Miranda Detention, Whole Life Tariffs and a Supreme Court ‘Holy Man’ – the Human Rights Roundup
25 February 2014
Welcome back to the UK Human Rights Roundup, your regular high water mark 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 detention of David Miranda (pictured) was declared lawful by the High Court, while, in other news, the Court of Appeal has thrown in its lot to the saga of the whole-life tariff and the Supreme Court considered the thorny issue of religion and law.
In the News
Religion v Law in the Supreme Court
On Wednesday and Thursday, in Khaira and others (Respondents) v. Shergill and others (Appellants) the Supreme Court considered again the controversial issue of religion and law. UKHRB editor Adam Wagner assisted two of the respondents in the case (trustees for the High Wycombe Gudwara), instructed by Bindmans.
The question for the Court was whether or not to overturn the Court of Appeal’s ruling staying a case involving the central question of whether or not a religious figure in India, who calls himself the ‘Third Holy Sant’, has powers effectively to take control of two Sikh Gudwaras (places of worship) in the UK. The case was stayed by Lord Justice Mummery on the basis that it involved issues of faith which were ‘non-justiciable’.
Miranda Detention Ruled Lawful
This week, the High Court has ruled that the 9-hour detention at Heathrow Airport of David Miranda, the partner of ex-Guardian journalist, Glenn Greenwald, was lawful. Mr Miranda had been carrying electronic documents on behalf of his partner who was, at the time, involved in a series of publications concerning information passed to him by US whistle-blower, Edward Snowden. For more information, see the BBC website here.
Rosalind England has summarised the case on the UK Human Rights Blog. Over at the Head of Legal Blog, Carl Gardner has drawn attention to key aspects of Laws LJ’s judgment. Of note in this regard is his challenge to the characterisation of the issue as one involving a clash between a private right and a public interest. The heightened protection that journalists may receive is not for their own benefit – but for the sake of the public. Thus, Laws LJ suggests that this case involves the clash of two public interests. Moreover, the court made it clear that the powers had been used proportionately in this case, without hindering freedom of expression unnecessarily. In this regard, it was noted that the assessment of the risk involved in disclosure was for the government, and not Mr Miranda, to assess, in light of the fact that a journalist may not fully appreciate the significance of the material in his or her possession.
UK Courts and the Whole Life Tariff
In another major judgment, the Court of Appeal added its voice to the on-going whole-life tariff debate this week in McLoughlin, R v  EWCA Crim 188. Distancing itself from the decision of the Strasbourg Court of Human Rights in Vinter & Ors v UK (Application No.s 66069/09, 130/10 and 3896/10), the 5-bench court suggested that the whole-life tariff regime in the UK is compatible with Article 3 (prohibition against torture) of the Convention. The UK Human Rights Blog post on this case can be found here.
An interesting commentary on the likely implications of this judgment by Carl Gardner for the Head of Legal blog can be found here. Gardner also suggests that this case is part of a growing trend where UK courts do not feel bound to follow Strasbourg authority but are, rather, willing to enter into a judicial dialogue with the courts to see who will ‘blink first’. Lyndon Harris, however, writing for Halsbury’s Law Exchange blog, suggests that we should not be too quick to categorise this as a ‘win’ for the UK over Strasbourg – suggesting that the European Court wanted a review mechanism in whole-life tariffs, and the Court of Appeal simply found one.
Similarly, on Public Law for Everyone blog, Mark Elliott also makes it clear that we should take time to fully understand the diverging approaches of the Court of Appeal and the Court of Human Rights. Interestingly, he notes that the UK court has not interpreted the Convention differently to the Strasbourg court. Nor has it challenged Strasbourg’s conclusion on the implications of Article 3 on whole life tariffs. Instead, he highlights that the UK court has differed in its interpretation of UK law – by finding that the limited possibility for release under s30 of the Crime (Sentences) Act 1997 makes the British whole-life tariff regime Convention-compliant. Under that provision the Secretary of State has the discretion to release prisoners in limited circumstances. In light of the Human Rights Act, however, that power must be used so as not to violate the ECHR – effectively widening the circumstances under which he or she must consider release. Dr Elliott thus concludes that the Court of Appeal has differed in its interpretation of UK law, but it has not defied Strasbourg.
In Others News
- Five disabled tenants have lost their appeal against the ‘bedroom tax’ in the Court of Appeal this week. The court made it clear that it would not intervene in what was a controversial matter of policy.
- It has been announced that the Grand Chamber of the European Court of Human Rights will hear the case of Delfi AS v Estonia, which will consider whether imposing liability on a company for comments posted on its Internet portal constitutes a proportionate restriction of freedom of expression. For more information, see this post on the Inforrm blog.
- Writing for the Law and Religion Blog, Frank Cranmer has considered the implications of the case of AN v Secretary of State for the Home Department  UKAITUR DA013242013 for the veils in court debate. In that case, the court called for imaginative responses to the issue, suggesting that the use of screens and video link evidence may sometimes be appropriate, and that we should perhaps consider limiting courtroom audiences.
In the Courts
- Gul, R (on the application of) v Secretary of State for Justice & Anor  EWHC 373 (Admin) (19 February 2014)
High Court rejects human rights challenge by man convicted of terrorism offences to his licence conditions
- Miranda v Secretary of State for Home Department & Ors  EWHC 255 (Admin) (19 February 2014)
High Court: Detention of David Miranda for the purpose of determining whether he appears to be “concerned in the commission, preparation or instigation of acts of terrorism” was lawful
The Supreme Court overruled the finding of the Court of Appeal that only a systemic breach, rather than a mere breach, of an asylum seeker’s Article 3 rights would suffice to justify allowing the asylum seeker to remain in the UK, where the other country in question, Italy, was deemed a ‘safe country of origin’. The correct question was whether there was a real possibility of treatment contrary to Article 3 in Italy.
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.
- Event: JUSTICE Student Human Rights Network – Annual Conference 2014-02-16
- Human Rights and Military Intervention – 30th April 2014, 6.30, Law Society
UK Human Rights Blog Posts
- How to be fair about transfer to Broadmoor – February 23, 2013 by David Hart QC
- David Miranda challenge dismissed in High Court – February 19, 2014 by Rosalind English
- Aarhus: CJEU rules against UK costs regime – February 18, 2014 by David Hart QC
- Loss of capacity does not automatically terminate solicitor’s retainer – February 18, 2014 by Richard Mumford
- Strasbourg law does not prevent the imposition of whole life orders for “heinous” crimes – February 18, 2014 by Rosalind English