No, The Sun, “Euro judges” do not “go against UK in 3 out of 5 cases”. More like 1 in 100.
27 August 2014
Updated x 2 | At the risk of sounding like a broken record, The Sun has got it badly wrong on human rights. Again. On 24 August 2014 Craig Woodhouse reported that “Euro judges go against UK in 3 out of 5 cases” (£). This is false and seriously misleading.
I explored this issue in detail back in 2012 when the Daily Mail as well as others claimed that the UK loses 3 out of 4 cases. Since that debacle, the European Court of Human Rights has produced some very clear documents on the statistics page of its website.
According to page 8 of this document, there have been 22,065 applications against UK 1959-2013. That means that 22,065 people or so have brought cases against the UK. Of those cases, there have been 297 resulting in a violation.
I am no statistician but 297 as a percentage of 22,065 is not “3 out of 5”. It is in fact 1.35%. Less than 2 in 100.
The percentage which The Sun has obviously fixated on is the number of full judgments from 1959-2013 which have been negative. There have been 499 full judgments involving the UK with 297 resulting in a violation – roughly 3 in 5.
But the absolutely key point missing from their figures is that cases which proceed to full judicial consideration represent only a very small minority of the total number of applications. That is because the cases are first carefully filtered to include only those where there is a realistic prospect of success (that isn’t the exact term of art used by the court which deals in admissibility using various criteria – see this).
In 2013, the Court decided 1,652 cases lodged against the United Kingdom. It declared inadmissible or struck out 1,633 applications. It found no violation of the Convention in a further 8 applications. It found a violation of the Convention in 11 applications (see pages 8 and 9 of this). So over 99% were unsuccessful (99.3%), which matches the overall figures since 1959. The applications made in 2013 may not have related to the same cases as were decided in 2013 (given the time it takes to decide an application) but the figures match those for 2012 and 2011.
The Sun has not got the X-Factor
I used this analogy in 2012 and it still applies here. Presenting the figures in this way is a bit like watching X-Factor from the live finals, which begin with 12 contestants, and extrapolating that since one of them wins in the end, therefore almost 10% of X-Factor applicants ultimately win the contest. In reality tens of thousands apply, so only a tiny percentage of them “win”, but most are “struck out” as being bad singers in the months before the finals.
The Sun’s slapdash approach statistics has been approved by Dominic Raab MP, who said: “It’s staggering that three out of five claims rejected by UK appeal courts win in Strasbourg.” It is irresponsible of him to support The Sun’s spurious figures.
I am currently awaiting determination of my Press Complaints Commission complaint over this recent article. I have received an extraordinary interim response to my complaint from their ombudsman, Philippa Kennedy OBE, which I will share once the complaint is concluded.
I will conclude with a quote from Lord Neuberger’s recent speech on open justice . The President certainly seems to get it when it comes to legal misreporting (hat tip to Shoaib M Khan):
But just as judges must not abuse their privileges which are accorded to them because of the importance of judicial independence, so should journalists and other communicators not abuse the privileges accorded to them because of the importance of freedom of expression. So, inaccurate and unfair reporting of a judge’s decision in order to make a good story is an abuse of the freedom of expression accorded to the press and it undermines the rule of law.
Update, 13:41 | Craig Woodhouse, the article’s author, has tweeted me to point out that the text of the article states “Terrorists, rapists, killers and paedophiles have won at the court, which overrules Britain in three out of five cases it hears.” This appears to have been an attempt to qualify the figures which The Sun clearly knew were not the full story. The Editor’s Code of Conduct states at 1(i) that the Press “must take care not to publish inaccurate, misleading or distorted information…”. This is badly distorted information. How is the average reader meant to know what “it hears” means? It doesn’t even make sense in terms of the court, which “hears” (in the sense of holding a hearing) only a tiny fraction of its cases – perhaps one or two per year involving the UK. And neither the headline or Dominic Raab’s quote contains any qualification. Sorry, not good enough.
