preserved.  Even the exception for implementing removal directions within the 72 hour timeframe where the subject consented was ruled unlawful,  since there was an “underlying concern” that in such a very short timescale  it would not be possible to ascertain whether genuinely informed consent was given and, if it was not, then to challenge removal.

The consent exception is based upon the same premise as the other exceptions, that is to say that giving less than 72 hours’ notice and in some cases virtually no notice at all, does not give rise to a very high risk that the right of access to justice is being and will be infringed.

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Secretary of State for Energy and Climate Change v. Friends of the Earth and others, CA, 25 January 2012, read judgment 

So, after an anxious wait for the affected businesses, the Court of Appeal has confirmed today that the Minister was too hasty in the way he went about modifying the scheme for subsidising small solar power schemes. But, as often, the Court went about things differently from the judgment below (see my initial and follow-up posts on this)

The Court held that the Minister had no power to do what he did, which was to say he was going to modify the subsidy rules in respect of schemes which had become eligible prior to the modification coming into effect. The legislation and rules are characteristically impenetrable, but the Minister proposed in a consultation, which closed on 31 October 2011, to reduce the subsidies for schemes which became eligible after 12 December 2011. The key point is that he proposed that this modification should come into force on 1 April 2012, and that those who had signed up to such a scheme between December 2011  and April 2012 lost much of their subsidy from 1 April 2012. The original scheme paid participants 43.3p per kilowatt hour for 25 years. The proposed revised scheme for these new joiners would pay them that rate until April 2012, but thereafter 21p per kilowatt hour for the rest of the 25 years.

Though the speed of the proposed changes (6 weeks from consultation to 12 December) is surprising, the idea that you can modify a scheme to reduce payments in future is not in itself obviously unlawful. The problem for the Minister is that nowhere in the legislation could he find a provision which said – you can amend the rates of return for a participant after the participant has joined the scheme. On the contrary, the secondary legislation made it clear that the whole premise of the scheme was to confer on participants a fixed return. After all, they were being asked to shell out in order of £9,000 in return for some guaranteed return on their money. Some people are committed to green technologies, but many are not, and without a certain amount of  financial persuasion, the latter were not going to part with their money.

At one level, this decision is a micro one which is not going to keep most of us awake at night – did section 41 of the Energy Act 2008 allow such modification? No, it didn’t, said the Court. But the Court of Appeal touched on interesting general questions of retrospectivity and retroactivity. The difference?

45…. Retroactive changes change the law in relation to events which have taken place in the past….. Retrospective changes alter existing rights, but only in relation to the future. The presumption against altering vested rights in the future is weaker than in relation to retroactive change…

46. Although it is weaker, there remains a presumption against the alteration of existing “vested rights”, that is, those rights which, once acquired, fairness demands should not be altered. Such rights are described by Lord Herschell in Abbott v Minister for Lands [1895] AC 425 at 431, as those of which a beneficiary has availed himself before the law is changed.

As Moses LJ pointed out

45….. The proposed changes in respect of installations becoming eligible before the modifications come into effect do not neatly fall into either category. They are more akin to the category of prospective change. Nonetheless, anyone choosing to achieve eligibility in relation to installation between 12 December 2011 and 1 April 2012 gains a right to a fixed rate by reference to FIT Year 2 for 25 years.

48…..The proposed modification has retroactive effect. If it comes into force on 1 April 2012 it takes away that pre-existing right to 25 years of payments at 43.3p per kilowatt hour and substitutes for it a right to that sum only for a few months and thereafter at the lower rate proposed of 21p per kilowatt hour. The power asserted by the Secretary of State is a power to vary the rate after an installation has achieved eligibility and thus after the rate has been fixed for 25 years, subject only to RPI. That is a retrospective alteration of the scheme which confers what, pace Lord Rodger, may be described as a vested right to a fixed rate.

So, a bit of retroactivity and retrospectivity, all complicated by the fact that the measure is only proposed to come into effect in the future – not surprising that it was difficult for anyone to analyse its precise legal effect.

The Minister’s real problem, of course, was that these schemes had become too popular, the capital cost had fallen, and hence the rate of return had become too high for our careful civil servants to bear. It was not costing more per scheme than they thought it would cost, but more schemes were being proposed than the Department had bargained for, so the overall bill was higher.

Some initial reflections on the judgment.

The first is that you might get yourself into trouble if you propose a prospective change with retroactive effect unless your statute firmly so empowers you. No problem if you announce that from a certain date new schemes will be governed by new rules – that was plainly within the scope of the statute. But it was the mix-and-match of entitlement and retroactivity which was the stumbling block for government.

The second is that the political net effect of all this is not good. The rushed-through changes to what was an enlightened – if in the end over-generous – scheme hardly encourage cautious investors to trust government departments in future. A rather unfair reading of what DECC did is that as long as the schemes were fiddling at the edges, they were happy, but once, by its success, it threatened to make a difference and cost real money, they ran scared. In fact why they sought to change the rules is plain, given that the UK now has £1 trillion of debt.  But unfair impressions stick, and it is pity that this has occurred in an area where perceptions are so important.

Thirdly, the interesting point in the judgment below about when you can judicially review a proposal – it disappeared as everyone sensibly wanted to get out of the Court the right answer to the unlawfulness point.

In my last post I drew attention to the poor employees waiting to learn if they were being laid off as a result of this decision. Obviously, this result is good news for the companies involved and their workers. But don’t forget that the changes can and will affect anyone who signs up for a solar photovoltaic scheme after 1 April 2012, and even that assumes that DECC cannot amend the statute in the meanwhile.

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Andrew Tickell in his recent post (Is the European Court of Human Rights obsessively interventionist?) makes a number of important points about the European Court of Human Rights’ approach to admissibility, in particular the application of the manifestly ill-founded criterion. Perhaps understandably, the majority of legal scholars have preferred to focus on the more substantive aspects of the Court’s work and its leading judgments.

However, Tickell’s analysis, and his other efforts to ensure that the less glamorous work of the Court on admissibility are not overlooked, must be welcomed, both as redressing that balance and informing the wider debate on the proper role of the Court. This post seeks to build on his contribution by providing an overview of the Court’s approach to admissibility in applications brought against the United Kingdom.

As will be apparent, such an overview is necessarily impressionistic: it would be impossible for the Court to maintain detailed statistics on the reasons why applications are rejected without devoting a disproportionate of time and resources to the task. Nonetheless, the following points may be made.

First, Tickell is entirely correct that the overwhelming majority of cases lodged against the UK are declared inadmissible. In 2010, 1,175 UK applications were declared inadmissible; only 23 – less than 3 per cent of the total – resulted in a judgment of the Court, several of which ended in findings of no violation. Preliminary figures for 2011 confirm that trend. In 2011, the Court disposed of 955 applications against the UK. It found a violation of the Convention in only eight cases. (Tickell is also correct that this represents a much lower “rate of defeat” for the UK than some other Contracting States.)

Second, it is very difficult to break down the 955 inadmissible applications into clear categories. A sizeable proportion of the cases will be inadmissible on more than one ground, and the recorded ground for admissibility may simply be the most obvious or expeditious (for instance, if an application is manifestly ill-founded and is submitted five years after the final domestic decision, it may be more appropriate to reject it under the six months rule).

Third, as Tickell concludes, it is readily apparent that the Court is already making extensive use of the “manifestly ill-founded” criterion, though I would not agree with his view that this is a “highly discretionary concept”. It is, in my respectful view, no more discretionary or subjective than equivalent domestic criteria such as “no reasonable prospect of success” and, in the hands of an experienced Single Judge, assisted by Non-Judicial Rapporteurs, should give no cause for concern.

Of course, there is a great deal of variety in the complaints made in the 955 applications which were declared inadmissible last year. However, it is also worth noting that the vast majority fall into the following categories:

• applicants who are delusional and make outlandish allegations against State bodies or private persons;

• -applicants challenging vexatious litigants orders and whose cases are rejected because the orders are a proportionate limitation on the right of access to court (H. v. the United Kingdom, no. 11559/85, Commission decision of 2 December 1985, Decisions and Reports (DR) 45, p. 281);

• fourth instance” applications (where applicants are simply challenging the outcome of court proceedings, on no other ground than that the domestic tribunal has erred in its factual findings); and

• cases which have been fully argued before the domestic courts, and all relevant Convention arguments have been considered and dismissed.

