Age of Neuberger, Abu Hamza and Mau Mau – The Human Rights Roundup

8 October 2012 by Sam Murrant

Lord Nueberger (photo credit: Supreme Court)

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.

In the news

The big human rights news this week is the extradition of Abu Hamza, Babar Ahmad and others following their failure to persuade the European Court of Human Rights to grant them an appeal and their loss in the High Court, precipitating discussion in the blogosphere on the UK-US “special relationship”. In other news, the claim by the Kenyans seriously injured and tortured in the Mau Mau uprising 1952-60 was given the go-ahead despite arguably being time-barred and Lord Neuberger was sworn in as President of the Supreme Court.

Lord Neuberger sworn in as UKSC President

The age of Neuberger has begun! Lord Neuberger of Abbostbury, previously the Master of the Rolls, was sworn in as President of the Supreme Court this Monday. For further details, see this post on the Supreme Court’s website, which explains the main duties of the President and includes some comments by Lord Neuberger. This blog has long been a fan of Lord Neuberger for his strong statements on open justice and public-facing attitude, and it is to be hoped that he continues in that vein during his presidency.

So long, Abu Hamza

This week the last legal lifeline was cut for Abu Hamza and the other men facing US extradition with him, with the High Court refusing their judicial review action against the decision to extradite them to the US. The official summary of the decision may be found here; it is also reproduced in Adam Wagner’s post, which includes a short commentary on the case and its history. The Director of Public Prosecutions has also refused a request for a private prosecution against Babar Ahmad and Syed Ahsan  for offences under the Terrorism Act 2002, two of the other men facing extradition, which might have kept them in the country a while longer. The refusal was made on grounds of lack of realistic or admissible evidence against Ahmad and Ahsan – for more information, see this post on the CPS website.

Relatedly, the Chief Magistrate also refused an application by Karl Watkin MBE to summons Mr Babar Ahmad and Mr Syed Talha Ahsan to face allegations of solicitation to murder, contrary to Section 4 Offences Against the Person Act 1861. The full ruling is here.

Babar Ahmad has spoken out this week about the extradition and his detention without trial, in the Guardian’s Comment is Free section, laying out his side of the story and arguing that he, as a British citizen, should be prosecuted in the UK for any crimes he is accused of.

This week also saw some commentary on the original ECHR decision that the extradition to the US did not violate the Convention, in April this year. Claire Overman, writing on the Oxford Human Rights Hub website, considers this decision and concludes that the Strasbourg court is to be commended for refusing to “balance” Article 3 rights against other considerations. However, she sees the aspect of the judgment that considers that because the US has a “long history of respect for democracy, human rights and the rule of law”, there is unlikely to be a violation of Article 3 as possibly leading to a “privileged” category of receiving states which Strasbourg will not scrutinise as closely as it perhaps should.

Green light for Mau Mau victims

The High Court this week allowed claims of three victims of torture during the Mau Mau uprising in Kenya over 50 years ago to go ahead despite being time-barred, McCombe J exercising his discretion under the Limitation Act 1980 to disapply the 3 year limitation in respect of personal injury claims by the claimants. Rosalind English, writing for UKHRB, provides a summary of the main issues and history of the case here. Four members of 1 Crown Office Row Chambers appeared in the case, as described in this article on the 1COR website

The ECHR and Asylum Law

This week saw two posts of interest on Free Movement’s blog on the subject of asylum law. The first relates to a change in the European court of Human Rights’ perception of when it is acceptable to reject asylum claims – previously in the UK documents stood of fell with the general credibility of the holder; now, under the Singh and Others v Belgium case, it is a breach of Articles 3 (freedom from torture or inhuman/degrading treatment) and 13 (right to effective legal remedies) to dismiss a claim without attempting to verify documents held by the seeker. A press release by the Court on this case can be found here. Free Movement’s second post discusses the European Database of Asylum Law, a potentially useful resource containing handpicked important asylum cases from throughout the EU.

UK Bill of Rights

Finally, we have another discussion on the perennially fascinating UK Bill of Rights, this week provided by Professor Francesca Klug and Amy Ruth Williams on the Oxford Human Rights Hub. This post makes three major points:

1. The Human Rights Act (HRA) 1998 is, itself, a UK Bill of Rights (in effect) – the language of the Bill of Rights Commission suggests that the UK does not currently have its own human rights framework, which is simply misleading;
2. The HRA is perceived (and vilified) for protecting “unpopular” minority groups at the expense of everyone else. Unfortunately, protection for these groups is inherent in the universality of the ECHR itself, which the Commission on a Bill of Rights is bound to “enshrine” in whatever it comes up with. Therefore, reducing the number of unpopular cases would necessitate leaving the Convention – and that would take with it the Strasbourg scapegoat if the new, all-UK Bill of Rights proved unpopular;
3. The Bill of Rights is intended to bring power “back to Parliament” – though this conveniently ignores just how few teeth the judges have when holding that laws are contrary to the ECHR. Declarations of incompatibility (DOIs) are all that judges in this country can do under the HRA; they cannot strike down offending legislation and must rely on Parliament to make law compatible (which it is in no way bound to do if a DOI is made).

In the courts

EH, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Detention of mentally ill asylum seeker was unlawful (also lawful in parts). Secretary of State’s policy on mental illness was lawful.

G (Children), Re [2012] EWCA Civ 1233 Court of Appeal rules that the County Court was right to rule that a divorced mother can send child to modern orthodox Jewish school against wishes of ultra-orthodox father.

Ndiki Mutua & others v The Foreign and Commonwealth Office [2012] EWHC 2678 (QB) Although any claims regarding alleged acts of torture on Kenyan detainees during the 1950s state of emergency are technically time barred the High Court has allowed three of the claims to go ahead.

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UKHRB Posts

• Why is the Law of Fire like a student fridge? October 6, 2012 David Hart QC
• When the UN breach human rights… who wins? October 5, 2012 Alasdair Henderson
• Mau Mau torture claims against Foreign Office not time barred, rules High Court October 5, 2012 Rosalind English
• Goodbye Abu Hamza (really this time) October 5, 2012 Adam Wagner
• Government should have consulted Child Poverty Commission on welfare strategy October 2, 2012 Rosalind English
• US Supreme Court to rule on affirmative action October 1, 2012 Rosalind English

by Sam Murrant