War Crimes, Annoyance Injunctions, and the Whole Life Tariff Saga – The Human Rights Roundup
13 January 2014
Welcome back to the UK Human Rights Roundup, your regular delectable dossier of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, the International Criminal Court has received a dossier detailing the UK’s involvement in abuse in Iraq. Meanwhile, the House of Lords has put up a fight over the so-called ‘annoyance injunctions’, while the Government has sought to find a solution to the European Court of Human Rights’ ruling on whole life tariffs.
In the News
War Crime allegations in Iraq: UK Officials in front of the ICC?
The Independent has reported that the International Criminal Court (ICC) has received a dossier detailing abuse by UK forces in Iraq, and is now investigating the matter as a formal complaint. The dossier is said to catalogue a wide range of abuses perpetrated by UK soldiers from 2003-2008 – from hooding to humiliation, death threats to sexual assault.
This news is likely to trouble a number of top military and political figures in the UK, whose role in the affair will be up for closer scrutiny. In response, however, the UK government have argued that proceedings before the ICC are unnecessary, in light of the fact that the matter is being thoroughly investigated domestically – see our latest post on the approach of the domestic courts to the allegations.
IPNAs – the New ASBO
This week, the House of Lords rejected the Government’s Antisocial Behaviour, Crime and Policing Bill, sending it back to the Commons by a vote of 306 to 178. The Bill makes a wide range of proposals, but perhaps most controversially has called for the creation of an injunction to prevent nuisance and annoyance (IPNA). If eventually passed, the IPNA would be the latest in an expanding number of civil preventive orders. Such orders are civil in nature – thereby avoiding strict rules of criminal procedure – but punish a breach of the order with criminal sanctions. This is despite the fact that, often, no single instance of the conduct in question is itself criminally punishable. The orders are thus aimed predominantly at repeated anti-social behaviour, rather than specific criminal acts.
The IPNA is the progeny of the Anti-Social Behaviour Order (ASBO). Unlike the latter, however, the proposed injunction does not require any threat of ‘harassment, alarm or distress’, but instead is set at the lower threshold that conduct may ‘reasonably be expected to cause nuisance or annoyance’. Liberty has noted the breadth of this provision, which it argues could feasibly apply to almost anyone. Last week, the Lords supported an amendment proposed by Lord Dear that, like the ASBO, the IPNA should require more than just nuisance or annoyance.
Whole Life Tariffs or 100-Year Sentences?
Last week’s roundup reported on the Government’s proposed solution to the ruling of the European Court of Human Rights in Vinter and Others v UK – a Strasbourg decision which stated that whole life tariffs, where an individual can only be released on compassionate grounds, were incompatible with the Convention if there was no real possibility of release or review. Previous Human Rights Blog posts on this case, by Rosalind English, can be found here and here. The roundup noted that the Government were proposing 100-year sentences in place of whole life tariffs in order, it was reported, to circumvent the decision. Joshua Rozenberg suggested that the Governments plan was ‘risible’, and left domestic judges to deal with the reality of the ruling.
This week, however, in an action plan submitted to the Council of Europe as a formal response to the judgment, the Government appear to simply have stalled the decision. The Government makes clear that it has made no final decisions on what must be done in light of the judgment, as the Guardian have reported, and also suggests that whole life tariffs will still be considered as a viable option when the Government appeal a number of sentences it considers to be too lenient later this month.
In Other News
- This week, a jury found that the death of Mark Duggan, shot dead by a Metropolitan Police officer in Summer 2011, was lawful. The sparked riots in London in 2011, and the trial has been marred by conflicting accounts of the facts involved.
- Responding to a call-for evidence from the House of Lords Select Committee, a group of lawyers have this week suggested that the Mental Capacity Act 2005 may not be compliant with the European Convention on Human Rights. The system of representation in court for ‘protected persons’ under the Act does not mandate that a judge must meet an individual before ruling on their capacity and, in light of ‘marked variation’ in the approaches of different judges, the group suggest that new guidance is needed on the matter.
- France’s highest court has reinstated a ban on a comedy show by Dieudonne M’bala M’bala, a controversial comic accused of anti-Semitism.
- Michael Mansfield QC has spoken to the Mirror about the contribution legal aid cuts made to the recent closure of Tooks Chambers, which he founded in 1984.
- The Government is carrying out a review of the European Union’s competences. The consultation deadline for this exercise is this Monday, 14th January.
- Professor Aoife Nolan has reflected on what the ‘blacklisting’ of tenants on housing benefits tells us about the UK’s commitment to human rights here.
- The Guardian has considered the progress of the Al-Sweady Inquiry, which is investigating the aftermath of the so-called ‘Danny Boy’ battle in Iraq. The inquiry heard from Brigadier Andrew Kennett this week, about orders to move dead bodies from the battle scene to the British Army base.
Perinçek v Switzerland Application No. (27510/08)
Dirk Voorhoof has commented on this case, which involved the conviction of the former Chairman of the Turkish Workers’ Party for denying the Armenian genocide. The Strasbourg court found that the conviction breaches Article 10 of the European Convention, which protects freedom of expression, and said that the key question was whether such action was necessary in a democratic society. The Court noted that Perinçek had not denied the existence of the atrocities in question, but had rather challenged the label of genocide that had been attached to them.
Interestingly, the Court noted that it must be mindful of the risk of installing historical truth by law, where there was not general consensus on the matter. The exception to this, however, was denial of the Holocaust, for which it suggested there was general consensus. Commenting on the case, Voorhoof argues that the Court should have made it clearer that any conviction for the denial of historical facts – even those for which the law recognises that there is general consensus – can only be a justified restriction of Article 10 if it incites violence or hatred.
In the Courts
European Court of Human Rights
- Cusan and Fazzo v Italy Application No. (77/07)
A decision to give a child his or her father’s surname, which was based solely on the sex of the parents, was a violation of Article 14 (prohibition of discrimination) when read with Article 8 (respect for private and family life).
- Ringer Axel Springer Slovakia, No. 2 and No. 3 Application No. 21666/09 and Application No. 37986/09 (respectively)
Slovakian courts breached Article 10 in finding a newspaper liable for certain publications, where the court had failed to balance the claimant’s right to privacy with the newspaper’s freedom of expression. Certain crucial considerations, like the context of the publication, the public interest in it, and the good faith of the publisher, had not been taken into account.
- Pisayeva and Others v Russia Application No. 53036/08
Court finds a violation of Article 2 (right to life), Article 3 (prohibition on torture), Article 5 (right to liberty and security), and Article 13 (right to an effective remedy), in light of Russia’s response to the disappearance of 36 men, presumed dead, in Chechnya.
To add 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 the topics covered by this blog.
- Peace & Progress – A Party for Human Rights International Crime & Punishment, Lecture by Philippe Sands QC Saturday 25th January 2014 at 2pm, Friends’ Meeting House, Euston Road, London
- EHRA Workshop – Maximising the Role of Civil Society in the European Human Rights Protection System 23 and 24 January 2014, Strasbourg
- In Conversation with Joshua Rozenberg – 01 – 2014 16 January 2014, LSE, Old Building
- New event: Human Rights Beneath the Headlines | British Institute of Human Rights (featuring Adam Wagner amongst others) Thursday 30 January, 6:30-8pm, Leigh Day
- Public Debate Series: State Surveillance and the Scrutiny of the Security Services – 5th March 2014, Law Society, 113, Chancery Lane
UK Human Rights Blog Posts
- Reporting restrictions at courts martial: the need for a structured approach – January 8, 2014 by Simon McKay
- Hands off our courts’ relationship with the European Court of Human Rights – Januar