Of the latter two categories, four areas of law account for the bulk of the Court’s work: criminal law, employment law, family law and immigration law.

Perhaps because of the availability of interim relief under Rule 39 of the Rules of Court, the last area, immigration law, is by far the biggest. In 2011, approximately 429 applications brought by non-UK nationals challenging their deportation or removal from the United Kingdom were declared inadmissible by the Court.

In about three-quarters of these cases, the application was struck out because the applicant failed to pursue his or her application, normally after a Rule 39 request to halt the removal had been refused. The remaining quarter were declared inadmissible as manifestly ill-founded, usually because the applicant’s complaints under Article 3 and/or Article 8 of the Convention had been thoroughly considered and rejected by the domestic authorities.

Finally, Tickell is correct to record that practitioners are often dismayed when applications they have submitted are rejected as manifestly ill-founded. That feeling of dismay is understandable, particularly if the case has been rejected by the Single Judge and thus the decision is unreasoned (for further academic criticism of the practice see, for instance, H, Keller et al, Debating the Future of the European Court of Human Rights after the Interlaken Conference: Two Innovative Proposals (2010) 21:4 EJIL 1025–1048.

However, a number of points may be made in defence of this practice.

First, it is not unusual for appeal courts to decline to give individualised decisions when they refuse to hear a case: the Supreme Court, for instance, has continued the previous practice of the House of Lords in informing those who have unsuccessfully sought leave to appeal that “the application did not raise an arguable point of law of general public importance which ought to be considered… at this time”. Arguably the Court, as an international court should be just as – if not more – selective in choosing which cases should receive fully reasoned decisions than the senior courts of the Contracting States.

Second, there is nothing to prevent the Single Judge referring an application to a Chamber of the Court for its consideration, if he or she feels that the decision on admissibility is more appropriately taken by that body.

Third, there is nothing to prevent the Chamber itself declaring a case manifestly ill-founded. This can arise, for instance, where there is no appearance of a violation of the Convention, but the application nonetheless raises a point of law that is of general interest or importance. In such cases, there is some value in producing an inadmissibility decision, if only so that it is clear that the Court has endorsed the approach taken by the domestic courts (see, for example, Mustafa Kemal Mustafa (Abu Hamza (no. 1) (on adverse publicity and the right to a fair trial); Judge (on the absence of reasons for a jury’s verdict; and Friend and others (on fox hunting).

And, of course, beyond their jurisprudential value, such inadmissibility decisions (and the other 950 applications declared inadmissible every year) count as additional reminders of Tickell’s conclusion that the Court may not be as “obsessively interventionist” as media reporting of its work occasionally suggests.

Paul Harvey is a UK lawyer in the Registry of the European Court of Human Rights. The views expressed are personal.

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Related posts:

• Is the European Court of Human Rights obsessively interventionist? – Andrew Tickell
• UK loses 3 out of 4 European human rights cases? More like 1 in 50, actually
• Are some rights to private life just not cricket?
• Strasbourg: L’enfant terrible
• No deportation for Abu Qatada, but where are

Updated | In the 1939 film Mr. Smith Goes to Washington, James Stewart plays a local Boy Rangers leader who becomes a US Senator and, against all odds, triumphs agains the corrupt bureaucrats in Washington. Tomorrow, according to The Sun, “battling” Prime Minister David Cameron will be travelling to Strasbourg in, it would seem, similar style to “tell Euro judges to stop meddling in British justice”.

Meanwhile, back in London, the British president of the European Court of Human Rights launched a preemptive strike on Mr Cameron’s speech in today’s Independent, arguing that the criticism from “senior British politicians” relating to the court’s interference is “simply not borne out by the facts“.

Bratza is right that the us-vs-them narrative is partly the result of mischievous human rights reporting by the press. Recent examples are the Daily Mail’s extravagant claim that the UK loses 3 out of 4 cases in Strasbourg, resting on a partial reading of the court’s statistics, and the Telegraph’s seemingly endless run of articles based on low-level immigration decisions, the latest being: Bigamist wins ‘family life’ human rights case. In that case, the original tribunal knew nothing about his alleged other marriages, so it is hard to see what it shows about human rights defences to deportation decisions, except that a claimant possibly lied in court, was found out and will probably now be deported.

However, blogger Carl Gardner rightly points out that the Strasbourg court may indeed have overstepped its remit, and therefore despite Bratza’s justifiably robust defence, “the facts do bear out the complaint that the court has sometimes been too interventionist.”

Wherever the blame lies, the debate over human rights law in the UK has become toxic. Senior politicians are terrified to defend human rights decisions, and the press have been steadily ratcheting up their demands over what should be done about human rights gone wrong. The Sun and Telegraph now mooting the possibility of a total or temporary UK withdrawal from the European Convention on Human Rights, an international instrument which was mainly drafted by UK lawyersand to which the UK was amongst the first signatories. As Lord Neuberger, the head of the Court of Appeal said in a speech last year, the terms of the current debate:

may tempt some into thinking that it is hardly worth maintaining the State’s inability to deny you a fair trial, to kill or torture you, and to preclude you enjoying freedom of expression.

Returning to Washington for a moment, the human rights debate has begun to resemble one of the ideological red line issues which now dominate US presidential elections. The ongoing Republican Presidential primaries have seen candidates falling over themselves to be the most anti-abortion, anti-universal health insurance (despite the frontrunner, Mitt Romney, having pioneered the policy) and anti-tax rises, at the expense of a sober debate about important issues. As Jeffrey Frank points out this week in the New Yorker, as early as 1959 then-Vice President Nixon saw the danger of such polarisation. He told the California Commonwealth Club:

“I think it would be a great tragedy . . . if we had our two major political parties divide on what we would call a conservative-liberal line.” He continued, “I think one of the attributes of our political system has been that we have avoided generally violent swings in Administrations from one extreme to the other. And the reason we have avoided that is that in both parties there has been room for a broad spectrum of opinion.” Therefore, “when your Administrations come to power, they will represent the whole people rather than just one segment of the people”.

The equivalent danger for these shores should be clear to the Prime Minister as he travels to Strasbourg. Pulling out of the Court or the European Convention because the public are concerned about immigration controls and prisoners voting would be to jettison, unnecessarily, everything which is good about the court and the UK’s role in developing international human rights standards. Bratza names but a few:

Freedom of religion has been established in many previously intolerant countries. Journalists no longer face criminal sanctions when they criticise politicians. Homosexuality has been decriminalised across Europe. The victims of domestic violence and trafficking are increasingly receiving enhanced protection.

In fact, it is unlikely that the Prime Minister will threaten withdrawal from the court or the Convention. He will be wary of being hoodwinked by anti-human rights rhetoric as the Home Secretary was when she repeated a now-famous cat-prevented-deportation tale at the Tory Party Conference. In any case, the UK’s policy was made clear by the Attorney General in his October speech, in which he set out the UK’s reform proposals which it is pushing strongly during its 6 months stewardship of the court. He also said:

There is no question of the United Kingdom withdrawing from the Convention. The United Kingdom signed the Convention on the first day it was open for signature on 4 November 1950. The United Kingdom was the first country to ratify the Convention the following year. The United Kingdom will not be the first country to leave the Convention

Grieve continued:

We need to challenge the myths, some of them ludicrous, that have grown up about human rights, particularly in some sections of the media and which I often get repeated to me by concerned constituents. We need to see our part, as a legal fraternity to be to make sure the law is understood.

So, whatever the dreams of the Eurosceptic press, the Prime Minister is likely to push for reform of the Court without threatening the nuclear option of withdrawal. There will no doubt be some strong rhetoric – probably involving the liberal use of word “sovereignty” – in order to maintain the “battling” image. But when Mr Cameron goes to Strasbourg, he should remember that, to paraphrase Richard Nixon, he represents the whole people rather than just one segment of the people.

