Habeas corpus, trolling and secret court conspiracy theories – The Human Rights Roundup
5 November 2012
This is Wessen Jazrawi’s final roundup on the UK Human Rights Blog as she is moving onto pastures new. Thanks to Wessen for her fantastic series of fortnightly roundups – Adam and the UKHRB team.
Welcome back to the UK Human Rights Roundup, your weekly smörgåsbord 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.
The most significant news of the week has been the decision by the Supreme Court in the case of Yunus Rahmatullah which we consider below. In other news, time is fast running out for the UK government to act on prisoner voting and the European Court displayed the limits of its intervention on domestic violence. Also in today’s roundup is the inaugural list of upcoming UK human rights events – if you would like to add an event to the next roundup, please email.
In the news
Secret courts – fanciful conspiracy theories
The BBC reports that, in a speech to think tank Policy Exchange, Ken Clarke (who despite losing his job as Justice Secretary is still responsible for steering the Justice and Security Bill through Parliament) accused civil liberties campaigners of creating “fanciful conspiracy theories” over government plans for secret court hearings, arguing that the bill would boost the accountability of the intelligence and security services by allowing evidence to be heard in court that had never previously been allowed. He warned that they were potentially scuppering “a golden opportunity for reform”. A short summary video of the speech can be seen here, full speech to follow.
Terrorism measures and the future of the ECHR
The new Justice Secretary Chris Grayling last week pledged a radical rethink of the UK’s approach to the European Court of Human Rights. He has also refused to rule out the UK withdrawing from the European Convention of Human Rights. How and whether this will have a bearing on the Strasbourg court’s consideration of our measures allowing police to keep terror suspects in custody for questioning for up to 14 days, remain to be seen. The Telegraph reports that these are at the centre of a legal challenge brought by Colin Duffy, an Irish republican dissident who was last week arrested over the murder of David Black, a Northern Ireland prison officer.
Yunus Rahmatullah – detention upheld by Supreme Court
This week, the detention of Yunus Rahmatullah was upheld by the Supreme Court. In the first of two posts on this subject on the UKHRB, Rosalind English summarises the judgment while, in the second, Lois Williams provides an analysis of the judgment, which itself can be found here.
Two things to note are that the Secretary of State’s appeal, which argued that the writ was an intrusion by the courts into the “forbidden area” of foreign policy (an argument which calls to mind the political question doctrine that has been so successful in getting so many important cases thrown out of the US courts) was unanimously dismissed. However, as Lois notes, the Court was less willing to examine substantively the terms in which the UK request was made, or to go behind the US letter of response. By a majority of 5-2 (Lady Hale and Lord Carnwath dissenting), the cross appeal of Mr Rahmatullah was also dismissed.
The reasoning of the majority was that, while the US letter did not deal with the legal basis on which the UK authorities arguably had control over Mr Rahmatullah, a diplomatic silence on the question did not necessarily indicate a lack of interest on the subject. The language of diplomats, Lord Kerr noted, could be very different from that of lawyers. In a joint dissenting judgment, Lady Hale and Lord Carnwath indicated that for them both the UK letter and the US response failed to address the central issue: the UK’s apparent control provided by the 2003 MoU and GC4. They did not understand either why the US government should have any diplomatic problem in expressing its position clearly, or still less why the court should acquiesce in that position.
As Lois Williams also notes, while the case upholds the hallowed principle of habeas corpus, the majority in the Supreme Court was ultimately unwilling to examine substantively the terms in which the UK request was made, or to go behind the US letter of response.
Joshua Rozenberg has also written on the Rahmatullah judgment in the Guardian. He notes that the approach suggested by Lady Hale and Lord Carnwath (of failing to accept the inconclusive response from the US and of resubmitting the UK’s request in more specific terms) would have annoyed the Americans, would probably have made no difference, but was surely worth a try.
A piece by Matt Evans on the Justice Gap focuses on the recent prosecutions by the DPP for what is now known as trolling, the posting of deliberately provocative messages to a message board with the intention of causing maximum disruption and argument. He notes that the Director of Public Prosecutions, Keir Starmer, is now planning to issue guidelines for prosecutors on when criminal charges should be brought in relation to trolling incidents after a series of roundtable meetings with campaigners, media lawyers, academics and law enforcement bodies. He argues that areas where the law might become involved (such as making credible threats to kill or maim others, putting people in genuine fear for their safety) are being conflated with areas, remarks and opinions over which the state should have no authority and of which the law should stay well clear. Lilian Edwards also discusses this issue on the Inforrm blog here.
Also on this note, Matthew Woods, who was sentenced to 12 weeks for his comments in relation to the missing 5 year old April Jones has had his sentence cut to 8 weeks, commented on by James Wilson on A(nother) Lawyer Writes where he argues that this does not change the fact that he should not have been charged in the first place, let alone convicted and sentenced to a term of imprisonment – see also Adam Wagner’s post: Twelve weeks in prison for sick jokes on Facebook? Really?
David Allan on the Halsbury’s Law Exchange also deals with the issue of free speech, noting that it is a bit of a mess and asking why offensive language used over the internet is more tightly restricted than language used face to face.
Prisoner voting – time is almost up for the UK
Carl Gardner on Head of Legal notes that the UK government has until 23 November to take some sort of action towards giving prisoners the vote. If David Cameron isn’t reading Head of Legal, he really should as Carl has come up with a nifty way out of the prisoner voting mess while, in his words, offering two Eurosceptic fingers back at Strasbourg. See also Adam Wagner’s post, More shenanigans on prisoner votes.