Update, 26.11.14 | I complained to the Press Complaints Commission (now IPSO) about this article and have had my complaint rejected. IPSO’s reasoning is reproduced below. I remain of the view that this was a misleading article – I think IPSO has unfortunately got it wrong. For the record, I definitely did not accept that only “499 [cases] had proceeded to judgment”. I made clear to IPSO that most of the cases were rejected at the first instance by a judge, which is how admissibility decisions are dealt with.
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A brief comment as a former UK Government Lawyer, who has (though not as central part of my job) been involved in defending proceedings in Strasbourg. Many cases against the UK which are ultimately declared inadmissable will be so declared after the UK Government has been notified of and submitted a written response to the claim covering both the merits and admissability. I never saw a statistic on the number of times a response was submitted and the claim declared inadmissable, but as a general point, finding a claim to be inadmissable can (though not always) be seen as a “win” for the UK government. The ECtHR’s view on the merits may well influence its thinking with regard to admissability and vice versa.
Adam
I dont see what the point is of complaining to the PCC. Firstly, as some contributors have implied in their response, The Sun does have a reasonable arguement in its defence. Its about intepretation of statistics, where you go one way and they the other. There is an arguement for both sides, but the question is The Sun completely wrong in using the figures and terms in the headline? Many think not. Secondly, the ECHR is wrapped up in a wider issue, which is the wave of anti-European sentiment. Most of the people I speak to have made up their minds and everything that eminates from Europe is bad. To be honest I think they have a case in many areas, but not all.
I’ll wager with you the PCC comes down on the side of The Sun.
And in any case, even that figure were true, it merely means the UK is ignoring a convention it is signed up to- a bit like saying UK courts go against the police in 3 out of 5 cases- so should we prosecute more on the basis of statistics rather than guilt?
Adam,
One last thought (from me) – haven’t got them to hand but what stats did MoJ present to defend its case for review of JR last year? Did it use/rely on “failed” at first hurdle cases to show how few actually make it, or should make it? Have a feeling they did – but do not have time (or inclination!) to check and appreciate of course that we are talking there of Gov, not (here) of the free press, but goose and gander and sauces spring to mind
Thanks for all of the comments, which have been fascinating. I agree Alex (and to an extent with the other commentators) in that it is difficult to choose exactly the right denominator. Perhaps the answer is that it depends what you want to show.
What The Sun is trying to show is that the Court is too interventionist i.e. statistically it rules against the UK so many times that it raises the strong implication that it is biased or perverse.
But to ignore the thousands of cases which the Court filters out – not just for technical reasons but *on the merits* is highly distorting. I can’t see any way around that, although I appreciate the valiant efforts of some of the commenters to find some kind of implied complexity in the article.
I have complained to the PCC – let’s see what they make of the justifications.
I am sure that is absolute nonsense. But, hey, even if it wasn’t, shouldn’t therefore the nation and the newspaper be more alarmed at the fact that UK Judges must therefore be ‘getting it wrong’ on human rights so to speak? – you can’t have it both ways around.
As a non-laywer, but have some legal eduction during university, and a non-statistician, but have some statistical education during university and finally a non-Sun reader, I’m with Simon on this one. His case seems well argued in comparison to that of the author. If cases dont get a full hearing in which the UK government has to defend its position in court and are dismissed via the filtering process (for whatever reason), then I think the 22065 figure becomes redundant because they essentially failed the tests put before them. Can they then be classed as a “case” at all ?
Clearly what the newspaper and Raab seek to emphasise is that where the case goes in front of the court to be heard and the government is required to defend, then we do lose more than we win. That is a fact according to the figures on here.
I think using the 22,065 figure would be equally misleading in any for of comparison because there is no case to answer.
Look at it this way if you attend an auction with 100 lots, you bid on 5 but lose out on 3 is your succes rate 40% (2/5) or is it 2% (2/100) ? If the other 95 lots didn’t meet your requirements should they be counted in the overall equation ? I say not.
