Category: In the news
20 December 2011 by Rosalind English
Rahmatullah v Secretary of State for the Foreign and Commonwealth Office and the Secretary of State for Defence [2011] EWCA Civ 1540 – read judgment
A Pakistani detainee was sufficiently in the control of the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence to support the issue of a writ of habeas corpus, and it should not be withheld on any grounds concerned with diplomatic relations.
“Habeas corpus” is a legal action through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence. The original Latin designation simply means the initiation of a process requiring a person to be brought before a judge. It is a fundamental principle of English law that, where an individual is detained against his will, it is for the detainer to show that the detention is lawful, not for the detainee to show that his detention is unlawful.
In this case the appellant (R), a Pakistani national, had been captured by British forces in Iraq in 2004, handed to United States forces and transferred to a US airbase in Afghanistan as a suspected member of a proscribed organisation with links to Al-Qaeda. There he continued to be detained without trial. He sought the issue of a writ of habeas corpus, relying on a 2003 memorandum of understanding (MoU) between the United Kingdom, the US and Australia, active at the time of R’s capture, under which the UK retained full rights of access to any UK-detained prisoners of war and a right to request their return.
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18 December 2011 by Melina Padron
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
Will Detainee Inquiry hearings broadcast? Have your say
The Detainee Inquiry Panel has shown its commitment to carrying out an inquiry that is as open and inclusive as possible by inviting comments on their broadcasting proposal, before making a final decision. The Panel welcomes views on this issue from the media, potential witnesses, NGOs and any other groups or individuals who are interested in the Inquiry’s work. You may submit comments via email by 7th January 2012. You can find more details here.
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18 December 2011 by Rosalind English
Dufosse v Melbury Events Ltd CA (Civ Div) (Rix LJ, McFarlane LJ, Sir Mark Potter) December 14, 2011 (extemporare judgment)
Christmas is full of hazards for the unwary and nowhere is more dangerous it seems than Santa’s grotto, even where there is no sign of a freeze and the only icicles are plastic ones…
Poor Santa. Heavily chaperoned in his gift-dispensing activities lest there be any whiff of inappropriate behaviour near children, now it seems his benevolent insistence on a wintry wonderland is under threat. An elderly woman visited his grotto with five members of her family at a well-known department store in London. She tripped over a plastic icicle and injured her leg, and took proceedings against the event management group responsible for running the grotto.
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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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16 December 2011 by David Hart KC
OBG Ltd et al v. United Kingdom, 29 November 2011
We have become quite used to the Strasbourg Court having a serious go at bits of our statutory law, whether it be prisoners’ rights, anti-terrorist legislation or housing law. A lot of this statute enables the state to do things to private citizens which may or may not offend the Convention. But what is rather rarer in Strasbourg is the case where an applicant challenges judge-made law or common law, and does so where the dispute is between two private parties. Perhaps the best known example is the MGN/Naomi Campbell case in which privacy and costs issues got an intense scrutiny from the Strasbourg Court.
OBG sounds much less glamorous and more obscure, but is nonetheless interesting. The human rights of companies which have been injured by the wrongful exercise of administrative receivership powers have not been minutely examined in the case law, to say the least. But if this case sounds dry, and likely to hoist me by my own petard (should lawyers get named and shamed for being boring?), bear with me. Because it is actually quite a sad story of people being dealt an unjust result – for which neither domestic nor Strasbourg courts felt able to fashion a suitable remedy.
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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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15 December 2011 by Guest Contributor
Lord Irvine tonight weighed in to the debate about Britain’s relationship with the European Court of Human Rights – and effectively accused the Supreme Court of having surrendered its intellectual independence, and shirked its judicial responsibility.
His at times toughly-worded lecture to the UCL Judicial Institute and the Bingham Centre for the Rule of Law chimes with what the Attorney General Dominic Grieve has been saying recently about the need for primary responsibility for human rights protection to lie with states, not Strasbourg – and Grieve will surely approve of both the content and timing of Lord Irvine’s intervention, on the eve of the European Court’s ruling in Al-Khawaja and Tahery v. UK and in the context of Britain’s chairmanship of the Council of Europe. I’ll link to the text of his speech when it’s available.
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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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13 December 2011 by Adam Wagner
You don’t need to be a brain scientist to see that lawyers would benefit from a more sophisticated understanding of the human brain. Neuroscientists seek to determine how brain function affects human behaviour, and the system of law regulates how those humans interact with each other. According to a new Royal Society report, lawyers and neuroscientists should work together more.
