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.
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  (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  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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by Sam Murrant