By: Rosalind English

Mere faults in prison investigation does not breach Article 3 rules Court of Appeal

14 September 2012 by Rosalind English

R (NM) Secretary v of State for Justice [2012] EWCA Civ 1182 – read judgment

The Court of Appeal has ruled that a prison had conducted an adequate investigation into a sexual assault on a prisoner with learning disabilities and this complied with the prison’s investigative obligation under Article 3  of the European Convention on Human Rights. See our post on the decision below here for the background facts.

Briefly, instead of a formal investigation, the matter was investigated by prison officers under the prison’s violence reduction strategy. The other prisoner (F) admitted assaulting the appellant. But the Secretary of State refused a PSO 1300 formal investigation, asserting that a sufficient investigation had taken place. Judicial review of this refusal was dismissed, although the judge noted that the appellant’s disability had been overlooked as the investigating officers were unaware of it and that the prison’s disability policy should have led to the appointment of an appropriate adult for him. Nevertheless HHJ Mackie QC concluded that the investigation had been reasonable and did not breach Article 3 or PSO 1300.

In this appeal it was submitted that the judge erred in concluding that the prison’s investigation complied with Article 3.
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Are Christians really marginalised in this country?

7 September 2012 by Rosalind English

We will have to wait some time before Strasbourg hands down its judgment in the religious discrimination cases it heard earlier this week.

Whatever the outcome – which is perhaps predictable – the Court’s ruling will have a significant influence on the place of religion in public life and on how the relationship between religion and the state should be structured to reflect the aims of fairness and mutual respect envisaged in the Convention.

The Equality and Human Rights Commission argues in its intervention submission that Strasbourg – and the UK courts – should move on from their “restrictive” interpretation of Article 9, summed up by Lord Bingham’s oft-cited description of the Court’s position in R (SB) v Governors of Denbigh High School [2006] UKHL 15

The Strasbourg institutions have not been at all ready to find an interference with the right to manifest a religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience.[para 23]

(This is a revised intervention after the EHRC responded to widespread criticism of its proposed argument in support of “reasonable accommodation” of employees’ beliefs – see Alasdair Henderson’s post on this dust-up “Leap of Faith” and our following post on the reversal of the EHRC’s position.)
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Religious freedom in UK to be considered by Strasbourg Court

3 September 2012 by Rosalind English

Macfarlane and others v United Kingdom (ECHR 329 (2012) – read press release

Tomorrow the Strasbourg Court will hear complaints in four applications that UK law has failed adequately to protect the applicants’ right to manifest their religion, contrary to Articles 9 (freedom of religion) and 14 (prohibition of discrimination). See our posts on these cases here and here, and in the related Preddy case here.

All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.  Their challenges to their consequent dismissal were rejected by the UK courts on the basis that their employers were entitled to refuse to accommodate views which contradicted their fundamental declared principles – and, all the more so, where these principles were required by law, notably under the Equality Act (Sexual Orientation) Regulations 2007.

The judgment is awaited with considerable anticipation: the National Secular Society and the Equality and Human Rights Commission have both filed  intervening submissions under Rule 44 §3 of the Rules of the Court.

“No precedent? Then set one!” – Nicklinson right to die case

20 August 2012 by Rosalind English

Updated – Tony Nicklinson, one of the two claimants in this case, died on 22 August 2012.

This is Richard Dawkin’s battle cry in response to the recent High Court rejection of the challenge by locked-in sufferers to the murder and manslaughter laws in this country that have condemned them to an unknowable future of suffering.

As explained in my previous posts, Nicklinson, who suffered a catastrophic stroke in 2005, argued for an extension to the common law defence of ‘necessity’ for murder because the alternative – forcing him to stay alive – is worse. His lawyers also submitted that the government is in breach of his Article 8 right to ‘privacy, dignity and autonomy’, a right he cannot exercise independently because of severe disability.

The court rejected the “bold” submission, stating that there was no precedent anywhere in the world and such socially controversial changes were only for Parliament.

