Hearsay’s OK! Sort of – The Human Rights Roundup

18 December 2011 by

Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Melinda Padron

In the news

Will Detainee Inquiry hearings broadcast? Have your say

The Detainee Inquiry Panel has shown its commitment to carrying out an inquiry that is as open and inclusive as possible by inviting comments on their broadcasting proposal, before making a final decision. The Panel welcomes views on this issue from the media, potential witnesses, NGOs and any other groups or individuals who are interested in the Inquiry’s work. You may submit comments via email by 7th January 2012. You can find more details here.

Hearsay’s okay! Well, kind of.

The Grand Chamber of the European Court of Human Rights has ruled in Al-Khawaja and Tahery v UK that convictions based on statements from witnesses who could not be cross examined in court did not violate the applicants’ rights under Article 6 (right to a fair trial).

The court, however, highlighted that the admission of hearsay in such instances must be accompanied by very strong procedural safeguards. The ECtHR has essentially agreed with the UK Supreme Court’s decision in R v Horncastle. Although some welcomed the judgment as a demonstration of deference to national legal systems, Eric Metcalfe, former director of JUSTICE  (which intervened in the case), worries that Strasbourg is more likely to protect fair trial rights than our domestic courts.. For more on the judgment, see Rosalind English’s commentary in our blog.

More taking into account

Whilst on the subject of the ECtHR, last week Lord Irvine gave a lecture to the UCL Judicial Institute and the Bingham Centre for the Rule of Law, where he argued, to put it simply, that the UK courts have been showing too much deference to the decisions of the ECtHR. Lord Irvine argued the UK courts have interpreted an obligation contained in section 2 of the Human Rights Act – which requires courts to take into account the judgments, decisions, declarations or advisory opinions of the ECtHR – as essentially binding them to the ECtHR’s jurisprudence.

Lord Irvine cited a number of examples upon which he based his arguments, all or most of which were discussed in Carl Gardner’s excellent piece about the lecture. According to Carl Gardner, Lord Irvine “called for domestic courts to act, and be seen to act, as autonomous; and said it would damage their credibility if they appeared merely to be agents or delegates of Strasbourg.”

“Everyone is sh@#@#@g bricks at the implications”

If you are interested in Freedom of Information law, the Information Commissioner has issued guidance on whether private email accounts and texts are subject to the Freedom of Information Act. Prior to the guidance being issued, the Guardian reported that public officials were somewhat worried about the implications.

Read commentaries to this legal development by the Panopticon Blog here, and the UK FOI Blog here.

Nuclear tests and conscientious objectors

Last week there were news of two very interesting cases. The first, posted by Rosalind English was the case of R v Michael Peter Lyons [EWCA Crim 2008], where the Court Martial Appeal Court held that moral objections to the UK’s involvement in Afghanistan do not constitute a defence to an insubordination charge. Whilst the appellant awaited the outcome of his appeal to a decision refusing his discharge, he was ordered to undertake a pre-deployment weapons training course. On refusing to submit to the order, he was convicted of insubordination. The Court Matrial Appeals Court held that he was not entitled to disobey a lawful command on the ground of conscientious objection.

The second is the case of Ministry of Defence v AB & Ors [2010] EWCA Civ 1317 (this is the Court of Appeal judgment), which was heard over the course of last week by the UK Supreme Court. The case concerns the carrying out of atmospheric nuclear tests by the British Government between 1952 and 1958 in the region of the Pacific Ocean and involves issues on the law of limitation in the context of group actions. See the UKSC Blog case preview here.

Brainy law

The Royal Society has published a report entitled “Brain Waves 4: Neuroscience and the Law”. Although an unexpected theme, the report speaks a great deal of sense, as it argues that neuroscientists and legal professionals in the UK should collaborate more. Whilst neuroscientists are concerned about how brain function affects behaviour, the law is concerned with regulating behaviour. Naturally, as neuroscience progresses, it will have a greater bearing on the law. Amongst the areas of law cited by the report where neuroscience might be of relevance are: risk assessment in probation and parole decisions, detecting deception and assessing memory. See Adam Wagner’s post on the report here.

Other roundups

For the latest human rights developments in the UK between 5-11 December, see Law Think’s roundup here. For those in a Christmasy mood, why not read Obiter J’s very merry roundup.

In the courts:

AL- KHAWAJA AND TAHERY v. THE UNITED KINGDOM – 26766/05 [2011] ECHR 2127 (15 December 2011) December 15, 2011

ECtHR Grand Chamber: Use of hearsay evidence in criminal trials not necessarily breach of Art.6, but may be if sole and decisive reason for conviction.

OBG Ltd and Others v the United Kingdom – 48407/07 [2011] ECHR 2087 (29 November 2011) December 13, 2011

Strasbourg court: No breach of Art 1 Prot 1 by House of Lords in refusing to extend liability of receivers in tort.

HM (Iraq) & Anor v Secretary of State for the Home Department [2011] EWCA Civ 1536 (13 December 2011) December 13, 2011

Iraq country guidance immigration tribunal decision quashed as 2 parties not represented.

Wood, R (on the application of) v Secretary of State for Education [2011] EWHC 3256 (Admin) (09 December 2011)December 9, 2011

Administrative Court dismisses judicial review of decision to bar former-teacher from working with children. Interesting comments on applicability of HRA outside jurisdiction paras 68-77.

X, R (on the application of) v General Medical Council [2011] EWHC 3271 (Admin) (09 December 2011) December 9, 2011

Decision of General Medical Council to refer to doctor’s severe depression in public decision was unlawful. Failed to carry out correct balancing exercise.

New Supreme Court Judgment: Russell & Ors v Transocean International Resources Ltd & Ors (Scotland) [2011] UKSC 57 December 7, 2011

Appeal dismissed re right to minumum period of annual leave under Art 7 EC Working Time Directive.

…and don’t forget our recent posts:


  1. Adrian says:

    Human right is one of the most important things. Thanks for this blog.

  2. Jamal says:

    statements from witnesses who could not be cross examined in court ,What if the Witness is the worst crimanal or amy be just somebody using others to say things for his political means ,how about freedom and moral conciouns there are many thing I can think about if we carry on like this ,we are not only laying to others but it is indeed a magor distruction for the future of the human race ,shame on us how are we suposed to know the truth ?

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