Category: In the news

Justice and Security Bill: The Government is not for turning – Angela Patrick

29 May 2012 by Guest Contributor

Publishing the Justice and Security Bill this morning, the Secretary of State for Justice said “I have used the last few months to listen to the concerns of … civil liberties campaigners with whom I usually agree.”

There are many people who today would sorely like to agree that Ken has listened and has taken their concerns on board.  Unfortunately, the Government’s analysis remains fundamentally flawed.  The Green Paper was clearly a “big ask”.  There have undoubtedly been significant changes made from the proposals in the Green Paper.  However, the secret justice proposals in the Justice and Security Bill remain fundamentally unfair, unnecessary and unjustified.

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We need to think about Kevin

29 May 2012 by Rosalind English

Monsters are born, not made: the latest round in the debate about criminal responsibility questions the very  existence of intuitive morality.

US neuroscientist Sam Harris claims in a new book that free will is such a misleading illusion that we need to rethink our criminal justice system on the basis of discoveries coming from the neurological wards and MRI scans of the human brain in action.

The physiologist Benjamin Libet famously demonstrated in the 1980s that activity in the brain’s motor regions can be detected some 300 milliseconds before a person feels that he has decided to move. Subjects were hooked up to an EEG machine and were asked to move their left or right hand at a time of their choosing. They watched a specially designed clock to notice what time it was when they were finally committed to moving left or right hand. Libet measured the electrical potentials of their brains and discovered that nearly half a second before they were aware of what they were going to do, he was aware of their intentions. Libet’s findings have been borne out more recently in direct recordings of the cortex from neurological patients. With contemporary brain scanning technology, other scientists in 2008 were able to predict with 60% accuracy whether subjects would press a button with their left or right hand up to 10 seconds before the subject became aware of having made that choice (long before the preparatory motor activity detected by Libet).
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Free Speech at Work: A 1COR Seminar and Mock Trial – Wed 27th June

29 May 2012 by Guest Contributor

Time and time again: Article 6 to the rescue

28 May 2012 by David Hart KC

Last week Rosalind English did a summary post on the important Supreme Court case of Lukaszewski and others, R (on the application of Halligen) v Secretary of State for the Home Department [2012] UKSC 20 – read judgement.

The technicalities of this decision about extradition time limits are set out in her post. Here, I explore the potential implications for other cases.

The Extradition Act contains firm rules that appeals need filing and serving within 7 or 14 days, depending on the procedure. The Supreme Court decided that there should be a discretion in exceptional circumstances for judges to extend time for service of appeal, where the statutory time limits would otherwise operate to impair the right of appeal and therefore be in breach of  the right to a fair trial afforded by Article 6(1) of the Human Rights Convention. And it is this discretion which is important for a whole range of appeals  where mandatory time limits are laid down by statutes.

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The case for letting prisoners vote – Reuven Ziegler

24 May 2012 by Guest Contributor

Last Tuesday saw the latest episode in the prisoner voting legal saga with the European Court of Human Rights’ Grand Chamber’s judgment  reversing the Chamber judgment which found Italy’s automatic ban on voting for prisoners serving over 3 years in prison (and a lifetime ban with the possibility of future relief for those sentenced to more than 5 years) in breach of Article 3 of Protocol 1 to the European Convention on Human Rights.

Adam Wagner has compared  the prisoner voting issue to a ping-pong ball in a wind tunnel, noting that ‘the ball is now back on the UK’s side of the table’. Indeed, the UK must still allow at least some prisoners the vote, as required by the 2005 judgment in Hirst v UK (No.2) and the 2010 judgment in Greens & MT v UK.  Over at EJIL: Talk!, Marko Milanovic rightly accounts for the unholy mix of law and (inter)national politics that has generated the Grand Chamber’s unprincipled judgment. Indeed, as Carl Gardner suggests on the Head of Legal blog all that logically remains of the Hirst judgment is that automatic disenfranchisement of prisoners that are sentenced for less than 3 years (probably) breaches the convention.

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Police denied TV footage of Dale Farm evictions

24 May 2012 by Rosalind English

BSkyB and another, R(on the application of) v Chelmsford Crown Court [2012] EWHC 1295 (Admin) – read judgment

The police failed to satisfy the court that their need for footage taken by TV organisations was likely to be of substantial value to criminal investigations and therefore would be a justified interference with the rights of a free press under Article 10 of the Human Rights Convention.

Sky, BBC, ITN etc. succeeded in quashing an order to produce of 100+ hours of video footage to Essex Police of  the Dale Farm protesters on the grounds that there were no “reasonable grounds” for believing that the footage of over 100 hours included material likely to be of substantial value to the investigation.

