By: Rosalind English
22 November 2012 by Rosalind English
Oakes and others v R [2012] EWCA Crim 2435 – read judgment
The imposition of whole life orders for extremely serious crimes does not violate the prohibition on inhuman and degrading treatment under Article 3.
Until relatively recently, the Secretary of State decided the minimum term to be served by a “lifer” – a defendant who subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the 2003 Criminal Justice Act. Schedule 21 para 4 allows judges to order a whole life minimum term, a jurisdiction of last resort in cases of exceptional criminality.
It was submitted in these conjoined appeals that this provision contravenes Article 3 of the European Convention of Human Rights. Not so, said the Court of Appeal, Criminal Division.
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21 November 2012 by Rosalind English
Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) – read judgment
Turner v East Midlands Trains [2012] EWCA Civ 1470 – read judgment
Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority.
It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.
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13 November 2012 by Rosalind English
Peta Deutschland v Germany (No. 43481/09) – read judgment
Referring to the concentration camps has become an offence on a par with holocaust denial, it seem, in certain contexts.
In 2004 the applicant animal welfare association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.
Three individuals filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. They submitted that the intended campaign was offensive to them as survivors of the holocaust and violated their human dignity.
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12 November 2012 by Rosalind English
Mohammed Othman (Abu Qatada) v Secretary of State for the Home Department (Special Immigration Appeals Commission) 12 November 2012 – read judgment
Muslim cleric Abu Qatada has won his appeal against deportation to Jordan, where Mitting J concluded that he would not receive a fair trial.
Qatada was convicted of terror charges in Jordan in his absence in 1999 but so far he has successfully resisted being sent back there because of the risk of an unfair trial, despite the assurances given by Jordan to the Home Secretary assurances that no evidence gained through torture would be used against him. As Mitting J said, once it has been established that there is a “substantial” risk that a person will not receive a fair trial in the destination state, the government must demonstrate that there is no risk that person will receive a “flagrantly unfair” trial. This is a lower test than demonstrating that no risk at all existed. But on the basis of SIAC’s findings, Mitting J found that there was in fact a real risk that evidence obtained by torture of two men had been obtained by torture.
A quick scan of the list of “Related Posts” below reveals the prolonged history of this case. Enough already? Apparently not.
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8 November 2012 by Rosalind English
MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment
This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see Adam’s post on the Home Office’s proposals earlier this year).
Before the new immigration rules were introduced in July, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act 2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions to the automatic deportation regime, “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.
But then there was a move to set out an extensive, codified definition of the Article 8 balancing factors, in order to
unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.
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3 November 2012 by Rosalind English
Catholic Care (Diocese of Leeds) v Charity Commission (on appeal to the Upper Tribunal) CA/2010/0007 – read judgment
A private adoption agency could not justify its exclusion of same-sex prospective parents by arguing that this policy would keep open a source of funding that would otherwise dry up and reduce the number of adoption placements.
This was an appeal by the Catholic adoption services agency against the First Tribunal’s confirmation of the decision by the Charity Commission that it was not permitted to amend its constitution so as to permit it to continue its previous practice to refuse to offer its adoption services to same sex couples. Here is our post on the FTT’s ruling, which sets out the facts and arguments in the case. To recap briefly, the charity argued that the adoption of its proposed objects was justified under the general prohibition on discrimination under Article 14 ECHR (and its statutory analogy, Section 193 of the Equality Act). The legitimate aim it pursued was that of providing suitable adoptive parents for a significant number of children who would otherwise go unprovided for. The Charity maintained that unless it were permitted to discriminate as proposed, it would no longer be able to raise the voluntary income from its supporters on which it relied to run the adoption service, and it would therefore have to close its adoption service permanently on financial grounds. The FTT rejected this submission, holding that though the charity’s aim of increasing adoption placements was a legitimate one, the evidence before it did not show that the increased funding of the agency’s adoption work under the auspices of the Roman Catholic church would “inevitably” lead to the prospect of an increased number of adoptions.
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1 November 2012 by Rosalind English
The Queen on the application of Totel Ltd v The First-Tier Tribunal (Tax Chamber) and The Commissioners for Her Majesty’s Revenue and Customs [2012] EWCA Civ 1401 – read judgment
Tax litigation is not the most obvious hunting ground for human rights points but if claimants feel sufficiently pinched by what they perceive as unfair rules, there is nothing to stop them appealing to the courts’ scrutiny of the lawfulness of those rules.