Just a view from a man on the Clapham omnibus.
I think the fundamental problem is there is no good denominator.
As an analogous example take criminal investigations. There are complaints to the police, files passed to the CPS, prosecutions brought and convictions passed. Which is the right measure to judge the success rate? Each stage is problematic, non crimes may be reported, the investigation may have been flawed. But if you only measure success on prosecutions brought you unfairly up-rate the prowess of the CPS and the barristers they instruct, as they’ve already decided only to take ‘winning’ cases.
The same is true in the European case, case that are ‘heard’ obviously need to be arguable (otherwise the filters would be failing) but not certain (otherwise a rational government would have settled).
Therefore outside of a comparator to other matched countries I don’t think you can say anything about the 3/5 statistic as the prior decision making processes so skew the statistics.
Adam,
rather late to this – just got back from hols, but if The Sun article does indeed assert (have not seen it) as Craig Woodhouse contends that “Terrorists, rapists, killers and paedophiles have won at the court, which overrules Britain in three out of five cases it hears” this is itself apt to mislead (at best) and is not something that is or can be derived from the bare data. The figures give no indication of who is bringing the claims nor what they are about. This is something I am working on at the moment (and tweeted about on 1 Aug) and hope to present at the Liverpool seminar next month where we are both speaking. So far, my research shows that of 165 cases v UK 1/1/12-31/7/14 that reached ECtHR in period 1 Jan 2012 to 31 July 2014, only 15 concern terrorism/suspected terrorists. Do not know how many were “rapists, killers or paedophiles” but not entirely convinced that even that bigger group would constitute a majority of applicants…so to leave readers thinking either that (i) that group constitutes the totality of applicants v Uk or even (ii) that group tends to be what UK cases are concerned with is to skew the truth. As I have tweeted and blogged before (see end of this UKCLA piece http://ukconstitutionallaw.org/2014/06/04/david-mead-the-future-of-the-hra-under-labour/) what interests me, and is worrying in these fragile times for the domestic human rights project, is what cases do readers of (esp) Daily Mail get to hear about. Thinking here of the total silence on the UK “victory” in the RMT cases earlier this year.
Cheers
I’d add that Mr Raab’s comments invite the understanding that 3 in 5 of all cases that UK appeal courts reject are overturned by Strasbourg. Surely proceedings are only initiated there in a relatively small proportion of such cases?
May I make one (hopefully) uncontentious point? Almost all of us who read this blog are lawyers of one kind or another. The average non-lawyer who sees the Sun headline will almost certainly never have heard of such concepts as “non-exhaustion of domestic remedies”, still less of any kind of sifting mechanism. Surely the conclusion that that person is almost certainly going to draw from the headline is that out of every five complaints to the ECtHR, three are successful. The content of the article may clarify the matter; but the headline itself is surely an over-simplification.
Mr Cranmer, you must be right that most Sun readers aren’t familiar with “non-exhaustion of domestic remedies”. But is that the point?
There are three types of case: (1) those where the UK Government submits an argument and wins; (2) those where it submits an argument and loses; and (3) those cases which fall away before the UK is required to submit any argument at all.
A comparison of (1) v (2) tells us something about how often the court finds favour with the UK Government’s position. What does a comparison of (1) v (2)+(3) tell us?
To test whether it is a useful statistic, you might consider the following question: if, tomorrow, one million people submitted a claim that was time-barred (or dismissed on the grounds of “non-exhaustion of domestic remedies”), would that tell us anything useful in relation to the subject matter of this debate, ie the UK Government’s track record in front of the Strasbourg court?
Simon – I see your logic, but (3) does include a number of cases where the court does agree with the government’s position, it’s just that their position is clear enough not to need to hear arguments.
Cases the court hears must have some reasonable prospect of success otherwise the filtering process wouldn’t be working. If the court started hearing less meritorious cases (increasing the government’s win rate) or only heard slam dunk cases (reducing the government’s win rate) would that tell us anything meaningful about the potential biases of the court?
