Brighton begins, gay cures and information access – The Human Rights Roundup

16 April 2012 by Wessen Jazrawi

Welcome back to the UK Human Rights Roundup, your weekly dose of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

This week, the debate about extradition rages on following the Strasbourg Court’s decision in the Abu Hamza case,which raises a number of interesting legal and political questions. Also in the news this week, the issue of access to information has arisen in a variety of forms. And the flagship event of the UK’s chairmanship of the Council of Europe is about to begin in Brighton, with the future of the European Court of Human Rights at stake.

Brighton Conference begins

The Brighton Conference on European Court of Human Rights reform, due to take place on 18-20 April, begins on Wednesday. As noted by the ECHR blog, its program is now available online here, although it is of limited interest given that it sheds little light on what will be discussed. Meanwhile, a group of 11 Non Governmental Organisations have released a joint statement welcoming positive reforms of the Court but urging “all delegations to the negotiations to refrain from endorsing measures which would amend the Convention so as to codify, or seek to prioritise, the principles of subsidiarity and the margin of appreciation or to add new admissibility requirements.”

by Wessen Jazrawi

Extradition to the US – the Abu Hamza judgment

As set out in a post by Isabel McArdle, further to a decision by the Strasbourg Court (which is not final yet – Hamza et al have 3 months in which to seek an appeal in the Court’s Grand Chamber), Abu Hamza and Babar Ahmad may now be extradited to the US. For an excellent analysis of the judgment, see Obiter J’s blog post, which also provides a list of other links that may be of interest to those who are hungry for more commentary.

The judgment raises some very interesting questions about whether torture alone is a barrier to extradition or whether ill-treatment should also be a reason not to extradite, what kind of treatment in prisons would be considered to violate the Article 3 prohibition, and the question of grossly disproportionate sentences and whether mandatory life sentences are included in this category. Obiter J also notes the treatment of submissions by the ACLU and Reprieve, commenting that it is unclear precisely why those arguments were rejected so decisively and that a fuller explanation was merited.

The US press response to the Abu Hamza judgment has been set out by Rosalind English on the UKHRB here.

Free speech and access to information

As noted by Rachit Buch on the UKHRB, we have seen a flurry of decisions relating to free speech and access to information in recent weeks. In a post that is well worth a read, he provides a brief analysis of a few relevant decisions, including Flood v the Times, the recent contempt of law cases concerning the jurors who had discussed a case on facebook and conducted internet research, and finally the legal actions arising from posts on Twitter, notably that relating to Liam Stacey.

And on that note, Victoria Coren has written an excellent article in The Guardian, which queries how many of us know what Stacey has actually gone to prison for and what he actually said in his tweets. She makes some very good points, including that anyone who’s pleased to see a person jailed for a piece of writing, without bothering to seek out the precise words that were deemed illegal, should be ashamed of themselves. She also raised the question of whether s.4A of the Public Order Act 1986 was applicable, given that the statute provides an exception for communications where the sender and recipient are inside a dwelling.

Jacob Rowbottom on the Inforrm blog has answered this question, responding that s.4A has been applied to digital communications in a number of cases, indicating that writing on a social network from within the home can fall within the offence. However, he then goes on to ask whether it should indeed apply and provides a very interesting analysis of the law and its consequences. He also makes the argument that an ill-judged comment made with little thought should not result in a criminal conviction or hefty legal expenses. Saying something you might later regret should not have life changing consequences.

Some people are gay. Get over it. 

This week, Christian groups attempted to respond to the above slogan by Stonewall with one of their own “Not gay! Post-gay, ex-gay and proud. Get over it!”, but  it was blocked by the mayor. Cearta has blogged on this here, querying whether there was any difference between the two campaigns. A member of the public has made quite a lucid rebuttal in a comment to the blog.

Accessing politicians’ tax returns

In more access to information commentary, Hugh Tomlinson QC on Inforrm has noted the freedom of expression dimension to the debate concerning the disclosure of politicians’ tax returns. In particular, he discusses the fact that the courts in India have used the constitutional right to freedom of expression – including the right to receive information – to place candidates for election under strict “disclosure” requirements – covering their own assets and liabilities and those of their families.

Conviction for refusing access to documents not a violation of the Convention

In more access to information news, there is yet another excellent post on the Inforrm blog, this time about the decision by the European Court of Human Rights that an applicant could not rely on his right of privacy under Article 8, nor on his (negative) right to freedom of expression and information under Article 10 of the Convention to justify his refusal to give access to research material. He had refused access because the research project concerned hyperactivity and attention-deficit disorders in children and he had made certain assurances to the children’s parents and later to the children themselves concerning the confidentiality of the collected data.

The blog’s authors, Dirk Voorhoof and Rónán Ó Fathaigh, suggest that the most significant aspect of this judgment is what the Grand Chamber had to say about access to information under Article 10, namely that if Mr. Gillberg had the right to withhold the research information, it would impinge on the right to receive information in the form of access to public documents. They note that this raises the question of whether the Strasbourg Court is contributing to the development of a right to access to information.

