Indefinite sentences, a chief coroner and abortion bias allegations – The Human Rights Roundup
23 September 2012
Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
UPDATED: Thank you to all the those who pointed out my errors in this post – hopefully you will now find they are corrected.
In the news
A few fairly major issues to chew over this week: we have commentary on the controversial Sarah Catt abortion case, responses to the Strasbourg decision on indefinite prison sentences in the UK, and more additions to the debate about religion and human rights, among other things.
Chief Coroner appointed
The Coroners and Justice Act 2009 provided for wide-ranging reforms of the coroners system in the UK, but not all of it has been implemented so far. One of the recently implemented provisions is for the creation of a Chief Coroner for England and Wales – and Judge Peter Thornton QC is the first. In this post, Obiter J suggests that not enough is being done to implement the remaining provisions – in particular, Obiter J highlights the need for the appeal provisions to be put into force. Without the ability to appeal a decision of an inquiry or inquest, applicants must resort to the expensive and lengthy process of judicial review, or ask the Attorney-General to start a new inquest or inquiry.
IPPs Unlawful?
There is some confusion over what exactly was decided in the European Court of Human Rights decision in James, Wells and Lee v. the UK, the case about Indeterminate Sentence for Public Protection (IPP) case. For those in doubt, I recommend reading this by Obiter J, which provides a clear explanation of each of the prisoners’ circumstances, the history of IPPs, and the case’s progress through the judicial system. In particular, the actual decision of the Strasbourg Court is explained: the IPPs themselves were not unlawful; the unlawful aspect was the inability of the prisoners to realistically access the rehabilitation programmes they would need to complete if they were to prove to the Parole Board that they are eligible for release and no longer a threat to society.
Additionally, Obiter J points out that, despite the current government’s determination to appeal the decision (for more on the government’s reaction, including Justice Secretary Chris Grayling’s reminder that the Bill of Rights Commission is currently consulting on a new, all-British human rights framework, see Isabel Hardman’s post on the Spectator website), it was Labour (in 2003) that introduced IPPs, and the Coalition abolished them (in the Legal Aid, Sentencing and Punishment of Offenders Act 2012). The government’s decision to appeal is therefore mere political posturing motivated by popular anti-ECHR sentiment, and Obiter J concludes by stating that he expects little (if anything) to come from this appeal.
What of those prisoners who are still serving their indefinite sentences? The abolition of IPPs is not retrospective, and the ECHR has not actually ruled them as being unlawful – so over 6,000 prisoners are “stuck in the system”, as reported by Sophie Barnes in this article in the Guardian, which also points out the massive taxpayer cost of keeping these prisoners in a system which allows very few chances for redemption.
See also Alex Massie’s comment in the Spectator, which points out British hypocrisy by stating that if this decision had condemned (say) Russian sentencing as contrary to the ECHR, we would support the decision instead of seeing it as an attack on British sovereignty.
Opting out of EU Criminal Law
A Centre for European Legal Studies report has highlighted the dangers to the UK of opting out of EU criminal law. See this post on the CELS site for a summary of the report, which states that what some might see as “repatriating criminal justice” would actually harm the UK’s ability to extradite, and secure extradition from other EU countries of terrorists and criminals swiftly using the European Arrest Warrant system. Additionally, opting out would prevent the UK from being able to share information with other EU countries on these international criminals. A similar line of commentary was adopted by Terri Judd in the Independent, concluding that, for a notional increase in British sovereignty, we could sacrifice effective crime-fighting measures and embolden criminals by doing so.
The Sarah Catt Case
Abortion has always been a contentious issue, and it has again been brought to the forefront of the British consciousness by the case of Sarah Catt, who aborted her 39-week foetus using drugs she bought over the internet, fearing the child was not her husband’s. Martin Wainwright, writing in the Guardian, provides a more comprehensive exposition of the case. The judge handed down an 8-year sentence for the abortion, which he considered to be between manslaughter and murder, though his has links to a conservative Christian charity caused legal blogger Amanda Bancroft to raise the possibility of judicial bias in this Guardian piece.
Equality or Tolerance?
This week has seen further commentary on the relationship between human rights and religious expression. Jon Holbrook, posting on Spiked, objects to the perceived prioritisation of secular equality over tolerance of religion, citing the well-known case of Lillian Ladele, the registrar who avoided officiating at civil partnerships of gay couples due to religious objection to homosexuality. Holbrook argues that Ms. Ladele’s employer could have and should have accommodated her beliefs without actually prejudicing gay couples by simply getting someone else to officiate at civil partnerships.
On a different note, this post by mkp on the UK Immigration Law Blog explores the EU Charter of Fundamental Rights (a different beast from the European Convention on Human Rights) approach to religious persecution, focusing on the (severe) situation in Pakistan. The CFR is based around not manifestations of religion but levels of persecution – there must be a risk of prosecution or inhuman/degrading treatment for persecution to qualify as violating the CFR right of religious expression.
The Wrongs of Human Rights
Jonathan Fisher QC, one of the members of the UK Bill of Rights Commission, posted an article in the Jewish Chronicle last week called “The Wrongs of Human Rights” decrying the ECHR as being based around “entitlements” rather than responsibilities, and called for a model more rooted in social responsibility, largely in response to a German Court finding that circumcision of young Jewish and Muslim boys in Germany without their consent violated the Convention.
This week has seen two responses to this position – the first, posted by Shauna Leven on the Cartoon Kippah site, argues that the benefits of the ECHR to the Jewish community far outweigh any detriments; the second, by UKHRB’s Adam Wagner, comments on the suitability of a member of the UK Bill of Rights Commission being seen to weigh in on the issues before the public consultation period is over.