The European Court of Human Rights issued a press release this week declaring an application by a British national, Irene Wilson, inadmissible. The case concerned the complaint by a victim of domestic violence about the authorities’ handling of the criminal proceedings against her husband for grievous bodily harm and her allegation that the suspended sentence given to him was too lenient. Lois Williams sets out the facts and the court’s reasoning on the UKHRB here. In wording that will remind those who have read it of the facts in Opuz v Turkey, the court stated that this was not a case where the domestic authorities had done nothing in the face of repeated and credible complaints of violence or threats of violence.
End of life – where are we now
Fenella Morris of 39 Essex Street Chambers writes on the state of the law on this very difficult topic: it summarises the cases of E, an anorexic woman, Mr. Nicklinson, and Baby X and KH, amongst others. Well worth a read.
Finally, this is my last round-up for the UKHRB. Thank you to everyone who has read and commented on my posts, it’s been fantastic to be part of such a widely read and widely respected blog. Going forward, I look forward to reading the posts from the comfort of my bed on Sunday mornings rather than my desk!
In the courts
MF (Article 8 – new rules) Nigeria  UKUT 00393(IAC) November 1, 2012. Upper Tribunal: new rules on Article 8 must be applied first in immigration cases, but if appellant fails that test ordinary article 8 balancing exercise (using case law) must be undertaken. New rules may shift the balancing exercise. This is an important judgment – see the background here: Article 8 and a half
Hamza & Ors v Secretary of State for the Home Department  EWHC 2736 (Admin) (05 October 2012). Full judgment: Abu Hamza and others extradition to USA will not be halted by Judicial Review.
Catholic Care -v- Charity Commission judgment – 2 November 2012. Upper Tribunal: Catholic Care cannot turn away gay couples for adoption if it wants to retain its charitable status.
Child Maintenance and Enforcement Commission v Gibbons Same v Karoonian  EWCA Civ 1379;  WLR (D) 300 (ICLR) November 2, 2012. Where an application was made for committal of a person to a term of imprisonment for wilful refusal or culpable neglect in not having complied with orders to pay child support maintenance, a strict construction was to be placed on the word ‘sought’ within section 39A(1)(a) of the 1991 Act as applying to a pre-condition governing the making of such a committal order.
As heralded by Adam Wagner, the UKHRB now has an additional feature on the right sidebar of the website. To add events to this list, email him. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.
- ALBA annual lecture by Lord Dyson MR 6 November 2012
- Human Rights Conference 2012 | Law Society Monday 10 December 2012
- Seminar: Informed by the Past: IRA Informers and the Transition in Northern Ireland Free – Wed 21 November, 12:30-2pm, University of Ulster, Londonderry
- Human Rights and Cyberspace – HRLA Wednesday, 21 November 2012 from 18:00 to 19:30, London, £5
- Dinner to honour Sir Nicolas Bratza – HRLA Tue 13 November 2012, Lincoln’s Inn, £110/£59 under 3yrs call / free for students (limited places)
- A consideration of the family migration changes and Article 8: Where do we go from here? – HRLA 6.30pm on Thursday 8 November 2012
- In Conversation with The Hon Mr Justice Singh – LSE Date: Wednesday 7 November 2012, Time: 6.30-8pm
- Life and Law Online: Defamation, freedom of expression and the web – Justice Tuesday 20 November 2012, 5 – 8pm
- The dissenting voices in Rahmatullah: no time for political sensitivities November 3, 2012 Lois Williams
- Upper Tribunal confirms illegality of Catholic Charity’s ban on same-sex couple adoption November 3, 2012 Rosalind English
- Domestic violence: the limits of Strasbourg’s intervention November 2, 2012 Lois Williams
- New feature: Upcoming human rights events November 2, 2012 Adam Wagner
- No removal of right of appeal without clear and express wording November 1, 2012 Rosalind English
- The 21st Century Coroner October 31, 2012 Jim Duffy
- Supreme Court upholds US detention of Yunus Rahmatullah October 31, 2012 Rosalind English
- Working with the elderly and infirm: a delicate balance of rights October 30, 2012 Rosalind English
- High Court calls for joined-up thinking on disclosure of sex offender information October 29, 2012 Rosalind English
Prisoner voting should be confined to those who were on the register before they were convicted – that would exclude those who did not really care.
As ever – a great write up. Good luck to Wessen for the future.
Colin Duffy is arrested all the time, a sign that policing has not changed since 1969. Trolling? The Ched Evans Twitter trial case today shows one man’s troll is another’s fighting for equality on anonymity in rape trials. Assange and MacDonald named but false and malicious accusers are not. Que pasa?
1:-Most prisoners could not care less about voting and probably never bothered to do so before they were imprisoned.
2:-Secret courts deprive their victims of the right to protest at unfair or unjust treatment and should be banned.
Just thought I’d point out that far from referring to Scandinavian monsters, ‘trolling’ in the early days of the internet was derived from the fishing practice of that name of dragging a bait through the water to see if a fish would rise. ‘Trolling’ on early forums such as usenet meant doing the same thing, trying to make people rise to a provocative bait. But you probably knew that anyway. The extraordinary thing is that the government is getting involved in this: since a lot of early usenet forums are now archived (against the posters’ wills) on Google, who bought Yahoo who bought the original forums in which people wrote things they never thought would be archived, perhaps a real review of years of internet trolling would show how utterly a part of human interaction it is, and not part of parliament’s controlling legislative remit. Or should I worry if I’m being provocative in the pub? What about if my provocation is a criticism of the government? Where am I free from control?
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