The Round-up: companies off the hook for human rights abuses?

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In the news

The UK government is letting companies “off the hook” for human rights abuses, according to Amnesty International. In an 80-page report, Obstacle course: How the UK’s National Contact Point handles human rights complaints under the OECD Guidelines for Multinational Enterprises, Amnesty claims that the National Contact Point (NCP) within the Department for Business Innovation and Skills – who is charged with handling complaints that private contracts may conflict with human rights commitments – is “unqualified to make complex human rights judgments”. The NCP is a non-judicial mechanism tasked with holding companies to account over breaches of the international standards set by the Organisation of Economic Cooperation and Development (OECD) – but has, it seems, rejected 60% of human rights complaints in the past five years without full investigation.

Amnesty describes the NCP as “totally failing in numerous ways”, with its complaint handling procedure being “inconsistent, unreliable and biased towards businesses” resulting in companies being let “off the hook”. The failures to investigate include allegations of serious abuse, such as claims that Vodafone, BT and others allowed GCHQ to access its networks for the mass interception of phone calls, emails and Facebook posts, which it shared with the US authorities under the Tempora program.

The all-party foreign affairs select committee is currently investigating whether the Foreign Office has downgraded its commitment to defending human rights in favour of trade. MPs on the committee decided to hold an enquiry after the permanent secretary at the Foreign Office, Sir Simon McDonald, commented that human rights no longer had the same profile within his department that they had in the past.

A BIS spokesperson has said in response that their review process meets all the obligations under the OECD guidelines for trading and that there should be no suggestion the government is not committed to human rights.

Last week also saw David Cameron describe UK arms exports to Saudi Arabia as “brilliant” – on the same day that the European Parliament voted for an arms embargo on the country for its aerial bombings on Yemen.

 

Other news

  • Last week a seven-judge Supreme Court heard a case on whether the minimum-income visa requirements for UK nationals to bring over a non-EU spouse are in contravention of the right to respect for private and family life under Article 8, the Guardian reports.  Under the Family Migration Rules, which changed in July 2012, UK nationals must have available funds equivalent to a minimum gross income of £18,600 to bring over a non-EU spouse, rising to £22,400 if they have a child of non-British citizenship. Two of the appellants, Abdul Majid and Shabana Javed, are British and married to Pakistani nationals; another, MM, is a Lebanese refugee; and the fourth, AF (also MM’s nephew) is a refugee from the Democratic Republic of Congo. The appellant counsel described the threshold as “completely unachievable” for many. Judgment is expected within six months.
  • Proposals to replace the Human Rights Act with a British Bill of Rights have been “put on ice”. Though it is claimed that the legislation is finished and “sitting on a desk inside No.10”, Downing Street is refusing to publish it, allegedly due to Gove’s decision to “defect to the Out camp” in the referendum. An unsurprised David Allen Green comments that the Human Rights Act is not likely to be repealed in this Parliament, saying that the hurdles to doing so still remain (such as the Good Friday Agreement), and suggests that the Conservatives may have begun to realise that its repeal and replacement “is not worth the time and effort”.

