By: Rosalind English
17 December 2011 by Rosalind English
Case C-53/10 Land Hessen v Franz Mücksch OHG – read opinion; read judgment
There may not appear at first sight to be much common ground between a dispute in the European Court of Justice (CJEU) over hazardous premises and planning permission, and the relationship between the Strasbourg Court and domestic courts in their interpretation of the provisions of the Human Rights Convention. But one innocent-sounding phrase in the Human Rights Act which requires national courts to “take account of” the rulings of the Strasbourg Court has been causing so much trouble lately that it is worth casting around for any elucidation of its meaning, and some very welcome light has been thrown on it by AG Sharpston in the CJEU, albeit in a completely different context.
The dispute
Following the accidents at Bhopal and Mexico City, the EU introduced a Directive (“Seveso II“) to limit the consequences of incidents involving hazardous substances. Under Article 12 of the Directive, member states are obliged to keep a “suitable distance” between residential or environmentally sensitive areas and establishments presenting such hazards are sited.
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15 December 2011 by Rosalind English
Al-Khawaja and Tahery v United Kingdom (15 December 2011) – read judgment
The Grand Chamber of the European Court of Human Rights has ruled today that convictions based on statements from witnesses who could not be cross examined in court did not violate the applicants’ rights under Article 6(3) (d) to obtain attendance and examination of witnesses fair trial.
This latest predicted clash between Strasbourg and UK courts has therefore not come about, as the Court has essentially agreed with the domestic courts that a conviction based solely or decisively on the statement of an absent witness does not automatically result in a breach of Article 6.
It should be noted at the outset that the principle against hearsay and the relevant provisions against Article 6 apply to criminal trials only. There is no difficulty with the use of hearsay evidence in civil trials, which represent the vast majority of cases litigated.
A brief account of the facts was given in Joshua Rozenberg’s post published earlier. The following detailed summary is based on the Court’s press release.
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13 December 2011 by Rosalind English
R v Michael Peter Lyons [2011] EWCA Crim 2808- read judgment
Moral objections to the UK’s involvement in Afghanistan do not constitute a defence to an insubordination charge, the Court Martial Appeal Court has ruled. The appellant was not entitled to disobey a lawful command on the ground of conscientious objection.
At the age of 18 the appellant had volunteered for the Royal Navy and under its auspices was posted to submarines as Leading Medical Assistant. Five years in to his service, he was told that he would be deployed to Afghanistan. He applied for discharge on the basis that he objected to the UK’s role in Afghanistan. His application on grounds of conscientious objection was refused. Before his appeal against this refusal was decided he was ordered to undertake a pre-deployment weapons training course, because of the risk all personnel faced in that theatre, combatant or not. On refusing to submit to this he was convicted of insubordination.
In this appeal against his sentence he argued that Article 9 protected him from active service from the moment when he told his commanding officer of his objections, until his appeal on grounds of conscientious objection was finally determined. He also contended that he had protected status under the Geneva Convention 1949 and it was unlawful to require him to undergo weapons training. His appeal was dismissed.
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6 December 2011 by Rosalind English
Behind the Times paywall Anthony Lester today declares that “Sniping at Strasbourg will only hinder reform”. In his guest column, he says that Court is suffering unfair criticism from “sections of the British media” and “politicians who accuse it of over-reaching its power”. That may well be the case, but the most searing and authoritative criticism comes not from politicians or the press but from Lord Lester’s own profession – see Jonathan Sumption QC’s recent broadside (and our post) and Lord Hoffmann’s much-discussed analysis (posted here).
If the Court is indeed hobbled by unfair squibs and arrows from a resentful sector of the British populace, as Lord Lester suggests, why is the prisoner votes example the only one he can come up with? That is an important fight, at least from a constitutional angle, but not the only flashpoint; the Court’s tendency to act as fourth instance appeal tribunal particularly on deportation and terrorism cases is arguably far more “dangerous” and certainly of concern to more people than votes for prisoners.
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25 November 2011 by Rosalind English
Ironically, during the week when South Africa’s notorious “Secrecy Bill” was making its speedy way through parliament, Helen Zille, Leader of the opposition Democratic Alliance party in South Africa, struck a blow for freedom of expression by tackling one of the most sensitive subjects on the Southern Africa agenda – Aids.
In short, Zille has created a storm in the Twittersphere and many other places besides by questioning the softly-softly culturally sensitive approach to Aids prevention in South Africa and contrasting it with the greater emphasis placed on individual responsibility in other countries.
In her her piece in the Cape Times she points out that in Europe, North America, Australia and New Zealand, deliberate infection of others with HIV is an imprisonable crime. Far from being a violation of HIV sufferers’ rights, she notes the high proportion of Council of Europe countries which have criminalised people for having unprotected sex, knowing they were HIV-positive, without disclosing their status. To us there is nothing controversial about these measures.
