By: Rosalind English

Rape conviction carries little weight against right to family life, rules Strasbourg

21 September 2011 by Rosalind English

 A.A. v. THE UNITED KINGDOM – 8000/08 [2011] ECHR 1345 – Read judgment

The Strasbourg Court has ruled unlawful the deportation of a Nigerian man convicted of rape. Considering the facts of his case afresh, the Court came to the conclusion that the 24 year old student’s right to family life would be violated if he were removed to Nigeria. 

The applicant arrived in the United Kingdom in 2000 at the age of 13 join his mother. At the age of 15, he was convicted of rape. After serving less than two years of his four-year sentence he was released on licence in 2004.  The Home Office served him with a notice of liability to a deportation order on account of the rape conviction. Although the Immigration Judge of the Asylum and Immigration Tribunal (“the AIT”) allowed the applicant’s appeal, the Secretary of State’s appeal against this finding ultimately prevailed since it was found that the various factors in respect of his family life and his good conduct in remand did not outweigh the presumption in favour of deportation in accordance with the current version of the Immigration Rules.
Continue reading →

Proposed South African secrecy law may end up in the Constitutional Court

16 September 2011 by Rosalind English

The South African ANC led government is proposing to introduce a Protection of Information Bill,  a highly controversial piece of proposed legislation which aims to regulate the classification, protection and dissemination of state information, weighing state interests up against transparency and freedom of expression.

Critics have attacked the Bill because it defines the concept of “national interest”  very broadly, granting wide powers to classify documents as secret in the name of national interest. And the absence of a public-interest defence is seen as problematic because it would have functioned as an important means for information of serious concern to citizens to be disclosed, regardless of the fact that the information was classified. The penalties for disclosure of protected information are harsh. Anyone  who unlawfully discloses classified information could be guilty of an offence and liable on conviction to imprisonment for a maximum of five years. There is limited protection under the Protected Disclosures Act 2000,  but this statute only protects employees from being subjected to occupational censure for having made a protected disclosure. Journalists and other members of the public are not covered by this Act and therefore cannot claim its protection.
Continue reading →

Immigration Rules should not be bent to favour right to family life

13 September 2011 by Rosalind English

R(on the application of Sayed) v Secretary of State for the Home Department; R(on the application of Patel) v Secretary of State for the Home Department [2011] EWCA Civ 1059 – read judgment

The Court of Appeal has confirmed that Article 8 of the Convention need not necessarily be considered when deciding whether to grant an applicant indefinite leave to remain. The Immigration Rules the are the sole test of eligibility, and Article 8 cannot be used to modify them.  They should therefore be read according to their natural and ordinary meaning.

In these conjoined appeals the appellants challenged decisions upholding the secretary of state’s refusal to grant them indefinite leave to remain in the United Kingdom.  The first appellant, S, had sought indefinite leave to remain in the UK on the basis of long residence. The secretary of state refused his application on the basis that he had failed to show that he had completed 10 years continuous lawful residence in the UK because there had been two gaps in his residency. He was, however, granted leave to remain in the UK for a period of three years to complete a course of study. The second appellant, P, had sought indefinite leave to remain in the UK as the parent of a person, his son, present and settled in the UK under the Immigration Rules para.319. P’s application was refused on the basis that he did not meet the dependency requirements of para.317 of the Rules. In both appeals an issue arose as to whether the Rules should be construed so as to conform with Article 8.
Continue reading →

Human rights – Strasbourg or Luxembourg?

9 September 2011 by Rosalind English

When a Convention right arises in circumstances which also engage EU law, which court is the final arbiter of their meaning and application?

This is not as arcane a question as it appears, since in the UK many cases engage points of EU law, so Convention rights, which are part of the “general principles” of Community law, get in under the wire via the   European Communities Act 1972.  And  in July the Council of Europe published the draft agreement for accession of the European Union as a signatory to the European Convention, which either adds another string to the ECHR bow, or a further layer of constitutional obscurity of interest only to international jurists, or both: – time will tell.
Continue reading →

Baha Mousa Public Inquiry finds “Corporate failure by MoD”

8 September 2011 by Rosalind English

The 1,400 page final report on the inquiry into the death of Baha Mousa  has been published today after three years of hearings. The chairman of the inquiry, retired Court of Appeal judge Sir William Gage, has condemned members of the 1st Battalion The Queen’s Lancashire Regiment for their “lack of moral courage” to report abuse  and the use of banned interrogation after Mousa died of 93 injuries in British army custody in Basra in 2003.

