Monthly News Archives: December 2015
23 December 2015 by Jim Duffy
Photo credit: Guardian
It has been a fascinating year in which to edit this Blog. Political and social challenges – from continued government cuts to the alarming rise of Islamic State – have presented new human rights conundrums that have, as ever, slowly percolated to the doors of the country’s highest courts. And all this during the year of an astonishing General Election result and amid continually shifting sands around the future of the Human Rights Act.
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21 December 2015 by Laura Profumo
Laura Profumo peruses the latest human rights happenings.
In the News:
Lord Janner died on Saturday, aged 87, after a long battle with dementia. The former labour peer was due to face a “trial of the facts” in April, after being accused of a string of child sex abuse offences. The special hearing, for suspects unfit to defend themselves in a normal criminal trial, takes place before a jury, yet there is no formal verdict, nor sentencing procedure. It is speculated that, if the trial had continued when Janner was alive, he would have been given a discharge, if not altogether acquitted. It now looks unlikely that the trial will proceed. “I can’t think of any way in which the Crown Prosecution Service could even reinstate the case. It dies with the unfit defendant”, writes academic Ronnie Mackay. It’s a dim prognosis for Janner’s alleged victims, who still hope to have their day in court, after many abortive attempts to bring their claims against Janner before he fell ill. Their hopes are now confined to the forthcoming civil proceedings against Janner’s estate, and the Goddard inquiry. Yet former DPP, Ken Macdonald, has held that the decision whether to proceed with the trial is “quite finely balanced” and, despite his personal preference, there stands a credible case for it taking place. As there’s no question of a penal sanction in a trial of the facts, the presence of the defendant is not strictly required. In light of this, Lord Macdonald has suggested “the argument for continuing is that [Janner] was not going to play any part in these proceedings in any event”.
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21 December 2015 by Guest Contributor
Emily Baxter: Earlier this month, Scotland’s Lord Advocate announced new prosecution guidelines designed to protect refugees fleeing persecution. These help give effect to the UK’s obligations under Article 31 of the 1951 Refugee Convention, which states that:
“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
Section 31(1) of the Immigration and Asylum Act 1999 (“the Act”) already provides a defence for refugees who commit certain offences in order to gain entry to the country. The new guidelines provide direction for Scottish prosecutors when considering cases in which this defence may arise. They reiterate the importance of the public interest test for prosecution when considering the particular vulnerabilities of refugees “even when the criteria of section 31 are not strictly met.”
The guidelines also potentially broaden the application of the defence in Scotland, both in terms of the offences to which it applies and the classes of people who may rely on it.
Section 31(4) of the Act states that in Scotland that defence applies to the following offences:
– Fraud
– Uttering a forged document
– Section 4 or 6 of the Identity Documents Act 2010
– Section 24A of the Immigration Act 1971 (deception)
– Section 26 (1)(d) of the Immigration Act 1971 (falsification of documents)and
– Any attempt to commit any of those offences
However, the guidelines state that “other offences may well be covered by the defence if committed to facilitate entry to the United Kingdom in connection with a flight from persecution”, such as charges involving giving false details to facilitate entry.
Additionally, while the Act only refers to a defence for refugees the guidelines suggest the protection afforded by section 31 can be extended to those who are not refugees or asylum seekers. Examples given are stateless persons or those who cannot are granted leave to remain on humanitarian grounds.
The full guidelines are available here: http://www.crownoffice.gov.uk/images/Documents/Prosecution_Policy_Guidance/Guidelines_and_Policy/COPFS%20Refugees%20Policy.pdf
Comment:
The guidelines support and extend the application of the existing defence in section 31(1) of the Act.
However, they also reiterate that the following criteria should be met:
- The person has come to the UK directly from a country where his or her life or freedom was threatened within the meaning of the Refugee Convention;
- The person presented him or herself to the authorities in the United Kingdom without delay;
- The person had good cause for his or her illegal entry or presence;
- The person has made a claim for asylum as soon as reasonably practicable after arrival in the United Kingdom;
- If the person stopped in another country outside the UK having left the country where his or her life or freedom was threatened, that he or she could not reasonably have expected to be given protection under the 1951 Convention in that country; and
- The person claimed asylum after having committed the offence from which he or she seeks protection from conviction.
The first criterion may be particularly difficult for many refugees to prove on the balance of probabilities, and will be controversial in light of the growing “refugee crisis”. For example, in September the European Parliament overwhelmingly voted in favour of a Resolution on Migration and Refugees in Europe 2015/2833(RSP) calling in the European Commission to reform the “Dublin rules” which require refugees to claim asylum in the first EU state the reach. Time will tell as to whether the new guidance has a salutary impact on the practical ability for refugees to settle in Scotland.