But the courts can’t keep ducking away from the problem, because Parliament is never going to address this issue. Why? Because, as Dawkins points out, once again, religion turns out to be the major culprit. Every attempt in the House of Lords “to do something about the right to seek professional (or even amateur) assistance in dying when you are too incapacitated to kill yourself” has crashed and burned, despite huge public support for reform in this area.
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“Locked-in” sufferer’s challenge to ban on voluntary euthanasia fails in the high court

16 August 2012 by Rosalind English

The Queen(on the application of Tony Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin) – read judgment

Lord Justice Toulson, sitting with Mrs Justice Royce and Mrs Justice Macur, has  handed down judgment in the case of Tony Nicklinson and that of another “locked-in” syndrome sufferer, “Martin”. On all the issues, they have deferred to parliament to take the necessary steps to address the problems created by the current law of murder and assisted suicide.

Philip Havers QC  of 1 Crown Office represented Martin in this case. 

Tony Nicklinson sought a declaration of immunity from prosecution for a doctor who would give him a fatal dose of painkillers to end his life in Britain. He also sought a declaration that the current law is incompatible with his right to respect for private life under article 8, contrary to s1 and 6 of the Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.

Martin’s claim was slightly different as his wife does not want to do anything which will hasten his death. He therefore asked for permission for volunteers to be able to help him get to the Dignitas clinic in Switzerland (under recent guidelines from the Director of Public Prosecutions only family members or close friends who are motivated by compassion are unlikely to be prosecuted for assisting a suicide). In the alternative he sought a declaration that section 2 of the Suicide Act is incompatible with the right to autonomy and private life under Article 8 of the European Convention. 
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Defining “dignity” – nailing jelly to the wall?

8 August 2012 by Rosalind English

In his recent book Harvard philosopher Michael Rosen poses the question: what is dignity, exactly, and do we know it when we see it?  We are all familiar with the mantra that all humans are endowed with equal dignity, but do we really understand what it means?  Since it is a formulation that is increasingly advanced in justifying universal human rights, we should try to get to grips with it, rather than reversing into circularities such as defining it as an intrinsic quality from birth. What makes it intrinsic? And at what point is it acquired? And why do we owe the dead a duty of dignity when they have no rationality and make no choices, autonomous or otherwise? 
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Obsession with World War II distorts understanding of human rights

4 August 2012 by Rosalind English

A fascinating article by SOAS EU law specialist  Dr Gunner Beck lays bare some of the important problems created by British hostility to Germany, which, by contrast to the profound social and economic changes that have taken place in both countries in the seven decades since WWII, appears “timeless and unchanging.”

In a wide ranging analysis of the abiding obsession with Nazi Germany in the British media and elsewhere, as well as the “strange sado-masochism” of Germany itself, Gunner Beck demonstrates how effectively this prejudice creates and fosters confusion about the current crisis in the Eurozone and the reaction of some of its members to German demands for closer scrutiny. He asks us to question why German history

is still largely reduced to the twelve years from 1933 to 1945, and why it still seems impossible in Britain to criticise any aspect of German economic or foreign policy, especially on EU matters, without some kind of Nazi connotation or similar historical insinuation lurking somewhere in the background… Why has nearly a lifetime of peaceful and liberal-democratic development in Germany done so little to put the Third Reich into some kind of historical perspective?

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The right not to hold any belief is fundamental, says Supreme Court

25 July 2012 by Rosalind English

RT (Zimbabwe) and others (Respondents) v Secretary of State for the Home Department [2012] UKSC 38 – read judgment

It is no answer to a refugee claim to say that the individual concerned should avoid persecution by lying and feigning loyalty to a regime which he does not support.

So the Supreme Court has ruled today, considering the relevance to political beliefs of the so-called “HJ(Iran) principle” which was formulated in a case where it was held that it was no answer to an asylum claim by a gay man that he should conceal his sexual identity in order to avoid the persecution that would follow if he did not do so.
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Alien poster campaign’s anti-religious message

22 July 2012 by Rosalind English

Updated | Mouvement Raëlien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012) – read judgment

This case concerned the Swiss authorities’ refusal to allow an association to put up posters featuring extraterrestrials and a flying saucer on the ground that it engaged in activities that were considered immoral.

The association complained it had suffered a violation of its right to freedom of expression. The Grand Chamber did not agree, ruling that the refusal had met a “pressing social need” and that the authorities had not overstepped the broad margin of appreciation given to them in view of the non-political dimension of the poster campaign.