Mousa was arrested with nine other Iraqi men after 1QLR soldiers found weapons, fake ID cards and military clothing at the hotel where he was working as a receptionist. 
Continue reading →

Kicking and damning corporate souls

1 September 2011 by Rosalind English

As of today, government or private institutions tasked with keeping people in custody will be accountable in criminal law if it can be shown that a “gross duty of care” has led to the death of a detainee.

In 2008 the Corporate Manslaughter and Corporate Homicide Act 2007 came into force, creating  a new offence of corporate manslaughter. An offence is made out under this Act where a corporation’s activities cause a person’s death and the failure was because of a breach that falls far below what can reasonably be expected of the organisation in the circumstances.

Continue reading →

Judge gives green light to extradition of honeymoon murder suspect

12 August 2011 by Rosalind English

Belmarsh Magistrate’s Court has ruled that Shrien Dewani can be extradited to South Africa to stand trial for the murder of his wife, the judge concluding that the hardships he would face there would fall short of oppression. On Monday 26 September the home secretary signed an order for his extradition.|updated

The South African government sought extradition for Dewani in order to put him on trial for the murder of his wife Anni  in Cape Town last November. The newlyweds were being driven through the dangerous township of Gugulethu when their taxi was hijacked on November 13. Dewani was thrown out of the vehicle while his wife was driven off and shot dead. The authorities subsequently claimed to have  evidence that Dewani had arranged the carjacking and shooting of his wife.

Dewani’s lawyers argued that the extradition proceedings were not only an abuse of the process of the court, but if extradition was granted, it would be a breach of the defendant’s human rights, particularly Articles 2 and 3 of the European Convention. The abuse argument was predicated on allegations that the South African authorities had already prejudged Dewani’s guilt. As to the Convention arguments, evidence was advanced of widespread sexual assault and gang crime in the overcrowded South African prisons, including potentially lethal attacks by HIV infected inmates. His defence team also argued that he was too unwell to stand trial abroad, adducing medical evidence of severe depression and suicidal tendencies which would be exacerbated if he were sent to South Africa. 
Continue reading →

Police misconduct doesn’t always mean that accused walks free

28 July 2011 by Rosalind English

R v Maxwell [2010] UKSC 48 – read judgment

This case concerned the question of what should happen to a conviction when it turns out that it is based on pre-trial malpractice by the police (this time involving evidence from a “supergrass”), where there is nevertheless other strong evidence of the defendant’s guilt. If the pre-trial irregularity is sufficiently serious materially to affect the trial but not to render the conviction unsafe, should the Court of Appeal retain the power to order a retrial? Or should the conviction should be quashed?

In this case the appellant and his brother were convicted of murder and two robberies at Leeds Crown Court on 27 February 1998. The appellant was sentenced to life imprisonment for murder to be served with concurrent twelve-year terms for the robberies. The main prosecution witness was Karl Chapman, a professional criminal and a supergrass. His evidence was crucial to the arrest and prosecution of the appellant.
Continue reading →

Can “family ties” in Article 8 terms arise out of mere financial dependency?

25 July 2011 by Rosalind English

A A O v Entry Clearance Officer [2011] EWCA Civ 840 – read judgment

1 Crown Office Row’s Sarabjit Singh appeared for the Respondent in this case. He is not the writer of this post.

“No”, seems to be the Court of Appeal’s answer to the question posed by the heading above; indeed Rix LJ goes as far to say that “the provision of such money can be as much an insulation against family life as evidence of it.”

In this case the appellant, a 69 year old Somalian national who had been living in Kenya,  appealed against the respondent entry clearance officer’s refusal to grant her leave to enter the UK to join her daughter. The daughter, who sponsored this claim, had been granted British citizenship. She had seven children and was living on benefits, out of which she sent a monthly contribution to her mother.  The appellant, who was said to be in poor health and dependent on a neighbour for daily care, had applied for indefinite leave to join her daughter as a relative and financial dependant of a person settled in the UK under the Immigration Rules r.317. The entry clearance officer refused her request, having found that she did not satisfy r.317(iva) in respect of her ability to be maintained without recourse to public funds and that any interference with her rights under Article 8 of the European Convention on Human Rights was justified and proportionate for the purpose of maintaining effective immigration control.
Continue reading →

Religious freedom does not stop at the prison gates – Part 2

21 July 2011 by Rosalind English

Jakobski v Poland (December 2010) – read judgment

Mahayana Buddhists have profound moral objections to eating meat. According to the rules, a Mahayana Buddhist should avoid eating meat to cultivate compassion for all living beings.

