EU Balance of Competences Fundamental Rights Review

european_union_grunge_flag_by_think0The Ministry of Justice is calling for evidence on the Review of the Balance of Competences between the United Kingdom and the European Union, specifically relating to fundamental rights. The consultation document is here and main website here.

The deadline for responses is 13 January 2014, but if you want to take part in one of the four discussion groups (three in London, one in Edinburgh), you need to email by tomorrow – all details below.

And don’t let the obscure-sounding title put you off. This review is potentially very important. Just look how broad question 1 is:  Continue reading

Freedom of expression – nakedness in a public place

Stephen_Gough_at_lands_endGough v. Director of Public Prosecution [2013] EWHC 3267 – read judgment

Mr Gough wishes to walk up and down the UK naked. Others do not approve of this, so his progress has been somewhat stop-start. This appeal concerns a brief and inglorious autumnal outing in Halifax. He was released from the local nick at 11.30 am on 25 October 2012,  wearing only walking boots, socks, a hat, a rucksack and a compass on a lanyard around his neck. “He was otherwise naked and his genitalia were on plain view.” He then walked through Halifax town centre for about 15 minutes.

In the words of the judgment, he received a “mixed reaction” from its inhabitants.  At least one female member of the public veered out of his way. Evidence from two women was to the effect that they were “alarmed and distressed” and “disgusted” at seeing him naked. One of the women was with a number of children at least one of whom, 12 years old, she reported as “shocked and disgusted”. The district judge found that it caused one of the women to feel at risk, and, further, based on the evidence, that it caused alarm or distress.

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Petition to Strasbourg stops the Spanish bulldozers

article-2465761-18D0E7F500000578-802_634x473This week’s newspapers have highlighted the plight of the thousands of British homeowners who face demolition orders over their Spanish properties because they have been built without proper planning permission.  Permits granted by town mayors during the property boom turn out not to be worth the paper they were written on, and since the regional authorities have overturned most of these permits, the buildings are condemned to destruction. Compensation from the developers and public officials who made these transactions possible is not forthcoming; as the Times leader points out

In a few cases, the courts have ordered that developers or town halls should compensate those who have lost their homes. Yet the former invariably opt for bankruptcy, instead, and even the latter seem markedly reluctant to pay out. Owners, often now back in Britain, face daunting and bewildering battles in foreign courts. (Tuesday 29 October, behind paywall)

Now one couple, Terry and Christine Haycock, are testing how far the Strasbourg Court will go to protect their property rights in this fracas  (which would be under Article 1 Protocol 1). Continue reading

Court of Appeal broadcasters must learn the Supreme Court lessons

Stefan Rousseau/PA Wire

Stefan Rousseau/PA Wire

TV cameras are recording Court of Appeal hearings from today. The BBC, ITN, Sky News and the Press Association are cooperating on the project, and have hired an in-court video-journalist who will recommend the most interesting cases.

This is great news. Let in the light. The more that the public can see what is going on in their courts, the better. The courts are a bewildering place for the uninitiated and especially for those who cannot afford to pay someone to explain what is going on. This is still a relatively small advance – only appeals will be broadcast, not trials, so the public is unlikely to see any cross examination of witnesses. But hopefully it will be enough to increase public understanding of and interest in the courts.

But a word of warning. This initiative will only succeed if it is implemented in the right way. And, there are important lessons here from the Supreme Court’s ongoing broadcasting experiment.

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You can’t be disabled when you’re dead – a footnote to R (Antoniou)

hospital

A somewhat curious additional point arises out of the case of R (Antoniou) – see my earlier post for the main issue – in which the court decided that Article 2 ECHR does not require an independent investigation into deaths in state detention prior to a coroner’s inquest. There was therefore no obligation to ensure that there was an independent investigation into the suicide, or death resulting from self-harm, of a mentally ill person detained under Section 3 of the Mental Health Act 1983. There is such an investigation when a prisoner commits suicide. The Claimant thought this smacked of discrimination against the mentally disabled. The Court disagreed – on the somewhat surprising ground that you can’t be disabled once you’re dead.

Where a prisoner commits suicide, or dies as a result of self-harm, there will be an independent investigation from the outset. Any death in prison or in probation custody is automatically referred immediately to the Prisons and Probation Ombudsman for independent investigation. The Independent Police Complaints Commission performs a similar role for deaths in police, immigration or Customs & Excise detention. There is no equivalent independent investigator of deaths in mental health detention, which are investigated by the hospital where they occurred. The Claimant said this distinction discriminates between people who are mentally disabled and those of sound mind.

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Evidence to Parliament on prisoner voting

Screen Shot 2013-10-30 at 13.32.48This morning Joshua Rozenberg and I gave evidence the Joint Select Committee on the Draft Voting Eligibility (Prisoners) Bill. You can watch our evidence session here – we are on from 10:34:30.

It was an interesting experience. There is clearly a range of views on the committee, to say the least. It will be fascinating to see what happens next – it is already almost a year since the draft bill was published and, as Joshua Rozenberg said, it seems quite possible that this issue will not be resolved one way or the other before the 2015 General Election, which is only 18 months away.

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1940 Soviet massacre outside reach of European Convention, rules Strasbourg

Trzy_krzyze-1Janowiec and Others v Russia (Applications nos. 55508/07 and 29520/09)read judgment

The European Court of Human Rights (ECtHR) has held that it had no competence to examine complaints relating to the adequacy of Russia’s criminal investigation into events that had occurred prior to the adoption of the European Convention on Human Rights (ECHR) in 1950: namely the Katyń Massacre of 1940.

The applicants were relations of 12 victims of the Katyń Massacre. They had been executed by the NKVD together with over 20,000 other former Polish Army officers, government officials, and landowners. A criminal investigation into the deaths ran from 1990 until 2004 when the Chief Military Prosecutor decided to discontinue ‘Criminal Case no. 159’ on the grounds that any alleged suspects were dead.

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