Secret Trials, Social Media Prosecutions and Labour’s Rights Vision – the Human Rights Roundup

Twitter HRRWelcome back to the UK Human Rights Roundup, your regular summer festival 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, secret trials and Labour’s stance on the Human Rights Act 1998 have generated discussion. In other news, the Supreme Court reconsiders whether religious doctrine is a justiciable question for the courts. 

In the News

Secret Trials

The trial of Erol Incedal and Mounir Rarmoul-Bouhadjar for terrorism offences, due to start this week, has been postponed until October. Formerly known as the trial of AB and CD (and, before that, entirely anonymous), it had been expected that the proceedings would be conducted entirely behind closed doors – which would have resulted it the UK’s first wholly secret criminal trial.

However, following a challenge by media organisations, the Court of Appeal has ruled that certain parts of the trial must take place in public, overruling part of Mr Justice Nicols’s initial ruling. This includes the swearing in of the jury, the reading of the charges, part of the judge’s introductory remarks to the jury, part of the prosecution’s opening, the verdicts, any convictions and sentencing.

Our coverage is here. The UK Criminal Law blog have noted, however, that this does not amount to much and that it is hard to assess whether the correct balance has been struck, as so much of the case remains undisclosed.

Joshua Rozenberg, has said that judges went as far as they rationally could have in terms of disclosure in this case. However, earlier the Guardian has also reported the response of Helena Kennedy QC, who has suggested that the courts should be able to give a ‘gist’ of the proceedings, as will be done with the findings of the Chilcot Inquiry. 

Labour on Human Rights

Writing for the Telegraph, shadow Justice Secretary, Sadiq Khan, has outlined Labour’s answer to the on-going debate about the future of the Human Rights Act 1998. While he opposes suggestions that the Act should be replaced with a British Bill of Rights, he says that it is time to return some power to the hands of the UK judiciary by allowing them to disagree with the Strasbourg court. This, he says, could be done via guidance, rather than resorting to primary legislation in the first instance.

Whether or not UK judges have the authority to depart from rulings of the European Court of Human Rights is a source of tension amongst academics, lawyers and judges. Although the late Lord Bingham suggested that the UK courts should keep pace with Strasbourg – ‘no more, but certainly no less’ – that principle (the so—called Ullah principle) has increasingly been challenged.

Writing for Public Law for Everyone, Mark Elliott has examined Labour’s proposals. He states that the idea that executive-based ‘guidance’ could shape the interpretation of the courts is ‘dubious’, and misunderstands the separation of powers in the UK. He also argues that any attempt of the UK court’s to interpret the ECHR differently to Strasbourg may lead the UK into difficulties in terms of its international law obligations and that attempts to conceive of the relationship between the domestic and international spheres in purely hierarchical terms are misguided.

Looking at the proposals from a different perspective, David Mead, writing for the UK Constitutional Law Association, suggests that the ‘real battle’ is between the UK courts and legislature – rather than against some foreign enemy. He also notes that reforming section 2 of the HRA may be largely redundant, as it may simply enshrine what is already an emerging practice of the UK judiciary.

Adam Wagner’s piece is here.

Religion before the Courts

The Supreme Court confronted the issue of the justiciability of religious doctrine in the recent case of Shergill & Ors v Khaira & Ors [2014] UKSC 33. While resolving a dispute over the governance of two Sikh gurdwaras, the Justices found that issues of religion may be justiciable where they engage human rights and reviewable issues of public law. David Hart’s coverage is here – Adam Wagner assisted two of the respondents, instructed by Bindmans.

Frank Cranmer, writing for the Law and Religion UK Blog, has given a valuable summary of the courts changing approach to questions of religion, as well as a brief overview of the reasoning of the Supreme Court, here.

Another offensive communication jail sentence

A 21-year-old man, Jake Newsome, has become the second person to be charged under the Communications Acts for posting offensive comments on the social media site Facebook in the wake of the death of teacher, Ann Maguire, who was stabbed by one of her pupils. The UK Criminal Law Blog has considered the particular case here, while the Guardian has examined the wider phenomenon of social-media related prosecutions here.

In Other News

  • Justice Secretary, Chris Grayling, has announced proposals which aim to put the law back on the side of ‘everyday heroes’. The Government Press Release can be accessed here.
  • A judge has granted an injunction, pending the decision of the Upper Tribunal, preventing the removal of a 23-year-old Somali refugee. The dispute is regarded as a test case, and the eventual outcome may have ramifications for other Somalis in the UK. The Independent reports here.

In the Courts

Strasbourg

The German Courts had not violated a mother’s Article 8 rights by refusing her claim to have contact with children she had given up for adoption. The interests of the children took precedence.

A father, who had no standing in the final stage of international child abduction proceedings before the Croatian Constitutional Court, successfully established a violation of his Article 8 rights.

Hospital’s disposal of stillborn children as clinical waste violated Article 8.

Non-renewal of the contract of a Catholic priest, on the basis that he was married with children, was not unlawful.

While detention in a particular part of Romania was found to violate Article 3, the fact that the applicant had not been able to attend confession on a particular religious holiday did not violate Article 9. The Court had previously approved Romania’s well-established regime of religious assistance for those in detention.

Case Commentary 

  • McDonald v UK

In this case, Ms McDonald OBE, a former ballerina, alleged that the withdrawal of her night-time carer, which forced her to use incontinence pads during the night time instead of visiting the bathroom, breached her Convention rights. The Court found that, although an initial period of withdrawal was ‘not in accordance with law’, the removal of care generally was a proportionate interference with her Article 8 right. Our coverage here.

Stephen Cragg QC, writing for the Oxford Human Rights Hub, however, notes the positives of the case, most notably the fact that the Court recognised that such action could interfere with a persons dignity. Moreover, he argues that the case has, for the first time, put the provision and withdrawal of services firmly on the human rights agenda.

Events

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.

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