Update, 25 January 2012 – The Prime Minister’s full speech has been published here.

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Related posts:

• Is the European Court of Human Rights obsessively interventionist? – Andrew Tickell
• UK loses 3 out of 4 European human rights cases? More like 1 in 50, actually
• Strasbourg: L’enfant terrible
• No deportation for Abu Qatada, but where are we now on torture evidence? – Professor Adam Tomkins
• A grown-up speech on human rights reform

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

BAILII

First, a plea from the Pink Tape family law blog to donate to BAILII, particularly if you run a blog that links to BAILII or if you are a lawyer who relies on BAILII for transcripts, or to simply do their online survey: BAILII – Pink Tape. This blog would not exist without the excellent service provided by BAILII – please help them by donating and doing the survey.

The report from the Wilton Park conference, where the good and great of Europe met to discuss the future of the European Court of Human Rights, has been published. Suggestions included requiring individuals to show that non-examination of the case would cause a “significant disadvantage” and introducing a “universal periodic review” procedure, such as that used by the UN. It was recognised that national implementation was by far the biggest challenge that the system faced.  The full report can be found here.

Stress in Strasbourg

Also on the topic of reform of the European Court of Human Rights, Prime Minister David Cameron is to give a speech in Strasbourg on Wednesday, and this has been heavily trailed by the media. See Cameron to tell Europe’s judges to stop interfering in British law (Daily Mail), Britain challenges power of human rights court (Telegraph) and PM to Euro court: Stop the meddling (Sun).

The Prime Minister will be well aware that the controversial court issued 3 judgments concerning the UK this week. In a ruling that has caused controversy, the Court found that suspected terrorist Abu Qatada could not be deported to Jordan because there remained the risk that evidence obtained using torture would be used against him. For an analysis of the judgment, click here: Suspected terrorist may not be deported to Jordan Strasbourg rules. For commentary by the Guardian, click here.

In another ruling, the Court approved UK justice when it found that “whole life” tariffs for murder with no hope of release (except by the Secretary of State on compassionate grounds) was not a breach of Article 3. For an article by UKHRB, click here: Whole life sentences for murder not in breach of Convention says Strasbourg and for an article by the Justice Gap, click here. For commentary by Liberty on both judgments, click here: Court of Human Rights prefers British style justice to Jordanian law.

Finally, in the third case, the Court found that the Article 3 rights of 2 men indicted for murder in the United States would not be violated if they were extradited, despite risking death penalty or sentences of life imprisonment without parole.

For a summary of all three cases, see Adam Wagner’s post Strasbourg: L’enfant terrible. See also this article by the Guardian on the wider context of the power struggle between the UK and Strasbourg.

Hacking

More hacking news: a great article by David Allen Green in the New Statesman on the question of what the Times did or did not know about computer hacking when it went to the High Court to defend their outing of Nighthawk, an anonymous police blogger: What did the Times know about computer hacking and when?

370,000 migrant workers on the dole?

And here’s a great article by jwci debunking the Telegraph article on migrant workings claiming the dole: 370000 migrants on the dole. Really?

Sharia law

Click here for an interesting piece on sharia law and whether decisions taken by sharia tribunals are binding as regards divorce. Legal blogger Carl Gardner has queried whether some of the claims in the article are legally correct, in particular whether Sharia law have “legal force” in divorce proceedings.

More on the Children Rights Alliance judicial review

For an article discussing the Children’s Rights Alliance attempts to force the Ministry of Justice to track down and contact people who may have been subjected to unlawful restraint while in Secure Training Centres as youths – which failed because CRA was not itself the victim of any human rights breach – click here. See also Rosalind English’s post

In the courts

City of London v Samede [2012] EWHC 34 (QB). Occupy London is to be evicted. The court held that the extent and duration of the Occupy encampment and the public nuisance inherent in their obstruction of the highway, amongst other factors, warranted the eviction. According to a post by Nearly Legal, permission to appeal was refused but the High Court has stayed enforcement for 7 working days, to 4 pm on 27 January, to allow them to challenge that decision.

R (on the application of Associated Newspapers Ltd) v Leveson (As Chairman of the Leveson Inquiry [2012] EWCA 57 Admin. Associated Newspapers loses its application for judicial review of Lord Leveson’s decision to allow journalists to give evidence anonymously.

R (on the application of McClure and Moos) v Commissioner of Police of the Metropolis [2012] EWCA Civ 12. Metropolitan Police win their appeal against the High Court ruling that the tactic used had been unlawful. The Court of Appeal took into account the fact that the Divisional Court had substituted its own view of whether a breach of the peace was imminent, instead of assessing whether the police had been reasonable in their view.

The Government of the United States of America v  Richard O’Dwyer. Richard O’Dwyer’s attempt to resist extradition failed. He attempted to block his extradition by relying on a combination of human rights and other objections relating to the manner and circumstances surrounding the request.

Joseph Lennox Holmes (Appellant) v Royal College of Veterinary Surgeons (Respondent) [2011] UKPC 48. The disciplinary procedures of the Royal College of Veterinary Surgeons did not give rise to any appearance of bias so as to breach a practitioner’s right to a fair trial.

UK Human Rights Blog posts

• R (Associated Newspapers) v Lord Justice Leveson: Challenge to Anonymity Ruling Dismissed January 22, 2012 1 Crown Office Row
• Is the European Court of Human Rights obsessively interventionist? – Andrew Tickell January 22, 2012 1 Crown Office Row
• Should bankers be named and shamed? Strasbourg latest January 22, 2012 Rosalind English
• The god of free trade: why Austria cannot stop big lorries from using its motorways January 21, 2012 David Hart QC
• Extradition of murder accused to US not breach of human rights January 19, 2012  Isabel McArdle
• No deportation for Abu Qatada, but where are we now on torture evidence? – Professor Adam Tomkins January 19, 2012
• Metropolitan Police succeed in G20 “kettling” appeal – Wessen Jazrawi January 19, 2012
• Occupy London to be evicted – full judgment January 18, 2012  Adam Wagner

Associated Newspapers Ltd, R (on the application of) v Rt Hon Lord Justice Leveson [2012] EWHC 57 – Read judgment

On Friday 20 January 2012 the Administrative Court dismissed the second application for judicial review of the Leveson Inquiry.   The Court dismissed an application by Associated Newspapers (supported by the Daily Telegraph) to quash the decision of the Chairman, Lord Justice Leveson. decision to admit evidence from journalists who wish to remain anonymous on the ground that they fear career blight if they identify themselves.  

Lord Justice Toulson commented “that the issues being investigated by the Inquiry affect the population as a whole. I would be very reluctant to place any fetter on the Chairman pursuing his terms of reference as widely and deeply as he considers necessary”.

Marie-Bénédicte Dembour calls them ‘forgotten cases’.  As Adam Wagner demonstrated in a blog post of last week, Eurosceptic newspapers have a particular interest in overlooking the European Court of Human Right’s decisions of inadmissibility, seeking to buttress claims that the Court is wildly interventionist, imposing alien “European” logics on Britain with gleeful abandon. 

Both the Telegraph and Daily Mail covered the findings of a report commissioned by backbench Tory MPs critical of the Court’s jurisdiction, both simply replicating its astonishingly misleading content.  The papers contended that the UK was defeated in three in four cases brought against it, with violations of the Convention being found in 75% of human right petitions to Strasbourg.

Such a finding could be concerning and interesting in any number of ways – if it was true. However, on their own numbers, presented as scandalous and revelatory but in fact culled from the Court’s own freely, publicly available 2010 statistics, both papers report that 271 judgments against the UK produced at least one finding that the Convention had been violated, of just 443 British cases resolved by a judgment of the Court between 1959 and 2010. Despite their verbatim reporting of these figures, if either paper had resorted to a calculator, they would have discerned that 271/443 is only 61% of judgments, and it’s an untenable 14% stretch to expand that to the 75% noisily and irresponsibly claimed in their headlines.

