By: Guest Contributor
16 February 2016 by Guest Contributor
Introduction
The opening of the Strasbourg Court’s judicial year every January always provides an opportunity for reflection on the themes and challenges which will define the Court’s jurisprudence for the coming year. This year, the theme of the seminar held at the Court to mark that opening was “International and national courts confronting large-scale violations of human rights””. I should like to offer eight predictions as to the other themes which will define the work of the Strasbourg Court this year. Given the Court’s pending caseload is still over 64,000 cases, these predictions are necessarily impressionistic. It will be for readers to judge whether, by this time next year, they have proven accurate.
(1) Security
The Court will continue to grapple with the security situation in Eastern Europe. Foremost on its docket are the inter-state cases involving Russia and Ukraine, but the Grand Chamber will also return to the issue of jurisdiction in Transdniestria in Mozer v. Moldova and Russia, in which it held a hearing on 4 February 2015.
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15 February 2016 by Guest Contributor
Curiosity is not a sin…But we should exercise caution with our curiosity… yes, indeed.
Dumbledore, Harry Potter and Goblet of Fire
Facts
Like the 179,000 or so people selected at random from the electoral register each year in England and Wales, in July 2011 Ms. Theodora Dallas was summoned to attend jury service. Along with other jurors summoned that day, she was shown a video about their service, and told by the court’s jury officer that internet research about anyone involved in the trial was not permitted. For good measure, the jury waiting room contained notices stating “You may also be in contempt of court if you use the internet to research details about any cases you hear along with any cases listed for trial at the Court…”. The notices made it clear that contempt of court was punishable by a fine or by imprisonment.
Ms. Dallas was selected to serve as a juror in a trial involving a defendant charged with grievous bodily harm with intent. On being sworn in, each juror made an oath or affirmation that they would faithfully try the defendant and give a true verdict according to the evidence. Amongst his introductory directions, the judge reiterated the importance of avoiding the internet and specifically mentioned the cautionary tale of a juror who had been in trouble recently for going on Facebook during his jury service. During the course of the trial, the judge discovered from another juror that Ms. Dallas had been on the Internet and had informed her fellow jurors that the defendant had previously been charged with rape. The defendant had been acquitted of this charge at the time.
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15 February 2016 by Guest Contributor
Libby McVeigh is Legal and Policy Director for Fair Trials, a London and Brussels based nongovernmental organization campaigning for the right to a fair trial globally. It is currently campaigning for better defence rights standards in Europe and is also leading research into the use (and abuse) of plea bargaining across the globe.
New guidelines incentivising people accused of criminal offences in England and Wales to plead guilty as early as possible were proposed last week. While existing rules allow for a maximum one-third reduction in the sentence to those who plead guilty at the ‘first reasonable opportunity’, this benefit is now only available to those who plead guilty at their very first court hearing, with the available reduction falling on a steeper sliding scale thereafter.
The Sentencing Council responsible for such matters has emphasised the efficiency gains and cost savings resulting from the swift disposal of cases, and the development has been welcomed by organisations which provide support to victims of criminal offences who will be “spared the stress and anxiety of a trial”. Little attention has been paid, however, to the impact on the rights of criminal defendants who are being encouraged to waive their right to the full trial process which undoubtedly remains the best method for preventing injustice.
Numerous cases illustrate the miscarriages of justice which can result when individuals are incentivised to plead guilty without adequate safeguards. The US case of Phillip Bivens, Bobby Ray Dixon and Larry Ruffin shows how innocent people can be persuaded to confess to a crime they did not commit – in this case the rape and murder of a young mother in front of her 4-year old son – if the stakes are high enough and fair trial rights protection absent. And while a guilty plea may be quick and easy to make, the process of reversing the injustice is far more complex and lengthy. Larry Ruffin died of a heart attack after 23 years in prison before his name was cleared, and Bobby Ray lost his battle against cancer only weeks before his full exoneration. Phillip Bivens regained his freedom 30 years after his arrest and still awaits the conclusion of his civil lawsuit for compensation.
The challenges which ‘plea bargaining’ presents to fair trials protections were highlighted at a recent meeting of criminal justice experts in the US, where 95% of all criminal cases are now resolved through guilty pleas. With an estimated 20,000 factually innocent people in prison for crimes to which they pleaded guilty but did not commit, the drivers of injustice were identified as including:
- the excessive trial penalty and the unaccountable power of prosecutors, who are rewarded for volumes of convictions rather than quality of investigations and routinely over-charge to obtain guilty pleas;
- overworked and underpaid public defenders who are financially incentivised to dispose of cases quickly by encouraging clients to plead guilty;
- income inequality leading defendants who cannot afford to pay bail to plead guilty to avoid pre-trial detention; and
- the erosion of fair trial rights protection in the context of guilty pleas, including the right against self-incrimination, access to evidence, judicial oversight and the right to appeal.