Access to information in the US

In more access to information news, the appeal by the UK’s All Party Parliamentary Group on Extraordinary Rendition (APPGER) – against the refusal to release information on extraordinary rendition – has been rejected. For more information, see this excellent post by Robin Hopkins on the Panopticon blog (reproduced on the UKHRB). He notes that, prior to 2002, the exemptions under the Freedom of Information Act (FOIA) in the US turned on the nature of the requested information, not the identity of the requester, but that this changed in 2002 when Congress amended FOIA to include a “foreign government entity exemption” – which it held APPGER fell into.

The Times and Nightjack

A must-read for those interested in the NightJack exposure, this article by David Allen Green on the New Statesman website sets out how, in a string of managerial and legal lapses, the Times hacked NightJack and effectively misled the High Court. It also covers the questioning by the Leveson Inquiry.

Secret evidence

Angus McCullough QC has posted a thoughtful post on the closed material procedures on the UKHRB and makes a number of excellent points, including that the proposed extension of closed procedures to civil proceedings is impelled not by considerations of national security but by considerations of fairness. He also asks whether, for all their inherent unfairness, closed material procedures might be less unjust than the alternative, which is continuing reliance upon public interest immunity – but points to the report from the Joint Committee on Human Rights, which has considered this in detail, and concludes that, whilst there is a respectable theoretical argument for a strictly limited extension of closed procedures, in practice no such need for such a controversial measure has been established.

Also on this topic, Liberty has published a brief summary of the circumstances of the rendition of Abdel Hakim Belhadi, who is now a member of Libya’s transitional government, and of his wife, four-and-a-half months pregnant at the time. It notes that documents found in the rubble of Gaddafi government offices suggest our previous government approved the rendition at ministerial level and suggests that this case is precisely the kind of civil claim that, if the Government’s Green Paper gets the go ahead, would be held in secret in future.

Open justice

David Hart QC has blogged on the UKHRB on the recent decision by the Court of Appeal in R (on the application of Guardian Newspapers) v. City of Westminster Magistrates Court which concerned access to critical documents provided to the courts. The case concerning bribery allegations against a London solicitor and a former executive of a Halliburton company, and extradition sought by the USA and keenly challenged by the defendants. The Court of Appeal overturned the decision by the Divisional Court and found in favour of the Guardian, emphasising that it was basing its decision on the common law principle of open justice.

In other news, TV cameras will be allowed to film the sentencing in a criminal trial for the first time next week, after Scottish broadcaster STV was granted permission to record the conclusion to a murder case. For more information, see this article in Legal Week.

Also on the topic of open justice, Heather Brooke in the Guardian laments the lack of information available to the public on the courts and judicial system. She notes that there are three things the public needs to know about courts to ensure justice is being done: 1) who is using the courts (court listings with real names of parties); 2) for what purpose (case details and documents); 3) the result (results list) and considers it a tragedy is that this most basic information is not available.

Strasbourg – what does it really do?

In an article on the Guardian, Ros Taylor asks Guardian readers to to highlight rulings that have set a precedent and changed the way citizens are treated. Many readers have taken her up on this already, providing some interesting comments, and no doubt more will follow.

Refugees and non-refoulement

For an analysis of the recent Supreme Court decision in  R (on the application of ST (Eritrea)) v Secretary of State for the Home Department [2012] UKSC 12 that it is not unlawful to seek to remove to another country a person who has already been recognised as a refugee in respect of one country, see this post by Free Movement.

Family justice

The Pink Tape blog has published the fourth family justice narrative – these continue to make compelling reading.

In the courts

MP, R (on the application of) v Secretary of State for Justice [2012] EWHC 214 (Admin) (13 February 2012). The High Court ruled that the Secretary of State’s Childcare Resettlement Leave for prisoners was too inflexible and breached article 8 ECHR.

Sharing, R (on the application of) v Preston County Court [2012] EWHC 515 (Admin) (22 February 2012). The High Court held that a decision to refuse permission to appeal on the grounds of fresh evidence should be quashed, on the basis that the judge had already set his mind against the claimant.

Balogun v. the United Kingdom – 60286/09 [2012] ECHR 614 (10 April 2012). Deportation to Nigeria of 26-year-old Man convicted of multiple serious drug offences would not breach Article 8 right to family life, despite him being in UK since age 3.

Woolley v. the United Kingdom – 28019/10 [2012] ECHR 613(10 April 2012). The European Court of Human Rights found no violation of Article 5 in the imposition of the four-year term of imprisonment in default of payment of the confiscation order.

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UKHRB posts

• Man can be deported despite living in UK since age of three
• What’s so wrong with incest? The case of Stübing v Germany
• The rising cost of free speech: Reynolds, contempt and Twitter April 12, 2012 Rachit Buch
• Security bodies, private emails: parallels between the UK and US – Robin Hopkins April 12, 2012 1 Crown Office Row
• US press response to Abu Hamza extradition decision April 11, 2012 Rosalind English
• Secret evidence proposals – time to reflect April 11, 2012 Angus McCullough QC
• Common-law open justice lets in the light; Strasbourg not the key April 10, 2012 David Hart QC