However, even this 61% claim is inaccurate, as it conveniently ignores the 97% of complaints lodged against the UK which the Court decides are inadmissible. Rather than losing 75% of European cases, the UK has been defeated in less than 2%. Of course, that doesn’t establish that the Court’s decisions in that less than 2% were faultless, but incontrovertibly demonstrates that the construct of an obsessively interventionist Strasbourg is a fantasy.

In another respect, the papers’ reports suggest an interesting, more generally challenging point for those who have followed the domestic and European Court reform discussions.  According to Court figures, between 1959 and 2010, 11,438 judgments found that States Parties violated the Convention. Of all cases decided by a judgment of the Court during this period, including findings of no violation, friendly settlements and so on, 83.5% produce a judgment which condemned an infraction of the Convention.

In the fevered Daily Mail version, this fact suggests a nefarious and hyperactive Court, up to mischief and rejoicing in ‘overruling’ national authorities, better to promote the interests of sex offenders and the homicidal.  (You might well think it ironic in this context that the UK’s rate of defeat is some 22.5% lower than the average across all member states between 1959 and 2010).

Isn’t another reading possible? Professor Steven Greer has argued from the applicant’s point of view, the admissibility stage is crucial. These statistics strongly support that thesis, and pose serious questions about how admissibility decision-making has understood in legal scholarship, and Court reform debates.  Is this 83.5% finding simply incidental, accidental, inconsequential? Alternatively, might it not suggest that quite apart from banal, administrative, bureaucratic “filtering” – routine chucking out cases sent by applicants many years after a final domestic disposal, or without any domestic proceedings having been undertaken – the Court is already making extensive use of highly discretionary concepts such as “manifestly ill-founded” to pre-judge the interest of its caseload, and is already selecting cases which it regards as “serious” or “important”?

Hitherto, save for anecdote and uncollated professional impressions, the Court has never provided broken down statistics on the grounds for applications being declared inadmissible.  All that changed at the end of last year, when the Court appended this data to its new online admissibility checklist.

I read with interest some observations after Adam’s post, suggesting that the “manifestly ill founded” inadmissibility criterion is a low-hanging legal hurdle, connoting “bare arguability”. Having talked to practitioners, dismayed to discover decent cased “miffed” by the Court years after submission, this is not a convincing impression. The Court’s own Practical Guide to Admissibility confirms the expansive interpretation given to the criterion, not limited to elementarily eccentric or unarguable cases. Characterising it as a ground of “inadmissibility based on the merits”, the Guide stresses that

the use of the term “manifestly” may cause confusion: if taken literally, it might be understood to mean an application will only be declared inadmissible on this ground if it is immediately obvious to the average reader that it is far-fetched and lacks foundation.

Not so for the Court (and critically, its Registry), who have employed the ground much more expansively and creatively to shape and manage their caseload. The data presented in the Court’s chart is somewhat problematic, as it isn’t exclusively based on grounds of inadmissibility set out in the Convention, but “principal reasons for the rejection of applications”. We know, for instance, that Protocol 14 came into force in June 2010, including the new admissibility criterion of “significant disadvantage”. In the Court’s diagram, which purports to give a comprehensive account of primary reasons for inadmissibility, it isn’t clear how cases rejected on this basis would be classified.

Moreover, we should be wary of treating ‘primary reasons’ given for decisions of inadmissibility as a comprehensive account of the Court’s caseload. As I have argued elsewhere, application of the “six month rule” and exhaustion of domestic remedies is far from being a matter of counting your fingers and adding one, and registry officials may find it more expeditious and convenient to label a file “manifestly ill founded”, and forward the draft note to a judge, rather than engage in the sometimes knotty analysis of whether a given remedy resorted to was “effective”, or whether an applicant submitted their case in-time or out of it.

Both newspapers may have been way off-piste in their reports, but by emphasising the extent to which the merits appear to be pre-judged by admissibility decision-making, the papers pose a real challenge to friends of the Court, who are nevertheless keen to give ‘filtering’ authority to Registry bureaucrats, or who uncritically bandy about ideas of dumping ‘frivolous’ applications, as if we all knew and agreed what that meant.  The implications of how the Court and its bureaucracy approach admissibility decision-making are forgotten by more than just the Mail and Telegraph, and should not be.

This guest post is by Andrew Tickell, a doctoral Researcher at the Centre for Socio-Legal Studies, University of Oxford. You can find him on Twitter as @peatworrier

Related posts:

• UK loses 3 out of 4 European human rights cases? More like 1 in 50, actually
• Are some rights to private life just not cricket?
• Strasbourg: L’enfant terrible
• No deportation for Abu Qatada, but where are we now on torture evidence? – Professor Adam Tomkins

Standard Verlags GmbH v. Austria (no. 3) (no. 34702/07) – read judgment

On the face of it this judgment is no more than a run of the mill case ( in a line running from Bladet Tromso through Fressoz and Roire to Flinkkilä and Others) concerning freedom of speech in one of the Convention signatory states where media controls are a great deal more stringent than they are here. However with the ongoing Leveson inquiry and speculations about its future recommendations occupying many column inches in the UK media it is instructive to see how other countries apply their press restrictions and indeed how Strasbourg approaches any challenge brought against them.

Background

The applicant company, Standard Verlags GmbH, owns the Vienna daily newspaper Der Standard. The case concerned an article it published in April 2006 reporting on enormous speculation losses incurred by a state-backed bank, and the ensuing criminal investigation for embezzlement brought against the bank’s senior management. The article identified a member of the bank’s treasury department as Christian Rauscher, the son of a former regional government member with responsibility for finance. The article reported that in 2004 Rauscher was not dismissed but merely demoted and transferred, being relieved of his duties only after the incident of the losses had become known. But it made it clear that the losses had thus been incurred under his responsibility.

Rauscher as head of the bank’s treasury brought proceedings against the applicant company for disclosing his identity in that article.  In its defence, the applicant company contended that the article had not depicted the claimant as the person responsible for the losses but rather as the “scapegoat”. The public interest in the disclosure of his name outweighed his private interests since he had held a leading position in the bank and there was also a connection with the political sphere on account of his father’s position. This argument, initially successful, was ultimately rejected by the Vienna Court of Appeal, which, whilst it agreed that there was a public interest in reporting that the claimant had been presented as someone suspected of embezzling a large sum of money, found that the lower courts had carried out the wrong balancing act. “The mere public interest” in the reporting of a crime did not by itself suffice. At the time the article was published, the investigation into the affair was still in the early stages and  no proceedings had yet been brought against the claimant. The subject matter of the article in question was only the rumours of accusations against him by two senior bank officials. Therefore, at this time

there was no independent value in the disclosure of the claimant’s name that would have outweighed the legitimate interest in protecting his anonymity….The claimant’s name was clearly disclosed in order to make a connection with his father, the former regional government member responsible for finance, and by doing so create a “story” which would satisfy the public’s curiosity and appetite for the sensational to a high degree.

Rauscher was awarded EUR 5,000 compensation.

Before Strasbourg, the applicant company relied on Article 10 (freedom of expression) of the Convention, contending that it had not gone beyond its remit of responsible reporting by disclosing Mr Rauscher’s name; that being able to mention the names of those responsible it would not have been possible for the press to convey the extent to which politics and banking were intertwined.

The Court found that Article 10 had indeed been violated, and awarded the applicant company EUR 7,602.12 by way of pecuniary damage (just satisfaction, in Article 41 terms) and its costs and expenses.

The Court’s reasoning

The Court agreed with the Austrian courts that the case concerned a balancing of the applicant company’s right to freedom of expression under Article 10 against the claimant’s right to protection of his identity. It repeated the mantra that the concept of “private life” protected by Article 8 of the Convention includes aspects relating to personal identity, such as a person’s name or picture (Von Hannover v. Germany, no. 59320/00, para 50).  When balancing the protection of private life against freedom of expression, one factor it has taken into account is the position of the person concerned by the publication: whether or not he or she was a “public figure” or had otherwise “entered the public scene” . However, the Court observed, significantly, (and perhaps ominously, at least for those witnesses participating in the Leveson inquiry)

the question whether or not a person, whose interests have been violated by reporting in the media, is a public figure is only one element among others to be taken into account

Where other factors of “public interest” are in play, such as the close connection of politics and banking, said the Court, there was ”little scope” under Article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest. Despite the potential for undermining the presumption of innocence principle where the person identified is subject to criminal proceedings, the Court attached particular significance to the fact that the article at issue was “not a typical example of court reporting” but focussed “mainly on the political dimension of the banking scandal at hand.”