The concerns raised in the US will hopefully be taken into account during the consultation launched by the Sentencing Council last week. Consideration should be given not only to the impact of legal aid cuts on the advice given to those considering a guilty plea, but also the inter-relationship between the proposed guidelines and the Better Case Management scheme (BCM) rolled out across UK courts in January 2016. With changes made by the BCM to the timing and extent of disclosure by the prosecution, defendants will now be required to enter their plea at the first hearing on the basis of the limited evidence included in the Initial Details of the Prosecution Case rather than the full case papers which be provided only after the opportunity to obtain the maximum reduction in sentence has passed.
As experiences in the US and current developments in England and Wales demonstrate, questions about the fairness of plea bargaining systems need to be pushed further up the global human rights agenda. Plea bargaining is on the rise worldwide, sometimes under the influence of US funding for global rule of law reform, and countries that introduce such practices tend to rely on them to resolve a larger percentage of their criminal cases over time.
Fair Trials and its pro bono partner, Freshfields Bruckhaus Deringer, are currently conducting a scoping study that aims to establish the global reach of the practice, examining criminal procedure in approximately 70 national jurisdictions globally to see whether plea bargaining exists and to identify its defining features. A more detailed study in a select number of jurisdictions will involve analysis of the operation of plea bargaining and the extent to which key human rights safeguards are enjoyed in practice.
The results of the research will be published in later 2016, including recommendations for a human rights based approach to plea bargaining which we hope will inform the development of such practices, not only in England and Wales, but in jurisdictions across the globe. The human rights implications of an inefficient criminal justice system demand that solutions to lengthy procedures are found. But the failure to analyse the impact of guilty plea regimes on fair trial rights protection is resulting in the introduction of practices which already do result in injustice and will gradually erode trust in the rule of law. We hope that a global commitment to reform plea bargaining processes to ensure respect for fair trial rights will enable efficiency to be enhanced without fair criminal justice being undermined.
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11 February 2016 by Guest Contributor
By Cian C. Murphy and Natasha Simonsen
This morning, the Joint Committee on the Draft Investigatory Powers Bill issued a 200-page report on the draft new law. It’s the next step in the scrutiny of a foundational piece of UK national security law – capabilities and safeguards on internet surveillance. The Report is remarkable and comprehensive work – not least because it was done in a few short months. The Committee has made no fewer than 86 recommendations for how the Bill can be improved.
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11 February 2016 by Guest Contributor
HH Keith Hollis discusses the Judgment of the Court of Appeal in Guardian News and Media Ltd v R & Erol Incedal
Terrorism has brought many changes in the ways in which we go about our lives. Many of these are quite minor, irritating but generally sensible. The holding of trials where much of the evidence is kept secret is not minor, and in principle must be considered an outrage rather than an irritant. But there are clearly occasions when this has to happen, and it is a great challenge to those who on the one hand have responsibility for preventing terrorism and those on the other hand responsible for ensuring that justice has been done.
The Lord Chief Justice, supported by Lady Justice Hallett and Lady Justice Sharp, supported Mr Justice Nicol’s dismissal of applications made by The Guardian and other media organisations that reporting restrictions applied during the trial of Erol Incedal be varied so as to permit the publication of reports of most, if not all, of what took place during hearings held in private, but in the presence of accredited journalists.
Readers may recall that Mr. Incedal had been subject to two trials on charges relating to terrorism. He was convicted at the first trial on one count (possessing a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section 58(1)(b) of the Terrorism Act 2000), but acquitted of a more serious count following a retrial. He was sentenced to 42 months imprisonment.
There had been reporting restrictions from the outset. After a pre-trial hearing, a differently constituted Court of Appeal had directed that the trial should have three elements: part would be open; part could be attended by nominated and approved journalists, but without taking notes (and indeed significant steps taken to ensure that there were none); and finally part in camera). Nicol J, who now found himself with the burden of actually conducting such a trial, had originally ordered that the whole trial should be in camera.