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18 December 2015 by Thomas Raine
Macklin v Her Majesty’s Advocate [2015] UKSC 77, 16th December 2015 – read judgment
The Supreme Court has unanimously dismissed an appeal against a decision of Scotland’s High Court of Justiciary (available here) in which it refused to overturn a criminal conviction on the basis that the non-disclosure of evidence breached the appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).
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18 December 2015 by Fraser Simpson
Photo credit: Guardian
Ansari, Re Judicial Review, [2015] CSOH 168 – read judgment.
The Outer House of the Court of Session has held that the duty imposed under Article 5, ECHR to afford prisoners a reasonable opportunity to rehabilitate themselves, recognised by the Supreme Court in R (on the application Haney and Others) v. The Secretary of State for Justice, [2014] UKSC 66, does not extend to local authorities.
by Fraser Simpson
Background
The petitioner, Yousef Ansari, is currently serving a sentence of life imprisonment. The punitive part of his sentence, set at nine years, expired in March 2005. In his petition for judicial review, Mr Ansari claimed that the local authority, Aberdeen City Council, and the Scottish Government, had failed to afford him a reasonable opportunity to rehabilitate himself. A duty to offer opportunities for rehabilitation had been previously recognised as implicit in the scheme of Article 5 by the Supreme Court in Haney (see previous UKHRB post here). The hearing before Lord Glennie was restricted to the question whether the council owed such a duty.
Mr Ansari’s case
The starting point for the petitioner was the duty recognised in the Supreme Court decision in Haney. He argued that the duty required both the provision of opportunities for rehabilitation, which was the responsibility of the Scottish Ministers, and the provision of opportunities for the prisoner to demonstrate that they no longer posed an unacceptable risk to the public. This latter aspect of the Haney duty required the active cooperation of the local authority. Mr Ansari argued that Aberdeen City Council had failed to satisfy this duty. Whilst in the “Open Estate”, he was provided with the opportunity to return to the community – an important step in proving he no longer posed a threat. However, during this reintegration he was placed under extensive supervision by the local authority which, in his submission, undermined his ability to demonstrate he posed a reduced risk to the public.
Additionally, his ability to be temporarily released into the community was contingent upon the ability to provide the local authority with an appropriate “home leave” address. Mr Ansari claimed that during the vetting process the local authority had incorrectly considered his brother’s residence as inappropriate. Further, if no other address had been suitable, the local authority had a duty to provide him with accommodation under Part II, Housing (Scotland) Act 1987. On his case, these shortcomings had prevented Mr Ansari from temporarily returning to the community and therefore denied him the opportunity to demonstrate that he posed a reduced risk to the public.
In the alternative, Mr Ansari submitted that the duty would, in any event, extend to the local authority. The duty was imposed upon the “state” and, by virtue of s.6, Human Rights Act 1998, this would extend to public bodies such as Aberdeen City Council. As a result, they were bound by the requirements of Article 5, which included the duty recognised in Haney.
Imposing the Haney duty on the local authority, from the petitioner’s perspective, was a natural conclusion. Whilst the functions of the Scottish Ministers and the local authority differed, they both played an important role in the rehabilitation of Mr Ansari. A number of functions of the local authority, especially in the process relating to preparation for release, could not be carried out by the Scottish Ministers acting through the Scottish Prison Service. Extending the duty to provide reasonable opportunities for rehabilitation to the local authority would ensure that the Haney duty was “practical and effective” due to the important “real and practical sense” in which the local authority was involved in Mr Ansari’s rehabilitation.
The City Council’s submissions
The first respondent submitted that they did not owe the petitioner any duty under Article 5 as interpreted in Haney. The duty to provide opportunities for rehabilitation is not a freestanding duty, but instead stems from the decision of the state to detain an individual following conviction by a competent court. In James, Wells, and Lee v. the United Kingdom, [2012] ECHR 1706, the European Court of Human Rights recognised that part of the purpose of an indeterminate sentence was to rehabilitate the prisoner. Consequently, the Supreme Court in Haney recognised the need to provide reasonable opportunities to rehabilitate in the event that the state attempts to justify continued detention under Article 5(1)(a). The first respondent submitted that as they had no power to detain the prisoner, or order his release, it would be inappropriate to impose such a duty upon them.
Decision
Lord Glennie held that the duty recognised in Haney could not be extended to Aberdeen City Council. In line with submissions made by counsel for the first respondent, Lord Glennie held that the Haney duty is only imposed on states in the event that they have detained a prisoner and rely upon Article 5(1)(a) as justification. However, the local authority is in an entirely different position and has no powers to detain or release the prisoner. The first respondent was not required to justify the detention of the prisoner and, therefore, there was no reason to impose the Haney duty upon them.
