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Laura Profumo delves into the latest human rights happenings.
In the News:
In an “exclusive” last weekend, The Independent revealed that the government is planning to “fast-track” a British Bill of Rights into UK law. The report claimed a 12-week consultation will run from late this year, which will seek to clarify that the UK will not pull out of the ECHR. In an “unusual but not unique” move, a Bill will then proceed straight to the House of Commons, without a preliminary Green or White Paper. With the EU referendum due in 2017, ministers are anxious to extricate the ECHR question from that of EU membership, making the Bill law before the in/out campaigns begin. Yet the Bill’s Parliamentary passage will be far from seamless. A cabinet minister has cautioned that the short timescale is “aspirational”, as the Bill could be “really clogged up in the House of Lords”. The upper chamber, where the Conservatives fail to command a majority, hosts some “seasoned lawyers”, who are fearful of the fallout with Strasbourg. It is understood that Gove will visit Scotland before the consultation is published, to convince the SNP to back the proposal. Yet it is not yet clear whether Gove will visit Northern Ireland and Wales as well, where he must also secure support. If the Bill is to reach the statute books before the MPs’ summer recess, it will need to be propounded in the next Queen’s speech, due in May 2016. Continue reading →
The Supreme Court has held that the continuation of a prisoner’s solitary confinement for safety reasons was not authorised under domestic rules and incompatible with the right to private life under Article 8 of the European Convention on Human Rights (“ECHR”).
by Fraser Simpson
Facts
The appellant, Imran Shahid, was first placed in solitary confinement in October 2005. His confinement was continued following his conviction for the racially motivated murder of a 15-year-old boy. The decision was based on threats made against the appellant. This period of solitary confinement continued until his eventual reintegration into the general prison population in August 2010.
The appellant had originally challenged his continued segregation in both the Outer and Inner Houses of the Court of Session (see this previous post for a discussion of the Inner House’s opinion). The Scottish courts refused his complaints and held that his prolonged solitary confinement accorded with both domestic law and Articles 3 and 8, ECHR.
The Supreme Court, in a unanimous decision delivered by Lord Reed, held that not only was the continued segregation invalid according to domestic law, but it also amounted to a violation of Article 8.
Compliance with domestic law?
The relevant rules concerning the power to place a prisoner in solitary confinement were, at the relevant time, contained in the Prisons and Young Offenders Institutions (Scotland) Rules 1994 and 2006. Despite the amendment of the Rules during the relevant period, the core provisions relating to the grounds for segregation and the time limits imposed remained the same. The purpose of Shahid’s segregation – to maintain good order and protect him – was not in question. Shahid instead contended that certain time limits contained within the Prison Rules relating to the continuation of a period of segregation had not been complied with. The relevant provision, Rule 94(5), states:
“A prisoner who has been removed from association … shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority … prior to the expiry of the said period of 72 hours.”
Three of the orders made authorising prolongation of Shahid’s segregation were made by the Scottish Ministers after the expiration of this 72-hour limit.
The lower courts considered that such delays did not impact upon the validity of the orders that authorised continued segregation. Importance was placed upon the relatively limited extent to which the orders were late (17, 44 and 47 hours) and the fact that the purpose of the reviews, to ensure that segregation was maintained for only as long as necessary, was not frustrated by such limited delays.
Lord Reed, adopting an alternative construction of the Prison Rules, held that any order made after the expiration of the 72-hour period was automatically invalid (see paragraphs 15-18 of the judgment). His conclusion that the late orders authorising continued segregation of the appellant were invalid, and that a period of 14 months of segregation therefore had no legal basis, is important in the context of the Article 8 challenge.
Article 8
The Scottish Ministers accepted that the placement of the appellant in solitary confinement was an interference with his right to respect for private life under Article 8. Consequently, it was for them to show that the measure was in accordance with the law, in pursuance of a legitimate aim, and a proportionate interference in light of the pursued aim.
Lord Reed was quick to point out that his previous conclusion, that the late authorisations had rendered invalid the subsequent segregation, would result in certain periods of the segregation not being “in accordance with the law”. Accordingly, such periods of segregation could not be justified under Article 8(2).
Lord Reed went on to consider that the appropriate prison authorities had not always been independently making the decisions to continue the segregation of the appellant but instead, on some occasions, had been unduly influenced by the decisions and recommendations of a non-statutory advisory body. The need for a statutory decision making power to be exercised by the individual, or body, that has been conferred such a power had not been satisfied (see R v. Deputy Governor of Parkhurst Prison Ex p Hague, [1992] 1 AC 58). Accordingly, there was a failure to satisfy the lawfulness criterion within Article 8(2).
