Category: BLOG POSTS

The round-up – Books, Boycotts, and Gove’s Debut

19 July 2015 by Laura Profumo

Laura Profumo serves us the latest human rights happenings.

In the News: 

Michael Gove appeared before the Justice Select Committee last Wednesday, in the first true baring of his political mettle as justice secretary. Overall, it seems, the MP made a largely favourable impression, though legal commentators remain wary. UKHRB’s own Adam Wagner deftly compared Gove’s success to “when they gave Obama the Nobel Peace Prize…because he wasn’t George Bush”. The “post-Grayling Gove-hope” may, then, prove deceptively shallow, defined by the simple relief that Gove is not Grayling.

Yet Gove’s evidence before the committee was laudable – reasonable, measured, and skifully non-committal. Gove’s comments on the Human Rights Act obliquely signalled the “proposals” will be published “in the autumn”, failing to specify whether they would be accompanied by a draft Bill. His substantive points were similarly vague. The Lord Chancellor invoked the “abuse” of human rights as justification for the repeal of the HRA, before conceding he could not offer a “one-hundred per cent guarantee” that the UK would remain a party to the Convention. Such a position suggests a British Bill of Rights may “seek to limit certain rights”, argues academic Mark Elliot, which would, “quite possibly”, precipitate British withdrawal from Strasbourg altogether. Gove also stressed the role of the judiciary in applying the common law to uphold human rights, holding that “there is nothing in the Convention that is not in the common law”. Such a view is “highly contestable at best, plain wrong at worst”, holds Elliot, whilst Conor Gearty finds it stokes the fantasy of “the civil libertarian common law”. Gove seems to suggest that HRA-repeal and possible ECHR-withdrawal would be “far from earth-shattering events”, Elliot notes, as judges could still invoke a panoply of common-law rights. Whilst Gove is right to remind skeptics that HRA-repeal would not leave domestic judges powerless, such “overstatement” of the common-law rights model “might end up hoist on its own petard….ringing hollower than its cheerleaders”.
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Divisional Court strikes down DRIPA communications data law

19 July 2015 by David Hart KC

R (ota Davis et al) v. Secretary of State for Home Department [2015] EWHC 2092 – 17 July 2015 – read judgment

When a domestic Act of Parliament is in conflict with EU law, EU law wins. And when a bit of the EU Charter (given effect by the Lisbon Treaty) conflicts with an EU Directive, the EU Charter wins.

Which is why the Divisional Court found itself quashing an Act of Parliament on Friday – at the behest of four claimants, including two MPs, the Tories’ David Davis and Labour’s Tom Watson. 

The doomed Act is the Data Retention and Investigatory Powers Act 2014 or DRIPA. It was in conformity with an underlying EU Directive (the Data Retention Directive 2006/24/EC or DRD – here). However, and prior to DRIPA, the DRD had been invalidated by the EU Court (in the Digital Rights Ireland case here)  because it was in breach of the EU Charter.

All this concerns communications data, which tell us who was sending an email, to whom, from where, and when – but not the content of the email. DRIPA in effect compels telecoms providers to keep communications data for 12 months, and to make it available to public bodies such as intelligence and law enforcement agencies.

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Scotland, Sewel, and the Human Rights Act

18 July 2015 by David Scott

Photo credit: Guardian

The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK. 

by David Scott

Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side. 

But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?

Sort of (not really).

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TTIP news, and whether the UK should encourage big business to sue it

15 July 2015 by David Hart KC

Quite a lot has happened in the 6 months since my post here on the Transatlantic Trade and Investment Partnership (TTIP). TTIP is a proposed trade agreement between the US and the EU, with negotiations on the substantive issues between the EU and the US underway in Brussels at the moment.

The proposed treaty may have significant effects on EU regulation, but let’s concentrate on whether TTIP should contain specific provisions enabling investors to sue governments.

The ground for action would be governmental “expropriation” of investments – and that may mean anything from telling a cigarette manufacturer that he must have to change what his packets look like, (with consequential loss of profits), to imposing new environmental standards on a power generating plant.

This mechanism is known as Investor-State Dispute Settlement or ISDS. Our government seems astonishingly sanguine about this, on the basis that it has not yet been sued successfully under existing bilateral treaties with similar provisions. This does not seem to be a very profoundly thought-through position to adopt, if the proposed system has its problems – which it plainly does, when one compares it with traditional claims in the courts. Put simply, why wave it on?

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How mad must you be, not to be responsible for your actions?

14 July 2015 by David Hart KC

Dunnage v. Randall & UK Insurance Ltd [2015] EWCA Civ 673, 2 July 2015 – read judgment

This is an extraordinary case, and one which goes deep down into why the law of wrongs (or torts) makes people compensate others for injury and losses, whereas the criminal law may decide that a crime has not been committed.