The report, Neuroscience and the law, argues that neuroscience has a lot to offer the law, for example:
might neuroscience fundamentally change concepts of legal responsibility? Or could aspects of a convicted person’s brain help to determine whether they are at an increased risk of reoffending? Will it ever be possible to use brain scans to ‘read minds’, for instance with the aim of determining whether they are telling the truth, or whether their memories are false?
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12 December 2011 by Guest Contributor
The European court of human rights is considering a challenge by the UK supreme court to its ban on hearsay evidence. On Thursday, the grand chamber of the European court of human rights will deliver a judgment that could mark a turning point in the UK’s relationship with the Strasbourg court.
On the face of it, the issue looks simple enough. One clue to its importance, though, is that we have had to wait more than 18 months for the court’s final appeal chamber to come up with a ruling. Perhaps the judges have found it a difficult decision to reach.
Traditionally, the English courts have not permitted hearsay evidence: a witness was not allowed to give evidence of what he heard someone say to him. That was because it was difficult for the jury to assess the value of an absent witness’s evidence. But English law now permits a number of exceptions in the interests of justice. These are not reflected in the wording of the human rights convention.
What the Strasbourg judges have been asked to decide is whether two defendants in unrelated cases received fair trials in the crown court. They were both convicted even though their lawyers had not been able to cross-examine witnesses who had given written evidence against them.
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8 December 2011 by Alasdair Henderson
R v. H & others [2011] EWCA Crim 2753 – read judgment.
One of the most popular ideas in crime fiction is the ‘cold case’; the apparently unsolved crime which, through various twists and turns, is brought to justice many years after it was committed. Indeed, at least two recent long-running TV dramas (the American show ‘Cold Case‘ and the more imaginatively and morbidly named British show ‘Waking the Dead‘) have been entirely based on this concept.
But what happens when such cases do turn up in real life, get to trial and the perpetrator is found guilty? In particular, how does a judge approach sentencing for a crime which might be decades-old, in the light of Article 7 ECHR? The Court of Appeal recently provided some answers to those questions.
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8 December 2011 by Adam Wagner
Top Judge yesterday
A lot of headlines begin with “Top judge…” at the moment. Top Judge has variously attacked MPs who reveal injunctions, expressed fears over cameras in court, warned legal aid in family cases may disappear, protested over legal aid reforms, urged murder law reforms and said Britain can ignore Europe on human rights (he didn’t, but that’s another story).
Aside from lazy sub-editors (one of whom was me), what is causing this proliferation of Top Judges? It may be that senior judges are speaking out more, even on controversial topics which could create problems for them in the future.
Or perhaps Top Judge has always been outspoken, but fewer people were listening. In the internet age judges’ pronouncements are more quickly and widely reported. Speeches are often published instantly (sometimes, even before being made) on websites such as judiciary.gov.uk. Previously obscure Parliamentary committee hearings are broadcast live on the internet. The increased profile of the still-new Supreme Court adds to this dynamic.
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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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5 December 2011 by Melina Padron
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
The Government’s Green Paper on secret evidence
In my previous roundup, I mentioned that the government had published a Green Paper which proposed the extension of “closed material procedures”. Last week, the blogger Obiter J wrote a three-part detailed piece about the Green Paper and its proposals, which you can read here and here. In our blog, Adam Wagner pondered whether more trials should be held in secret, whilst Angus McCullough QC expanded on Adam’s piece, offering his comment from the perspective of an experienced Special Advocate.
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1 December 2011 by Angus McCullough KC
This is an expanded version of a comment made on Adam Wagner’s post: Should more trials be held in secret?
Our recent post highlights the Government’s consultation on the Justice and Security Green Paper. Having been involved as a Special Advocate in many hearings involving closed material, I am troubled about these proposals, as well as the lack of public debate that they have generated.
The main proposals in the Green Paper are based on the highly debatable assumption that existing closed material procedures (CMPs as per the acronym adopted) have been shown to operate fairly and effectively. CMPs, were first introduced in 1997 and have escalated in their application since then. At §2.3 of the Green Paper it is stated that:
The contexts in which CMPs are already used have proved that they are capable of delivering procedural fairness. The effectiveness of the Special Advocate system is central to this … .
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Rahmatullah v Secretary of State for the Foreign and Commonwealth Office and the Secretary of State for Defence [2011] EWCA Civ 1540 – read judgment
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