 In the Courts

  • Civek v TurkeyThe Court held unanimously that the Turkish authorities had violated Article 2 (right to life) by failing to protect the life of a woman who had been seriously threatened by her husband, HC. Ms Civek had made continued complaints of harassment to the Turkish authorities yet they had failed to take measures reasonably available to them to avoid her murder. Ms Civek had been subjected to sustained abuse from her husband culminating in 2010 in his remand in custody and a court order to refrain from being violent towards his wife. After his release in November 2010 (under judicial supervision), Ms Civek had complained that he was threatening to kill her. Again in December 2010 Ms Civek lodged a complaint, which led to HC being charged with threatening to kill her – but the State Prosecutor took no practical action, even though the husband could have been legitimately arrested for non-compliance with court orders. The Court found the authorities should have acted to protect Ms Civek’s life, and through their failure, her husband had been able to murder her on a street in January 2011, stabbing her 22 times.
  • Société de Conception de Presse et d’Édition v. France – An order by the French domestic courts that an unauthorised photograph published by Choc magazine be blacked out was not a violation of freedom of expression under article 10. Choc magazine, published by the applicant company, had published photos of a young man, IH, taken whilst he was in captivity, wearing shackles, and showing visible signs of torture. He had later died from his injuries. The Court found that the photograph had never been intended for public viewing, permission had not been obtained from IH’s relatives, and that its publication showed a grave disregard for the grief of his family. It was therefore a serious interference with the private life of IH’s relatives. The Paris Court of Appeal had ordered that the photograph in question be blacked out in all magazines put on sale, rather than withdrawn completely. The European Court of Human Rights found that such a restriction on freedom of expression was proportionate, as the text of the report remained unchanged, and that in the circumstances the penalty imposed would not have a “chilling effect” on freedom of expression.
  • Nasr and Ghali v Italy –  This case concerned the CIA abduction and extraordinary rendition (the transfer of a person without legal process to another country for interrogation where there is a risk they might be tortured) with the cooperation of the Italian authorities, of the Egyptian imam Abu Omar (also known as Osama Nasr), who had been granted political asylum in Italy. He was held in secret in Egypt for several months in cramped and unhygienic cells where he was periodically interrogated and tortured. An investigation into Mr Nasr’s disappearance had been carried out by the national authorities but this had been ineffective due to the executive’s invocation of ‘State secrecy’ – which resulted in those responsible being granted impunity.
  • The Court found in respect of Mr Nasr violations of Article 3 prohibition on torture (in previous cases the Court had already held that the treatment of detainees under the CIA’s extraordinary rendition programme amounted to torture), Article 5 (right to liberty and security) – due to the unlawful nature of the detention; Article 8 (right to respect for private and family life) and Article 13 (right to effective remedy) read together with Articles 3, 5 and 8. The Court also found in respect of Ms Ghali, Mr Nasr’s wife, violations of Article 3 (because she had suffered significant non-pecuniary damage as a result of her husband’s sudden disappearance), Article 8 and Article 13.

Previous Posts

 

Abortion, mental incapacity and prior intentions: Court of Protection Clarifies the law

logoAn NHS Trust v CS (By Her Litigation Friend, the Official Solicitor) ] EWCOP Read the  judgement.

The Court of Protection does the work of Solomon on a daily basis. Matters of life and death are brought before it, and with them come a mass of conflicting rights, overlapping statutes, and an array of case law from which arguments can be drawn. At the end of it, an individual judge must make a stark decision, which may have the most profound impact on another human being. One of those charged with making such decisions once divided the advocates who appeared before him into those who complicate and those who clarify. There is no surprise as to which he preferred.

Baker J’s judgment in this disturbing case will boost the cause of the clarifiers. CS has two children and, before Christmas, became pregnant by her then partner. It was a relationship that, it is alleged, became “characterised by domestic violence” (a phrase that it somehow more chilling for its judicial restraint). CS told friends and families that, in the circumstances, she intended to terminate the pregnancy. Days later she was, allegedly, assaulted by her partner. She was hospitalised with serious head injuries comprising fractures, intracranial bleeding and brain damage. She has post-traumatic amnesia and her behaviour has become extremely unsettled, marked by agitation, restlessness and disruptive acts. Her prognosis is uncertain.

The Trust treating her brought an application to the Court, seeking an urgent order to allow them to perform a surgical abortion. The urgency arose because the window of time during which such a procedure could be performed was closing. With the urgency came a plethora of issues. CS’s condition may improve in the future, but by then it could be too late to terminate the pregnancy. In those circumstances, what weight should be given to the evidence from CS family and friends of her prior intention to have a termination? How should that be balanced against her current wishes, insofar as they can be ascertained? What significance should be attached to the fact that she had previously had a termination? And what, if any, attention should be paid to the views of her partner, now arrested and remanded in custody? Continue reading

Paid internships: Entering the human rights NGO sector

Ben Smith, Legal Research Intern at the Equal Rights Trust

I expected competition for jobs in human rights to be tough but it was only when I graduated that I realised quite how difficult it was to break into the sector. I had gained a lot academically – I had an undergraduate degree in Law from Oxford University and a Master of Laws from University College London – but this didn’t seem to be enough when applying for jobs with human rights NGOs. I tried to stay positive and kept putting in applications but the feedback I got again and again was that while I was well qualified, there was always someone with more experience. Though I had lots of pro bono experience and legal experience in other sectors, the organisations I was applying to wanted direct experience in the field.

The only options I saw to gain that experience were internships, which were generally unpaid. It was frustrating to devote so much time academically to human rights only to find that a career is out of reach unless you have the financial means to work in unpaid lengthy internships. Like many other graduates, and particularly as I didn’t have roots in London, this wasn’t an option for me.

