Category: In the news
12 April 2012 by Rachit Buch
Free speech is under attack. Or so it seems. The last few weeks have been abuzz with stories to do with free speech: a Supreme Court ruling on the Reynolds defence to libel; contempt of court proceedings against an MP for comments made in a book and the latest in a growing line of criminal trials for Twitter offences. The diversity of media at the heart of these stories – print news, traditional books and online ‘micro-blogging’ – indicates the difficulty of the task for the legal system.
Flood v Times: how does this affect calls for libel reform?
On 21 March, the Supreme Court affirmed the Times newspaper’s reliance on the Reynolds defence to libel – often referred to as Reynolds privilege or the responsible journalism defence – to a claim by a detective sergeant in the Metropolitan Police.
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11 April 2012 by Rosalind English
Waking up in New York this morning, I find the newspapers are much exercised by the recent decision of the Strasbourg Court to allow the extradition of certain terror suspects to the US, as discussed in Isabel McArdle’s post. The colourful New York Post declares unambiguously that “Thugs face Extradition” (April 11), following its banner headline of yesterday “UK can extradite hook-handed clerk, 4 other terrorists to US”. And just in case any passing reader failed to get the point, the strapline says
Britain can extradite a one-eyed, hook-handed radical Muslim cleric and four other suspects to the United States to face terrorism charges, Europe’s human rights court ruled today.
Giving rather more detail by way of background, today’s edition of The New York Times explains that Britain
has struggled to balance civil liberties and domestic security in the face of entrenched Islamic extremism and repeated terrorist attacks, and has sought to deport some of the dozens of subjects it has detained in scores of possible plots over a decade
According to the NY Times, the director of the national prison project for the American Civil Liberties Union found the ruling “disappointing”, and showed that the Strasbourg Court seemed willing to accept “dubious” assurances from the United States.
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10 April 2012 by Isabel McArdle
BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM – 24027/07 [2012] ECHR 609 – Read judgment / press release
The European Court of Human Rights (Fourth Section), sitting as a Chamber, has found that five men accused of serious terrorist activities can be extradited from the UK to the US to face trial.
They had argued that their article 3 rights (article 3 prohibits torture, inhuman and degrading treatment) would be violated if they were extradited and convicted. A sixth man’s case has been adjourned pending further submissions from the parties to the proceedings.
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8 April 2012 by David Hart KC
A long saga with a very new twist which should make even the most strident critic of international courts think again.
On 12 December 1999, the Erika sank some 60 nautical miles off the Brittany coast, spilling some 20,000 tonnes of heavy fuel which in due course polluted some 400 km of the French coastline. On 24 May 2012, the Cour de Cassation is due to rule on whether Total is criminally liable for the spill. Previous courts (the Criminal Court of First Instance, and the Court of Appeal in Paris) had said that it was. But now Advocate-General Boccon-Gibod has recently advised the Cour de Cassation that Total has no criminal liability. The problem, as often with international environmental issues, particularly criminal ones, is the jurisdiction for the offence charged – can, in this instance, the French prosecute this crime, even though someone can also do so somewhere else? What better reason for the founding of an international environmental court – a forum where one tribunal can seek to enforce common rules against those responsible for major pollution, wherever the pollution occurs and wherever the parties may be resident.
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7 April 2012 by Rosalind English
R (on the application of Amada Bizimana) v Secretary of State for the Home Department [2012] EWCA Civ 414
In the wake of France’s apparently unencumbered expulsion of individuals on public interest grounds there has been a fresh outcry from the press about the shackles imposed by the Human Rights Convention on the UK authorities which other signatory states seem to ignore with impunity. The Times leader column, headed “Sarko’s way”, asks “Why is it that the French can deport their foreign undesirables but we in Britain cannot?” –
Bish, bosh, no problem, it seems. Although all three men, apparently have the right to appeal against their sudden lack of access to France, they will have to exercise it from afar. And at this point one can only wonder how on earth they can do it in France, but we cannot do it here in Britain…
The actions of the French Government raise the obvious question (as well as a gigantic eyebrow): how come they can do it, and we can’t? What does Nicolas Sarkozy have that David Cameron lacks? France accepts the judgments of the ECHR and is regarded as being as civilised, almost, as we are.