The first point of note is the nature of the appeal (and indeed the earlier appeal). As the Lord Chief Justice made clear, referring to Ex p The Telegraph Group, “it is the duty of an appeal court, when considering issues relating to open justice as an appellate court, not simply to review the decision of the judge, but to come to its own independent decision.”
The presently constituted Court of Appeal was concerned about the nature of the earlier decision of the Appeal Court. They paid “an especial tribute to the way in which this trial was managed by the trial judge in consequence of the order” and his making of “the very difficult decisions which arose with conspicuous skill and ability”, coming to “the firm conclusion that a court should hesitate long and hard before it makes an order similar to that made by this court on 4 June 2014, given the unexpected effect it had on the conduct of the trial”. As it happened significantly more evidence was given in open hearings than had been anticipated, and without the need for judicial intervention. An indication of the professionalism and concern of the advocates and those instructing them.
The present appeal was dismissed as, having read the relevant evidence, the Court was “quite satisfied….. for reasons which we can only provide in a closed annex to this judgment that a departure from the principles of open justice was strictly necessary if justice was to be done” and that “because of the nature of that evidence those reasons continue to necessitate a departure from the principle of open justice after the conclusion of the trial and at the present time”.
The judgment acknowledges the loss of the “watchdog function” of the press, and says that public accountability now has to be left to the Intelligence and Security Committee of Parliament. To which it could be added that the relevant material has now been considered by the two relevant Secretaries of State, the DPP, the trial Judge, and it seems six Court of Appeal judges, including the Lord Chief Justice, who have all, albeit with different roles, come to the same regrettable conclusion as to the nature of the material that remains unreported. Indeed even the media seems to have accepted that some of the material at least should be kept out of the public domain.
Much of the real interest in this judgment will be in the analysis of the different constitutional responsibilities respectively of the executive in the form of the relevant Secretaries of State, the DPP, and of course the roles of Counsel and the trial judge.
Independence is the watchword. The DPP has to be independent of the executive so that she can exercise her own judgement firstly as to whether or not to bring a prosecution, and secondly whether or not to bring an application to the Court for the openness of the proceedings to be limited in some way (normally in camera).
But it is for the Court to “determine whether the evidence in issue should be heard in camera by consideration of the nature of the evidence”. The matter cannot be determined on the basis of an implicit threat not to prosecute: “the proper approach of the court is to examine the nature of the evidence and to determine the effect of hearing it in public. Deciding the issue on the basis that the DPP might not continue with the prosecution does not satisfy the test of necessity. In effect, it transfers the decision on whether to depart from the principle of open justice to the DPP”.
If the court rejects a submission for the withholding of material, and the DPP decides that the trial should still go ahead, the Court stressed that:
“the Executive cannot then refuse to provide the evidence required by the DPP on the basis that it perceives that it is not in the interests of national security to provide it. The court has made its decision and the Executive must abide by it… If the DPP decides on continuation, then the Executive must give the prosecution its full cooperation and assistance”.
Two procedural matters are of interest. Firstly a recommendation that Judges in such cases involving national security may on occasion need to be provided with the assistance of independent counsel if requested. The other is in a concluding observation that there was no mechanism for retention of closed Judgments, and that there should be. An obvious point perhaps, but one that raises interesting issues as to how such closed Judgments are later accessed, or even known about.
At the end of the day Mr. Incedal was acquitted of the more serious charge. There was a judge, a jury, counsel and solicitors, a number of observing, albeit constrained, journalists, an appeal procedure, and doubtless a recording of the proceedings. In respect of the reporting restrictions, these were considered twice by the Court of Appeal. It would be too easy, and inaccurate, just to dismiss this as “secret” justice.
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9 February 2016 by Guest Contributor
Photo credit: Guardian
Marina Wheeler
Last week Donald Tusk, President of the European Council, tabled a set of proposals which the government hopes will form the basis of the UK’s renegotiated relationship with the EU, in advance of an in-out referendum. Politically, the proposals may be just the job: a new commitment to enhance competitiveness, proposals to limit benefits to migrants, recognition that member states’ different aspirations for further integration must be respected, and creation of a (“red card”) mechanism to block EU legislation. Legally, however, they raise more questions than they answer.
My thesis is this: the reach of the Court of Justice of the European Union (CJEU) in Luxembourg has extended to a point where the status quo is untenable. Aside from eroding national sovereignty, which it does, the current situation also undermines legal certainty, which in turn undermines good governance.