In the petitioner’s submissions, reference was made to Lord Glennie’s decision in Reid, Re Judicial Review, [2015] CSOH 84 (read previous UKHRB post here). In Reid, Lord Glennie held that as part of the duty recognised in Haney, the Scottish Ministers had a duty to take “reasonable steps to procure” the cooperation of the local authority during the rehabilitation process (see paragraph 30). Lord Glennie clarified that in providing various services to the Scottish Ministers that aid the rehabilitation process, the local authority could only be considered to owe a duty to the Scottish Ministers, not the individual prisoner. As a result, Reid provided no support for the submission that the Haney duty should be extended to the local authority.
Lord Glennie also noted that certain statutes may impose specific duties upon a local authority. For example, s.27, Social Work (Scotland) Act 1968 (detailing the functions relating to the supervision and care of those released from prison) and the Housing (Scotland) Act 1987 outlined relevant functions and duties of the local authority. However, these did not assist the argument that the general Haney duty arising from the operation of Article 5 could extend to the local authority. These duties existed independently from any duty to afford opportunities for rehabilitation. Any failures relating to these duties could be challenged by Mr Ansari in separate proceedings.
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14 December 2015 by Hannah Lynes
Photo credit: The Guardian
In the news
The Ministry of Justice has signalled an interest in the potential of specialist courts for cases of domestic abuse. It has been considering a report published last week by the Centre for Justice Innovation, which recommends an integrated approach whereby criminal, family and civil matters would be heard under a ‘one judge, one family’ model.
The report highlights evidence from the United States, Australia and New Zealand that integrated courts increase convictions and witness participation, lower re-offending, enforce protection orders more effectively and reduce case processing time. Victims would no longer find themselves “jumping from forum to forum” to resolve matters that are “all facets of the same underlying issue.”
Specialist domestic abuse courts could moreover use post-sentence judicial monitoring of perpetrators, and place a greater emphasis on the rehabilitation of offenders. In a speech to the Magistrates’ Association, justice secretary Michael Gove said he had been “impressed” by the potential of problem-solving courts during a recent visit to the US, and was “keen to look more” at what could be done in this area.
However, the proposals under examination are unlikely to allay fears that government cuts are putting women at risk. Under the ECHR, domestic authorities have a duty to “establish and apply effectively a system by which all forms of domestic violence [can] be punished,” and ensure “sufficient safeguards” are provided for the victims [Opuz v Turkey].
Yet current safeguards are under considerable strain, with domestic abuse incidents reported to the police having increased by 34% since 2007/2008. Campaigners warn that austerity measures, which have led to Portsmouth City Council recently announcing a “sizeable reduction” of £180,000 to its domestic abuse service, are likely to put further pressure on authorities already at breaking point.
Other news
- Daily Telegraph: The Government has announced plans to establish an improved help-line for victims of modern slavery, which will be set up with a £1 million contribution from Google. The service will be modelled on a similar helpline in the US, which provides advice to people who have been subjected to forced labour or servitude, and collates data to combat human trafficking.
- The Guardian: Health inspectors from the Care Quality Commission have issued a report critical of the wide variations of treatment received by people detained under the Mental Health Act. The inspectors found no evidence of patients’ views being considered in a quarter of the care plans examined, which Deputy Chief Inspector Dr Paul Lelliott said could “hinder their recovery, and lead to potential breaches in meeting their human rights.”
- BBC: A High Court judge has ruled Lord Janner unfit to plead, with the result that the former politician will not stand trial over allegations of indecent assault and sexual abuse. Mr Justice Openshaw found that the 87-year-old peer had “advanced and disabling dementia that has deteriorated and is irreversible”. A “trial of the facts” is scheduled to take place next April.
- Civic institutions, laws and practices need to better reflect the UK’s less religious, more diverse society, according to a report by the Commission on Religion and Belief in British Public Life. The Commission, led by former High Court judge, Baroness Butler-Sloss, has suggested that schools should no longer face a legal requirement to provide daily acts of worship of a Christian character, and has pointed to a number of “negative practical consequences” of selection by religion in faith schools. The Guardian reports.
In the courts
The case concerned the complaints of seven Lithuanian nationals that the conditions of their detention in various correctional facilities had fallen short of standards compatible with article 3 of the Convention. In particular, it was submitted that they were held in overcrowded dormitory-type rooms. Some of the applicants further maintained that they were detained in conditions that violated basic hygiene requirements, and that they lacked access to appropriate sanitary facilities.
The Court found that the compensatory remedies made available by the Lithuanian authorities had been insufficient. It held that there had been a violation of article 3 (prohibition of inhuman or degrading treatment) in respect of four of the applicants, and made awards of pecuniary compensation accordingly.
This case concerned the asylum applications of two Afghan nationals who married in a religious ceremony in Iran when ZH had been 14-years old. The Swiss authorities did not deem the couple to be legally married, and considered their applications separately, resulting in the removal of RH to Italy after the rejection of his appeal. The applicants alleged that the expulsion of RH amounted to a breach of article 8 ECHR (the right to family life).