Simon – I won’t respond to the ad hominem stuff in the first paragraph.
Your point: “it seems abundantly clear that it is writing about the number of times that the UK Government has had to put forward a defence of its position and how often it’s case has been rejected.”
Does it? How so? Where is it even implied in the article that this is the case?
There are two explicit qualifications in the article which have been pointed out to me by no less than the author and the MP who is quoted. They are:
“overrules Britain in three out of five cases it hears” (Woodhouse)
and
“three out of five claims rejected by UK appeal courts win in Strasbourg” (Raab)
I have explained above why “it hears” is misleading at best and nonsensical at worst. As to “rejected by UK appeal courts” – as I have said in my reply to Dominic Raab, that is just wrong. Only 15% (or so) of cases are rejected for failure to exhaust domestic remedies, so many many cases will not make the sift despite having been rejected by the UK appeal courts.
I am glad that it is so clear to you that what the article meant was the cases that the UK formally responds to, but to the average reader that wouldn’t be apparent at all. I am not sure what the relevance is anyway – the court is set up to strike out claims which it considers inadmissible on many occasions without observations from the state concerned. There is no magic to the state responding.
The fact that we have descended into a complex argument about how to assess the court’s approach to the thousands of applications it receives in my view just proves my main point – that *none* of this complexity was apparent from the article. Rather, The Sun and Mr Raab picked out the statistic which was most advantageous to their case and ran with it. That was both misleading and distorting.
Adam, I don’t think that will wash.
Ad hominem
I really don’t think my opening paragraph can be said to have played the man, not the ball. I criticised your statistic; I referred to my credentials for doing so; in light of those credentials, I alluded to the metric of independence to express how far I thought your statistic fell short; and I acknowledged that you, as a barrister, might use a different standard. Nothing hominem about that.
The statistic
Neither you nor I is, I am sure, a typical Sun reader, but when the headline of an article refers to cases that “go against” the UK and the opening sentence refers to how often judges “rule against Britain”, I am sure that almost every lay reader with infer that the UK has had a chance to put its case before losing. On that basis, one cannot plausibly use the figure of 22,065 to refer to the total number of cases.
I think the problem will always be, Mr Raab, that you are ideologically against the version of the EctHR you have concocted in your own mind. When you hear that the Court filters out hoards of unmeritorious cases, you choose to interpret that as meaning there are simply more bonkers cases out there. What you don’t choose to say is that the Court demonstrably exercises a very careful judicial discretion. I regret to say, having listened to you give interviews on the Today programme and beyond, that as well as not understanding the statistics, you do not understand (or at least do not advertise that you understand) the judgments themselves. You have said that as soon as someone proves they have a family life – end of story. But what any A-Level law student will tell you is that it is not the end of story! Courts, both domestic and European, agonise over the right to RESPECT FOR family life, which is far from unqualified. If you think it is, then I believe you should withdraw from this anti-human rights campaign and hand over the reins to a better qualified colleague. Whilst I can almost certainly say I will – as a human rights advocate – oppose their views, it will at least feel like a grown up debate. Good on you for responding though.
Adam, I know that barristers have their own ethical rules for presenting arguments, but as someone with extensive experience of presenting expert evidence, and with a particular expertise in numerical or statistical presentations, I feel bound to say that I would be professionally embarrassed if I were found to have put forward the statistical argument you have presented.
Whatever shorthand the Sun may have used in order to satisfy its readers (or its sub-editors), it seems abundantly clear that it is writing about the number of times that the UK Government has had to put forward a defence of its position and how often it’s case has been rejected.
Your criticism of the Sun’s statistic (3 out of 5) is based on the argument that the number of cases reaching “full judicial consideration” is not the full count. In other words, you are saying that the “5” of the Sun’s “3 out of 5” has been materially understated. But it is abundantly clear that looking at the number of unsuccessful applications (more than 98%), as you do, is not the right measure, either. It is very far from the right measure.