In August 2015 I saw the position advertised for Legal Research Interns with the Equal Rights Trust which offered a needs-based grant for applicants. The Trust is an international organisation which focuses on advancing equality and non-discrimination worldwide – an area I had looked at extensively during my studies and a keen interest of mine. I jumped at the chance to apply as the internship seemed like the perfect next step – and one that was accessible to me. I was offered the post in August, after which I submitted an application for the grant (which was accepted) and I started working with the Trust in September.

What sets this internship apart from others is that the tasks I’ve carried out have been incredibly varied and I’ve had the opportunity to work across the full range of work the Trust does, including advocacy, litigation and fundraising. I’ve lost track of the number of countries I’ve been involved with, I think it must be over 20 already, which is testament to the breadth of work the Trust does. It has been an incredible chance to broaden my horizons and expand my knowledge of equality and non-discrimination law.

I’ve had the opportunity to take on genuine responsibility in my position and develop important skills – you’re not just making tea and doing photocopying, but carrying out work that has a real impact. Recently, I researched and prepared a first draft of the Trust’s submissions in a case we are intervening in before the European Court of Human Rights. This was a huge task and it was a privilege to be trusted with it.

I think the level of responsibility we are given is due in part to the Trust’s paid internship scheme – a lot of NGOs are keen to take on interns who will work for free but who aren’t always best placed to take on a high level of responsibility or work on technical outputs. This can also be problematic as interns will often leave before their placement ends. In this sense I think the scheme is a “win-win” for the Trust and for the interns.

It will be sad to leave the Trust in spring as my internship comes to an end, but I know that if my legal career takes me away from human rights work, I will be able to put the skills I’ve developed as an intern to good use.

On 23 February the Trust launched a campaign – the Bob Hepple Memorial Fund – to help others like me who would be struggling to enter the sector were it not for paid internship and fellowship placements. Through the campaign the Trust has set itself a minimum target to raise of £1,000 which could support a needs based grant for an intern for approximately six weeks. If it meets its desired target of £10,000 it could support four interns and a fellow for three months.

I’ve learned an enormous amount as an intern and it has given me a real career boost, so I hope the campaign is not only a great success but that it will be replicated elsewhere in the sector to help more people pursue their ambition.

Court of Session rejects challenge to prosecution policy on assisted suicide

Ross v Lord Advocate [2016] CSIH 12, 19th February 2016 – read judgment  

The Inner House of the Court of Session has rejected a reclaiming motion (appeal) from a decision of the Outer House in which it was held that the Lord Advocate’s refusal to publish specific guidance on the circumstances in which individuals would be prosecuted for assisted suicide did not violate Article 8 of the European Convention on Human Rights (ECHR).

Factual and Legal Background

The petitioner, Gordon Ross, suffers from Parkinson’s disease. He anticipates that there will come a time when he will not wish to continue living but, because of his physical state, he would require assistance to end his own life. Mr Ross was apprehensive that anyone who assisted him would be liable to criminal prosecution and therefore sought clarification from the Lord Advocate (the head of the prosecution service in Scotland) as to the factors that would be taken into account in deciding whether or not to prosecute. Continue reading

The right to privacy and medical records – Seonaid Stevenson

medrecordreview01WF, Petitioner [2016] CSOH 27 – read judgment

The Outer House of the Court of Session has ruled that the right to privacy and medical confidentiality under Article 8 of the Convention entitles complainers to be heard and have legal representation before any orders are made for recovery of their medical records.

Factual circumstances and legal background

The petitioner, (‘WF’) was a complainer in domestic abuse proceedings against the accused. The accused sought to recover all medical, psychiatric and psychological records relating to WF from 2007 to 2014. WF sought legal aid to allow her to be represented at the hearing concerning the recovery of these documents, arguing that her rights under Article 8 of the Convention entitled her to participate. The application to the Scottish Legal Aid Board was refused as there was no provision in the relevant legislation or regulations for legal aid to be granted for such proceedings. A further application was then made to the Scottish Ministers, under s.4(2)(c) of the Legal Aid (Scotland) Act 1986, which allows legal aid to be granted in circumstances not covered by the rules. This application was also refused on the grounds that WF did not have the right to appear or be represented at the relevant hearing. The key issue which came before the Sheriff was therefore whether Article 8 gave the complainer the right to appear and be represented at the hearing concerning disclosure of her medical records. Continue reading

Joint Enterprise press release from the Appellant’s solicitors

20308267It is important to note that the draft judgment of the Supreme Court was embargoed from all apart from solicitors and counsel until today so our client, Ameen Jogee, and his family only found out about our success this morning. There are also no facilities for Ameen to attend court so his family have authorised us to release this statement: 