Names, persons and personal relationships are clearly of considerable importance in this sphere. It is difficult to see how the applicant company could have reported on these issues in a meaningful manner without mentioning the names of all those involved, including the claimant

The Court therefore concluded that the domestic courts had overstepped the narrow margin of appreciation afforded to them with regard to restrictions on debates of public interest. It followed that the interference with the applicant company’s right to freedom of expression was not “necessary in a democratic society”.

Comment

So whatever tighter manacles are forged for the press by the Leveson report, if at all, the moral to be drawn from this story is that journalists may still be able to enlist the protection of Article 10 for “naming and shaming” by peppering their copy with references to broader political points, whether or not the identification of the individual itself adds anything to the debate at issue.

The Committee of Ministers of the Council of Europe (the executive arm of the Strasbourg Court’s ruling body) have in place a non-binding Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. The principles behind this recommendation are 1) that  journalists must be able to “freely report and comment” on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles, but that 2) any information relating to ongoing criminal proceedings should only be disseminated through the media where this does not prejudice the presumption of innocence of the suspect, and that in all events their rights to privacy under Article 8 should be respected.

As we can see however these principles are easily circumvented in practice. Celebrities and other public figures will not find anything of comfort in Strasbourg’s jurisprudence on this particular matter; the judgment in Von Hannover  in other words is an exception that proves the rule.

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C-28/09, European Commission v. Austria, 21 December 2011 - read judgment 

Many countries in the EU are struggling to comply with its laws about air pollution. The UK is in continuing breach of its nitrogen dioxide emission limit: see my post just before Christmas. But one way a country can try to comply with these laws is by banning or limiting heavy traffic. And that is exactly what Austria did in respect of an important bit of its motorway network; it prohibited lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley. And just before Christmas, it paid the price.

The EU Court told Austria it was infringing EU law, in particular, Articles 28 and 29 of the EC Treaty (now Arts 34 and 35 of TFEU) which are the core provisions protecting free movement of goods. Why, given that it was trying to comply proactively with another requirement of EU law?

A member state may derogate from these overarching economic principles by invoking Article 30 of the Treaty (Art 36 TFEU) , under which a prima facie infringement of the free movement rules can be justified on the basis of the protection of human health and life or protection of the environment. You might not have thought that this would cause too much problem for the justifying member state, given that the law was designed to mitigate air pollution which is a significant cause of disease, so it ticks two of the Article 30 boxes in one, and is an EU law enforced by the self-same Commission And it was no problem until one got to the requirement that “the measures in question are proportionate to the objective sought“. English lawyers have become used to the principle of proportionality as a slightly beefed up version of Wednesbury unreasonableness, but still with a reasonably wide area of discretion afforded to the decision-maker. But poke the great god of free trade, and a much fiercer and more demanding version of the principle emerges, red in tooth and claw. Derogate from free movement, at your peril.

Austria’s prohibition was phrased in a quite subtle way. Lorries of over 7.5 tonnes transporting waste, stones, earth, excavated material, motor vehicles, steel, and, a mistake this, marble and travertine were banned. So it was a combination of the lorry weight and the nature of the load carried which led to the ban. Austria said that these particular loads were the sorts of things which could sensibly be loaded on trains; they said that was the purpose of the ban. Why, they said, should we endure all this pollution when a chunk of it can be avoided by making people use the trains running along this valley? Indeed this itself is another policy objective embedded in EU policy. The marble and travertine perhaps raised an eyebrow, as one of the main beneficiaries of Austria’s roads is Italy, with its fine stone exports.

Ultimately the CJEU thought that the nut of air pollution could be cracked with a smaller sledgehammer than that wielded by the Austrian government. Cutting down on the smellier lorries rather those carrying specific loads could be done; so could a fixed speed limit of 100kmh, rather than the variable speed limit then adopted. So reasoned the Court. But air pollution is not quite like this; a member state, when faced with a pollution source of this type (dynamic and fluctuating) cannot just say there is one obvious and non-trade offending route to a reduction in air pollution. It has to, and should, make all appropriate efforts to reduce pollution. So it is not really either-or, but both if not all available measures.

One curiosity about the reasoning is that the alleged losers in all this were those who made it their business to send their goods by road through Austria, from, say, Italy to Germany. Those losers are of course the polluters – together with lots of others. There is a maxim which invariably emerges in environmental cases, not least because it is built into the European treaty - the polluter pays principle. But in this case the polluter is not paying at all – nor did the maxim surface. He, the trader or lorry operator, is getting the benefit of some else’s road system, and that someone else (Austria) has to find alternative ways, at its expense, to overcome pollution caused by him and others. Some times, when one stands in awe of the huge advances made in environmental protection by the Community in the last 35 years, one forgets for a moment what it is really all about. And you are only reminded how powerful the trade demands are when you compare them to environmental counterweights, or indeed their human rights equivalents; remember the fag pack machine case where freedom of movement considerations were far more powerful than the easily overcome Article 1 Protocol right, when both were relied upon in the same case. Or indeed more recently where uniformity in welfare measures for live animals in transit was held to be more important than higher welfare standards imposed (pursuant to the Commission’s own welfare Regulation) by a particular Member state – see our post on this issue.

A final observation; CJEU cases do not often move apace, but the gap between the Advocate-General’s opinion (take your pick of the available translations including Estonian, but you won’t find English there) and the judgment of the Court is one year and five days. Perhaps they found it more difficult than the anodyne judgment suggests. Remember no-one is allowed to dissent in the CJEU; they all have to agree, on something or other.

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Related reading:

• Pigs have no rights to bigger pokes
• Pigswill and public health – a load of EU bull
• Admin Court grabs bull by horns
• Analysis: Pet shock collar ban – barking, or a new era for rights?
• The last tango of the fag packet machine

HARKINS AND EDWARDS v. THE UNITED KINGDOM – 9146/07 [2012] ECHR 45 – Read judgment

The European Court of Human Rights has found that there would be no breach of Article 3 ECHR (prohibition of inhuman and degrading treatment) in extraditing two men accused of murder to the US.

The men argued that they face the death penalty or life imprisonment without parole if found guilty. The US had given assurances to the UK government that the death penalty would not be sought. The following summary is based on the Court’s press release (my abridgement):

The facts

The applicants, Phillip Harkins and Joshua Daniel Edwards, are respectively a British and a United States (US) national, born in 1978 and 1987.

They were indicted in the United States, in 2000 and in 2006 respectively, for murder, among other offences. Mr Harkins was accused of having killed a man during an armed robbery attempt together with an accomplice. Mr Edwards was accused of having intentionally shot two people, killing one of them and injuring the other, who had allegedly made fun of his small stature and feminine appearance. Both applicants were arrested in the United Kingdom (UK), in 2003 and 2007 respectively. The US Government requested their extradition providing assurances that the death penalty would not be applied in their case and that the maximum sentence which they risked was life imprisonment.

In June 2006 and June 2007, the British Secretary of State ordered Mr Harkins’ and Mr Edwards’ extradition. They complained unsuccessfully before the British courts that, if extradited, they risked a sentence of life imprisonment without parole, in breach of Article 3 of the European Convention on Human Rights (prohibition of inhuman and degrading treatment).

Following their subsequent applications to the European Court of Human Rights, in which they asked it to prevent their extradition, the Court applied Rule 39 (Interim measures) of the Rules of Court, indicating that the UK Government should not extradite them until further notice.

Complaints, procedure and composition of the Court

Relying in particular on Article 3, both applicants complained that, if they were extradited to the United States, there would be a real risk that they would face the death penalty. They also complained about the possibility of receiving sentences of life imprisonment without parole. The applications were lodged with the European Court of Human Rights respectively on19 February 2007 and 1 August 2007.