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24 November 2011 by Rosalind English
Jude and others (Respondents) v Her Majesty’s Advocate (Scotand) [2011] UKSC 55 – read judgment; McGowan (Procurator Fiscal, Edinburgh) (Appellant) v B (Respondent) [2011] UKSC 54 – read judgment
In these two cases the Supreme Court has considered whether the failure to take up on legal representation during police interview amounted to a waiver of the right of access to legal advice for the purposes of determining whether the trial had been fair.
Both cases involved detention of individuals which had taken place prior to the decision of this Court in Cadder v Her Majesty’s Advocate [2010] UKSC 43 (see our post) and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials.
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23 November 2011 by Rosalind English
South Africa’s Protection of Information Bill is about to be transformed into a new secrecy law as it was pushed through parliament yesterday, Jan Raath reports in the Times. See our previous post on the details of the law’s scope and potential chilling effect on investigative journalism and whistleblowers.
In essence, if this bill becomes law it would allow any organ of state, from the largest government department down to the smallest municipality, to classify any document as secret and set out harsh penalties of up to 25 years in jail for whistleblowers.
Raath quotes Siyabonga Cwele, the Security Minister, as declaring last week that South Africa had been under
an increased threat of espionage since 1994 when it adopted a non-racial democratic Constitution. He denounced opponents of the Bill as “proxies of foreign spies”.
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23 November 2011 by Rosalind English
Ali Zaki Mousa v Secretary of State for Defence & Anr [2011] EWCA Civ 133 – read judgment
Philip Havers QC of 1 Crown Office Row represented the respondent secretary of state in this case. He is not the author of this post.
The Court of Appeal has ruled that the Iraq Historic Allegations Team, set up to investigate allegations of ill-treatment of Iraqi detainees by members of the British armed forces, lacked the requisite independence to fulfil the investigatory obligation under Article 3 of the Convention.
The claimant was representative of a group of Iraqis numbering about 100 who brought judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces – see our post on the permission hearing.
The so-called “Iraq Historic Allegations Team” (IHAT) was set up to investigate these allegations. The IHAT included members of the General Police Duties Branch, the Special Investigation Branch and the Military Provost Staff. A separate panel, the Iraq Historic Allegations Panel (IHAP), was appointed to ensure the proper and effective handling of information concerning cases subject to investigation by the IHAT and to consider the results of the IHAT’s investigations, with a view to identifying any wider issues which should be brought to the attention of the Ministry of Defence or of ministers personally.
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17 November 2011 by Rosalind English
BUAV v Information Commissioner and Newcastle University (EA/2010/0064) – read judgment
There is no doubt that freedom of expression plays a starring role in the human rights fairy tale. While she is carried aloft on the soaring rhetoric of citizens’ rights from the newsrooms to protesters’ rallies, the right to information, her shy stepsister, is rarely allowed out. How can that be? Surely we can’t have the one without the other?
The key lies in the Strasbourg Court’s traditionally restrictive interpretation of the relevant part of Article 10 – “the freedom to … to receive and impart information” (10(1)). Although the right to information is explicit (unlike many of the other rights the Court has conjured from the Convention), it does not entitle a citizen a right of access to government-held information about his personal position, nor does it embody an obligation on the government to impart such information to the individual (Leander v Sweden (1987) 9 EHRR 433). This approach is changing, particularly in relation to press applicants. But the culture remains hostile; as the Court says “it is difficult to derive from the Convention a general right of access to administrative data and documents” (Loiseau v. France (dec.), no. 46809/99, ECHR 2003-XII – a self-serving statement if ever there was one, given that it is not the Convention but the Court’s own case law that has been so tight-fisted in the past.
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15 November 2011 by Rosalind English
... is at the core of Jonathan Sumption QC’s FA Mann Lecture. His central point is not human rights as such, but our misconception of Parliament and the perceived need for judicial constraints on the action of the state.
Drawing on his not inconsiderable command of history he sets out to explain that the immense powers exercised by modern governments over their own citizens have arisen almost entirely from the collective aspirations of the population at large, “aspirations which depend for their fulfilment on persistent intervention by the state in many areas of our national life, and which no democratic politician can ignore.” We fool ourselves if we still view this as a power-grab by ambitious ministers and officials. The truth is that a powerful executive is “inherent in the democratic character of the modern state.”