  1. We are glad our arguments on the law were accepted by the court and very pleased that the court took this opportunity to correct a grossly erroneous tangent of law and remove “parasitic accessorial liability” (often referred to as “joint enterprise”) from our law.
    1. The law had incorrectly and unfairly developed to convict secondary parties on the basis of mere “foresight or contemplation” of what someone else might do. This over-criminalised secondary parties, particularly young people like Ameen Jogee.
    2. The consequence was that people were convicted of serious offences, committed by others, and imprisoned for lengthy periods. Primarily, we suggested to the Court that there should be a return to the foundational law encapsulated in cases before the tangent created by joint enterprise. Our primary submission at the hearing in October 2015 was that the true test for accessorial liability is knowledge of the essential matters of that offence or that type of offence and acts which demonstrate an intention to assist or encourage that offence or that type of offence. Such a formulation can adapt to individuals assisting each other or cases where there is evidence of a common plan. The Supreme Court judgment appears to adopt our submissions.
  1. We are delighted for Ameen and his family and the many other families of those affected by joint enterprise who have been waiting on this judgment.
  2. This judgment does not refer in detail to all the material placed before the court so future cases and appeals must take care to ensure that the errors are not repeated.
  3. Internationally it is vital that the errors created by joint enterprise are also corrected.
  4. We would like to thank our excellent staff, our team of counsel Felicity Gerry QC and Catarina Sjölin of 36, Bedford Row and Adam Wagner and Diarmuid Laffan of 1 Crown Office Row. We would also like to thank the teams for Mr Ruddock and the interveners (Just for Kids Law and JengBA). Many of the lawyers involved have worked pro bono for all or some of the time on this difficult case.
  5. A special thank you to Dr Matt Dyson of Trinity College Cambridge whose meticulous research over 500 years of law enabled us to prove what the law was and how it went wrong. Also thank you to Beatrice Krebs from the University of Reading for her comparative work on authorisation which enabled us to place alternative options before the court, and to Professor Luke McNamara from the University of Wollongong whose 2014 paper identified the probability issues from an Australian perspective, which was an important part of this appeal.
  6. We must now focus on the final orders which are not due for some weeks. The Court is yet to decide what effect its conclusions on the principles of joint enterprise will have on our client’s specific case.
  7. If you want an easy read on the case, see these 2 blogs by Catarina Sjölin and Felicity Gerry QC for Nottingham Law School: http://blogs.ntu.ac.uk/nlsblog/tag/joint-enterprise/
  8. In the words of Hon Michael Kirby AC CMG “To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or ‘constructive liability’. But it countenances what is ‘undoubtedly a lesser form of mens rea’. It is a form that is an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis”.
  9. We started this case looking for an alternative probability test for those who were not accused of direct participation with shared intention, along the way we identified the legal errors which had been perpetuated over many years.

We are glad to have played a role in correcting this unjust law.

 

 

 

Supreme Court abolishes “wrong turn” Joint Enterprise law – Diarmaid Laffan

400px-uk_supreme_court_badgeAdam Wagner and Diarmuid Laffan acted for the appellant Ameen Jogee in this case

Today the Supreme Court handed down its judgment in the conjoined appeals of R v Jogee and Ruddock v R [2016] UKSC 8, having heard the latter sitting as the Judicial Committee of the Privy Council. Both cases were appeals against murder convictions founded on a discrete principle of secondary liability, sometimes referred to as ‘joint enterprise’, sometimes as ‘parasitic accessorial liability’ (‘PAL’). The Supreme Court’s judgment:

  • Conducts a comprehensive review of the principles applicable to secondary liability for crime, and murder in particular [4]-[60];
  • Analyses the leading Privy Council and House of Lords authorities on PAL [61]-[87]; and hence
  • Overturns them, restating the law in the area [88]-[99].

PAL originated in the Privy Council’s judgment Chan Wing-Siu v R [1985] AC 168, and was approved by the House of Lords in R v Powell; R v English [1999] 1 AC 1. Those authorities were cited over 25 times at the highest level before today’s judgment, and abundantly in the Court of Appeal where appeals against convictions based on PAL have been a regular fixture. The PAL principle states that where someone (D2) jointly participates with another (D1) in committing Crime A, and in doing so foresees a possibility that D1 might commit Crime B, D2 can be tried jointly as principal for Crime B if D1 goes on to commit it. Continue reading