Decision of the Court

Alleged risk of death penalty (Article 3)

The Court considered that the diplomatic assurances, provided by the US to the British Government – that the death penalty would not be sought in respect of Mr Harkins or Mr Edwards – were clear and sufficient to remove any risk that either of the applicants could be sentenced to death if extradited, particularly as the US had a long history of respect for democracy, human rights and the rule of law. Therefore, the Court rejected the applicants’ related complaints as inadmissible.

Life imprisonment without parole (Article 3)

In Mr Harkins’ case, the Court was not persuaded that it would be grossly disproportionate for Mr Harkins to be given a mandatory life sentence in the US. He had been over 18 at the time of his alleged crime, had not been diagnosed with a psychiatric disorder, and the killing had been part of an armed robbery attempt – an aggravating factor. Further, he had not yet been convicted, and – even if he were convicted and given a mandatory life sentence – keeping him in prison might continue to be justified throughout his life time. And if that were not the case, the Governor of Florida and the Florida Board of Executive Clemency could, in principle, decide to reduce his sentence.

As regards Mr Edwards, he faced – at most – a discretionary life sentence without parole. Given that it could only be imposed after consideration by the trial judge of all relevant factors and only if Mr Edwards were convicted for a pre-meditated murder, the Court concluded that such a sentence would not be grossly disproportionate. Consequently, there would be no violation of Article 3 if either Mr Harkins or Mr Edwards were extradited.

Other articles

The Court rejected Mr Edwards’ related complaint under Article 5 as inadmissible.

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Read more:

• Julian Assange loses High Court appeal against extradition
• Judge gives green light to extradition of honeymoon murder suspect
• The increasing role of human rights law in extradition and deportation cases

OTHMAN (ABU QATADA) v. THE UNITED KINGDOM – 8139/09 [2012] ECHR 56 – Read judgment

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110).

The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.

The issue is this: under what circumstances may a state that is bound by the European Convention on Human Rights (ECHR) be required not to deport an individual to a country that is not bound by the ECHR where the individual concerned will face a trial that would fall short of the standards set by Article 6 (the right to a fair trial)?

The ECtHR has ruled before that, as a possibility, there may be such circumstances but until its decision this week it had never found them to exist in fact. (Indeed, the ECtHR first identified the principle at issue here in Soering v UK in 1989, but in the 22 years following that judgment the Court had not once found that an expulsion would be in violation of Article 6.)

Abu Qatada has been convicted twice in Jordan, both times in his absence, for various serious terrorist offences. He alleges that part of the evidence against him had been obtained under torture. The UK sought nonetheless to deport Abu Qatada to Jordan, having first agreed a Memorandum of Understanding with the Jordanian authorities that Abu Qatada himself would not be subjected to treatment contrary to Article 3 ECHR (thus complying with the well-known principle in Chahal v UK: see p 780 of the book, and see further Tooze [2010] PL 362).

In RB (Algeria) the House of Lords recognised that ECtHR authorities suggested that a deportation would not be lawful where the deportee would face in the receiving country a trial that amounted to a “flagrant denial of justice”, or a “flagrant breach of Article 6″ or, as the Court of Appeal had put it, a “complete denial or nullification of the Convention right”. Their Lordships also recognised that the Jordanian proceedings to which Abu Qatada would be subject would be unlikely to meet the standards of Article 6. They ruled, however, that the departures from those Article 6 standards would not be so serious as to satisfy the tests of flagrant denial.

The Court of Appeal had ruled that, for Abu Qatada’s deportation to be lawful, a “high degree of assurance” would be required that evidence obtained by torture would not be used in the proceedings. For the House of Lords, this was setting the bar too high. Lord Phillips ruled, for example, that the principle that the state must stand firm against permitting the use of evidence obtained under torture “applies to the state in which an attempt is made to adduce such evidence” but “it does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect …” (para 153; see to similar effect Lord Hoffmann at paras 197-201).

In its judgment in Abu Qatada the ECtHR first clarified the test (“flagrant denial of justice”) and then, for the first time, applied it in favour of an applicant. As to the former the Court said this (paras 260-1):

A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.

In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases [such as Chahal]. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subject to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it.

Applying this test to the facts of the case, the Court ruled as follows (paras 263-7):

The central issue in the present case is the real risk that evidence obtained by torture of third persons will be admitted at the applicant’s retrial … Gäfgen v Germany (2010) reflects the clear, constant and unequivocal position of this Court in respect of torture evidence. It confirms [that] … in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental …

The Court considers that the admission of torture evidence is manifestly contrary … to … Article 6 … It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial.

That there was a real risk that if he was deported to Jordan Abu Qatada would face a trial at which evidence obtained by torture would be used therefore meant that it would be contrary to Article 6 ECHR for the UK to deport him.

The UK now has three months to decide whether to refer this judgment to the Grand Chamber.

Comment

Two comments fall to be made about this decision.

The first is: where does this case leave their Lordships’ controversial ruling in A (No 2)? Recall that in this case the House of Lords had strongly condemned the use of torture evidence but that by a 4:3 majority the Law Lords decided that such evidence should be excluded only if it was established, on a balance of probabilities, that it was obtained by torture. Recall further that the three Law Lords in the minority on this point were scathing about it (see p 747). (A (No 2) is a judgment based on the common law; not on Convention rights.) In Othman (Abu Qatada) v UK the ECtHR commented on this question, saying the following (para 274):

The Court does not consider that the balance of probabilities test, as applied by the majority of the House of Lords in A (No 2), is appropriate in this context. That case concerned proceedings before SIAC to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. Those proceedings were very different from criminal proceedings where, as in the present case, a defendant might face a very long sentence of imprisonment if convicted. In any event, the majority of the House of Lords in A (No 2) found that the balance of probabilities test was for SIAC itself to apply: an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture. Therefore, the Court does not regard A (No 2) as authority for the general proposition that, subject to a balance of probabilities test, evidence alleged to have been obtained by torture would be admissible in legal proceedings in the United Kingdom, least of all in criminal proceedings.

With respect, not all of this reasoning is persuasive. In at least one sense, the SIAC proceedings in A and in A (No 2) were not so different from criminal proceedings where a defendant may face a long term of imprisonment: after all those SIAC proceedings were concerned with a scheme of indefinite detention without trial (under the Anti-terrorism, Crime and Security Act 2001, s 23). Abu Qatada himself, of course, was one of the claimants in A (No 2): he was one of the men subjected to the internment regime that was impugned by the House of Lords in its famous Belmarsh judgment.

Further, it is not clear that the ECtHR has correctly understood the application of the balance of probabilities test in A (No 2). In RB (Algeria) Lord Hoffmann noted (at para 202) that the effect of the Court of Appeal’s decision in Abu Qatada’s case was that the Jordanian court would be perpetrating a flagrant denial of justice if it did not exclude evidence which would be admissible before SIAC!

Thus, it may well be that, on analysis, the decision of the ECtHR in Abu Qatada does a great deal more damage to the House of Lords’ approach to the admissibility of torture evidence in A (No 2) than the Strasbourg court was prepared to admit. If I am right about that, hurrah for Strasbourg.

The second comment to make about Othman (Abu Qatada) v UK is that this is but the latest decision of the Strasbourg court in a national security case from the UK in which the ECtHR has overturned the House of Lords: MB was effectively overturned in A v UK (as their Lordships recognised in AF (No 3)); Gillan was next; then Al Skeini and Al Jedda; and now Abu Qatada. This is quite a list. It makes for sobering reading for anyone who thinks that human rights are safe in the UK, even in our highest courts. Strasbourg may still get it badly wrong from time to time, but my word do we still need it. Strasbourg was right, and the House of Lords wrong, in all five of these national security cases.

This post by Professor Adam Tomkins first appeared on the British Government and the Constitution Blog and is reproduced here with permission and thanks.