Human rights were not raised per se in this appeal but constitutional principles which arguably play the same role made all the difference to the outcome.
This case concerned the removal of a right of appeal by an Order in Parliament that stopped the appellant company (T) in its tracks, so naturally it turned to judicial review to find a remedy that the tax tribunal was not prepared to grant. T prayed in aid a fundamental principle of our unwritten constitution set out in R (Spath Holme Ltd) v Secretary of State for Transport, the Environment and Regions [2000] 2 WLR 15:
Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation. When it does so the enabling power should be scrutinised, should not receive anything but a narrow and strict construction and any doubts about its scope should be resolved by a restrictive approach.[35]
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31 October 2012 by Rosalind English
Secretary of State for Foreign and Commonwealth Affairs and another (Appellants) v Yunus Rahmatullah (Respondent). (Read judgment)
The Supreme Court has ruled that the law of habeas corpus should not be used to order the US to return a Pakistani national held in US custody to the UK.
Yunus Rahmatullah was captured by British forces in Iraq in 2004 and later taken to Bagram airbase in Afghanistan having been the subject of “extraordinary rendition”. As a suspected insurgent he remains in US custody, without charge.
The charity Reprieve challenged the Court of Appeal decision to cancel a release order in favour of Mr Rahmatullah after they received notification from the US authorities that they intended to return him to Pakistan and would be dealing with the Pakistani authorities directly. The UK Government also appealed, arguing that the Court of Appeal erred in finding that a writ of habeas corpus can be issued where a respondent has sufficiently arguable control of an applicant, and failed to have proper regard to the implications for foreign relations in requiring a request for release to be made to a foreign sovereign state.
The following summary of the facts and reasoning is based on the Supreme Court’s press summary. See my previous post on the Court of Appeal’s ruling on habeas corpus in the case of Rahmatullah.
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30 October 2012 by Rosalind English
R (on the application of J) v the Chief Constable of Devon and Cornwall [2012] EWHC 2996, 26 October 2012 – read judgment
Close on the heels of last week’s decision regarding disclosure of information from the Child Sex Offenders Register comes this ruling on the police decision to disclose certain information from a nurse’s enhanced criminal records certificates without affording her an opportunity to make representations before the information was released.
The Legal Framework
Section 113B of the Police Act 1997 provides for enhanced criminal record checks to be carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults. The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicant’s criminal or other behaviour which have not been tested at trial or led to a conviction.If the information satisfies certain threshold tests in the relevant statute, it must be given to the Secretary of State who must include it in the relevant individual’s Enhanced Criminal Record Certificate or “ECRC.”
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29 October 2012 by Rosalind English
X (South Yorkshire) v Secretary of State for the Home Department and Chief Constable of Yorkshire [2012] EWHC 2954 (Admin)- read judgment
The High Court has made an important ruling about the disclosure of information under the Child Sex Offender Disclosure Scheme (CSOD).
This non statutory arrangement has been in place since March 2010. It allows members of the public to seek details from the police of a person who has some form of contact with children with a view to ascertaining whether that person has had convictions for sexual offences against children or whether there is other “relevant information” about them which ought to be made available. This request could come from any third party such as a grandparent, neighbour or friend. The aim of the scheme is described thus:
This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer. In the event that the subject has convictions for sexual offences against children, poses a risk of causing harm to the child concerned and disclosure is necessary to protect the child, there is a presumption that this information will be disclosed.
Anya Proops’ post on the Panopticon blog sets out a clear summary and analysis of the ruling by the President of the Queen’s Bench Division and Hickinbottom J. Here are a few more details about the judgment.
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25 October 2012 by Rosalind English
Whiston, R (on the application of) v Secretary of State for Justice – read judgment
When a prisoner is recalled from home detention curfew he does not suffer a fresh deprivation of liberty so as to engage Article 5(4)of the Convention.
Since this part of Article 5 confers a right on any person who is detained to challenge the legality of the detention determined by a body sufficiently judicial in character, the lack of review would render the decision unlawful. As Lord Elias says in his opening remarks,
This is one of a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage that Article. Problems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices.