The Supreme Court moved on to consider the proportionality of Shahid’s continued segregation. The lower courts, in holding that the continued segregation was proportionate, opined that it was the only practicable way of dealing with the threats made against the appellant. The Supreme Court, on the other hand, listed a number of potential alternatives to solitary confinement that could have achieved the aim of protecting the appellant from attacks, including relocating the appellant to another UK prison. Irrespective of such alternatives, the Supreme Court decided that earlier steps could have been taken to promote Shahid’s reintegration. A plan to reintegrate the prisoner had only been developed after four and a half years of almost continuous segregation. Failure to take such steps resulted in the segregation being disproportionate and a violation of Article 8.
However, the Supreme Court considered that the appellant had not suffered any prejudice. If the Article 8 violations had not occurred then there was no evidence to show he would have been returned to the general population sooner.
Additionally, the extent to which his right to respect for his private life under Article 8 had been infringed was limited considering the negative attitudes other prisoners harboured towards him.
Accordingly, the Supreme Court considered that there was no need to make an award for damages despite the appellant seeking £6,000.
Article 3
The appellant also complained that the segregation was incompatible with his right not to be subjected to inhuman or degrading treatment under Article 3, ECHR. The European Court of Human Rights has recognised the potentially damaging effect that continued solitary confinement can have upon the mental and social facilities of an individual (see Ahmad v United Kingdom, (2013) 56 EHRR 1, paragraph 207).
However, the use of such measures for disciplinary, security, or protective reasons does not automatically contravene Article 3. In assessing whether the measure was compatible with Article 3, the Supreme Court considered the conditions and duration of the detention as well as the motivation for such a measure and its impact on the appellant.
The Court concluded that the measure did not attain the minimum level of severity to engage Article 3. The appellant was kept in suitable accommodation and the ability to exercise, receive visitors and associate with other prisoners pointed towards the treatment falling short of the Article 3 threshold. Despite the length of the segregation extending beyond four years, the fact it was imposed in the interests of the appellant’s safety were also of relevance.
Comment
The use of segregation in prisons should always be considered as a serious measure. Indeed, the Council of Europe’s Committee on the Prevention of Torture advises that for punitive purposes any stint should be limited to 14 days (see the CPT’s 21st General Report, (2011), page 40).
The strict interpretation of the 72-hour limitation within the Prison Rules by Lord Reed results in appropriate weight being attributed to the decision to segregate. As Lord Reed pointed out, this allows early consideration of the necessity of the segregation by officials external to the prison. This provides an important procedural safeguard, even at an early stage of segregation.
However, if the 72-hour limit were strictly applied in this instance, there could be negative practical repercussions. When continued segregation was without legal basis, would the prison officials be under a duty to return the appellant to general population even if this would endanger his safety? An analogous situation was raised by the Inner House in support of their interpretation of the Prison Rules (paragraph 24 of the Inner House Judgment). Lord Reed answered these concerns by outlining that the officials would also be subject to a duty under s.6(1) of the Human Rights Act to secure the safety of the prisoner in accordance with Article 2 and 3, ECHR. If there was a serious risk to life then the prisoner could remain in segregation in accordance with domestic law using such protections as justification.
Interestingly, such an argument was not substantively raised on behalf of the Scottish Ministers in order to justify the periods for which there was a lack of authorisation.
What is the role of parliament in the protection and realisation of the rule of law and human rights? Should there be a set of internationally agreed principles and guidelines on this issue to help parliaments develop their role? If so, what should be the content of any internationally agreed principles and guidelines? And how do we get international agreement on them? These were some of the questions posed and addressed at a recent high-level international conference held last month at Westminster.
The conference heard about the growing international consensus about the importance of the role of parliament in the protection and realisation of the rule of law and human rights, which has emerged over the last five years. International and regional institutions, including the United Nations General Assembly, the United Nations Human Rights Council (HRC), the Council of Europe and the Commonwealth Secretariat, have taken a number of active steps to increase parliament’s role. Just last week, the HRC passed a third resolution at the close of its October 2015 session, addressing the “contribution of parliaments to the work of the HRC and its Universal Periodic Review” (link here). Continue reading →
Those charged with the task of protecting the public from harm resort to assertion similar to that here attributed to a GCHQ spokesperson:
Our work is carried out in accordance with a strict legal and policy framework, which ensures that our activities are authorised, necessary and proportionate, and that there is rigorous oversight.