As you acknowledge in your response to Dominic Raab, and as explained in the 92-page document you link to at the end of the sixth paragraph of your main article, there are many applications which are rejected by the court as inadmissible because they are, for example, out of time, have not exhausted domestic remedies or already been submitted elsewhere etc. None of these appear to be cases in which the UK Government has had to submit an argument about its HR practices and have that argument tested.
What is not clear to me whether any of the 21,500 inadmissible cases you have alluded to involve the UK Government putting forward an argument and having it tested. I haven’t read the whole of the 92 pager, but it seems that, where cases are inadmissible on the grounds that they are ill-founded, there are a number – I’m not sure what proportion – in which the court has looked at the application and found that it simply doesn’t get off the ground. There is, to borrow a phrase from elsewhere, no case to answer.
There seem to be other cases found to be inadmissible, but where the court has first asked for observations from the UK Government. On the face of it, these cases may also need to be counted by the Sun, and so call into question it’s “3 out of 5” assertion. But in at least some of these cases, the court has perhaps asked merely for comments on whether the claim ought to be admitted, and not asked for a justification by the UK Government of the behaviour that the applicant has challenged. So perhaps some, or maybe even all, of the inadmissible cases can be excluded after all.
Conclusion
From a statistical perspective, it would be perfectly respectable for you to run the argument that more than 98% of claims are unsuccessful. But to challenge the Sun’s argument, you need to identify the number of cases in which the UK Government has had to put forward a defence of its position and treat that as the denominator. Your use of the figure 22,065 is clearly not right. I don’t have the data to establish whether Dominic Raab’s and the Sun’s figure of 499 is right or not. Do you have the correct figures?
Dominic – thank you for taking the time to response.
I think a good starting point for analysing that is the editor’s code of practice, since this is a newspaper. Article 1(1) says “The Press must take care not to publish inaccurate, misleading or distorted information”.
The question is, assuming an ordinary reader with little or no knowledge of the European Court of Human Rights is reading the article, what would they interpret your statement in the context of the article as meaning?
Nowhere in the article does it mention the thousands of cases which fall at the first hurdle – after being considered by a judge. Or that the proportions mentioned (3 out of 5) only included the group of cases which have already been filtered.
Nor does the article mention the reasons why those cases might be filtered out: the 2010 stats (http://ukhumanrightsblog.com/2012/01/22/is-the-european-court-of-human-rights-obsessively-interventionist-andrew-tickell/) were that 60% were manifestly ill founded, 12% out of time, 8% fourth instance, 5% incompatibility with provisions of the Convention and 15% non-exhaustion of domestic remedies.
And don’t forget settlements, which are mentioned in that linked article but certainly not in The Sun or by you.
This is what you were quoted as saying in the article: “It’s staggering that three out of five claims rejected by UK appeal courts win in Strasbourg”.
The first point is that your qualification (“rejected by UK appeal courts”) is grossly misleading. Only 15% of cases don’t make it to the final stage for that reason, suggesting that 85% or so have been “rejected by UK appeal courts” but nonetheless fail in a early judicial decision at the court.
The second point is that the article doesn’t give anywhere near enough information to present the full picture. And I am not just talking in the pernickety legalistic sense but just generally – the point the article and you are making is that the Strasbourg court is ruling against the UK in the majority of cases. But it isn’t. It is ruling for the UK in almost every case.
Third point: only a very tiny proportion reach the final stages, and the remaining cases are not necessary frivolous or “bonkers” as you put it. I know of many, many non-bonkers and non-frivolous cases which get rejected at the admissibility stage by a judge.
I maintain my view that the article and your quote were seriously misleading.
Dear Dom
So if I understand you correctly, all the cases that didn’t reach the court were either frivolous, vexatious, or bonkers?
So, for example, in 2013 1641 frivolous, vexatious, lunatics tried to complain to the European Court?
