More Brighton analysis, tweeting in court, and vulnerable defendants – The Human Rights Roundup

30 April 2012 by Wessen Jazrawi

Welcome back to the UK Human Rights Roundup, your weekly buffet 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

A mixed bag this week: Theresa May remained in the news over Abu Qatada, a number of people blogged on the Brighton Declaration, and the issue of cameras and tweeting in court was high on the agenda. Closer to home, a team from 1 Crown Office Row is walking the London Legal Walk to raise funds for the London Legal Support Trust, the Free Representation Unit and the Bar Pro Bono Unit, so if you like the UKHRB, please sponsor them here.

by Wessen Jazrawi

More on Brighton

Cambridge University’s Dr Mark Elliott on the UK Constitutional Law Group blog has written a very thorough piece setting out the differences between the February draft of the Brighton Declaration and the final draft, as well as an analysis of the consequences of the Declaration. For a more truncated but nonetheless focused analysis, see the ECHR blog.

Report by the Equality and Human Rights Commission

The ECHR blog has also blogged about the recent EHRC report written by Alice Donald, Jane Gordon and Philip Leach. In particular, it has noted a number of its key points, including that the UK has a very low rate of defeat at Strasbourg and that, since the coming into force of the Human Rights Act 1998, the ECtHR has been respectful of UK court decisions because of the high quality of their judgments. On the rare occasions that the UK courts have disagreed with ECtHR case law, the Strasbourg Court has shown itself willing to engage in ‘judicial dialogue’ with the superior courts of the UK. For the full report, see here and, if you haven’t already read it, see Alice Donald’s guest post on the UKHRB here.

May v Qatada, round 3

The BBC has reported on the latest in the Theresa May row about the deadline for an appeal over the deportation of Abu Qatada. She says she was given “unambiguous” legal advice and that government lawyers had been “consistent” and “absolutely clear” that the deadline was Monday 16 April and not a day later. She said it was up to the European Court of Human Rights to decide. Meanwhile, Labour’s Keith Vaz has urged ministers to publish in writing the advice it received from lawyers.

On that note, David Cameron’s appearance on BBC Radio 4’s Today has been blogged on by Carl Gardner on Head Of Legal. He reiterates his suspicion that the advice from government lawyers was addressing the question of when the government had to get its appeal in. For his previous post on this, see here.

Hate speech

Matthew Flinn on the UKHRB has posted a really interesting article on the decision by the Upper Tribunal in Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011, and the question of what would be considered unacceptable behaviour. Well worth a read as it sheds light on how the Upper Tribunal might consider the evidence before it.

Climate change

More from the UKHRB – this time, a post by David Hart QC on the fascinating question of whether climate change is a human rights issue. He notes that while many of us would not quarrel with the premise that unchecked climate change is a threat to our existence, and that one response to that threat can be expressed in rights terms, he asks how we get to the position of making such rights enforceable? He notes that the UN Special Rapporteur on the right to food has argued that the agent of change is human rights principles but he believes that those principles have to have some democratic backing.

Vulnerable defendants

A very interesting blog post on vulnerable defendants can be found on the Justice Gap blog. Felicity Gerry looks at how the courts treat vulnerable defendants, in light of the recent decision by the Court of Appeal reiterating that special measures for vulnerable defendants are still very much at the discretion of the trial judge. She analyses issues ranging from why they are not treated as unfit to plead to the directions to be given to the jury by the trial judge. Fascinating from the point of  view of the right to a fair trial.

Cameras and tweeting in court

More from the Justice Gap, this time on the subject of cameras in court, noting that this already occurs in countries such as the US. Italy and Norway, most recently with the trial of Anders Breivik. He notes that things had already started to move at enormous speed as soon as the courts embraced the use by journalists of Twitter during trials, and that lawyers are beginning to learn that the  justice can be enhanced by the public actually seeing what goes on.

On the same subject, Judith Townend on the Inforrm blog has written a thoughtful piece on the legal and ethical issues of tweeting in court and the requirement to tweet sensitively, noting the comment by the Guardian’s Helen Pidd at the Breivik trial: “I’m not tweeting all of Breivik’s statement because some of what he is saying is too heartless”. She also considers the issue of cameras in court and question of how far it is necessary to go in securing open justice.

Law reporting

Halsbury’s Law Exchange hosted a panel discussion on “Law Reporting in the New Media Age” which featured a variety of speakers, including the UKHRB’s own Adam Wagner and considered a number of interesting issues. Among these were the questions of whether blogs should be regulated, whether jurors can or should be shielded from the internet and restricted only to what is said in court, and who might be liable for blogs, tweets and retweets that are libellous or in contempt of court.