In the courts
James, Wells and Lee v. UK [2012] (Chamber Judgment) Detaining prisoners indefinitely on grounds of risk they pose to society without giving them realistic access to rehabilitative courses was arbitrary and therefore unlawful.
Buckland v. The United Kingdom 40060/08 – HEJUD [2012] ECHR 1710 European Court of Human Rights: 2005 possession order against gypsy family was disproportionate interference with Article 8 family rights.
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UKHRB Posts
- Bill of Rights commission: loading the dice? Sept 23, 2012 Adam Wagner
- No public inquiry into alleged 1948 massacre by British troops, yet Sept 21, 2012 Matthew Hill
- Can an individual claim ownership of “life’s instructions” – a human gene? Sept 20, 2012 Rosalind English
- A Chagossian double bill: an environmental information contest, and a touch of Wikileaks Sept 20, 2012 David Hart QC
- Free speech and prosecution in the age of Twitter Sept 20, 2012 Adam Wagner
- More on admissibility, the view from the Court – Paul Harvey and Pamela McCormick Sept 19, 2012 1 Crown Office Row
- Will the Bill of Rights Commission achieve anything at all? – Alice Donald Sept 19, 2012 1 Crown Office Row
- Dignity, Death and Deprivation of Liberty: Human Rights in the Court of Protection Sept 19, 2012 1 Crown office Row
- The UK and Strasbourg: a victim fantasy Sept 19, 2012 Andrew Tickell
- Strasbourg applications: some aspects of the “six months” rule Sept 18, 2012 Rosalind English
- How do you “exhaust local remedies” for the purpose of applying to Strasbourg? Sept 17, 2012 Rosalind English
by Sam Murrant
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It was most definitely not the Strasbourg Court that found that circumcision of young Jewish and Muslim boys in Germany without their consent violated the Convention, though this is what Fisher provocatively insinuates is in the pipeline. It was a German court that ruled circumcision constitutes ‘bodily harm’. See http://www.bbc.co.uk/news/world-europe-18604664
Many thanks for referring to some of my blogposts – it is very much appreciated. A couple of comments if I may:
Coroners and Justice Act 2009
This did contain appeal provisions but they cannot now be implemented because they have been repealed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. My article made this point and reflected that I think this to be a great pity. There should always be appeals from inferior courts and judicial review is highly expensive and difficult.
IPP
You say – “The government’s decision to appeal is therefore motivated by popular anti-ECHR sentiment, and Obiter J concludes by stating that he expects little,
Some text seems to be missing after “little.”
The English judiciary was very critical of IPP including speeches in the House of Lords. Given this clear condemnation of the failure to provide adequate resources to make IPP work properly, I would be surprised if the ECtHR even entertains a reference but may do so given that the UK is a “big player” in the Council of Europe. I would be even more surprised if a reference succeeds. It would not deserve to !
Sorry – it was the Public Bodies Act 2011 which repealed the appeal provisions – my error !!
Having read the Guardian piece on Sarah Catt, I have to conclude that the judge should have removed himself from hearing and sentencing in this case. His prejudice against abortion makes him an unfit person to act as a judge in a case like this. Amanda Bancroft hedges around the state of mind of Sarah Catt at the time when she induced an extremely late stage abortion. However, I feel that this woman was – and probably still is – highly unstable and not in a rational frame of mind when making decisions like these. What she did was appalling but I can only conclude that she carried out this abnormal act while in an abnormal state of mind. Is it right to sentence her to 8 years in custody for not being in full possession of all her faculties? I assume her legal advisers have advised her to appeal against the length of the sentence. It will be interesting to see what the appeal judges make of the sentence handed down in this case and if they offer any comments on the nature of the sentencing.
The judge obtained a psychiatric report which concluded no mental illness. However, to explain her behaviour (if it is possible to explain it at all), a psychologist needed to consider the case. For some reason, not explained, the judge decided he did not require a report from a psychologist.
Sentencing Catt was bound to be a very difficult business. The statutory sentencing framework points to this being an offence which is “so serious” that neither a community sentence nor a fine would suffice. Thus, as I see it, the judge had little choice but to imprison her.
The question then is how long should she serve in prison. A sentence of imprisonment could be suspended but only if the sentence is 12 months or less. A 12 month sentence would be seen as not being in proportion to the seriousness of the offence. Thus, suspended sentence ruled out.
The next question is how long would be commensurate with the seriousness of the offence. The judge said 12 years – less 1/3 for a guilty plea. That might well be seen as high – we shall see if this case gets to appeal on sentence.
I think that it would have been preferable for a different judge to have taken this case – a judge who had not had a high profile position with a body such as the Lawyer’s Christian Fellowship. Given that the Abortion Act 1967 did not offer Catt any defence, it was only necessary for the judge to say so and avoid a polemic about how he considers that the Abortion Act is being applied in practice. It is here where the judge revealed his deeper views on this subject.
That is obvious that accommodation in Ladele’s case would be possible (in fact I think you can accommodate for almost anything really) however that is just a smoke screen trying to put the blame on the employer for not being tolerant enough and somehow (?) accepting the intolerance of the employee as valid and justifiable.
Accommodating would have been quite easy and would have saved the council a lot of trouble, but the question the way I see is is: would it be the right thing to do, would it be fair and justified in a society that claims to value equality?
To officially and legally allow a person to bluntly discriminate against a group of customers (it being a public service makes it even worse) based on their sexuality should be just unacceptable in any modern society. Nothing to do with religious rights (in America right now this excuse is used for about anything, is the UK going in the same direction?)