But in truth the Convention is not always to blame in these cases; sometimes deportation can run aground on a strict interpretation of English statute law without the help of human rights, as the case below demonstrates.
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6 April 2012 by Adam Wagner
I highly recommend Dominic Casciani’s excellent BBC Newsnight piece on Barbar Ahmad, which is currently available on iPlayer (UK only).
Ahmad’s case cuts across a number of different rights controversies. The BBC challenged the Ministry of Justice’s initial refusal to allow an interview with the terrorist suspect, who is currently held at a maximum security jail, and won – see our post. Ahmad is also currently the longest serving prisoner who has not been charged with a criminal offence; he has been detained for nearly 8 years.
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6 April 2012 by Guest Contributor
Civil liberties and the coalition have been happily filling the political pages this week. The damning conclusion of the Joint Committee on Human Rights that there is no evidence to justify expanding closed proceedings (expertly dissected by Rosalind English earlier in the week) vied for column inches with leaks that the Government planned to introduce “real time” monitoring of how we use the internet in the interests of national security.
These latter “snooping” proposals echo the ill-fated Communications Data Bill 2008, proposed by the Labour Government. After cross-party condemnation and criticism from the Information Commissioner’s Office and others, that Bill was withdrawn, with Home Office officials sent back to the drawing board.
After meeting similar condemnation in the press and online this week, and reservations expressed by the Deputy Prime Minister; it appears we can expect a draft Communications Data Bill to be resurrected in the Queen’s Speech.
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5 April 2012 by Adam Wagner
The UK Human Rights Blog launched on 30 March 2010 with a total of 2 readers and a budget of £200. Two years later, despite the budget remaining consistent, the Blog has just surpassed 1,000,000 individual page views and has over 10,000 subscribers over email, Twitter and Facebook. I would like to take a moment to reflect on this success.
As you can probably guess, we are (and I am) thrilled at the response to UKHRB. When we launched, our aim was to provide a new voice in the always colourful but often shrill arena of human rights commentary. We felt that there was a gap in the market (as it were – the blog has been and remains free to access) for a non-ideological legal human rights update service which would be accessible to the lawyers and lay persons alike.
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4 April 2012 by Rosalind English
The Parliamentary Committee on Human Rights has now responded to the Government’s consultation on the proposals set out in their Justice and Security Green Paper Cm 8194. The idea is to extend “closed material procedures” so as to be available in all civil proceedings, i.e. not just in some highly restricted national security contexts such as deportation appeals before SIAC (the Special Immigration Appeals Commission), control orders, and their successor regime known as TPIMs.
On the one side…
is the independent reviewer of terrorism legislation, David Anderson QC, who has concluded that secrecy of evidence should be maintained in civil procedures as well; after reviewing secret evidence relating to a small selection of civil claims, he reported that issues in some damages claims could not be determined at all without resort to a closed material procedure.
On the other …
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31 March 2012 by Isabel McArdle
The Government of the Republic of South Africa v Shrien Dewani- Read decision
The extradition to South Africa of Shrien Dewani, the man accused of murdering his wife on honeymoon there in 2010, has been delayed pending an improvement in his mental health.
The case made headlines in 2010, when the story broke of a honeymooning couple who had been ambushed in the township of Gugulethu, South Africa. Mr Dewani told police he had been travelling in a taxi which was ambushed by two men. He described being forced from the car at gunpoint and the car driving away with his wife still inside. She was found dead shortly after. However, evidence emerged which led the South African authorities to believe that Mr Dewani had initiated a conspiracy with the taxi driver and the men who ambushed the taxi to murder his new wife. Consequently, they sought his extradition from the UK, to which he had returned, to face a trial for murder.
In an appeal to the High Court from a decision by a Senior District Judge that Mr Dewani could be extradited, Mr Dewani made two arguments:
1. Prison conditions in South Africa were such that his Articles 2 (right to life) and 3 (prohibition on torture, inhuman and degrading treatment) Convention rights would be violated if he were extradited;
2. His mental health and risk of suicide were such that his should not be extradited.
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30 March 2012 by Matthew Hill
Reynolds v United Kingdom [2012] ECHR 437 – read judgment
What – if anything – can a claimant do when she suspects that the domestic law is not only out of kilter with Strasbourg jurisprudence but is also denying her even an opportunity to bring a claim? Taking arms against a whole legal system may be an heroic ideal, but the mundane reality is a strike out under CPR rule 3.4 by a district judge in the County Court. It is a long way from there to the European Court of Human Rights.