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3 February 2016 by Guest Contributor
In 2006 David Cameron said the HRA ‘has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country’. In 2014 his party published proposals to amend the HRA, and to withdraw from the Convention.
Readers of this blog won’t need reminding that the media has robustly criticized the ECtHR:
“The Court has never, in its 50-year history, been subject to such a barrage of hostile criticism as that which occurred in the United Kingdom in 2011 Over the years certain governments have discovered that it is electorally popular to criticise international courts such as the Strasbourg court: they are easy targets, particularly because they tend, like all courts, not to answer back.”[2]
In the last four years there were some 80 judgments where the UK was the respondent and in about 40 of those cases one or more violations were found. This does not seem to be particularly (statistically) out of step with previous periods. However do the key cases suggest the widening of the margin of appreciation for the UK?
Al-Khawaja
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2 February 2016 by Guest Contributor
Vintage Balance Scale
In “The Ballad of East and West”, Rudyard Kipling memorably wrote
East is East, and West is West, and never the twain shall meet
Till Earth and Sky stand presently at God’s great Judgment Seat.
Is this an accurate description of the rule of law and Parliament? Is the rule of law a matter best left to lawyers, judges and courts, or do politicians and Parliament also have a role to play in upholding the rule of law, by holding the Government to account over rule of law violations, and ensuring that proposed legislation do not offend the principles of the rule of law?
A new Bingham Centre report published today makes a valuable contribution as the first ever, but hopefully not the last, empirical study on the rule of law in Parliament. By examining references to the rule of law over the 2013-14 and 2014-15 Parliamentary sessions in Parliamentary debates, parliamentary questions and written statements, using both quantitative and qualitative analysis, the report aims to improve our understanding of how the rule of law has been used in Parliament.
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1 February 2016 by Guest Contributor
The Young Lawyers’ Committee of the Human Rights Lawyers Association is calling for submission for the 2016 Edition of The Young Human Rights Lawyer Journal. The first edition of the The Young Human Rights Lawyer was published in October 2015 and is available here.
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27 January 2016 by Guest Contributor
Last week the Prime Minister entered into the debate on the wearing of veils by Muslim women in schools. This week, it is the turn of the Chief Inspector of Schools, Sir Michael Wilshire. The Chief Inspector has said that:
The Prime Minister and Secretary of State are right to give their backing to schools and other institutions which insist on removing face coverings when it makes sense to do so.
I am concerned that some heads and principals who are trying to restrict the wearing of the full veil in certain circumstances are coming under pressure from others to relax their policy. I want to assure these leaders that they can rely on my full backing for the stance they are taking.
I have also made clear to my inspectors that where leaders are condoning the wearing of the face veil by staff members or by pupils when this is clearly hindering communication and effective teaching, they should give consideration to judging the school as inadequate.
I am determined to ensure that discrimination, including on the grounds of gender, has no place in our classrooms. We want our schools, whether faith schools or non-faith schools, to prepare their pupils equally for life in 21st century Britain. We need to be confident our children’s education and future prospects are not being harmed in any way.
What are the legal issues for schools?
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22 January 2016 by Guest Contributor
Special Guest Post by Professor Robert Wintemute
On 19-20 January, the England and Wales High Court (Mrs. Justice Andrews) heard the judicial review of the ban on different-sex civil partnerships brought by Rebecca Steinfeld and Charles Keidan. It was argued on behalf of the supposedly LGBTI-friendly UK Government (represented by Nicky Morgan, the Secretary of State for Education and Minister for Women and Equalities) that the High Court should follow two anti-LGBTI decisions from 2006.
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12 January 2016 by Guest Contributor
In the Chamber Judgment (currently available only in French) in the case of Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13) decided just before Christmas, the European Court of Human Rights (ECtHR) held that there was both a substantive (by 5 votes to 2) and a procedural (unanimous) violation of Article 2 in the case of the death of the Applicant’s husband in circumstances where there was a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, even though that negligent failure was not necessarily causative. This very surprising outcome is important, and may be seen as a radical departure from the established case law of the Court on the necessary threshold for establishing an Article 2 violation in State (i.e. NHS) hospital cases. It also underlines the increased importance of informed consent in clinical negligence cases when viewed from a human rights perspective.