Even peaceable Buddhists commit crimes sometimes and go to prison. Meat free diets however are not available in all European penitentiaries. Should committed vegetarians be made to forfeit their beliefs once their offences against society have committed them to penal servitude?

In Poland, apparently, the answer is yes. The refusal to provide a Buddhist prisoner with a meat-free diet was not unlawful under local law which provided only that prisoners should receive meals taking into consideration their employment, age and where possible religious and cultural beliefs. That let-out clause allowed the Polish government to issue an ordinance requiring the provision of special meals for diabetics and a “light diet”. Both contain meat products.
Continue reading →

The scoop, the chef, his wife and her father

19 July 2011 by Rosalind English

Christopher Hutcheson (formerly known as KGM) v News Group Newspapers and others – read judgment

In these turbulent times for Rupert Murdoch (see our contempt post) it seems strange to see one of his newspapers being vindicated by the courts, but, for once, The Sun seems to be coming up smelling of roses.

These proceedings concerned Mr. Hutcheson’s application to restrain NGN from publishing certain information. In 1968 he married a lady with whom he had four children, who are now grown up. The marriage still subsists. In the meantime, from about 1976 he developed a relationship with another woman with whom, in 1979 and 1981 respectively, he had two children.   

Continue reading →

Electric shock collar ban has bite

19 July 2011 by Rosalind English

When the Welsh Assembly voted to ban the use of the electronic training collar, which works by emitting an electric stimulus when the dog goes near a forbidden object like a fence, the main opponents of the ban the Electronic Collar Manufacturers’ Association were quick to take judicial review proceedings against the Welsh lawmakers.

They alleged that the ban was in breach of Article 1 of the First Protocol to the European Convention on Human Rights (the right to enjoyment of possessions and property) and the prohibitions in Articles 34 and 56 of the Treaty on the Functioning of the European Union, which prohibit restrictions to free trade.

They were unsuccessful in their bid to disqualify the ban and we posted an analysis of the case and the issues it raised. Since this post has attracted over three thousand hits since its publication, we feel it only right to follow it up with this story of the first prosecution under the ban.
Continue reading →

Secret evidence v open justice: the current state of play

17 July 2011 by Rosalind English

1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.

On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here.  Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case.  In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.

The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.

In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases.
Continue reading →

Strasbourg Grand Chamber rules on Diplomatic Immunity

14 July 2011 by Rosalind English

Farouk Sabeh el Leil v France (29 June 2011) – read judgment

When a diplomatic employee takes action for compensation for unfair dismissal, the host country’s courts  cannot simply rule out the possibility of a claim on the basis that the employer has state immunity. This would impair the very essence of his right of access to a court under Article 6 of the Convention.

The applicant, a French national, had been employed as an accountant in the Kuwaiti embassy in Paris since August 1980. He was promoted to head accountant in 1985. In March 2000, the Embassy terminated his contract as part of a cost-cutting exercise. His application to the local employment tribunal was initially successful but ultimately failed before the Paris Court of Appeals which found that the State of Kuwait enjoyed jurisdictional immunity on the basis of which it was not subject to court actions against it in France.
Continue reading →

Courts have no inherent power to order closed procedure – Al Rawi in the Supreme Court

13 July 2011 by Rosalind English

1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.

Al Rawi and others (Respondents) (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 – read judgment; read press summary

At the centre of this appeal was the court’s power to order a “closed material procedure” for the whole or part of the trial of a civil claim for damages.  The question arose as a “preliminary issue” – a point to be determined on its own – in the appellants’  compensation claim for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay.

In countering the respondents’ claim for compensation, the appellant security services claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They therefore sought a “closed material procedure” for this part of their defence – a procedure whereby a party can withhold certain material from the other side where its disclosure would be contrary to the public interest.
Continue reading →