At first blush there is nothing remarkable about this ruling. But it was a narrow majority (nine votes to eight) and a brief reading of the dissenting opinions gives pause for thought: does the slightly loony nature of a message justify its suppression? Lurking behind the authorities’ refusal to allow the association’s advertising campaign is a sense of disapproval vis a vis their anti-Christian message;  one of the campaigns the association wished to conduct featured a poster stating “God does not exist”, and on another, below the association’s website, ran the message “Science at last replaces religion”.
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Outlawing Dawkins hoax

21 July 2012 by Rosalind English

.. has been discovered and we’ve removed the post. As I observed, there was no link to the Mississippi law online, so this was a prank to stir up momentary fervour in the blogosphere.

In fact, religious sensitivities have a much more insidious role to play in lawmaking, as I discuss in my post on a recent Strasbourg Grand Chamber case on free speech.

Church has employer’s duty of liability for parish priests

16 July 2012 by Rosalind English

JEG v  The Trustees of the Portsmouth Roman Catholic Diocesan  [2012] EWCA Civ 938

Elizabeth Anne-Gumbel QCand Justin Levinson of One Crown Office Row acted for the claimant in this case. They did not write this post.

The Court of Appeal has now confirmed that the church can be held liable for the negligent acts of a priest it has appointed. Permission to appeal to the Supreme Court has been refused.

This appeal was another preliminary stage in the main action between the claimant’s action for damages following the alleged sexual abuse and assault by a parish priest (now deceased), and the trustees of the diocesan where he served. The Court of Appeal has now confirmed that the defendants can held to account, even though there was no formal employment relationship between Father Baldwin and the Diocesan – see Rachit Buch’s post for an excellent analysis of the issues and summary of the facts.
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No duty to snitch on another EU country’s asylum conditions

11 July 2012 by Rosalind English

Medhanye, R(on the application of ) v Secretary of State for the Home Department [2012] EWHC 1799 (Admin) (02 July 2012)  – read judgment

EU law is based on a central principle of mutual confidence. It therefore flies in the face of this trust to impose a legal duty on one member state to monitor whether another Member State was complying with its obligations under that law, including its obligation to respect fundamental human rights.

Background facts

The claimant, an Eritrean national, sought asylum in the UK, having previously claimed asylum in Italy. The secretary of state decided to remove him to Italy under Regulation 343/2003 (Dublin II). The claimant challenged the Secretary of State’s decision to certify as “clearly unfounded” his claim that removing him to Italy would breach his rights under the European Convention on Human Rights (“ECHR”). His application for judicial review was refused.
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Can a state-owned company be a “victim” of human rights violations?

10 July 2012 by Rosalind English

Transpetrol v Slovakia, Application no. 28502/08 – read judgment

The facts of this case can be stated very briefly, since the main (and most interesting) question before the Curt was whether the applicant company constituted a “victim” of a human rights violation under the Convention.

The applicant s a joint-stock company trading in oil.  In the past, including at the time of the contested judgment of the Constitutional Court, the state owned 51% of the shares in the applicant company. The remaining shares were owned by private parties. At present all of the shares in the company are owned by the state.

The application before the Court concerned the fairness of proceedings before the Constitutional Court regarding the ownership of shares in the company.  The applicant company complained that the proceedings were contrary to its rights under Article 6(1) (fair trial) of the Convention and Article 1 of Protocol No. 1 (peaceful enjoyment of possessions). The complaint was dismissed under Article 34 as being inadmissible (incompatible ratione personae, i.e. the status of the applicant). For the purposes of clarity, here is the relevant text of Article 34:

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. 
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Courts should take note of Strasboug’s doctrine of deference

6 July 2012 by Rosalind English

R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment

This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.

Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.

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Does a Zimbabwe farm invader get refugee status?

5 July 2012 by Rosalind English

SK (Zimbabwe) v Secretary of State for the Home Office 19 June 2012 – read judgment

This case raises the interesting question whether someone who was involved as a member of the ruling Zimbabwe Zanu PF party with farm invasions can be eligible for refugee status. The answer is a definite no: the High Court held that the Upper Tribunal had been entirely correct in finding that  a Zimbabwean national, who had beaten farm workers in farm invasions intended to drive farmers and farm workers away from their farms, had committed inhumane acts amounting to crimes against humanity under the Rome Statute art.7(1)(k) and therefore by virtue of the Convention relating to the Status of Refugees 1951 (United Nations) art.1F(a) was excluded from refugee status.
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