I was the Chief Surveillance Inspector at the Office of Surveillance Commissioners for eight years until August 2013. My own view is that the legal and policy framework is not strict and that oversight is not rigorous. Until they are, we should not blame public authorities for exploiting opportunities that enable them to meet their operational and investigative objectives.
Regardless of one’s views on the actions of Mr. Snowden, public knowledge of covert capabilities has encouraged those who engage in covert conduct to explain what it is they require and why. The reports published by the Independent Reviewer of Terrorism Legislation, the Intelligence and Security Committee and RUSI make important contributions but tend, in my view, to focus on the effect of technology and the impact of so-called mass surveillance. All agree that the law and oversight should be improved. Here’s my take on those two fundamentals. Continue reading →
Wye Valley NHS Trust v B (Rev 1) [2015] EWCOP 60 (28 September 2015) – read judgment
The Court of Protection has recently ruled that a mentally incapacitated adult could refuse a life saving amputation. This is an important judgement that respects an individual’s right to autonomy despite overwhelming medical evidence that it might be in his best interests to override his wishes. The judge declined to define the 73 year old man at the centre of this case by reference to his mental illness, but rather recognised his core quality is his “fierce independence” which, he accepted, was what Mr B saw as under attack. Continue reading →
This week’s Round-up is brought to you by Hannah Lynes.
In the news
Call from legal community for urgent action on refugee crisis
More than 300 lawyers have signed a statement denouncing the Government’s response to the Syrian refugee crisis as “deeply inadequate”.
The document, whose signatories include former President of the Supreme Court, Lord Phillips, three former Law Lords and over 100 Queen’s Counsel, describes Prime Minister David Cameron’s offer to resettle 20,000 Syrian refugees over 5 years as “too low, too slow and too narrow.” Continue reading →
JM (a child), Re[2015] EWHC 2832 (Fam), 7 October 2015 – read judgment
Mostyn J, ruling in the Family Division that a child should receive surgical treatment for bone cancer against the wishes of his parents, has referred to Ian McEwan’s “excellent” novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion. The judge noted however that the book was in fact “incorrectly titled”:
a question of whether a medical procedure should be forced on a 16 or 17 year old should be sought solely under the High Court’s inherent jurisdiction, and not under the Children Act.
This case on the other hand concerned a ten year old child, J. The NHS Trust sought permission to perform urgent surgery of a serious nature on his right jawbone, where he has a very rare aggressive cancer. Its medical name is a craniofacial osteosarcoma, presenting a tumour in the bone of about 4 inches long and 1½ inches wide. The unambiguous medical evidence before the court was that if it was not removed very soon then in 6 months to a year J would die “a brutal and agonising death”. The oncologist had spelt this out in unflinching detail:
J will not slip peacefully away. The cancer will likely invade his nerve system affecting basic functions such as speaking, breathing and eating. His head will swell up grotesquely. His eyes may become closed by swelling. A tracheostomy may be needed to allow breathing. Above all, the pain will likely be excruciating.
In a judgment much anticipated on both sides of the Channel, the Court of Justice of the European Union (“CJEU”) has held that French restrictions on the eligibility of prisoners to vote are lawful under EU law.
There has been further consideration of potential post-adoption Article 8 rights for natural parents in a judgment by Peter Jackson J in the case of Seddon v Oldham MBC. There are no surprises in the conclusions he reaches. Continue reading →
This week’s round-up is brought to you by Charlotte Bellamy
Instead of reparations and an apology for Britain’s role in the transatlantic slave trade, David Cameron is to bestow Jamaica with £25m (or 40%) towards the cost of a new prison – an offer which is “an insult to the people of Jamaica”, according to Jamaican MP Mike Henry, who had led the effort to force a vote on reparations which took place in the Jamaican Parliament in January and passed unanimously. The motion stated that Jamaica would be entitled to receive reparations equivalent to what former slave owners received after abolition.
Prior to Cameron’s visit, Sir Henry Beckles, the chair of the CARICOM Reparations Commission, called on the PM to acknowledge his responsibility for his share of the situation and to contribute to a “joint programme of rehabilitation and renewal”. He described the PM as “a grandson of the Jamaican soil who has been privileged and enriched by your forebears’ sins of the enslavement of our ancestors”. The Cameron family was said to have reaped “bonanza benefits”. During his visit, however, Cameron announced that financial reparations “were not the right approach”.