The Court held that article 8 of the Convention could not be interpreted as imposing on a member state an obligation to recognise a marriage contracted by a child, in view of article 12 (right to marry) which expressly provided for regulation of marriage by national law. At the time of the removal of RH to Italy, the Swiss authorities had been justified in considering that the applicants were not married. The Court therefore found no violation of article 8.
Hannah Lynes
Events
If you would like your event to be mentioned on the Blog, please email the details to Jim Duffy, at jim.duffy@1cor.com.
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7 December 2015 by Charlotte Bellamy
Charlotte Bellamy brings you the latest human rights news
The death knell has tolled on another of Grayling’s policies from his ill-fated tenure as Justice Secretary. The controversial criminal courts charge, which has seen over 50 magistrates resign since its imposition in April, is to join the jettisoned ranks of the prisons contract with Saudi Arabia, the prisoner book ban and plans for a super-sized child prison.
Criticised as a “tax on justice” which encouraged defendants to plead guilty, the charges ranged from £150 (for a guilty plea to a summary only offence) to £1,200 (conviction at trial for indictment). The charge did not take into account the means of the defendant, leading to a plethora of desperate situations including one homeless shoplifter ordered to pay £900 despite “not being able to afford to feed himself” and a £150 levy imposed on another for stealing a can of Redbull worth 99p.
The decision was announced by Gove at the annual meeting of the Magistrates Association last week, where he described the policy as “falling short of its honourable intentions”. His Ministerial Statement suggests he is standing by its “underlying principle”, that “those who break the law should make a contribution towards seeing justice done”. The courts charge came in addition to fines, victim surcharges, compensation orders and prosecution costs, a system Gove concedes is “complex and confusing”, and the whole panoply of which he has now announced a full review.
The Chair of the Justice Committee Bob Neill MP welcomed the change which was so swiftly made after the unequivocally damning report produced by the Committee in November. The Howard League for Penal Reform, who led an uncompromising campaign against the charge, has described Gove’s announcement as a “victory for justice”.
Is the “underlying principle” of which Gove speaks about making “those who break the law” contribute towards seeing justice done? One legal commentator writing in the Solicitors Journal suggests that the abolition of the charge is in fact a Trojan Horse disguising a trade-off for plans to impose in its place a 1 per cent levy on the turnover of the top 100 corporate City law firms – an idea first floated by Gove at a speech to the Legatum Institute in June – the ultimate aim of which is perhaps to remove the criminal justice system from the ambit of public funding completely, with lawyers themselves footing the bill.
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3 December 2015 by Rosalind English
King’s College Hospital NHS Foundation Trust v C and another [2015] EWCOP 80 read judgment
A woman who suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment. Continuation of such treatment is unlawful, even if the refusal seems irrational to others. As the judge said, this rule
reflects the value that society places on personal autonomy in matters of medical treatment and the very long established right of the patient to choose to accept or refuse medical treatment from his or her doctor (voluntas aegroti suprema lex). Over his or her own body and mind, the individual is sovereign (John Stuart Mill, On Liberty, 1859).
The Trust’s further application to be allowed to restrain C “physically or chemically” from leaving the hospital where she was receiving the dialysis was therefore rejected.
Background facts
The coverage of this case reflects a certain level of social disapproval. “Right to die for socialite scared of growing old” – “Socialite allowed to die was terrified of being poor” run the headlines. Behind them lurks an essentially religious consensus that people should not be allowed to opt out of senescence and its associated poverty and suffering, such matters being for God alone. There is also a measure of censoriousness behind the details brought to court regarding C’s attitude to motherhood and men, the news that she had breast cancer, her love of “living the high life” and her dread of growing old “in a council house”.
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2 December 2015 by Rosalind English
The International Bioethics Committee, under the auspices of UNESCO, has recently updated its guidance on the human genome and human rights. The Report of the IBC on Updating its Reflection on the Human Genome and Human Rights was published in October 2015, and takes into account the Universal Declaration on the Human Genome and Human Rights (1997), the International Declaration on Human Genetic Data (2003) and the Universal Declaration on Bioethics and Human Rights (2005). The following summary is based on Alison Hall’s review of the recommendations in the PHG Foundation’s bulletin.
The IBC’s report attempts to review all the relevant ethical challenges for regulating genetic research and clinical care across national boundaries. The area that has received most coverage in the press involves the emerging techniques for editing the human genome, in particular engineering gametes. The other four areas of application the IBC has chosen for review are:
Direct-to-consumer genetic tests and genetic analysis that is not related to health care
Precision/personalised medicine
Biobanks (banks of genetic information)
Non-invasive prenatal testing
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