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R (on the application of Hannah McClure and Joshua Moos) v The Commissioner of Police of the Metropolis [2012] EWCA Civ 12 – Read judgment 

The Metropolitan Police has succeeded in its appeal against a Divisional Court ruling (see previous post) that the use of crowd control measures – in this case, containment or “kettling” – against Climate Camp protesters did not constitute “lawful police operations”.

In reaching its decision, the Court of Appeal considered three issues: (i) whether the Divisional Court adopted the wrong approach to the question of whether a breach of the peace was imminent, (ii) whether Chief Superintendent Mr. Johnson’s apprehension that there was an imminent breach of the peace was reasonable, and (iii) whether, on Mr. Johnson’s own evidence, he should not have ordered containment of the Climate Camp.

Two demonstrations

These protests occurred in the context of the G20 summit in 2009 and were formed of two largely separate demonstrations: the Royal Exchange demonstration and the Climate Camp demonstration, each attended by between 4000 to 5000 people.

The Royal Exchange demonstration was disorderly to the point of serious violence, while the Climate Camp demonstration was markedly less so: one officer had apparently noted that there was a “party atmosphere”.

At around noon, the decision was made to contain the Royal Exchange camp and, later that evening, at approximately 7:30pm, this crowd was progressively dispersed. Mr. Johnson was concerned that the more violent elements of the Royal Exchange camp would mingle with the crowd at the Climate Camp, leading to imminent breaches of the peace, and so took the decision to contain the Climate Camp at the time of the dispersal of the Royal Exchange camp.

The law

Both the Divisional Court and the Court of Appeal took into account R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55. The Court of Appeal considered the Divisional Court’s summary of the following propositions derived from Laporte to be accurate:

(1)  For a police officer to take steps lawful at common law to prevent an apprehended breach of the peace, the apprehended breach must be imminent;

(2)  Imminence is not an inflexible concept but depends on the circumstances;

(3)  If steps are to be justified, they must be necessary, reasonable and proportionate;

(4)  Depending on the circumstances, steps which include keeping two or more different groups apart may be necessary, reasonable and proportionate, if a combination of groups is reasonably apprehended to be likely to lead to an imminent breach of the peace; and

(5)  Again depending on the circumstances, where it is necessary in order to prevent an imminent breach of the peace, action may lawfully be taken which affects people who are not themselves going to be actively involved in the breach.

The Court of Appeal also took into account Austin v Commissioner of Police of the Metropolis [2007] EWCA Civ 989, that, where a breach of the peace was taking place or reasonably thought to be imminent, the police could interfere with or curtail the lawful exercise of rights of innocent third parties, but only if they had taken all other possible steps to prevent the breach or imminent breach of the peace and to protect the rights of third parties, and only where they reasonably believed that there was no other means to prevent a breach or imminent breach of the peace.

This, together with the test laid down by Sedley LJ in Redmond-Bate v DPP [1999] EWHC Admin 733, led the Court of Appeal to conclude that the approach to be followed was an objective one and that it was not for the court to form its own view as to imminence.

Whose view was it?

The Court of Appeal examined the Divisional Court’s judgment and noted that in each of the four paragraphs that encompassed its reasoning, there was at least one sentence that suggested that it had proceeded on its own view of the imminence of the danger, rather than the reasonableness of Mr. Johnson’s view of imminence.

Additionally, nowhere in the four paragraphs was there a sentence that expressly indicated that the Divisional Court had considered the reasonableness of his apprehension. The Court of Appeal also noted that it had failed to expressly address Mr. Johnson’s reasons for reaching the view that he did. They concluded, therefore, that it had followed the wrong approach and had formed its own views.

The Court of Appeal then went on to consider the question of whether Mr. Johnson’s view was reasonable, commenting that it was “hard to see” how a perception that there was an imminent risk of the Royal Exchange demonstrators joining the Climate Camp and importing their violence could be characterised as unreasonable on the undisputed facts of the case.

They took into account that the Divisional Court had accepted that Mr Johnson’s apprehension was honest and the evidence he gave was accurate (except to a limited degree with regards to the level of violence in the Climate Camp). In so doing, they noted that Mr. Fordham had proceeded on the assumption that containment of the Climate Camp could only be justified by a risk emanating from the demonstrators within that camp, rather than from the mingling with the Royal Exchange demonstration, and roundly rejected this.

Finally, they considered whether the decision to contain the Climate Camp was unjustified on Mr. Johnson’s evidence, and decided that it was not. In so doing, it relied on various facts including the level of violence at the Climate Camp, which while disputed, was nonetheless not non-existent.

Conclusion

This ruling may of course be appealed, and we continue to await the judgment of the Grand Chamber of the European Court of Human Rights in Austin, in which the Grand Chamber will consider whether two 2001 instances of kettling amounted to unlawful detention in breach of Article 5 of the European Convention on Human Rights.

As part of the continued debate concerning kettling, the Court of Appeal has made clear that the Court cannot substitute its own views for that of the police: it may only consider whether, in light of the evidence they possessed at the time, it was reasonable to fear an imminent breach of the peace.

Wessen Jazrawi is a qualified solicitor and holds an LLM in International Human Rights Law from the University of Essex. She is currently working with the European Human Rights Advocacy Centre. 

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The City of London has succeeded in its court High Court battle against the Occupy London movement which is currently occupying an area close to St Paul’s Cathedral. As things stand, subject to any appeals, the movement has been evicted.

The Judiciary website will be publishing the full judgment tomorrow morning, but for those seeking it before then, I have uploaded it here. Below is the very helpful summary of the judgment sent to me by the Judicial Office (with apologies for the numbering, which is a quirk of the blog formatting, not the summary).

SUMMARY OF JUDGMENT

Introduction

1. [Para 1] What are the limits to the right of lawful assembly and protest on the highway? In a democratic society that is a question of fundamental importance. It arises in this case, in this way. Do those limits extend to the indefinite occupation of highway land by an encampment of protestors who say this form of protest is essential to the exercise of their rights under Articles 10 and 11 of the European Convention on Human Rights, when the land they have chosen to occupy is in a prominent place in the heart of the metropolis, beside a cathedral of national and international importance, which is visited each year by many thousands of people and where many thousands more come to exercise their right, under Article 9 of the Convention, to worship as they choose?

Background

1. [Para 4] The defendants’ protest camp was set up in St Paul’s Churchyard on 15 and 16 October 2011. It consists of a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either regularly or from time to time, as overnight accommodation, and several larger tents used for other activities and services including the holding of meetings and the provision of a “university” (called “Tent City University”), a library, a first aid facility, a place for women and children, a place where food and drink are served, and a “welfare” facility. The size and extent of the camp has varied over time. Shortly before the hearing its footprint receded in some places. At an earlier stage some adjustments had been made to it in an effort to keep fire lanes open. The highway land in the City’s ownership that is occupied by the camp has been referred to in the proceedings as Area 1; it is divided into two sections a short distance apart. Adjoining that land is a smaller area, which has been referred to as Area 2 and is owned by the Church. Area 1 is part of a much larger area of highway and open land around the cathedral, which has been referred to as Area 3. The City has given no licence or consent for the protest camp, which, by the time of the hearing, had been in place for more than two months. Attempts by the City to agree with the protestors a time for its removal have failed. Several witnesses for the defendants have made it clear that they intend it to stay for some time: how long is not clear.

Possession

1. [Para 124] I accept that the City has established that it is entitled to possession of Area 1, and must therefore succeed in its claim for an immediate order for possession of this land unless to grant such an order would unacceptably affect the defendants’ exercise of their rights under Articles 10 and 11 of the Convention. Subject to that crucial question being resolved, the City is entitled to an order for possession. The court has no discretion to defer possession.

1. [Para 125] I also accept, again subject to the consideration of the defendants’ rights under Articles 10 and 11, that the City is entitled to an order for possession of the whole of Area 3, of which Area 1 is a part. I see force in [the]submission that the inclusion of Area 3 in the order for possession, if one is made, is a prudent and, indeed, necessary precaution against the defendants moving off Areas 1 and 2 on to adjacent highway land and open space

Injunctive and declaratory relief

1. [Para 138] In summary, having regard to the facts I have found and subject to the tests of necessity and proportionality being satisfied, I believe the City is entitled to the injunctions it seeks under section 130 of the 1980 Act. I also accept that, subject to the same tests being satisfied, the City is entitled to a declaration that, under its powers at common law, it may enter Area 1 and remove any tents not removed in accordance with an order made under section 130.

