Landmark ruling for inquests and Chelsea Manning released from prison: The Round Up
13 May 2019
Conor Monighan brings us the latest updates in human rights law
In the News:
Chelsea Manning, the ex-US intelligence analyst, was released from prison last week.
Manning was found guilty of a variety of charges in 2013, including espionage. She was subsequently given the longest sentence for a security leak in US history. After serving an initial period in jail, the remainder of her sentence was commuted by President Obama in 2017 on the basis that it was “disproportionate” to her crimes.
Ms. Manning has since refused to testify to a grand jury about her connections to WikiLeaks and Julian Assange (its founder). She claims that she has already given testimony as part of her trial in 2013, and objects to the grand jury system in principle. However, prosecutors have suggested that her evidence may have been inaccurate. A judge in Virginia ordered her to be taken into custody for 62 days.
She was released last week after the 62 day period elapsed. In the meantime, however, Ms. Manning was served with another subpoena which requires her to appear before a grand jury on May 16th in order to testify about the same issues. It seems likely, therefore, that she will be imprisoned again for contempt of court.
In Other News….
- Wa Lone and Kyaw Soe Oo, the two Reuters journalists jailed for reporting on the Rohingya crisis, have been released by Myanmar. The pair were originally jailed for breaching Myanmar’s Official Secrets Act and received a seven-year prison term. Time magazine reported how the police invited them to dinner, handed them some documents and then left. The pair were arrested before they could even read the papers. The plight of the journalists have become a symbol of diminishing press freedom in Myanmar, with their treatment attracting international condemnation. President Win Myint has now decided to pardon them. The pair (who won a Pulitzer Prize for their work) have vowed to continue reporting. More from Time magazine here.
- A UN report revealed that one million animal and plant species are now threatened with extinction due to human activity. The study was released by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) and took three years to create. It warned that the biomass of wild mammals has fallen by 82% and two in five amphibian species are at risk of extinction. Human population growth is the main cause. The economic consequences of these changes are serious. The loss of pollinators, such as bees, means £440 billion of crops are at risk. 23% of land has lost productivity due to land degradation. The report concluded that the changes can be halted, but to do so would require “transformative change”. More from the Guardian here.
- The US state of Georgia passed legislation banning abortions once a doctor is able to detect foetal cardiac activity in the womb. This point is usually around six weeks into pregnancy. The law also criminalises those who help induce abortions past this stage. The decision sparked criticism, not least because many women do not know they are pregnant until nine weeks. 50 actors, including Alec Baldwin and Laverne Cox, have said that they will boycott Georgia over the change. Film and television productions brought £2.1 billion into the state last year. The actress Alyssa Milano caused further controversy by advocating a sex strike in protest. The law, nicknamed “the heartbeat bill”, is currently due to come into force on 1st January 2020. However, it is highly likely that the legislation will be challenged in the courts using the landmark decision of Roe v Wade. The BBC reports here.
- A potentially important case on privacy v freedom of expression is winding its way through the French legal system. French playwright Hedi Tillette de Clermont-Tonnerre’s show about the Barclay brothers performed to claim this year in a small Paris theatre. But it attracted the attention of David Barclay, one of the twins who own a number of properties including the Ritz hotel. Mr Barclay alleges that the play “Two Brothers and the Lions” defamed him and breached his right to privacy. The names of the Barclay brothers are not mentioned in the play. A court in Caen will rule on the balance between privacy and freedom of expression in the forthcoming months.
In the Courts:
- R (On the Application Of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire: In a landmark judgment, the Court of Appeal decided that inquests should use the civil standard to determine whether an individual took their own life. The appellant, the brother of the deceased, sought to rely on apparently settled law and practice in order to submit that the criminal standard should apply. However, the Court of Appeal found that no authority specifically held the criminal standard should apply to cases of suicide. It went on to find that case law arising from Article 2 ECHR strongly supports the use of the civil standard. The court also rejected the idea that an ‘intermediate’ standard of proof could apply to inquests, or that a different standard could apply to short-form and narrative conclusions. Finally, the court indicated (obiter) that the criminal standard should continue to apply to cases of unlawful killing, though it ultimately declined to decide on the issue.
- Foreign and Commonwealth Office & Ors v Bamieh: The Court of Appeal ruled that the ‘whistleblowing’ protections in ss. 47B(1A) and 48(1A) of the Employment Rights Act 1996 (“ERA”) do not apply extraterritorially. These provisions prevent workers from being treated adversely for making certain disclosures in the public interest. The court noted the UK rarely purports to legislate ‘for the whole world’ and that the ERA was not such an exceptional statute. However, the court suggested this general rule could be displaced if the strength of the connection with Great Britain and British employment law is sufficient (e.g. employment in a British enclave). The individuals concerned were employed by the Foreign and Commonwealth Office (“FCO”) and seconded to the EU mission in Kosovo. After undertaking a factual analysis, the court concluded that it should focus on the employment relationship between the individuals and the EU mission. The ERA did not, therefore, apply. To decide otherwise would expose the FCO to liability for matters it could not control.
- AM (Somalia) v The Secretary of State for the Home Department: The Court of Appeal rejected a challenge to First Tier Tribunal’s (“FTT”) decision to uphold the Home Secretary’s revocation of the appellant’s refugee status. The court ruled that the FTT’s refusal to adjourn for an Offender Assessment System report (“OAS”) was lawful. It found that the OAS would not have supported the appellant’s case because his refugee status had already been revoked and he could not, therefore, invoke the Refugee Convention. Nor would the OAS have assisted the appellant’s Article 8 ECHR claim, because he could not show that he was a reformed man. His Article 8 claim, therefore, was not sufficiently strong to outweigh the public interest in his deportation.
On the UKHRB
There are a number of new articles on the UKHRB:
- Rosalind English has written an article on R (on the application of Rachel Andrews) v Minister for the Cabinet Office, in which the current systems for helping blind and partially sighted people vote were found to be unsatisfactory.
- Matthew Fisher examined the use of Machine Learning Algorithms.
- Rosalind English considered what status foreign law occupies in Chinese courts.
- In the latest episode of Law Pod UK Rosalind English discusses the implications of the new Copyright Directive with music lawyer Andrew Lewis.
- Is there danger ahead with AI?, 14th May with Gresham College. More information here.
- Rethinking Human Rights: a southern response to western critics, 22nd May at the LSE. More information here.
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