The Round-up: immigration centres, military justice and human trafficking

In the news 

A cross-party group of MPs is seeking to put an end to indefinite detentionin immigration centres. Led by Harriet Harman MP, the Chair of the Joint Committee on Human Rights, the group are backing an amendment to the Immigration and Social Security Coordination (EU Withdrawal) Bill, which will make it illegal for people to be held for more than 28 days in an immigration detention centre, unless a judge issues a 28-day extension. 

The Human Rights group Liberty has published two important reports. The first report highlights the failings of the UK military justice system, including a lack of transparency and a practice of downgrading offences to as to deal with them internally; the report recommends a new independent supervisory body for the Service Police. In connection with the report, Liberty has launched an Armed Forces Human Rights Helpline. 

The second Liberty report evaluates the use of ‘predictive mapping’ by the police to identify crime hotspots and to conduct ‘individual risk assessments’. The report concludes that this system threatens privacy and freedom of expression, and encourages discrimination and racial profiling. 

A few pending cases are of interest: 

• There was a hearingof Sarah Ewart’s human rights case against the Northern Ireland abortion ban before the Belfast High Court, following a 2018 UK Supreme Court ruling that Northern Ireland was in breach of human rights.  
• A former prisoner is suingthe Ministry of Justice over PTSD he has suffered from a rat infestation at Wormwood Scrubs. 

In the courts 

This week saw two major Supreme Court rulings on human rights issues in UK criminal law: 

• Hallam, R (on the application of) v Secretary of State for Justice : the applicants had their convictions for murder and attempted rape quashed on the basis of alibi and DNA evidence respectively, but were denied compensation. They sought a declaration of incompatibility under s.4 HRA 1998, on the basis that the statutory compensation scheme for miscarriages of justice infringed Article 6(2) ECHR. Under s.133 of the CJA 1988, compensation will only be awarded where new evidence shows beyond a reasonable doubt that there has been a ‘miscarriage of justice’. Under a 2014 amendment, this only covers cases where new evidence shows beyond a reasonable doubt that the defendant was innocent(overruling the Supreme Court’s fourfold interpretation inAdams [2011] UKSC 18). The court (Lord Mance) rejected the application, holding that there was no incompatibility with Article 6(2), as the matter of statutory compensation effectively came within the court’s civil jurisdiction. Lords Kerr and Reed (dissenting) insisted that insofar as the defendant’s criminal guilt was relevant, they should be entitled to the protection of Article 6(2). 
• Gallagher for Judicial Review (NI):the respondents had received minor cautions and convictions (such as stealing a sandwich, and failing to wear a seatbelt); their criminal records had caused problems for their employment, owing to the disclosure requirements under the Rehabilitation of Offenders Act 1974 and s.113A-B of the Police Act 1997. They brought a challenge under Article 8 ECHR. The court (Lord Sumption) held that the statutory scheme was in general lawful for the purposes of Article 8 ECHR, but that the multiple conviction rule and the ‘serious offences’ rule were both disproportionate. Lord Kerr (dissenting) held that the current statutory scheme is unlawful because it is “inscrutable” as regards assessing its proportionality, and recommended introducing a review mechanism.

There was also a decision on the government’s handling of human trafficking: 

• O & Anor, R (On the Application Of) v The Secretary of State for the Home Department : the applicants in this case had both faced >19-month delays between positive and negative decisions by the Home Office as to whether they were victims of human trafficking – known as ‘Conclusive Grounds’ decisions. They submitted that the delays in this system were so serious as to be unlawful, indicating a failure by the UK to fulfil its international and EU law obligations to combat human trafficking. The court rejected their application, holding that there was nothing inherently unfair or irrational in the system as operated, and that delays may be attributed to the increased volume of referrals which the system is experiencing. 

And a decision on the government’s benefits reforms: 

• Worley v The Secretary of State for Works And Pensions: the appellant in this case had been moved from Disability Living Allowance (DLA) onto the new benefit, Personal Independence Payment (PIP), receiving a higher benefit as a result. She argued on the basis of Article 14 ECHR that her PIP award should be back-dated to the time of her claim, as otherwise applicants moving from DLA to PIP might be treated worse than new PIP-claimants. The court rejected this for reasons of public expenditure, and to avoid a ‘cliff-edge’ for any unsuccessful applicants, via a 28-day period of continuing benefit.  

Amid cases involving Article 3, 5, and 13 violations against Ukrainian and Russian prisoners, the following cases stood out at the ECHR this week: 

• Rooman v Belgium– a Belgian hospital failed to provide psychiatric and psychiatric and psychological treatment to a German patient in a detainment facility, owing to a language barrier. The ECtHR found a violation of Article 3 in this case, but stated that there was no corresponding right to receive treatment in your own language. The court also held that there was a violation of Article 5(1)(e). In so doing, it clarified the meaning of this provision: where a person is detained under Article 5(1)(e), the detention serves not only a social purpose of protection, but also a therapeutic purpose, and will only be lawful where both are satisfied – which is to say where the treatment is appropriately suited to the applicant’s state of health.  
• Georgia v Russia (1)– the ECtHR awarded interstate damages to Georgia on the basis of a “coordinated policy of arresting, detaining and expelling Georgian nationals” put in place in Russia in autumn 2006, for breach of Article 4 of Protocol 4, to be paid by Russia to Georgia and distributed to victims. 
• Mifsud v Malta: Maltese law makes it mandatory to provide a genetic sample in paternity proceedings. The applicant sought to claim that this was a violation of Article 8, but this was rejected by the court. 
• Cangi v Turkey: a Turkish lawyer from Izmir challenged a plan to bury and submerge an ancient Turkish site; his challenge was set aside by the Turkish Constitutional Court as ‘manifestly ill-founded’. The ECtHR deemed this a violation of Article 10, awarding damages. 

On the UKHRB 

• David Burrows takes a look atthe government’s draft domestic abuse bill. 
• Dominic Ruck-Keene evaluatesthe privacy implications of Catt v UK. 
• Jake Richards considers a case about the recoverability of the costs of commercial surrogacy. 
• Anthony Wenton discusses the 30^thAnniversary of the Bangalore Principles on the Domestic Application of International Human Rights Norms. 
• In the latest episode of Law Pod UK John Whitting QC talks to Rosalind English about Montgomery and its effect informed consent in medical cases

Upcoming events The Guantanamo Military Commissions: an Insider’s Perspectivewill take place on 19^thFebruary 2019, 17:30-19:00, at the British Institute of International and Comparative Law. There will be speakers from the Universities of Edinburgh an Essex, and from the US Department of Defence. The event will be followed by a drinks reception.