How about the viewpoint that if the UK Government is losing cases in the European Courts then the UK Government should be looking at why it keeps breaking the law and the Press should be holding the Government to account rather than getting lickspittle journalists to justify their ignorance.
Dear Adam, If you’re going to pick up people for their ‘slapdash’ approach to statistics, you need to be 100% accurate yourself, which you patently aren’t. The Table in question shows 499 total judgments, 297 of which involve substantive violations of the ECHR by the UK. The rest include all other rulings made by the Court on lack of jurisdiction and other preliminary objections including admissibility (footnote 2 to the table). So, it is perfectly reasonable to say that 3 in 5 cases that reach the Court go against the UK. I explicitly made the point that we weren’t talking about vexatious/ frivolous claims that may be sifted at an earlier stage, by referring to cases that have gone through the UK appeal courts first – one of the key admissibility criteria to get to Strasbourg. Equally, these are the stats put out by the Court in one table for easy reference, so it is hardly the manipulation you sugest. What you’re really saying is, don’t worry, there are a lot more really bonkers cases out there that don’t make an initial cut. For those concerned about judicial legislation from Strasbourg and the yawning democratic deficit – including many senior members of the UK judiciary – that is scant reassurance.
Best regards, Dom Raab
Dom, your argument turns on the alleged “democratic deficit” arising from, presumably, the international character of the Strasbourg court. I am rather confused as to what part exactly a constitutional bill of rights, which the Convention rights (as interpreted) can play in a democracy, if not to actually protect unpopular persons FROM the people. This is a political question over which the judiciary whose opinions you invoke, have no professional competence, indeed may hold extremely eccentric views.
Our virtually unique historic combination of untrammelled Parliamentary sovereignty, and a divisive and majoritarian political culture as played out through FPTP, wherein a minority can elect an overwhelmingly powerful party-captured Parliament, which extraordinarily has no formal constraints on its legislative competence whatever, cries out for some sort of constitutional constraint to protect the rights of individuals. Indeed precisely this mandates the sovereign act which saw us constrain our lawmaking discretion within the areas of Convention competence – on a revocable basis.
If you are concerned about the loss of influence of the Diceyan “true sovereign”, i.e. the people, then perhaps you should be arguing for the hunting of paedophiles with hounds for sport, given that that’s what many people desire. Alternatively, you could play a responsible role in explaining to the public exactly the content and objects and role of the Convention jurisprudence, rather than railing against it for want of a true political target.
I consider Adam’s point about the misleading character of the Sun headline, substantively far more apposite than what I’ve heard from yourself (your statements in this instance are behind a paywall, conveniently for the defence of your argument).
Facts are as follows (unless you can prove otherwise): To perform civil litigation and invoke human rights law we either have to be conversant with law and have the social standing not to make the judge dismiss us as ‘simple’ plebs OR the resources to pay someone who is trained in law that can be respected by the judge.
In essence I am saying these laws give the rich loopholes and advantages to escape justice but do little for the common man like myself!
Gary, what you rightly point out – obscurity of our law, and the ridiculously excessive expense of discovering what it says and conducting legal action, is a failing of the entire British justice system, human rights law is not an exception. Indeed as human rights is a new area, and is considered our equivalent of a Bill of Rights, and so written about with care for its accessibility, it’s a lot easier to understand than the more ancient legal fields. There is a famous saying which long predates human rights law – that our courts are open to all, just like the Ritz.
As for social standing and being dismissed as a pleb I don’t see again why (if that is an issue) that should just concern human rights and not all areas of law. As for human rights law doing nothing for the common man like yourself, and your asking people here to disprove that, I strongly disagree, and think, with respect, you cheat yourself by outsourcing understanding about it to others, who may themselves have all sorts of different opinions based on all sorts of factors.
I thought you were very restrained there in your description of Dominic Raab! I speak enviously as one whom the mention of his name fills with…grrr
Any misleading or untrue anti judge, anti Convention, concocted retributivist nonsense and he is parrotting it before the Daily Mail have even got out their version.