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23 October 2012 by Rosalind English
Chabauty v France 4 October 2012 – read judgment
I have posted previously on cases involving the ethical objection of landowners to being forced to allow hunting over their property.
These objections have generally found favour with the Strasbourg Court in the balancing of private and public interests under the right to property. Mr Chabauty puts the issue into another perspective. He also complained that he was unable to have his land removed from the control of an approved municipal hunters’ association. The difference was – and this proved to be critical to the outcome of the case – Mr Chabauty is not himself against hunting on ethical grounds. Since no conscience was underlying his Convention complaint, the Court found it not to be disproportionate for the French state to require small landowners to pool their hunting grounds. As such, there had been no violation of Article 1 Protocol 1 or Article 14.
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22 October 2012 by Rosalind English
The recognition of a right to life, liberty, and the autonomy of the individual and the mandate of government to secure these rights is being threatened by an increasingly illiberal notion of “human dignity”, says evolutionary psychologist Stephen Pinker.
His 2008 broadside in The New Republic took to task a now defunct body, the US President’s Council on Bioethics whose publication Human Dignity and Bioethics is shot through with disquiet about advances in biotechnology. It could not be more different from the enlightened report issued earlier this year by the Council’s successor calling on the current administration not to stifle biomedical research with over-restrictive regulation (see my post). Does the contrast between the present advisory body’s recommendations and the report put before the previous President signal a fundamental change in the way we approach progress in this field? Probably not. Only two weeks ago, Sir John Gurdon (the Nobel physiologist whom schoolteachers had written off as a scientist) bemoaned the regulatory restrictions that make important therapies too costly to pursue. Pinker’s dismay at the “scientific illiteracy” of society rings true today:
Ever since the cloning of Dolly the sheep a decade ago, the panic sown by conservative bioethicists, amplified by a sensationalist press, has turned the public discussion of bioethics into a miasma of scientific illiteracy. Brave New World, a work of fiction, is treated as inerrant prophesy. Cloning is confused with resurrecting the dead or mass-producing babies. Longevity becomes “immortality,” improvement becomes “perfection,” the screening for disease genes becomes “designer babies” or even “reshaping the species.” The reality is that biomedical research is a Sisyphean struggle to eke small increments in health from a staggeringly complex, entropy-beset human body. It is not, and probably never will be, a runaway train.
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19 October 2012 by Rosalind English
EM (Eritrea) and others v Secretary of State for the Home Department – read judgment
A member state was entitled to return a refugee to the EU state of first embarkation unless it is proved that there are “systematic deficiencies” in the asylum procedures of the receiving state.
These four cases raised one central question: was it arguable that to return any of the claimants to Italy, either as an asylum-seeker pursuant to the Dublin II Regulation or as a person already granted asylum there, would entail a real risk of inhuman or degrading treatment in violation of Article 3 of the ECHR? In determining that question, the evidence provided by the UN Refugee Agency was decisive for the court.
The Dublin II Regulation provides for a system whereby asylum claims are processed and acted on by the first member-state in which the asylum-seeker arrives. Under this Regulation asylum-seekers and refugees may be returned to that state if they then seek asylum or take refuge elsewhere in the EU. The assumption underlying this system is that every member state will comply with its international obligations under not only the 1951 Refugee Convention and the European Convention on Human Rights but also the Qualification Directive and the EU Charter.
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18 October 2012 by Rosalind English
I have posted previously on the logistical difficulties in legislating against genetic discrimination.
The prospect that genetic information not only affects insurance and employment opportunities is alarming enough. But it has many other implications: it could be used to deny financial backing or loan approval, educational opportunities, sports eligibility, military accession, or adoption eligibility. At the moment, the number of documented cases of discrimination on the basis of genetic test results is small. This is probably due to the relatively few conditions for which there are currently definitive genetic tests, coupled with the expense and difficulty of conducting these tests. But genetic discrimination is a time bomb waiting to be triggered and the implications of whole genome sequencing (WGS) are considered in a very interesting and readable report by the US Presidential Commission for the Study of Bioethical Issues Privacy and Progress in Whole Genome Sequencing.
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Oakes and others v R [2012] EWCA Crim 2435 – read judgment
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