Lawrence murder sentencing, assisted dying, new SC justices > The Human Rights Roundup

9 January 2012 by Graeme Hall

Welcome back to the first UK human rights roundup for 2012. 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 Graeme Hall

In the news

Although human rights abuses don’t break for Christmas, UK human rights news has taken a pause over the festive period. Nonetheless, there have been some newsworthy occurrences, the Commission on Assisted Dying’s report being the most recent.

Stephen Lawrence

As the BBC reports, the Attorney General is reviewing whether the sentences handed down to Dobson and Norris for the murder of Stephen Lawrence, receiving 15 and 14 years respectively, were unduly lenient. Gownandout, a blog written by the editor of Banks on Sentencing, believes that a reference is “highly unlikely”, whilst blogger Charon QC notes that the pair is likely to spend a lot longer in prison, particularly due to their lack of remorse.

Responding to the criticism of leniency, Adam Wagner has outlined the rather abstract sentencing regime which the trial judge was bound to follow. Adam explains that Article 7 of the European Convention on Human Rights prohibits the imposition of a sentence which is heavier than that available at the time of the offence. In turn, they needed to be sentenced according to the law applicable in 1993 – the time of the murder – meaning that they had to be sentenced as if they were juveniles. See Alasdair Henderson’s post on cold-case sentencing and Article 7 for further background as well as Gownandout’s post, above.

Whilst the law will be criticised for the lenient sentences, the conviction of one of the defendants was only possible because of the legislative abolition of the centuries’ old constitutional principle that a defendant could not be tried more than once for the same crime (the rule against ‘double jeopardy’). See Joshua Rozenberg’s concise history of this legislative change.

A major criticism of this change is that defendants will continue to be tried until the ‘right’ result is achieved. However, Felicity Gerry outlines that the qualifications required for a retrial should provide adequate safeguards to mitigate this risk.

The Commission on Assisted Dying

This report recommends that assisted dying for capacitous, terminally ill adults (less than a year to live), with the ability to self-administer life-ending treatment, should be legalised. Our resident bioethics specialist, Daniel Sokol, concludes that the report “is cautious and pragmatic in its attempt to stimulate a change in the law” because it focuses solely on assisted dying for competent adults.

The report thus avoids risking the slide down the slippery-slope, from assisted dying (a decision taken by a competent adult able to self-administer) to voluntary euthanasia (a decision taken by a competent individual to have their life ended by a third party), to non-voluntary euthanasia (a decision made by third parties to end the life of an incapacitous person in their best interests), to involuntary euthanasia (a decision taken to end the life of a capacitous person against their wishes, or an incapacitous person against their best interests; both constituting murder).

Nonetheless, the report has received some predictable criticism. Bias has been a major criticism levelled at the Commission as it was funded by the pro-assisted dying lobby, particularly Dignity in Dying. However, others feel that the report doesn’t go far enough to help those who are not terminally ill, or who are unable to take their own lives. Such is the thorniness of this issue that the government has decided to not touch it.

New Justices of the Supreme Court

Just before Christmas, the Supreme Court announced the appointment of Lord Reed and Lord Justice Carnwarth to the Supreme Court. Legal commentator Joshua Rozenberg warmly welcomed these appointments, even though they do not increase the number of women or ethnic minorities in our highest appeal court. Nonetheless, as Rozenberg also notes, given the imminent retirement of other Justices, there is room in the not too distant future to increase diversity at the top of the tree.

Finally, given that it has somewhat become my pet interest on this blog, The Telegraph wrote a piece on Christmas day reporting that the UK and Switzerland have jointly submitted a document urging reform of the European Court of Human Rights in order to “avoid further damage to the reputation and effectiveness of the convention system”.

Other roundups

Take a look at ObiterJ’s fantastic and comprehensive 2011 review, offering a month by month summary of legal news over the past year.

Good-bye from me!

It seems that Adam may have spoken too soon when thanking his “team of regular and reliable bloggers”. Sadly, I will no longer belong to this esteemed group as this is my last human rights roundup.

My heartfelt thanks go to Adam and the team at the UK Human Rights blog for their unwavering support and guidance over the last year. My sincere thanks also go to the readers and commenters who continue to support this worthy legal news resource and ensure that I am always kept on my toes (no names!). Long may this blog continue to demystify human rights law, policy and reporting, both at home and abroad.

I bid you a happy and prosperous New Year from the sunny climes of East Africa!

In the courts

• Jean PEARSON v the United Kingdom – 40957/07 [2011] ECHR 2319 (13 December 2011). European Court of Human Rights: State investigation into death of drug abuser with history of mental health problems was sufficient to satisfy Article 2 ECHR.
• Dobson & Ors v Thames Water Utilities Ltd (No 2) [2011] EWHC 3253 (TCC) (08 Dece…. Thames Water caused nuisance and breached human rights of residents living next to sewage works who suffered odour and mosquitoes over many years.
• The Secretary of State for Justice v RB & Anor [2011] EWCA Civ 1608 (20 December…. Strasbourg: UK courts right that son of high-ranking Afghan communist not at real risk of ill treatment if returned there.
• NS (European Union law) [2011] EUECJ C-411/10 (21 December 2011). ECJ: Member States may not transfer an asylum seeker to other member state where they cannot be unaware that systemic deficiencies in asylum procedure and reception conditions generate a real risk of inhuman or degrading treatment.
• Roberts, R (on the application of) v The Welsh Ministers & Anor [2011] EWHC 3416…. Cardiff Council’s decision to shut schools was unlawful but judge refuses to quash decision – council would have come to same decision even if it reconsidered.
• MINSHALL v. THE UNITED KINGDOM – 7350/06 [2011] ECHR 2243 (20 December 2011). European Court of Human Rights: 6 year delay in making confiscation proceedings breached fair trial rights.
• A.H. KHAN v. THE UNITED KINGDOM – 6222/10 [2011] ECHR 2253 (20 December 2011). European Court of Human Rights throws out deportation appeal by Pakistani immigrant with series of serious criminal convictions.

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

• A step closer to the legalisation of assisted suicide? January 5, 2012Daniel Sokol
• Pigs have no rights to bigger pokes January 5, 2012Rosalind English
• Extension of secret hearings would be “fundamentally unfair”, say Special Advocates January 5, 2012Adam Wagner
• Why Stephen Lawrence killers were sentenced as juveniles and under old law January 4, 2012 Adam Wagner
• Smells and mosquitoes but no extra damages under the Human Rights Act January 2, 2012 Rosalind English
• EU Court upholds greenhouse gas scheme against US airlines challenge January 2, 2012 David Hart QC
• Policy, possession and proportionality – Nearly LegalJanuary 1, 2012 1 Crown Office Row
• UK Human Rights Blog – 2011 in review January 1, 2012 Adam Wagner