Welcome back to the UK Human Rights Roundup, your regular fruit salad of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.
Judge Peter Murphy’s ruling on the niqaab in criminal proceedings dominates this week’s commentary. Some interesting pieces also on immigration detention following the outcry about abuse at one facility; and conflict between the IPCC and Metropolitan Police about internal investigations…
Human Rights Awards and Tour: Liberty has opened nominations for their 2013 Liberty Human Rights Awards – all details here. Meanwhile, the British Institute on Human Rights’ free Human Rights Tour is now in full swing – full programme here.
In the News
Niqaabs on the Stand
The debate about the wearing of a veil in court continued this week, following the ruling of HH Judge Peter Murphy that a defendant would have to remove her veil when giving evidence from the dock – such that she could be seen by judge, lawyers and jury (see the UKHRB posts on the issue here and here). Dominic Casciani on the BBC provides a useful explanation of the judgment, in which he delves into the balancing exercise between religious freedom and “open and effective justice”. He adds that “critically”, the judge ensured that there would be no publication of any court sketch of the woman unveiled, and that for the remainder of the trial she could wear her niqab, so long as another woman in court could verify her identity.
Carl Gardner on his Head of Legal blog provides detailed analysis on the issue: firstly, with annotations on the judgment, itself; and secondly with a blog piece on the issue. Gardner does not find the ruling either “well argued or persuasive”: central to this thesis is the point that since a defendant may be stopped from giving evidence in her defence, this restrains her right to a fair hearing. Indeed, he criticises a focus on the right to manifest one’s religion under Art 9, not fair hearings under Art 6. Joshua Rozenberg critiques the judgment, but for different reasons. His position is that a defendant should have to show her face throughout a trial – so that she can be seen by judge, jury and, indeed, witnesses testifying. He also raises a further intriguing and often-overlooked point. In preventing court drawings being published with the image of the defendant without her veil, the judge seemingly did not take legal argument from representative of the media on this possible restriction of Article 10 (freedom of expression).
Barrister Matthew Scott on his blog takes a dissenting view – arguing that defendants should be allowed to give evidence wearing a veil. His position is that jurors try a case on the evidence, not the appearance of the defendant and that a witness’s “demeanour” is no real guide to the truthfulness – or otherwise – of their testimony. Moreover, if the defendant opts not to testify on the basis of this ruling, what possible inference are the jury supposed to draw? A seemingly neat solution from the perspective of permitting the veil is proposed by Francis FitzGibbon QC, who suggests a simple formula from the judge: permitting the defendant to remain veiled, but warning of the possible consequences if jurors are unable to witness her facial reactions during the trial.
Simon Hetherington on Halsbury’s Law Exchange weighs up the competing arguments on both sides of this debate, and raises a novel point: even though many arguments point towards the removal of the veil, this does not take into account the distress that this is likely to cause a defendant during an already-testing ordeal. This judgment has broadened the scope of debates about the veil, with the BBC reporting that there is to be a review of whether full face veils should be permitted amongst NHS staff. Meanwhile, the High Court has held in B & Anor that removal of individuals to France, where the burkha is banned in public, does not come close to the high threshold required for a breach of Article 3 (against torture and degrading treatment).
Colin Yeo on the Free Movement blog makes a powerful case against immigration detention, following the allegations of sexual abuse by private security contractors at the Yarl’s Wood facility (pictured). He questions the Home Office position that detention is required for removal on the basis of statistics which suggest asylum removals are decreasing, while the number in detention is on the rise. He goes as far as to claim that the system “dehumanises” all those affected.
Along similar lines, Natasha Walter on The Telegraph looks at the system of detention from the perspective of a pregnant woman. Walter notes that detention “can have a shocking effect on women who are already traumatised from the abuses they have fled.” She cites MP Richard Fuller, whose position is that detaining “very vulnerable women is not cost effective, it’s not effective in removing migrants – and it’s not moral”.
Police & Prisons
The Guardian reports that the Independent Police Complaints Commission is seeking an order from the High Court to compel Scotland Yard to disclose the results of an investigation into whether anti-terrorism laws were being used to discriminate against Muslims. The claims relate to the same legislation (Schedule 7 of the Terrorism Act) that was recently used to detain David Miranda at Heathrow.
Over on Legal Voice, Gemma Blythe reports on the Coalition’s proposals on legal aid reforms for prisoners. In her concern about the proposed changes, her article provides case studies in various areas where cuts are due to fall: parole, rehabilitation, segregation issues and abuse.
- The Suesspiciousminds blog comments on the important decision in Re BS (Children) (see ‘In the Courts’), laying out the Court of Appeal’s setting out of the law on non-consensual adoption, following the decision of the Supreme Court in Re B.
- The BBC reports that the High Court has rejected the claim that the requirement for those on the Sexual Offences Register to provide bank and credit card details is a breach of Article 8 (see Prothero ‘In the Courts’). The UK Criminal Law Blog provides further analysis, including concerns about the proportionality of the requirement; specifically that there is no tailoring of procedure for individuals on the Register.
Also in the News
- ‘This week in Strasbourg’ roundup on the European Courts blog.
- The BIHR Human Rights Tour kicks off at the Act for UK Rights Blog.
- Dr Mark Elliott presents a list of blogs and Twitter-ers ideal for new students embarking on law courses this autumn.
In the Courts
- R (Chief Constable of the West Yorkshire Police) v Independent Police Complaints Commission  EWHC 2698 (Admin) – Independent Police Complaints Commission report was unlawful as “using the language of determination rather than recommendation”
- R -v- D – Ruling: Female Muslim defendant in Crown Court must remove Niqab (face covering) to give oral evidence
- Re B-S (Children) EWCA Civ 1146 – Court of Appeal raises alarm over approach to ‘forced’ adoption by local authorities and courts
- R (Prothero) v Secretary of State for the Home Department  EWHC 2830 (Admin) – High Court: Rule requiring sex offenders to give bank account details to police no breach of human rights (Article 8 ECHR)
- Söyler v. Turkey (29411/07, 17 September 2013) – Automatic and indiscriminate ban on prisoners’ voting rights breached 1st Protocol Article 3
To add events to this list, email Adam Wagner. 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.
- What has the European Convention on Human Rights ever done for us? – 10 – 2013 – Events Date: 1/10/13
- Human Rights Conference 2013: Lawyers as guardians of access to justice?
30/10/2013 09:00 – 17:00; Venue: The Law Society, from £200
- The Human Rights Tour 2013 | British Institute of Human Rights –
Various dates and locations: 10 September to 18 October 2013
- “Follow the money” powers do not breach sex offenders’ privacy rights – September 18, 2013 – by Rosalind English
- Veils and ignorance: defendant not allowed to wear niqaab when giving evidence – September 18, 2013 – by Alasdair Henderson
- What is a “public authority” for the purposes of environmental information? – September 17, 2013 – by Rosalind English
- The Niqaab issue is too important to be left to liberal instinct – September 17, 2013 – by Adam Wagner