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21 December 2015 by Guest Contributor
Emily Baxter: Earlier this month, Scotland’s Lord Advocate announced new prosecution guidelines designed to protect refugees fleeing persecution. These help give effect to the UK’s obligations under Article 31 of the 1951 Refugee Convention, which states that:
“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
Section 31(1) of the Immigration and Asylum Act 1999 (“the Act”) already provides a defence for refugees who commit certain offences in order to gain entry to the country. The new guidelines provide direction for Scottish prosecutors when considering cases in which this defence may arise. They reiterate the importance of the public interest test for prosecution when considering the particular vulnerabilities of refugees “even when the criteria of section 31 are not strictly met.”
The guidelines also potentially broaden the application of the defence in Scotland, both in terms of the offences to which it applies and the classes of people who may rely on it.
Section 31(4) of the Act states that in Scotland that defence applies to the following offences:
– Fraud
– Uttering a forged document
– Section 4 or 6 of the Identity Documents Act 2010
– Section 24A of the Immigration Act 1971 (deception)
– Section 26 (1)(d) of the Immigration Act 1971 (falsification of documents)and
– Any attempt to commit any of those offences
However, the guidelines state that “other offences may well be covered by the defence if committed to facilitate entry to the United Kingdom in connection with a flight from persecution”, such as charges involving giving false details to facilitate entry.
Additionally, while the Act only refers to a defence for refugees the guidelines suggest the protection afforded by section 31 can be extended to those who are not refugees or asylum seekers. Examples given are stateless persons or those who cannot are granted leave to remain on humanitarian grounds.
The full guidelines are available here: http://www.crownoffice.gov.uk/images/Documents/Prosecution_Policy_Guidance/Guidelines_and_Policy/COPFS%20Refugees%20Policy.pdf
Comment:
The guidelines support and extend the application of the existing defence in section 31(1) of the Act.
However, they also reiterate that the following criteria should be met:
- The person has come to the UK directly from a country where his or her life or freedom was threatened within the meaning of the Refugee Convention;
- The person presented him or herself to the authorities in the United Kingdom without delay;
- The person had good cause for his or her illegal entry or presence;
- The person has made a claim for asylum as soon as reasonably practicable after arrival in the United Kingdom;
- If the person stopped in another country outside the UK having left the country where his or her life or freedom was threatened, that he or she could not reasonably have expected to be given protection under the 1951 Convention in that country; and
- The person claimed asylum after having committed the offence from which he or she seeks protection from conviction.
The first criterion may be particularly difficult for many refugees to prove on the balance of probabilities, and will be controversial in light of the growing “refugee crisis”. For example, in September the European Parliament overwhelmingly voted in favour of a Resolution on Migration and Refugees in Europe 2015/2833(RSP) calling in the European Commission to reform the “Dublin rules” which require refugees to claim asylum in the first EU state the reach. Time will tell as to whether the new guidance has a salutary impact on the practical ability for refugees to settle in Scotland.
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30 November 2015 by Guest Contributor
“I find your lack of faith disturbing” (Darth Vader)
Digital Cinema Media (DCM), the media agency that supplies adverts to 80% of UK cinemas caused consternation last week when it announced its refusal to show a 60-second advert by the Church of England encouraging people to pray. The ad would have been guaranteed a sizable audience had it been permitted to air as planned before the upcoming Star Wars: the Force Awakens, advance ticket sales for which have broken all known records.
DCM said the decision was based on concerns that the ad risked upsetting or offending audiences and ran contrary to their policy not to show ads that in “the reasonable opinion of DCM constitute Political or Religious Advertising.”
David Cameron, Richard Dawkins, Carrie Fisher and Stephen Fry were among the chorus of voices to lambast the decision. Jim Shannon, Democratic Unionist MP put down an early day motion for debate in the House of Commons urging for “the ban be reconsidered and overturned”. The motion is currently supported by the signatures of 14 MPs.
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16 November 2015 by Guest Contributor
Lord Carlile QC, former Independent Reviewer of Terrorism Legislation, has said that in the aftermath of the Paris attacks last weekend, Parliament should fast-track the Investigatory Powers Bill into law. Given his extensive experience in the field, Lord Carlile’s views should not be taken lightly. But Lord Carlile is wrong. To fast-track the Investigatory Powers Bill is undesirable and unnecessary. It would also end a crucial public conversation in a wrong-headed paroxysm of governmental action.
An Undesirable Response
Fast-track national security law is undesirable for (at least) two reasons. First, legislatures tend not to function well in the aftermath of any emergency. If they legislate immediately, the result is often not just overreach, but legislation that is bad in technical terms. Second, these general concerns are of especial significance in this field of law, because existing flaws in our investigatory powers law are a result of failures of scrutiny in the past.
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