Hearsay’s OK! Sort of – The Human Rights Roundup
18 December 2011
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.
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  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.
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.
In the courts:
…and don’t forget our recent posts:
- European Court of Human Rights defers to traditional UK common law December 16, 2011 David Hart QC
- Use of hearsay evidence does not automatically prevent a fair trial, rules Strasbourg December 15, 2011 Rosalind English
- Lord Irvine: British judges should decide human rights cases for themselves – Carl Gardner December 15, 20111 Crown Office Row
- A human right to object to war December 13, 2011Rosalind English
- Will neuroscience revolutionise the law? December 13, 2011 Adam Wagner
- Strasbourg’s ruling on hearsay evidence could change its relationship with UK – Joshua Rozenberg December 12, 2011 1 Crown Office Row
- What to do with ‘cold cases’ when they eventually heat upDecember 8, 2011 Alasdair Henderson
- Top judge speaks! Are the judiciary becoming too outspoken? December 8, 2011 Adam Wagner