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10 November 2011 by Rosalind English
S.H. and Others v. Austria (Application no. 57813/00), 3 November 2011 – read judgment
The Grand Chamber of the Strasbourg Court has rejected complaints from two infertile couples that the Austrian prohibition on using medically-assisted procreation techniques did not breach their right to respect for family life under Article 8 or the right to found a family under Article 12. The choices the legislature had made reflected the then current state of medical science and the consensus in society and it had therefore not overstepped its (wide) margin of appreciation in this area.
This refusal to allow infertile couples the protection of the Convention against restrictive state legislation comes as some surprise in the light of Strasbourg’s readiness to insist that governments should allow prisoners access to artificial insemination (AI): Dickson v United Kingdom (2006). Why should infertile couples be denied the anxious scrutiny accorded to those behind bars? This giving with one hand and taking with another simply confirms the cynic’s view of the court as being deeply partisan in its approach. And it is far from clear why governments should be allowed such leeway in an area so central to the ECHR’s concerns: the Court itself has said that where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State would normally be severely restricted. The matter of procreation and the genetic relatedness of one’s offspring must surely belong to this “core” area of life.
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8 November 2011 by Rosalind English
David Thomas Howarth v Commissioner of Police of Police of the Metropolis [2011] EWHC 2818 (QB) – read judgment
Protestors have to put up with “sensible and good natured” controls by the authorities as a limitation on their rights to free expression and assembly, the Divisional Court has ruled.
A claim for judicial review brought by an environmental protestor (“Mr Howarth”) against the Commissioner of Police of the Metropolis, challenging the lawfulness of a personal search of Mr Howarth carried out by a Metropolitan Police officer on 16 October 2010. The search was carried out on a railway train on which Mr Howarth was travelling in order to reach a site of intended public protest against an oil company. On the day in question Mr Howarth travelled with four friends from his home in the West Midlands to London to attend a demonstration organised by a body of persons calling themselves “Crude Awakening”, whose principal object is to campaign against the activities of those involved in the oil industry. The officer who conducted the search stated that he was looking for articles such as chalk, spray paint or highlighters that had been used in similar protests. He found no relevant articles.
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8 November 2011 by Rosalind English
ABB & Ors v Milton Keynes Council [2011] EWHC 2745 (QB)- read judgment
Justin Levinson of 1 Crown Office Row acted for the claimants in this case. He is not the author of this post.
This case concerned the entitlement to compensation for the years of abuse the claimants, three brothers a sister, the youngest, who had suffered at the hands of their father. The older claimants had both suffered regular abuse from an early age until late teens. The third claimant escaped the prolonged abuse suffered by his brothers. The fourth claimant, who was conceived after the defendant social services became aware of the situation, nevertheless endured abuse for five or six years.
The father’s abuse of the older boys came to light in 1992 when the first three claimants were placed on the child protection register and the father moved out of the family home. However charges against him were subsequently dropped and he returned home. The names were removed from the register but the abuse continued.
The facts were not disputed but the principal issue between the parties was that of the quality of social work practice adopted by the defendants’ employees and whether this fell below a reasonable standard.
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1 November 2011 by Rosalind English
On the eve of Lord Justice Leveson’s inquiry into phone hacking and the ethics of journalism, the British Institute of Human Rights (BIHR) with 1 Crown Office Row hosted a roundtable discussion to examine how to reconcile the right to privacy with freedom of expression. Stephen Bowen, Director of BIHR and Philip Havers QC, 1COR’s Head of Chambers, led the discussion, which followed “Chatham House rules” so the report below is not attributed to specific attendees, although we can mention that a number of key figures in this debate were present, including Chris Bryant MP, Nuala Cosgrove (director of Ofcom), “Hacked off” political scientist Dr Evan Harris and philosopher and cross bencher Baroness Onora O’Neill. Journalist and law commentator Joshua Rozenberg chaired the discussion.
There has been so much steaming-off and ink-spilling on this issue that it is unimaginable that anyone can find anything new to say that might advance the arguments for and against a law on privacy; nevertheless this discussion moved apace with high quality contributions and fresh analyses that cast welcome new light on a very old debate.
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24 October 2011 by Rosalind English
N.A. (Iran) v Secretary of State for the Home Department [2011] EWCA Civ 1172 – read judgment
This application raises a significant issue about the treatment of vulnerable asylum-seekers and their children following certification of their claim as clearly unfounded.
It concerned the interface between state authorities’ obligations under the EU system of determining responsibility for examining asylum claims under the Dublin II Regulation (2003/34/EC), on the one hand, and their obligations under the European Convention of Human Rights on the other. Although Convention rights theoretically form part of the “principles” of EU law, this case is a neat illustration of how the states’ duties under the two regimes are subtly different, and how attentive the courts have to be to the individual circumstances of the case.
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Case C-53/10 Land Hessen v Franz Mücksch OHG – read opinion; read judgment
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