Background facts

After the Dale Farm evictions and the disorder that ensued, the police sought an order for the recordings taken by the claimant organisations to help identify those who had committed indictable offences when attempting to prevent the eviction.  They submitted that it was necessary, not least for the prevention of similar disorder on future occasions, to identify as many as possible of those who committed indictable offences in attempting to frustrate the lawful enforcement procedures. Production orders were duly made by Chelmsford Crown Court, defendant in this action.
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Time extended for appeals under Extradition Act

23 May 2012 by Rosalind English

Lukaszewski and others, R (on the application of Halligen) v Secretary of State for the Home Department [2012] UKSC 20 – read judgement

The Supreme Court has ruled that there should be a discretion in exceptional circumstances for judges to extend time for service of appeals against extradition, where the statutory time limits would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1) of the Human Rights Convention

The following report is based on the Supreme Court’s press summary. A full analysis of the case will follow shortly.

Background facts

Lukaszewski (“L”), Pomiechowski (“P”) and Rozanski (“R”) are Polish citizens who are each the subject of a European Arrest Warrant (“EAW”) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (“H”), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the “Act”) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates’ Court.
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Why no public appointment hearings for UK’s new European Court of Human Rights judge?

23 May 2012 by Adam Wagner

Bratza is off

The Guardian reported yesterday that “MPs aiming to claw back powers from Europe have secretly interviewed candidates to become Britain’s next judge at the European court of human rights”. Oliver Heald MP said that a group of MPs from the three main political parties met the 3 candidates, Raquel Agnello QC, Paul Mahoney and Ben Emmerson QC. The aim is “to improve democratic accountability”.

What would really improve democratic accountability is to hold such meetings in public, and broadcast them online. Currently, the UK public  knows frighteningly little about how the Strasbourg Court works in practice. This is hardly surprising given that it is regularly misrepresented in the popular press, for example the Daily Mail and Telegraph’s recent uncritical coverage of a report which wrongly stated the UK loses 3 out of 4 cases there (the real figure is about 1 in 50).

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Don’t rely on human rights in a dismissal claim

23 May 2012 by Martin Downs

Mattu v University Hospitals of Coventry and Warwickshire NHS Trust – read judgment 

For a government much divided about rights of employees and the Beecroft Report that proposes curtailing them, some relief is provided by this Court of Appeal ruling, a further blow to those who have argued that Article 6 can be deployed against their employers.

The judgment represents the latest round in the saga of Dr Mattu’s dispute with his former employers which commenced with his suspension in 2002 and included an unsuccessful attempt to force the Trust to prevent disciplinary proceedings and then a challenge to his dismissal.The Court unanimously concluded that the procedure by which Dr Mattu was dismissed did not attract the protection of Article 6 as an employer who dismisses with or without the benefit of a formal hearing is not determining the employee’s civil rights. Rather the employer is exercising a contractual power. The disciplinary proceedings of an employer and a decision to dismiss summarily may give rise to civil rights, namely proceedings for unlawful dismissal and unfair dismissal and those concerned with professional and regulatory standards but they do not determine such rights. In those circumstances Article 6 will be engaged before the Courts, Tribunals and Regulatory Panels but not in disciplinary proceedings before an employer. 
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Pssst… no secret hearings in naturalisation cases

22 May 2012 by Isabel McArdle

AHK and Others v The Secretary of State for the Home Department [2012] EWHC 1117 (Admin) – Read judgment

Secrecy and secret justice are rarely out of the public eye. The Queen’s speech included plans to allow secret hearings in civil claims, at a time when their use is highly controversial. The government argues they are necessary to safeguard national security. Civil liberties groups and even the Special Advocates who help administer them, regard them as a bar to real justice and fair hearings.

So it seems appropriate at this time that the High Court has handed down an important decision on the use of Closed Material Procedures (CMP) in Judicial Review claims relating to naturalisation (the process by which foreigners can be ‘naturalised’ as British citizens). In simple terms, this is a variety of procedure where the government can rely on evidence which it has not disclosed to the opposing party, in a closed hearing. In the closed proceedings, the Claimants are represented by Special Advocates, who are subject to strict rules relating to what they can and cannot tell their clients.

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Anemometers and wind farms once more: PINS now win the day

22 May 2012 by David Hart KC

DCLG v. Information Commissioner & WR [2012] UKUT 

I have previously posted on the decision leading to this successful appeal by the Planning Inspectorate, against an order that they produce their legal advice concerning a planning appeal. The decision of the First-Tier Tribunal in favour of disclosure was reversed by a strong Upper Tribunal, chaired by Carnwath LJ in his last outing before going to the Supreme Court. So the upshot is that PINS can retain whatever advice which led them to refuse this request for a public inquiry in a locally controversial case.

