Media By: Guest Contributor


Witness Protection: Can non-parties appeal critical findings made in a judgment which infringe their human rights?

30 November 2016 by

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Re: W (A child) [2016] EWCA Civ 1140 – read judgment

Summary

A Family Court judgment was severely critical of two witnesses and the applicant local authority. In an oral “bullet point” judgment at the end of the hearing, the Judge found that the witnesses, a social worker (‘SW’) and a police officer (‘PO’), had improperly conspired to prove certain allegations regardless of the truth, or professional guidelines.

Those matters were not in issue before the court or put to those concerned. Limited amendments were subsequently made to the judgment following submissions by those criticised. Unsatisfied, they went to the Court of Appeal.

The Court considered (1) whether they were entitled to appeal at all (2) whether their appeal based on Articles 8 and 6 of the Convention succeeded and (3) the appropriate remedy.

The Court held that the appellants’ Convention rights had been breached by the manifestly unfair process in the court below, so they had a right to appeal under the Human Rights Act 1998. The defective judgment was not cured by the amendments, and the findings were struck out.

The judgment addresses some interesting procedural questions regarding appeals. This post focuses mainly on the human rights issues, but the judgment of McFarlane LJ, described as “magisterial” by Sir James Munby, merits reading in full.

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Cian Murphy: Human Rights in the Time of Trump – The Need for Political Love

17 November 2016 by

640px-0620trumppolicies01

The election of Donald Trump as the next US President has shaken our faith in democracy and is a serious blow to the cause of human rights in the US and around the world. President-elect Trump’s campaign was a repudiation of the political and social progress made under his predecessor. It was an explicit threat to those who are vulnerable – whether because of their religion, race, gender, sex, sexual orientation, or physical abilities. Trump’s election, an ‘American tragedy’, comes at the end of a year in which the values that are said to underpin civic society in the US and Europe have come under significant threat.

When President-elect Trump’s inauguration takes place early next year he will seek to set the tone in the Western hemisphere, and across the globe, for the rest of this decade. It is clear, even before we address specific policies or world-views, that we will miss the grace and poise of President Obama. These are qualities that President-elect Trump revels to reject. We are unlikely to hear an affirmation of rights such as that President Obama made with the alliterative triad of Seneca Falls, Selma, and Stonewall.

What then, for human rights, in the time of Trump?
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Counter-terrorism overseas: Adebolajo report makes uncomfortable reading for MI6 – Marina Wheeler QC

14 November 2016 by

Image result for MI6Oversight of the Intelligence Services is a matter of enormous public importance, as counter-terrorism powers are enhanced to combat a pernicious and persistent threat.

A recent Report by the Intelligence Services Commissioner, Sir Mark Waller, assisted by Oliver Sanders of these Chambers, dispels some misconceptions about contact between the intelligence services and Michael Adebolajo, one of 2 men convicted of murdering Fusilier Lee Rigby[1]. It also shines a light on how HMG applies its policy on the treatment of detainees held overseas – in Adebolajo’s case, by a Kenyan partner counter-terrorism unit in 2010. Not all of the Report’s findings make comfortable reading for the Intelligence Services.

HMG’s policy was, and remains, never to assist, condone, encourage, solicit or participate in any form of mistreatment of detainees. The 2010 Consolidated Guidance to Intelligence Officers on the Detention and Interviewing of Detainees Overseas[2], is intended to guide UK personnel who work with overseas agencies where, by definition, they are unlikely to be in total control of the situation in which detainees are held.
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Post by Jo Moore: “A legitimate question: Deportation, discrimination and citizenship rights for children born out of wedlock.”

3 November 2016 by

R (o.t.a. Johnson) v. Secretary of State for the Home Department [2016] UKSC 56
19 October 2016 – read judgment

Summary

In Jamaica in 1985, a baby was born to British father and a Jamaican mother.  The child’s parents never married, and at the age of four he moved to the UK with his father. Under the law in force at the time, as an ‘illegitimate’ child, he did not automatically acquire British citizenship. If his mother had been the British parent, if his parents had ever married each other, or if an application had been made while he was a child, he would have become a British citizen. But he did not.

Two decades pass and the Secretary of State attempts to deport that individual, Mr Johnson, following a string of very serious offences. He appeals on the ground that deportation would be unlawful discrimination. If only his parents had been married, he would be a citizen and not be liable for removal.

The Supreme Court agreed. It held that there was no justification for someone in his position being liable to deportation simply through being born out of wedlock, which was an accident of birth over which a child has no control.

The Court also declared that a “good character” requirement for acquiring citizenship which applied only to illegitimate children was unlawfully discriminatory and incompatible with the Convention.

This judgment represents a further step towards equal rights for children born out of wedlock.



