Category: In the news
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.
Continue reading →
Like this:
Like Loading...
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?
Continue reading →
Like this:
Like Loading...
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.
Continue reading →
Like this:
Like Loading...
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.
Continue reading →
Like this:
Like Loading...
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.
Continue reading →
Like this:
Like Loading...
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.
Continue reading →
Like this:
Like Loading...
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.
Continue reading →
Like this:
Like Loading...
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 … .
Continue reading →
Like this:
Like Loading...
1 December 2011 by Adam Wagner
There is just over a month left to respond to the Government’s consultation on the Justice and Security Green Paper. Responses have to be be sent via email or post by Friday 6 January 2012.
The proposals have been little reported, save for journalist Joshua Rozenberg, channeling Dinah Rose QC, warning that they will “undermine a fundamental constitutional right:”. Perhaps legal correspondents prefer to pick over testimony from the glamorous Leveson Inquiry as opposed to complicated government proposals involving clunky phrases – some would say fig leaves – like “Closed Material Procedure” and “Special Advocate”.
But these proposals are extremely important. If they become law, which is likely given the lack of opposition from any of the main parties, the justice system will look very different in the coming years. Many civil hearings could be held in secret, and although (as the Government argues anyway) more justice may be done, undoubtedly less will be seen to be done.
Continue reading →
Like this:
Like Loading...
30 November 2011 by David Hart KC
Modaresi v. Secretary of State for Health & others [2011] EWCA Civ 1359, Court of Appeal
Any lawyer dealing with civil or criminal cases tends to think that, if there is a time limit for doing something in the case, then if that thing does not get done on time, the court may be lenient if there is good reason for extending time. The problem comes where the court is only given power to hear an appeal by a specific set of rules, and the rules say, for instance: you must appeal within 14 days of the decision. In the statutory context, that may mean precisely what it says. And the court, however sympathetically inclined, cannot do otherwise and allow a late appeal.
We see this from this mental health case. Ms Modaresi, who suffers from schizophrenia, was admitted to hospital on 20 December 2010 for assessment under section 2 of the Mental Health Act. Section 66 of the Act provides that where a patient is admitted to hospital in this way, “an application may be made to [the tribunal] within the relevant period” by the patient, and “the relevant period” means “14 days beginning with the day on which the patient is admitted”.
Continue reading →
Like this:
Like Loading...
28 November 2011 by Graeme Hall
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 Graeme Hall
In the news
Phone-hacking
The Leveson Inquiry has had a star-studded parade of witnesses and phone hacking has dominated the headlines. This week’s highlights have been comprehensively covered by Inforrm’s Blog here, here and here.
David Allen Green, writing in the New Statesman, remarks that this Inquiry is a boost for democracy as it gives a voice to those who have been at the sharp end of press intrusion – normally all to easily ignored and silenced by papers. Freedom of expression, at least during the Inquiry, is not just the preserve of the press.
Continue reading →
Like this:
Like Loading...
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.
Continue reading →
Like this:
Like Loading...
25 November 2011 by Adam Wagner
I had intended to entitle this post “Bratza goes ballistic” which would, for reasons I will explain, have been unfair. However, as reported by guardian.co.uk, the new British president of the European Court of Human Rights has pushed back strongly against the “vitriolic and – I am afraid to say, xenophobic – fury” of the reaction to recent rulings by the UK government and press, which he says is “unprecedented in my experience, as someone who has been involved with the Convention system for over 40 years.”
Safe to say, if anyone in the UK Government had been expecting an easy ride from the new, British born, president of the court, they will be disappointed by Bratza’s article in the European Human Rights Law Review. However, reading beyond the incendiary first few paragraphs, Bratza ends in a more conciliatory fashion, accepting many of the criticisms of the court and indeed offering suggestions for change.
I cannot link to the full text of The relationship between the UK courts and Strasbourg as it is only available on Westlaw, but I will quote some of the choice paragraphs.
Continue reading →
Like this:
Like Loading...
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.
Continue reading →
Like this:
Like Loading...
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”.
Continue reading →
Like this:
Like Loading...
R v Michael Peter Lyons [2011] EWCA Crim 2808- read judgment 
Recent comments