Is a UK-subsidised prison the right approach? BBC political correspondent Carole Walker suggested that some eyebrows may be raised by such an allocation of the Foreign Aid budget. Frances Crook, the CEO of the Howard League, has raised not just her eyebrows, but also concerns that building a prison in Jamaica is “not the answer to the UK’s prison problems”, not least because it is “wrong to spend British aid on building a prison” when “refugees in camps are facing winter and the budget is stretched”. In addition, the Jamaican prison would only take 300 men by 2020, when prison numbers in this country are going up by more than 300 every month.
Other news
In the week that saw the Human Rights Act turn 15, Sir Simon McDonald, the British Foreign Office Chief, inauspiciously commented that human rights are “no longer a top priority” for the Government. Resources will be funnelled into trade deals ahead of fighting injustice in other parts of the world, as part of the Conservatives’ “Prosperity Agenda”, the Independent reports. This perhaps explains George Osborne’s recent silence on human rights abuses during his “trade mission” to China, for which he has been praised by a grateful if somewhat surprised Chinese Government, and criticised by Amnesty International.
More fuel was thrown on the fire of the UK’s tangled relationship with Saudi Arabia when it emerged last week via leaked Saudi Foreign Ministry files that the UK made a secret deal with the Saudis to bag themselves both countries seats on the UN Human Rights Council in 2013. Saudi Arabia – who has sanctioned more than 100 beheadings this year – now chairs a UNHRC panel that selects senior officials to draft international human rights standards and report violations. Allan Hogarth, Amnesty International UK’s Head of Policy and Government Affairs, described the revelation as “a slap in the face for those beleaguered Saudi activists who already struggle with endemic persecution in the kingdom”.
The daughter of a man who committed suicide in 2013 after being declared fit to work by an Atos ‘heathcare professional’ is compiling a dossier of information on her father’s case to assist the imminent UN investigation into whether Iain Duncan Smith’s welfare reforms have led to “grave or systematic violations” of disabled people’s rights. This follows a coroner’s conclusion that Mr O’Sullivan’s suicide was a direct result of the outcome of the assessment. The coroner reported found that the Atos healthcare professional (an orthopaedic surgeon in this case) had failed to take into account the views of any of the deceased’s doctors, who had diagnosed him with recurrent depression, panic disorder and agoraphobia.
The Parliamentary Assembly of the Council of Europe (PACE) has called for “firmer measures” against States ignoring judgments of the Strasbourg Court, urging Council of Europe ministers to make use of the 2010 “infringement procedure” (a tool “as yet untried”) which allows the Court to rule on whether a State has breached its obligation to abide by the Convention. This recommendation was based on a report focused primarily on nine countries responsible for 80 per cent of the 11,000 unimplemented cases (Turkey, the Russian Federation, Ukraine, Romania, Greece, Hungary, Poland, Romania and Ukraine), though the UK received a special mention (Appendix 1, s10) for “unresolved issues” relating to “significant implementation problems” specifically in relation to prisoner voting rights, following Hirst v UK (No 2)and the pilot judgments Greens and MT v UKwhere the UK’s blanket ban on prisoner voting was found to be a violation of Article 3.
In the Courts
Bouyid v Belgium: slapping by law enforcement officers of individuals under their control was degrading treatment under Article 3 ECHR. Two brothers had alleged that police officers in Belgium had slapped them in the face whilst at a police station in Brussels. The Court found that this had undermined their dignity. The Court emphasised that in a democratic society ill-treatment was never an appropriate response by the authorities, explaining that “a slap to the face affects the part of the person’s body which expresses his individuality, manifests his social identity and constitutes the centre of his senses”.
A Political Decision Disguised as Legal Argument: Opinion of CJEU 2/13 – and other things
Over the summer an interesting article was published by Graham Butler, on his interview with David Thor Björgvinsson, former Icelandic judge in the European Court of Human Rights – see here.
One subject was the CJEU’s refusal to permit accession by the EU to the ECtHR (see my post here) – despite the EU’s commitment to accede via Article 6 of the Lisbon Treaty, in December 2009. A Draft Agreement on Accessionwas concluded in April 2013, but it required the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties – to which the CJEU gave a dusty answer in December 2014.
How far are the courts willing to go to intervene in matters of foreign affairs in order to protect human rights? Spoiler: they’re not. Continue reading →
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Laura Profumo delves into the latest human rights happenings.
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