Forced marriage, honour violence and secret justice

8 October 2010 by

(1)A Chief Constable, (2) AA v (1)YK, (2)RB, (3)ZS, (4)SI, (5)AK, (6)MH, [2010] EWHC 2438 (Fam) – Read judgment

The High Court has given guidance on the role which special advocates may play in forced marriage and honour violence cases. The controversial special advocates system has been used in anti-terrorism trials to prevent national secrets being revealed to terrorist subjects. However, recently the courts have roundly rejected attempts for the advocates to be used in non-criminal scenarios, on the basis that open justice is a fundamental legal right.

Forced marriage cases often involve information which it is in the public interest not to disclose because to do so would, for example, endanger police informants. Special advocates are not normally needed, because the legislation in question allows the courts to make orders to prevent forced marriages without those suspected of attempting to force a marriage from being notified at all.

On the Chief Constable’s application, made ex parte (without the knowledge of the respondents) a court had made an order under the Forced Marriage (Civil Protection) Act 2007 and gave him permission not to disclose to the respondents information which he had relied upon to make the application. The order related to A, a 19 year old female whose parents wanted her to marry a particular man they had chosen, B. Relatives of A were respondents to the order, which essentially prevented them from taking steps to cause A to marry another person. A and B undertook a form of marriage ceremony anyway which was not formally registered. A applied to have the order set aside. This judgment gave directions and more general guidance on the way in which issues arising in forced marriage cases are dealt with.

Central to the dispute were the questions of whether public interest immunity arose and if so, whether special advocates should be appointed. Sir Nicholas Wall considered that the legal conundrum potentially thrown up by the case was the question of how a fair trial, compliant with Article 6 of the European Convention on Human Rights, could be achieved if information enabling the respondents to respond effectively to the allegations was withheld to protect the informant who gave the police the information in question.

The Act

Sir Nicholas Wall noted two important features about the Act: first, it is very widely drawn, including having extra-territorial application and allowing ex parte orders to be made and secondly, it “creates a protective/injunctive jurisdiction” (paragraph 17). There was no argument that the Act itself was not compliant with the Human Rights Act 1998.

Public Interest Immunity (PII)

This is a rule which allows documents to be withheld from other parties in legal proceedings where allowing the other parties to access the documents would be injurious to the public interest. PII decisions invariably involve a balancing of competing interests: that of the administration of justice which requires that parties are able to bring or defend cases properly and that of the public interest in preventing harm to other people or the state, for instance. In this case the interests of the respondents in understanding and getting the opportunity to rebut allegations relating to them had to be balanced against the public interest in protecting the source of the information.

Sir Nicolas Wall had no difficulty in finding that PII arose in this case:

…in a forced marriage or “honour” violence case, circumstances might well arise in which disclosure of sensitive information is likely to lead to the risk of serious harm to the giver or the source of that information. I am equally in no doubt that this situation arises in the instant case, and that there is a powerful argument for non-disclosure. (Paragraph 87)

However, he did not consider it to be material whether this argument for non-disclosure was classed as PII or a balancing of ECHR rights such as the informant’s rights under Article 2 (right to life), 3 (prohibition of torture, and inhuman and degrading treatment) and 8 (right to respect for private and family life) balanced against the respondents’ Article 6 rights (right to a fair trial).

Special Advocates

Having found that non-disclosure was appropriate, the question of whether special advocates should be appointed arose. Essentially, special advocates are advocates who have been screened by the security services and are appointed to represent parties in closed hearings. They are permitted to view secret evidence and make representations relating to it on behalf of their clients, although they cannot communicate with their clients about the secret evidence once they have viewed it.

Sir Nicholas Wall considered that usually special advocates would not be appropriate in forced marriage cases and were not appropriate in this case. The first reason was based on the nature of the Act:

It is protective – quasi injunctive – and does not depend upon a complex factual matrix. … If, therefore, the view is taken that there is a proper basis for the court’s exercise of its jurisdiction under the Act (as the police and Judge Pearce plainly and responsibly did) an order under the Act can properly be made ex parte. (Paragraph 90)

In other words, the Act expressly allowed the courts to make orders without the respondents being aware of the applications. This made in particularly unlikely that it would be appropriate to appoint special advocates to represent their interests.

Secondly, case law indicates that use of special advocates must be a matter of last rather than first resort. It follows then that,

…there has to be something which a special advocate can do, which it would not be appropriate for the judge to do. In my judgment, a judge on the facts of this case is fully in a position to resolve a PII or disclosure application, and there is nothing that a special advocate could do which cannot properly be done by the judge. (Paragraph 92)

Furthermore, special advocates were not necessary to resolve questions of fact in this case. For instance, the central issue was the health, safety and wellbeing of A as well as her wishes. The court was taking steps to ascertain these matters and did not require special advocates to assist.

Crucially, it was found that,

The court, in my judgment, is entitled to take the view that any forced marriage is a breach of human rights, and that where – as here – a responsible body such as the police have credible information sufficient to invoke the court’s jurisdiction and form the basis of court orders, an issue arises which – in the context of the Act and the jurisdiction it provides – entitles the court to act and make its orders, irrespective of the truth or otherwise of information which has led to the application. (Paragraph 99)

He was also tempted to consider that no Article 6 issue arose at all: there is clearly no civil right or obligation to force a person to marry and Article 6 gives protection of a party’s right to a fair trial “in the determination of his civil rights and obligations”. However, an application to set aside an order made under the Act is likely to engage Article 6 because the respondents will probably argue that their Article 8 right to respect for private and family life is interfered with due to their desire to arrange a marriage for their child, and Article 8 is of course a civil right.

In balancing the Article 6 and 8 rights against PII or other ECHR concerns, proportionality must be borne in mind. Sir Nicholas Wall concluded that,

…the making of an order is manifestly dealing with the case in a proportionate manner, and it is likewise proportionate, given the purpose and nature of the Act, to adapt the rights of the parties affected by the order in the instant case “to give priority to the information contained in the PII material. (Paragraph 105)

Accordingly, special advocates were not required, and would would hardly ever be required in such cases.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

1 comment;


  1. James Moore says:

    While forced marriages and honour killings are an important issue it should not be used as the basis for infringement of civil liberties and transparency of the criminal justice system. Attempts to over ride this and use the anti terror laws will result in many cases of miscarriage of justice and should not be allowed. Courts and defendants should have access to all documents and proceedings made against them in the interest of justice and fairness.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: