Please release me (on bail) – The Human Rights Roundup

4 July 2011 by

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, updated each day, can be found here.

by Graeme Hall

In the news:

Having had its second reading in the House of Commons, one of this week’s legal hot potatoes is the Legal Aid, Sentencing and Punishment of Offenders Bill. A detailed analysis of the Bill can be found on the Law Society Gazette’s website. Of interest, the government’s proposal to provide up to £20million extra for the provision of social welfare legal advice received a cautious welcome from Steve Hyne, director of Legal Action Group. Nonetheless Hyne, writing for the, concludes that the extra funding is no replacement for the continued provision of legal aid, particularly if the money is a one-off. Adam Wagner summarizes early responses to the Bill from the legal-world here.

Also, responding to Lady Hale’s speech to The Law Society on legal aid cuts, the UKSC blog remarks that the Supreme Court Justice took an “unusual” step by implicitly endorsing criticisms levelled at the government’s justice policy, leaving her vulnerable to a potential application for recusal should legal proceedings on the policy ever reach the Supreme Court. Adam Wagner has also posted on this speech, although offers the slightly differing view that Lady Hale “just about stops short of criticising the current government’s plans“.

The Supreme Court again features in the headlines as the BBC reports that the government is asking it to stay (that is, temporarily suspend) a 6-week old decision of the High Court which overturned a long-standing practice in relation to police bail, pending an appeal. If unsuccessful, the government is likely to introduce emergency legislation to reverse the decision; an action supported by Simon Hetherington of

Halsbury’s Law Exchange blog to ensure that ongoing investigations are not “thrown into jeopardy“. A detailed background to the decision can be found on ObiterJ’s Law and Lawyers’ blog, and Michael Zander QC (who has written a book on police custody powers, amongst other things) has written a critical article in the Criminal Law and Justice Weekly. Zander says:

This is a very unfortunate decision if it is not quickly overturned on appeal it will need to be speedily reversed by legislation.

Finally, the Attorney General has given a speech to the Parliamentary Assembly of the Council of Europe stating that nation States bear the primary responsibility to protect human rights under the European Convention and that the European Court of Human Rights “must be careful to respect that primary role.” This could be viewed as a warning-shot given that this Thursday, 7 July, the Grand Chamber of the European Court will deliver its much-awaited, seminal judgment concerning the extra-territorial applicability of the European Convention, which will in turn affect the applicability of the Human Rights Act outside of the UK. Click here for the Court’s press release, here for Adam Wagner’s recent post on the subject, and here for the European Journal of Internal Law blog’s detailed preview.

In the courts:

CASE OF ORLIĆ v. CROATIA (Application no. 48833/07): Where an occupier faces loss of their home by action by a public body, it must be possible for the proportionality of the eviction to be considered by an independent tribunal  – see Nearly Legal

Flinders, R (on the application of) v The Director of High Security & Ors [2011] EWHC 1630 (Admin) (30 June 2011): Murderer who put victim in crucifix shape should have been given oral hearing re prisoner categorisation decision. Decision quashed but no human rights damages.

Smith & Ors v Ministry of Defence [2011] EWHC 1676 (QB) (30 June 2011): Human rights claims of 6 soldiers killed or injured in Iraq allegedly due to faulty equipment/ poor training struck out following decision in R(Smith) in Supreme Court. Negligence claims mostly survive. See Adam Wagner’s post.

Manchester Police, R (On the Application Of) v Hookway & Anor [2011] EWHC 1578 (Admin) (19 May 2011) : High Court: Police must release suspect after 96 hours, even if they are on bail for part of that period – see above and in particular, Obiter J and Michael Zander QC

Sufi and Elmi v. the United Kingdom (application nos. 8319/07 and 11449/07): European Court of Human Rights: Deportation of two Somalis back to Mogadishu would breach article 3 protection against ill-treatment / article 2 right to life. Important case, over 200 similar cases behind it. See Adam Wagner’s post.

… and don’t forget to take a look at our recent posts:

… and why not take a look at other legal news roundups including the Law and Lawyers’ Weekend items … Saturday 2nd July … and Blogtour as well as Law Think’s Latest human rights developments in the UK.


  1. Kurt Kobain says:

    Unity can change lives but people nowadays have forgotten what ancestors taught us. This quote illustrates which i would mention:
    “States are not moral agents, people are, and can impose moral standards on powerful institutions.”

  2. No-one should be on pre-charge bail because this defeats the Presumption of inocence and punishes before charge let alone trial and convicton.

    The police have been abusing their power over innocent suspects for some time. Pre-charge bail is where the suspect is released on bail penidng further inquiries.

    The police do not need bail, if the olice obtain enough evidence to interview the suspect again they can re-arrest.

    Being placed in bail is entirely unnecessary and merely cruely punished the innocent who cannot be charged because the police have no evidence.

  3. John Hirst says:

    “A detailed analysis of the Bill” which leaves out

    “CHAPTER 5


    103 Employment in prisons: deductions etc from payments to prisoners”!

    Anyone who misses the significance of this is in the wrong job!

    “Finally, the Attorney General has given a speech to the Parliamentary Assembly of the Council of Europe stating that nation States bear the primary responsibility to protect human rights under the European Convention and that the European Court of Human Rights “must be careful to respect that primary role.” This could be viewed as a warning-shot…”.

    From the speech by Mr Thomas HAMMARBERG Commissioner for Human Rights COUNCIL OF EUROPE, IZMIR Conference, 26 – 27 April 2011:

    “Effective implementation of the Convention at national level

    Applicants turn to Strasbourg because they feel unable to find justice at home…

    …During my visits to member states I have however noted that some important judgments were not implemented, sometimes several years after they had been issued, despite clear guidance given by the Court…

    …It is essential that national authorities assume their responsibilities in the field of human rights protection: national judges should apply the European Convention, as interpreted by the Court, more systematically; national legislation or practices which are incompatible with it should be changed; governments should promptly and effectively implement judgments issued by the European Court.

    It is the member states’ task to ensure in the first place that the human rights enshrined in the Convention are respected. The more they do so, the less the Court will have to intervene”.

    So, the AG has a water pistol and the Council of Europe has a cannon. Can we have less looking through English Rose tinted spectacles? Recently, Lord Lester has suggested seeing the view from Europe. This view states that the UK has until 11 October 2011 to produce concrete plans to amend the offending legislation, s.3 of ROPA 1983. Failing the UK pulling out of the Council of Europe and EU, I see another big Cameron U Turn on the way.

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