This was the position in which Patricia Reynolds and her daughter Catherine King found themselves following the sad death of (respectively) their son and brother. David Reynolds suffered from schizophrenia. On 16 March 2005 he contacted his NHS Care Co-ordinator and told him that he was hearing voices telling him to kill himself. There were no beds available in the local psychiatric unit, so Mr Reynolds was placed in a Council run intensive support unit. His room was on the sixth floor and at about 10.30 that night Mr Reynolds broke his (non-reinforced) window and fell to his death.
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29 March 2012 by Rosalind English
Hilal Abdul-Razzaq Ali Al‐Jedda v Secretary of State for the Home Department March 29 – read judgment
The Court of Appeal has allowed the suspected terrorist Al‐Jedda’s appeal against the Home Secretary’s decision to deprive him of his British nationality.
The appellant, an Iraqi refugee, was granted British nationality in 2000. Four years later however he was detained by British forces in Iraq on grounds of suspected terrorist activities. At the end of 2007 he was released from detention without charge, but just prior to his release, on 14 December 2007, the Secretary of State for the Home Department made an order under the British Nationality Act 1981 depriving him of his British nationality. As a consequence of this order the appellant has not been able to return from Turkey to the United Kingdom. His appeal against this order has been upheld on the basis that he had not regained Iraqi nationality when his British nationality was revoked. He thus requalifies for citizenship in this country.
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29 March 2012 by David Hart KC
Berky, R (on the application of) v. Newport City Council, Court of Appeal, 29 March 2012, read judgment
Two first-instance cases last year (Buglife, and Broads) considered whether a defendant to a judicial review involving a European point can complain that the proceedings were not commenced “promptly” even though they were commenced within the 3 month time limit. Both judges decided that this argument could not be advanced, even though the wording in CPR rule 54.5(1) reads “promptly and in any event not later than 3 months.” The Court of Appeal has now (by a whisker) approved these cases, though there was a vigorous dissent on one important point from Carnwath LJ. The point was in one sense academic, because the Court thought there was no merit in the underlying proceedings, but the ruling is still important.
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29 March 2012 by Daniel Sokol
Gas and Dubois v France (2012) (application no 25951/07). Read judgment (in French).
The French government did not violate articles 8 (right to respect for private and family life) and 14 ECHR (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms) in not allowing one partner in a homosexual couple to adopt the child of the other. And the Daily Mail goes off on another frolic of its own.
Ms Valerie Gas and Ms Nathalie Dubois, now in their 50s, lived together as a lesbian couple, obtaining the French equivalent of a civil partnership (the pacte civil de solidarité, or PACS) in 2002. Ms Dubois, through artificial insemination in Belgium using an anonymous sperm donor, gave birth to a girl in September 2000. Together, they took care of the child and, in 2006 , Ms Gas, applied to adopt the girl with the consent of her partner, Ms Dubois.
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28 March 2012 by Rosalind English
Cairns v Modi [2012] EWHC 756 – read judgment
It was coincidental that this cricket libel case and Lady Justice Arden’s speech on media intrusion and human rights “Striking the Balance” came out on the same day.
Non-followers of cricket and non-followers of Twitter are equally bemused by the vastly frothed story about match-fixing allegations, but this was the first social networking libel to hit the law reports in this country. Despite this, the case has all the trappings of an old fashioned defamation case – strong public figures, ready to come forward to defend their reputation/publication; a long lead time between publication and identification of the libel, protracted cross examination, sheaves of evidence going to both justification and claimant. The claimant is a famous New Zealand cricketer with a reputation to defend. Nothing new there. The novelty was that the defendant, one time chairman of the hugely popular Indian Premier cricket league, posted a line on his Twitter profile implying that the claimant had cheated by fixing matches. It was serendipitous that the author of the tweet, Mr Modi, is both a well known figure, resident in England, and ready to come forward. The justification defence fell apart and the claimant was awarded £75,000, with another £15K for aggravated damages. End of story. Or is it?
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