Did the UK violate Article 2 in Kosovo? Plus the Oval Four, and racism in the police

9 December 2019 by

Conor Monighan brings us the latest updates in human rights law

oval
Winston Trew and his wife, Hyacinth. Credit: The Guardian.

In the News:

Court of Appeal judges overturned the convictions of the ‘Oval Four’ after it was found that their sentences were based on evidence given by a corrupt police officer.

The ‘Oval Four’ refers to a group of black men who were arrested by officers claiming to have seen the men stealing Tube passengers’ handbags. The men were subsequently convicted in 1972 based solely on the basis of evidence given by those officers. None of the ‘victims’ appeared at the trial.

The case became a focus point for black rights and the treatment of BME people by the police. It was referred to the Criminal Cases Review Commission, which ultimately led to the successful appeal.

Whilst the convictions of three of the men were overturned, the fourth member of the ‘Oval Four’ unfortunately cannot be found.

The Lord Chief Justice, Lord Burnett, expressed “regret is that it has taken so long for this injustice to be remedied”. Lord Burnett also stated that there was “an accumulating body of evidence that points to the fundamental unreliability of evidence given by DS Ridgewell [the lead officer] … and others of this specialist group”.

In Other News….

  • Aung San Suu Kyi, the Nobel Peace Prize Winner, will appear in the Hague this week to defend her regime from accusations of genocide. It is alleged that Myanmar’s military has attacked the Rohingya Muslim community, forcing around 740,000 people to flee into neighbouring Bangladesh. Myanmar is accused of breaching the 1948 Convention for the Punishment and Prevention of Genocide. Ms Suu Kyi, once held up as an icon of democracy, has faced increasing criticism for her alleged complicity in these matters. Her decision to personally represent her nation in this case is likely to add further weight to this criticism. The International Court of Justice will livestream the hearing. (More from the Telegraph here).
  • A campaigner called Christie Elan-Cane is claiming that the Home Office’s policy of refusing to issue gender-neutral passports is discriminatory. Lawyers for Elan-Cane argue that there is no evidence to show that the Home Office’s policy is based on national security concerns. Applicants seeking to obtain a passport are currently required to state whether they are male or female. It is currently possible to obtain a gender-neutral passport in ten countries. (More from the Guardian here).
  • The past week has highlighted the violence faced by women in certain parts of India. A woman on her way to a court hearing was set on fire by a group of men which included her alleged rapist. She later died in hospital. Last week police shot four men who was suspected of gang-raping and killing a lady near Hyderabad city. Police claimed the men were trying to escape, but many have argued the matter should have been dealt with by the courts. Amnesty International has called for an investigation into whether there had been an extrajudicial killing. According to the BBC, government figures show there are an average of 92 rapes a day in India. (More from the BBC here).

In the Courts:

  • Tomanovic & Ors v The Foreign And Commonwealth Office (“FCO”): The immediate family members of nine Serbs who disappeared in Kosovo during 1999 – 2000 sued the FCO. They argued that the failure to investigate the disappearances of their loved ones amounted to a breach of Article 2 and 3 of the ECHR. The High Court ruled the claim had no prospect of success. The Claimants were not within the jurisdiction of the UK for the purposes of Article 1 ECHR because the events took place in Kosovo. Furthermore, the conduct of the Head of the Special Prosecutions Office of the Republic of Kosovo (“SPRK”) was not attributable to the UK. The FCO had no power to direct the Head of SPRK in his prosecutorial functions and had not attempted to do so. This meant that none of the three conditions which allow Article 1 to apply outside the UK were fulfilled. There was no other compelling reason for the matter proceeding to trial, so the claim failed.
  • The Liberal Democrats & The Scottish National Party, R. (On the Application of) v ITV Broadcasting Ltd: The Liberal Democrats and SNP claimed that ITV’s decision to exclude them from a TV election debate was: unfair, contrary to the Broadcasting Code, and unlawful. The High Court ruled that ITV’s decision was not amenable to judicial review. Its activities are purely commercial and its power is not derived from statute. The proper mode of redress was to complain to Ofcom. If Ofcom refused to act, it might be possible to judicially review that decision. Relatedly, the High Court ruled that Ofcom provided an alternative remedy to judicial review. Despite the fact Ofcom’s current policy is to only intervene after a broadcast, Ofcom’s powers mean that a complaint would still provide a suitable and practical remedy. There was no breach of the Broadcasting Code, ITV’s decision was not unlawful, and nor did it breach Article 3 Protocol 1 ECHR. Claim dismissed.
  • Northumbria Police, R (On the Application Of) v The Police Appeals Tribunal: The Claimant challenged the Police Appeals Tribunal’s (“PAT”) decision to issue the Interested Party (“IP”) with a final written warning and mandatory diversity training. The IP had used racist language about restaurant staff whilst out with colleagues at Christmas. The High Court held that the PAT’s decision should be set aside. The original panel had adequately explained its decision to dismiss the IP, even if the language it had used was imprecise in places. Given that there were adequate reasons for dismissing the IP, it was unreasonable of the PAT to overturn the panel’s decision. Furthermore, the PAT had committed an error of law. It had not produced reasons for downgrading the sanction to a written warning. The only reasonable decision on the facts of the case was to dismiss the IP.

On the UKHRB

  • Charlotte Gilmartin has written an article about R (Hemmati and others) v Secretary of State for the Home Department, in which the Supreme Court ruled that the policy governing detention pending removal fails to comply with the Dublin III Regulation.
  • Daniel McKaveney and Euan Lynch wrote about Ali v Serco, which found that lock-change evictions of unsuccessful asylum seekers were lawful.
  • On Law Pod UK, Rosalind English explores Middle Temple’s exhibition on 100 women in the law.

Events:

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