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A New Book on Parliaments and Human Rights Protection – Judge Robert Spano

13 October 2016 by

9780198734246

 

On the occasion of the publication of the book Parliaments and the European Court of Human Rights by Professors Alice Donald and Philip Leach, Judge Robert Spano of the European Court of Human Rights comments on the general themes presented in the book and its contribution to the ongoing debate on the European Convention on Human Rights and the Principle of Subsidiarity.

A culture of human rights in national parliaments

The effective implementation of human rights requires a culture of human rights at all levels of government as well as in society in general. Therefore, it is a possibly trans­formative development in European human rights law that the role of national parliaments in the realisation of human rights protection within the Convention system has increasingly become a focus-point in recent years, both at the level of policy within the Council of Europe, but as well, and importantly, at the level of adjudication of actual human rights cases in the Strasbourg Court.

This new book provides an excellent overview of this important development, by highlighting the arguments in favour of a more parliamentary-focussed human rights jurisprudence, while at the same time identifying the potential risks to be addressed in future cases.

As a serving judge of the Strasbourg Court, I would like to make a couple of remarks on the core of the normative argument in this regard, as developed by the authors, on the relationship between human rights, democratic governance and legitimate authority.

The first is a doctrinal point, while the second is more practical.

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Do the EU’s rules on standing square up to the principle of effective judicial protection? – Michael Rhimes

10 October 2016 by

scales of justice Old BaileyUnderstanding Standing: Post 3 of 3 of Article 263(4) TFEU

This is a final post in a series of three on standing in EU law. It will focus on whether the present position under Art 263(4) TFEU satisfies the principle of effective judicial protection.

Part I) Effective judicial remedies.

Effective judicial protection is of a long pedigree. We can trace an embryonic form of this right in the Magna Carta of 1215 which provides, in Article 29, that “no freeman is to be taken or imprisoned or disseised of his (…) liberties (…) save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice” (See also Arts 11 to 13). It also emerged fairly early on in the jurisprudence of the European Union in the mid-1980s, with the CJEU starting to toy with the idea that the effectiveness of EU law could impose certain obligations at the domestic level in order to ensure that effectiveness, Case C-14/83 Von Colson and more famously Case C-410/92 Johnson. The principle can now can be found enshrined in Art 47 of the Charter, as follows: 

Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. (…)

This Charter has equal status to the other two Treaties constituting the EU, the TEU and TFEU (see TEU, Art 6(1)) Thus, as has been stressed on many an occasion, the very applicability of EU law entails the applicability of the fundamental rights guaranteed by the Charter. In other words, effective judicial protection is a fundamental postulate of EU law – where there is EU law there must be effective judicial protection. 
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I have a right not to know Elena Ferrante’s real name* – George Szirtes

5 October 2016 by

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I have so many rights I am thinking of flogging some off on eBay. Though I have the right not to do so.

2
Stop telling me whatever it is you may be telling me. I have a right to tell you not to tell me.

3
I have the right and you have the right. What we have rights to may be different but let’s pool our rights and make one big right.

4
My right to have rights is being threatened by people who claim they have the right to other rights. Other people are bastards.

5
My rights are constantly threatened by people claiming to have rights. They have no right to such rights.

6
I have the right to stamp my foot. If I am not granted the right to stamp my foot I will stamp my foot. That is my right / my foot.

7
Everyone has the right to have rights. They are right to have rights. It is right to have rights. It is right to be everyone.

—–

*Article in Guardian to this effect. ‘Stop telling X what to do’ is a favourite Guardian meme to be fully explored another time.

Poem posted with permission of the author. George Szirtes is a British poet and translator from the Hungarian language into English

Concrete Walls and Bureaucratic Barriers to Access to Justice for Migrants

5 October 2016 by

 

calais-421331Work recently began on a wall in Calais, funded by the UK government, to prevent migrants and asylum seekers from crossing the Channel to Britain. Nearly simultaneously, the government announced that it would increase immigration tribunal fees by over 500%, erecting a different type of barrier—to access to justice. It was claimed that doing so would bring in an estimated £34 million in income annually and preserve the functioning of the tribunals.