Indirect age discrimination

An interesting blog post on the recent Supreme Court decision in Homer v Chief Constable of West Yorkshire Police that persons in the position of Homer were disadvantaged because of a reason (retirement) that directly related to their age. Lady Hale also pointed out that the form of words used in the Age Regulations (see now the EA 2010) were intended to make it easier, rather than more difficult, to establish indirect discrimination. However, although he had been indirectly discriminated against on ground of age, it was still open for the employer to justify the discriminatory requirement, and the Supreme Court remitted this issue to the employment tribunal for consideration.

APPGER and extraordinary rendition 

Panopticon has blogged on the First Tier Tribunal’s decision on the set of requests made by the All Party Parliamentary Group on Extraordinary Rendition (“APPGER”) to the Foreign & Commonwealth Office: APPGER v Information Commissioner and the Foreign and Commonwealth Office EA/2011/0049-0051. The FCO had provided some information in response to APPGER’s requests; in relation to other information, it confirmed that it held information falling within the scope of the requests but relied on exemptions. The post pays particular attention to the exemptions relied on by the FCO and the balance of public interest considered.

Torture claims before the US Supreme Court

The SCOTUS blog considers the bid by Jose Padilla, the highest-profile U.S. citizen taken captive as a suspected terrorist, to get the federal courts to review the government’s power to wage its “war on terrorism” through prolonged detention inside the U.S., under harsh conditions and without criminal charges. Padilla and his mother are also suing California law professor John Yoo, who was a deputy assistant attorney general during the George W. Bush Administration and who has said that he was a key official in shaping detention policy for the federal government. He also wrote the legal memos that appeared to give officials wide discretion to carry out “enhanced interrogation techniques”.

Addison Lee and bus lanes

Joshua Rozenberg reports on the Guardian on the High Court having granted Transport for London an interim injunction against Addison Lee, which operates Europe’s biggest fleet of private-hire vehicles (Transport for London (TfL) v Griffin & Ors [2012] EWHC 1105 (QB) (26 April 2012). The order stops Addison Lee and its founding chairman  from “causing, encouraging or assisting” any driver of a private-hire vehicle to drive in bus lanes reserved for taxis. Addison Lee are arguing that they, too, should be able to jump the queues and are seeking judicial review of a decision by the parking adjudicator upholding two penalty charge notices issued for contravention of the bus lane regulations. They argue that the regulations are irrational and breach EU competition law. Our post is coming up.

In the courts

R (on the application of Gallastegui) v Westminster City Council & Ors [2012] EWHC 1123 (Admin) (27 April 2012). High Court rejects challenge by peace campaigner to attempts to stop her sleeping in Parliament Square

R (on the application of Amougou -Mbarga) v Secretary of State for the Home Department [2012] EWHC 1081 (Admin) (26 April 2012). Immigration detention for 1.3 years whilst documents confirmed was lawful. Reasonable to suspect known liar of lying.

R (on the application of Medihani) v Coroner for Inner South District of Greater London [2012] EWHC 1104 (Admin) (26 April 2012). Coroner acted unlawfully and in breach of Article 2 ECHR by not reopening inquest into murder of 15-year-old after police investigation completed.

Transport for London (TfL) v Griffin & Ors [2012] EWHC 1105 (QB) (26 April 2012). Addison Lee head prevented by High Court from telling his drivers to drive in bus lane. No breach of his free expression rights.

R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521 (26 April 2012). Immigration detainee falsely imprisoned since 2008 as there had been independent evidence he had been tortured and was therefore unsuitable for detention.

R (on the application of Rudewicz) v Secretary of State for Justice [2012] EWCA Civ 499 (24 April 2012). Court of Appeal held that the decision to permit body of priest with “almost saint-like status” to be exhumed & relocated was lawful and didn’t engage Articles 8 or 9 of ECHR.

R (on the application of Greenwich Community Law Centre) v Greenwich London Borough Council [2012] EWCA Civ 496 (24 April 2012). Spending cuts appeal fails: High Court was right to rule withdrawal of funding to community law centre was lawful.

R (on the application of Williams & Anor) v Surrey County Council [2012] EWHC 867 (QB) (03 April 2012).  The High Court has ruled that Surrey Council’s decision to close libraries was unlawful, and breached equalities duties.

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• Hate speech and the meaning of “unacceptable behaviour” April 26, 2012 Matthew Flinn
• Consultation on children’s heart surgery was lawful, rules Court of Appeal April 25, 2012 Rachit Buch
• Is climate change a human rights issue? April 24, 2012 David Hart QC
• Ban on Christian advertising was lawful, says court April 24, 2012 Rosalind English
• Irrational, inhuman and degrading: detention of a mentally ill asylum-seeker was unlawful April 23, 2012 Karwan Eskerie