Scottish law on sexual offences incompatible with human rights

AB (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2017] UKSC 25 – read judgment 

This week the Supreme Court ruled handed down its judgment on the legality of section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009.

Section 39(1)(a) of the 2009 Act allows a person accused of sexual activity with an under-age person to rely on the defence that, at the time, he or she believed that the under-age person was in fact over the age of 16. Section 39(2)(a)(i), however, deprives the accused of this defence where he or she has previously been charged by the police with a ‘relevant sexual offence’. The relevant sexual offences are set out in Schedule 1 of the 2009 Act.

The appellant argued that s.39(2)(a)(i) of the 2009 Act is not compatible with the European Convention on Human Rights (“the Convention”). If a Scottish Act is incompatible with a right under the Convention, in accordance with section 29 of The Scotland Act 1998, it is outwith the competence of the Scottish Parliament and therefore not law. It was submitted that section 39(2)(a)(i) was incompatible with Article 6 (right to a fair trial), Article 8 (right to privacy and family life) and Article 14 (prohibition on discrimination) of the Convention. Continue reading

Rosie Slowe: Article 50 Notice and Implied Conditionality

England Europe

More substantive than the 137 word EU (Notification of Withdrawal) Act 2017 (‘Notification Act’), which was passed by Parliament on 13 March, the Prime Minister’s 6 page letter of notice, issued under Article 50 TEU, is lacking in one crucial respect. This post asserts that, as a matter of UK constitutional law and in accordance with the EU Treaties as well as customary international law, conditionality should be inferred into this notice. Such conditionality manifests in the requirement of domestic Parliamentary approval at the end of the Article 50 negotiation process.

On Wednesday 29 March, shortly after the UK’s Article 50 notice had been delivered to Donald Tusk, Theresa May told the House of Commons that it was a ‘historic moment from which there can be no turning back’.

That premise is disputed. As a matter of law, it is far from certain that notice issued under Article 50(2) is indeed irrevocable. Further, there are compelling legal arguments as to why such notice can be unilaterally withdrawn once given. The arguments in favour of revocability are difficult to dispute, finding their basis in the UK constitution, EU Treaties and international law.

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Assisted suicide and the right to private life: the enduring repercussions of Nicklinson – Stevie Martin

hand-in-hand-1686811_1920In the almost three years since the Supreme Court delivered its reasons in Nicklinson (in which a majority refused to issue a declaration that the blanket ban on assisted suicide in s 2(1) of the Suicide Act 1961 was incompatible with Article 8 of the European Convention on Human Rights (‘ECHR’)), similar questions of compatibility concerning analogous bans have been considered by courts in Canada, South Africa and New Zealand. Additionally, California and Colorado have introduced legislation permitting physician-assisted suicide (taking the total to six States in the US which permit physician-assisted suicide), France has introduced legislation enabling patients to request terminal sedation, and Germany’s Federal Administrative Court this month handed down judgment confirming that the right to self-determination encompasses a right of the ‘seriously and incurably ill’ to, in ‘exceptional circumstances’, access narcotics so as to suicide.

Given news of a new challenge by Noel Conway to the compatibility of s 2(1) of the Suicide Act with Article 8 (the application for permission to review was heard by the Divisional Court yesterday with judgment reserved), it is, then, a propitious time to re-examine a particularly dubious aspect of the majority’s reasoning in Nicklinson namely, its characterisation of the declaratory power, not least given the potential for such reasoning to deleteriously affect the new challenge. Continue reading

The extraterritorial application of the EU Charter in Syria: To the Union and Beyond? – Michael Rhimes

1) The Situation

no one leaves home unless

home is the mouth of a shark

you only run for the border

when you see the whole city running as well

  • Warsan Shire

Shire’s words are the background to the recent case of C-638/16 X and X. So much was recognized by Advocate General Mengozzi, who concluded his Opinion as follows:

“175. Before concluding, allow me to draw your attention to how much the whole world, in particular here in Europe, was outraged and profoundly moved to see, two years ago, the lifeless body of the young boy Alan, washed up on a beach, after his family had attempted, by means of smugglers and an overcrowded makeshift vessel full of Syrian refugees, to reach, via Turkey, the Greek island of Kos. Of the four family members, only his father survived the capsizing. It is commendable and salutary to be outraged. In the present case, the Court nevertheless has the opportunity to go further, as I invite it to, by enshrining the legal access route to international protection which stems from Article 25(1)(a) of the Visa Code. Make no mistake: it is not because emotion dictates this, but because EU law demands it.” Continue reading

Rosie Slowe: Reflections on the ‘Three Knights Opinion’ and Article 50 TEU

England Europe

On 17 February 2017, Bindmans LLP published an Opinion solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration.

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Fathers4 (Access2) Justice: Administrative Court ruling on the public’s right to attend court hearings and the Court Service’s limited powers of control – Chris Adamson

fathers4justice-pic

R (O’Connor) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin)

Summary

On 20 February 2015 Matthew O’Connor, the Claimant in this judicial review and the founder of the campaign group Fathers4Justice, was due to go on trial at Aldershot Magistrates’ Court for a public order offence. He arrived at court with around ten of his supporters, but when they tried to gain entry to the court building they were prevented from doing so by HMCTS staff. Only the Claimant and his Mackenzie Friend were allowed to enter.

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Article 50, the Supreme Court judgment in Miller and why the question of revocability still matters – Rosie Slowe

England Europe

With the Supreme Court having ruled yesterday that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU will undoubtedly revolve around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the government’s negotiation position. This post puts forward the hypothesis that such debates may become irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable.

In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court rejected the government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50 (see yesterday’s post on this blog which summarised the court’s judgment).  Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s decision to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration.
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