The decision to increase fees was made despite the fact that responses to a public consultation conducted by the government overwhelmingly disagreed with the proposals. The suggestion to increase fees in the First-tier Tribunal (the first port of call when a person wants to challenge an immigration or asylum decision by the state) was opposed by 142 of 147 respondents. Introducing fees in the Upper Tribunal (where appeals against decisions in the First-tier Tribunal are heard) was opposed by 106 of 116 respondents, and the introduction of fees for applications for permission to appeal in both Tribunals was opposed by 111 of 119 respondents. In partial concession to critics of the proposal, the government has said it will introduce fee waiver and exemption schemes in certain cases. However, these plans are as yet unspecified and are likely to increase the bureaucratic burden on migrants.
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‘Real risk’ that extradition of Scottish businessman to Taiwan would be incompatible with Article 3 – Seonaid Stevenson

3 October 2016 by

taiwanflagimage1Zain Taj Dean v The Lord Advocate and the Scottish Ministers [2016] HCJAC 83 – read judgment

The High Court of Justiciary Appeal Court ruled last week that the extradition of Zain Dean to Taiwan would be incompatible with article 3 of the Convention as a result of the conditions in Taipei prison.

The appellant, a 44-year-old marketing consultant, had been living and working in Taiwan when he was involved in a road traffic accident in which a local delivery driver was killed. He was sentenced to four years in prison by the Taiwanese authorities. He absconded to Scotland and became the subject of Taiwan’s first ever extradition case.

The appeal was lodged under sections 103 and 108 of the Extradition Act 2003. Section 87 of this Act requires the judge to decide whether the person’s extradition would be compatible with Convention rights. The appellant argued that evidence was now available which had not been available at the initial extradition hearing. Under s.104 of the Act, the court may allow the appeal if evidence is available and this evidence would have resulted in the judge at the extradition hearing deciding a question before him differently, resulting in the person’s discharge.

It was therefore for the court to determine whether new evidence suggested that the conditions in which the appellant would be held in Taipei prison were not article 3 compliant.
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Down the Rabbit Hole: a close look at the CJEU standing Rules – Michael Rhimes

3 October 2016 by

entrepreneur-rabbit_holeUnderstanding Standing: Post 2 of 3  Art 263(4) TFEU

Has Art 263(4) of the Lisbon Treaty achieved Advocate General Jacobs’ ideal of “the law itself [being] clear, coherent and readily understandable.” (See UPA Opinion at [100])?

No. As shall be seen in this post, to continue the maritme metaphor in this series, standing is still a rough and unpredictable sea to navigate. Many a case have been scuppered on the reefs of inadmissibility. Quite why this is the case requires us to pick apart the three notions of “implementing measures”, “direct concern” and “regulatory act”.

To some extent, this post will be rather technical. It is aimed for those who are interested in an overview of the operational problems and internal inconsistencies that lie in the third head. Given the limits of space, it is not possible to discuss at great length all of the finer nuances. Those who are interested may find my article in the European Journal of Legal Studies here which puts the flesh on the bones of this necessarily skeletal overview.
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Xenakis the fisherman and the tangle of EU law

22 September 2016 by

Dead Southern bluefin tuna (Thunnus maccoyii) caught in a tuna pen, Port Lincoln, South Australia.

Understanding Standing: Post 1 of 3

Recently, we posted on a proposed action against the European Commission, or, more precisely, the action of its president. The applicants’ greatest challenge in those proceedings will be to persuade the European Court of Justice in Luxembourg that they should be allowed to take their case at all; in other words, whether they have “standing” under the rules of the European Treaties. We are grateful therefore for an in depth analysis of the subject by regular UKHRB contributor Michael Rhimes.

Michael is currently fourth référendaire at the Court of Justice of the European Union (CJEU), and this and the following two posts on the subject are summaries of what he has set out in an article in the European Journal of Legal Studies  The views he expresses are personal only, and the article was written before he took up his current responsibilities at the CJEU.  

Introduction   

Standing is a hot topic in EU law, and it is certainly of considerable academic interest. The legal commentary in this area over the last 50 years would occupy a small mansion. I confess I am guilty of adding to this proliferation – my own 70 page contribution in the European Journal of Legal Studies may be found here. Yet it is also an area of great practical interest. This is because it is essential to have standing to directly challenge an EU act in the EU Courts. No standing means no admissibility, which means no case to be heard by the Courts.

The overall question to these three Posts is whether the EU provides effective judicial protection in relation to the challenging of EU norms. Each of the three Posts has a deliberately different scope and purpose.

  1. The first is introductory. It summarises what standing is, introduces the main features of direct/indirect enforcement and explains how they are relevant to EU standing. It then offers an overview of the application of the heads of standing in Art 263(4) TFEU.
  2. The second is technical. It examines the case-law under Art 263(4) TFEU offers a more detailed insight into the problems with the application of the three elements in the third head of standing.
  3. The third is polemic. It seeks to explore how the application of effective judicial protection results in gaps in the ability to challenge EU law.

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Does a judge have to consider Article 8 in possession proceedings brought by a private landlord? – Millie Polimac

25 August 2016 by

Image result for front doors terrace guardian

Photo credit: the Guardian

No, said the Supreme Court in McDonald v McDonald [2016] UKSC 28 – read judgment.