Now for a bit of background. The claim for disclosure of documents arose out of a planning application by a wind farm operator to install an 80m tall anemometer (and associated guy wires radiating over about 0.5ha) near Fring in North Norfolk. This was to assess the viability of a wind farm near the site. The local planning authority refused permission for the anemometer, and the wind farmer  appealed.  There are three ways of deciding such an appeal – a full public inquiry with oral evidence and submissions, an informal hearing or written representations. The locals people wanted a public inquiry. They were supported in that by the council, and the local MP thought that the council was the best body to judge that.  PINS said no; no complex issues arose for which a public inquiry was necessary.

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Convention should not be a basis for demanding unnecessary public inquiries – Court of Appeal

21 May 2012 by Rosalind English

MM and AO (a child), R(on the application of) v Secretary of state for the Home Department [2012] EWCA Civ 668 (18 May 2012) – read judgment

The Court of Appeal has confirmed that the Secretary of State acted lawfully in not ordering independent inquiry into a 2009 protest at an Immigration Detention Centre.

 This interesting case explores the scope of the investigative duty under Article 3  of the Convention and its limited nature when compared to the analogous duty under Article 2, where the victim is no longer around to take action for him or herself.  On the facts of this case, where there was no allegation of systemic failings, there was no obligation under Article 3 to arrange such an inquiry and the claim for psychiatric damage by the children who became separated from their parents during the protest was dismissed.

Background

The claimants, an adult and child respectively, had been detained amongst others at a removal centre. In 2009 there as a protest by some of the detainees after which the United Kingdom Borders Agency (UKBA) which ran the centre intervened, attempting amongst other things to remove the children from the fray by gathering them in a classroom. Afterwards, there was a dispute as to the degree of force used during the intervention and the distress caused to the children. An investigation by UKBA’s own Professional Standards Unit  concluded that the intervention had been necessary. However, it was claimants’ case that an independent investigation was required to comply with the procedural obligations under the prohibition of inhuman and degrading treatment under Article 3. When dealing with a mass protest involved careful planning and execution, the claimants submitted that it was particularly important that lessons be learned by the state from events as serious as these.
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A secret justice climb down? Perhaps not

21 May 2012 by Adam Wagner

Angus McCullough QC and Jeremy Johnson QC, Special Advocates at the JCHR

It appears that the Government has climbed down, in part, from some of its controversial secret justice proposals.  According to the Telegraph, the Justice and Security Bill, which will be published this week, will include a provision whereby judges, not the Government, has the final say on whether a Closed Material Procedure (CMP) is used. Moreover, CMPs will be restricted to “national security cases” rather than any case “in the public interest”. 

It “remains uncertain”, however, “whether Mr Clarke will exclude inquests from being subject to the secret hearings.” Junior Justice Minister Jonathan Djanogly caused a stir last week when he appeared prematurely to announce that particular concession in Parliament, but quickly stepped back from his statement.  In view of the likely legislative bartering which will occur as the bill progresses through Parliament, perhaps this is a concession which was meant to be left until later in the process.

We will analyse the bill when it is published later this week. But as this important debate resurfaces and the manoeuvring continues, it is important to keep two things in mind.

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Supreme Court judge on war, intelligence and the retreat of judicial deference

20 May 2012 by Rosalind English

The recent standoff  between two leading judicial lights, Jonathan Sumption and Stephen Sedley, may make for entertaining reading, but don’t be fooled.

Like the heated question of whether a non-entrenchment clause could be dug into our law to protect UK parliamentary sovereignty, this one wasn’t about law, or even constitutional theory; it was essentially about differing ideological positions vis a vis judicial power.

Joshua Rozenberg welcomes Sumption’s latest speech as indicative of his supportive stance  on judicial activism, particularly in the foreign policy sphere.  I don’t agree. In his  FA Mann Lecture  last November Sumption pinned his colours to the mast on judicial activism in general, and this latest fascinating survey of foreign policy case law illustrating the retreat of judicial deference must be read in that light.
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Comment: How will the Defamation Bill protect free speech?

20 May 2012 by Rachit Buch

As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the Defamation Bill has been published, is whether the reforms proposed will be the right ones.

The media law blog, Inforrm, published this summary of the Bill, which takes a detailed look at the main clauses. Law blog Jack of Kent also has a libel reform resource page here. Among others, the Bill would make the following major changes:

• Create a test of “serious harm” for statements to be considered defamatory.
• Abolish the common law defences of fair comment, justification and Reynolds privilege, and place them on a statutory footing.
• Create a new statutory privilege for peer-reviewed scientific and academic publications and provide greater protection to online entities.
• Amend the existing law of qualified privilege to include reports of scientific conferences and press conferences.

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