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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