Facts

Fiona McDonald was a private sector tenant.  The landlords were her parents who had purchased the property by obtaining a secured loan from a private company.  They fell into arrears of the monthly payments, and the company sought possession pursuant to a s.21(4) Housing Act 1988 (‘HA 1988’) notice. The arrears were not substantial, but they had persisted for some time.

An Article 8 defence was raised as Fiona had mental health problems in the form of psychiatric and behavioural issues.

The Supreme Court rejected her defence for the following reasons.

No Article 8 assessment

The appellant argued that the court, as a public authority under s.6(1) of the Human Rights Act 1998 (‘HRA 1998’), was required to carry out an Article 8 assessment in such circumstances.
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Successful compensation appeal by rape victim

22 August 2016 by

By Pritesh Rathod

RT v (1) The First-Tier Tribunal (Social Entitlement Chamber) and (2) Criminal Injuries Compensation Authority [2016] UKUT 0306 (AAC) – read judgment.

The Upper Tribunal has ruled that, in deciding whether or not an applicant has cooperated with the prosecution of her assailant where she made and later retracted an allegation of rape, it was necessary to see why that retraction was made and whether it was done truly voluntarily, rather than simply assessing whether she was responsible for the retraction.

Background facts

The Applicant (“RT”) was married to H and had four children with him between 2001 and 2008.  From 2004, she was subject to physical and mental abuse by H, culminating in three incidents of rape.  What followed was a somewhat protracted and complicated course of events relating to H’s prosecution.

Initially, H was arrested and charged with six counts of rape.  He was bailed subject to certain conditions.  While H was in custody, RT wrote to him saying that she missed him and wanted him back home.  Over Christmas 2009, H returned home and he and RT had “something of a reconciliation”, including having consensual sexual intercourse.

By January 2010, RT sought to withdraw the complaint (she had commenced divorce proceedings against him).  In February 2010, RT telephoned the police to ask what would happen if she had lied about the rapes.  Later that month, she retracted her allegations, saying that all of them were untrue.  H appeared at the Crown Court and was acquitted after the prosecution offered no evidence.
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Pressing the Red Button on Rights – Joelle Grogan

4 July 2016 by

Article 50 of the Treaty on European Union (TEU) is the red button for the nuclear option of withdrawal from the EU, and in its design, it was never really, truly envisioned to be pressed. Without testing, and without precedent, we are left with no idea of the potential fallout of pressing that red button. Compared to the quasi-constitutionism of Article 2 TEU evoking the values ‘common to the Member States’ of ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women’; or the brutal legalism of Title VII of the Treaty of the Functioning of the European Union (TFEU) on competition, tax and the approximation of laws; Article 50 TEU is anaemic. It is, essentially, a button triggering a countdown clock, which is on a comparable level of advancement to the 1980s floppy disk.

The two-year countdown

Triggering Article 50 TEU will begin a two-year countdown to the end of UK Membership of the Union. Within that two-year period an agreement determining the withdrawal arrangements and the future relationship with the Union must be made. Barring a unanimous decision to extend the period, at the end of two years from the point of notification, the UK will no longer be a Member. The Treaties, and all rights and duties therein, cease to apply.

But now, as the British political establishment play a game of “pass the red button”, we are faced with some confounding, and concerning questions from a rights’ perspective. Likely to be lost in the two-year scramble for a political and trade agreement between the UK and EU, which will attempt at all costs to avoid the fall-back position of the application of WTO trade rules, are the very rights and values held as common between the (ex-)Member State(s). During that two-year period, EU law and (pertinently) EU rights will continue to apply in the UK. Free movement will still be (from a legal perspective) free, and claimants may still rely on their EU rights in the Courts. But then what? What happens when the clock strikes zero?
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Book Review – Marshall Hall: A Law Unto Himself by Sally Smith

2 July 2016 by

Marshall-Hall-biog

Owain Thomas QC reviews this new book by 1 Crown Office Row’s own Sally Smith QC.

Sally Smith’s wonderful new biography of the great Edwardian advocate Edward Marshall Hall is the first reappraisal of his life and career since the celebrated biography by Marjoribanks, published only two years after his death. Since then the worlds of law, journalism, celebrity, and crime have become intertwined in so many complex ways, but Smith charts in this book the quite remarkable public life of the era’s most sought after barrister. He attained celebrity beyond the dreams of even the most fervent publicity hungry barrister. His cases were regularly front page news. Because of the deliciously lurid subject matter some might have got there anyway, but his name added a lustre and whetted the public appetite for the scandal to come with the promise of a coup de théâtre. Thousands waited for the verdicts outside the Old Bailey.
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