1. [Para 143] The City, as local planning authority, believes it to be expedient and necessary in the public interest to act against the camp by using its powers of enforcement in the 1990 Act. Unusual though the particular circumstances here may be, I believe that this is plainly the kind of situation for which an injunction under section 187B is suitable. Subject again to the tests of necessity and proportionality being met, the City is in my view entitled to an injunction to require the removal of the tents located in Areas 1 and 2, and to prevent the further pitching of tents within Areas 1, 2 and 3.

Human Rights

1. [Para 155] No one has doubted, or could, the significance of the causes the defendants promote, or the sincerity and passion with which they are doing this. Views will divide on the thoughts and sentiments expressed. Some might gain a wide consensus; others might not. However, … this is not for the court to judge. … [It] is not for the court to venture views of its own on the substance of the protest itself, or to gauge how effective it has been in bringing the protestors’ views to the fore. The Convention rights in play are neither strengthened nor weakened by a subjective response to the aims of the protest itself or by the level of support it seems to command. Mr Forsdick submitted, and I agree, that the court cannot – indeed, must not – attempt to adjudicate on the merits of the protest. To do that would go against the very spirit of Articles 10 and 11 of the Convention. As counsel for the City put it, the right to protest is the right to protest right or wrong, misguidedly or obviously correctly, for morally dubious aims or for aims that are wholly virtuous. Mr Forsdick submitted – and this is surely a constitutional truism – that it is for Parliament and not the courts to decide what laws ought to be enacted, what taxes should be raised, how public money should best be spent, how the governance of the City of London should be arranged, how banks should be regulated, and so forth. Citizens are free to voice their disagreement with legislation passed by Parliament, to dissent from policies on which a government bases its agenda, to criticize the actions of an industry or of a privileged few. But the High Court is the place for litigation, not a forum for the debate of matters such as those. It is a court of law, not of policy, opinion or politics. Nevertheless, I give due weight not only to the defendants’ conviction that their protest is profoundly important but also to their belief that it is essential to the protest and to its success that it is conducted in the manner and form they have chosen for it – by a protest camp on the land they have occupied in St Paul’s Churchyard.

1. [Para 165]  There are … a number of powerful considerations pointing to the outcome for which the City contends. And in my judgment, when the balance is struck, the factors for granting relief in this case easily outweigh the factors against. The extent and duration of the obstruction of the highway, and the public nuisance inherent in that obstruction, would itself warrant making an order for possession and granting injunctive and declaratory relief. So too would the effect of the camp on the Article 9 rights of worshippers in the cathedral. So would the effect on visits to the cathedral. So would the other private nuisance caused to the Church. So would the planning harm to which I have referred. Adding all of these things together, one has, I think, an unusually persuasive case on the positive side of the balance. … I conclude that [the] argument [of counsel for the City] on the Convention issues, and his submissions specifically on the questions of need and proportionality, must be accepted, and the submissions made for the defendants rejected.

1. [Para 166] Has the City convincingly established a pressing social need not to permit the defendants’ protest camp to remain in St Paul’s Churchyard, and to prevent it being located elsewhere on any of the land to which these proceedings relate? Undoubtedly, in my view, it has. Would it be disproportionate to grant the relief the City has claimed? Undoubtedly, in my view, it would not. The proposed interference with the defendants’ rights under Articles 10 and 11 is, I accept, the least intrusive way in which to meet the pressing social need, and strikes a fair balance between the needs of the community and the individuals concerned so as not to impose an excessive burden on them. Withholding relief at this stage would plainly be wrong. The freedoms and rights of others, the interests of public health and public safety and the prevention of disorder and crime, and the need to protect the environment of this part of the City of London all demand the remedy which the court’s orders will bring. To interfere in this way with the defendants’ Convention rights under Articles 10 and 11 is, in my view, entirely lawful and justified, both at common law and within the statutory regimes Parliament has enacted for the purposes of safeguarding the public right to use the highway and for the effective enforcement of planning control. It is necessary. And it is proportionate. … The decision to seek the relief I am going to grant was neither precipitate nor ill-considered. I am satisfied that the City had no sensible choice but to do what it has. Conscious of its duties under statute, it gave the defendants an ample opportunity to remove the protest camp without the need for time and money to be spent in legal proceedings. It has, I believe, behaved both responsibly and fairly throughout.

 Overall conclusion

1. [Para 167] For the reasons I have given the City’s claim succeeds. I shall hear submissions from the parties on the appropriate form of relief.

1. [Para 168] Finally, whilst I recognize that this outcome will be disappointing to the defendants, I wish to pay tribute to all who participated in the hearing for the courteous and helpful way in which they conducted themselves, and to thank counsel for the assistance they gave me.

The Government of the United States of America -v- O’Dwyer, Westminster Magistrates’ Court – Read judgment

It seems appropriate, on the day when Wikipedia shut down for 24 hours to protest against US anti-piracy legislation, to talk about piracy (in the copyright sense) and what role human rights law has to play in the perpetual battle against it.

It is a topic that polarises, with some considering piracy to be no more moral than any other theft, and others seeing those who commit piracy offences as fighting for freedom of expression and liberal copyright laws. In the case of Richard O’Dwyer, a young man who is accused of setting up a website which breaches US copyright law and who is facing extradition to the US for trial, he attempted to block his extradition by relying on a combination of human rights and other objections relating to the manner and circumstances surrounding the request.

The background

Richard O’Dwyer, a 23 year old subject to an extradition request by US authorities has lost his attempt to resist the extradition. He is alleged to have breach US copyright law by setting up and running a website, TVShack, which gave the public free access to copyrighted films and Tv programmes. Take a look at the Extradition Act 2003.

Arguments

He attempted to resist the extradition on three bases:

i. The offence did not meet the requirement of dual criminality (i.e. being an offence both in the jurisdiction where he is now and the one where he is to be extradited). District Judge Purdy considered that the test was satisfied.

ii. The extradition would be “unjust or oppressive“ due to the passage of time from the alleged offence, in which case section 82 of the EA 2003 requires the request to be discharged. Mr O’Dwyer was arrested and interviewed on 29 September 2010, in the UK, and not charged. Evidence gathered by those events however is relied on by the US authorities.  He was released from bail on 23 May 2011 and arrested for extradition. This, it was argued, was unfair for a number of reasons, including that he would have lost any benefit he might have enjoyed from cooperating with the US prosecutors. The US conduct was oppressive, it was argued, because there had been a “tactical delay“, with serious consequence for his university education.

Referring to the case of Gomes and Goodyer v Government of Trinidad and Tobago, where the House of Lords stressed that the sort of factors making extradition unjust or oppressive must be outside of the ordinary unpleasant and alarming matters encountered by someone facing extradition and trial in another jurisdiction, District Judge Purdy rejected this argument. There was no basis for suggesting that a fair trial could not take place. For instance, no evidence was unavailable.

iii.  Extradition would violate Articles 5 (right to liberty) , 6 (right to fair trial) and 8 (right to respect for private and family life) of the ECHR. Given Mr O’Dwyer’s youth, his being at university and living near family and friends in the UK, he argued that extradition “would expose him to trial in an inappropriate forum and be disproportionate“. District Judge Purdy found this unpersuasive. Although for instance video link may allow the evidence to be given by Mr O’Dwyer in the UK, there was nothing in the requested extradition or circumstances while Mr O’Dwyer remained on bail in the UK which breached these human rights.

District Judge Purdy noted,

Very powerful observations do come from Lord Phillips, PSC in Norris v USA [2010] UKSC 9 (@ para 67) … His Lordship said “extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings…Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into any enquiry as to the possibility of prosecution in this country. ” (paragraph 9)

Consequently, none of Mr O’Dwyer’s arguments were accepted. He is likely however to appeal, so watch this space for more developments.

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