Imagine this. Your uncle (Vince) arrives in your home. He is behaving very hyper. Unbeknownst to you he is in the middle of a florid paranoid schizophrenic episode. He suddenly announces that he will go and fetch a copy of Autotrader from his car. He returns without it, but with a petrol can and a lighter. He sits down and becomes all aggressive and paranoid about you and your partner. He knocks over the petrol can and starts rolling the lighter trigger. After more incoherent accusations by him (e.g. “Why have you got my Hoover?”), you try to drag him clear to save him, but he ignites the lighter. You are badly burned and jump off the balcony. You are very brave. Vince dies at the scene.

You (the man with the dog) sue Vince’s estate, except you don’t really, because you are really suing his household insurers.

You try to pursue a tightrope between arguments. Vince may have been mad-ish, but not that mad, so that he is still civilly responsible for his actions. But the household policy only applies to “accidental” injury, and excludes wilful or malicious actions. So he cannot have been too sane and capable of deliberate and malicious actions.

The judge disallows your claim, on the basis that Vince lacked volition. The Court of Appeal allows it. Why?

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The Round-up: Srebrenica veto, and legal aid boycott latest

12 July 2015 by acwessely

Alex Wessely brings you this week’s Human Rights Round Up.

In the News:

“Twenty years after Srebrenica, incomplete justice”. This is Human Rights Watch’s conclusion after Russia vetoed a UN resolution to refer to the 1995 massacre as “genocide”. Amnesty go further; calling the veto “an insult to the memory of the dead”. HRW calls for the European Union and the United States to encourage the Bosnian local courts to develop a national war crimes strategy to address the “case backlog” and bring war criminals to justice. Tensions between Serbia and Bosnia remain high; on Sunday the Serbian prime minister was attacked with stones when attending a 20^th anniversary commemoration at Srebrenica.

In UK news, the legal aid boycott enters its second week, and has begun to bite. Delays are building up in the magistrates’ courts and police stations. A Bristol murder case has had to be adjourned due to the defendant being unrepresented and Liverpool magistrates’ are reportedly in “chaos”. The Criminal Bar Association is ballotting its members and will decide on Wednesday whether to support the boycott through a ‘no returns’ policy and by refusing new work.
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The private lives of child rioters

8 July 2015 by Jim Duffy

In the matter of an application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42

Does the publication of photographs of a child taken during a riot fall within the scope of Article 8 ECHR?

It depends, says a Supreme Court majority, specifically on whether there was a reasonable expectation of privacy. Either way, the Court in J38 agreed that whether or not the 14 year-old Appellant’s right to respect for private life was in play, the publication of police photographs of him was justified in the circumstances.

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The Long Shadow of the Troubles

7 July 2015 by Dominic Ruck Keene

Photo: The Guardian

In Finucane’s (Geraldine) Application [2015] NIQB 57 the Northern Ireland High Court  dismissed a challenge to the decision by the British Government to carry out a ‘review’ by Sir Desmond Da Silva rather than a public inquiry into the murder of Belfast solicitor Pat Finucane on 12 February 1989.

Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that

It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.

 

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The Round Up: Fast-track Failings and Obergefell ‘egoism’

6 July 2015 by Laura Profumo

Photo credit: Guardian

Laura Profumo brings you the latest human rights happenings.

In the News:

In a critical, though arguably overdue, decision, the Court of Appeal has suspended the fast-track immigration appeals system. The process, under which rejected asylum seekers are detained and given only seven days to appeal, was held “structurally unfair” by the High Court, before being halted altogether by last week’s appeal. The ruling was welcomed by the appellant charity, Detention Action, as meaning “asylum seekers can no longer be detained…simply for claiming asylum”. Previously, the fast-track deadlines could be imposed on any asylum seeker from any country, if the Home Office considered their case could be decided quickly. This marks the third time courts have found the system to be unlawful, yet the suspension will now stay in force until a government appeal is mounted. The decision deals a major blow to a system which is “inefficient, bureaucratic, demeaning and dehumanising”, writes immigration expert Colin Yeo. Whilst there is “no doubt” a replacement fast track will soon be found, in the meantime “let us savour the respite” from such crude expediency.

In other news, the spotlight remains on America, in the euphoric wake of the Supreme Court’s ruling in Obergefell v Hodges. The final paragraph of Justice Kennedy’s judgment, in its stirring clarity, is set to make legal history. Yet not everyone is “enveloped in a warm and fuzzy feeling”, writes UKHRB’s own Jim Duffy. Justice Scalia, the firebrand conservative, “pulled no punches” in his dissent, citing the majority opinion as “egotistic” and a “threat to American democracy”. Scalia’s arrival in London last week further stoked the Obergefell debate. Speaking at a Federalist Society event, Scalia held his colleagues had wrongly used the due process clause to distill a substantive, rather than procedural, right. Defending his position as a constitutional originalist, Scalia maintained the meaning of the Constitution as fixed, rather than the “wonderfully seductive judicial theory” of living constitutions, in which “we can have all sorts of new things, like same sex marriage”. When asked about the proposed Bill of Rights, the Justice’s response was particularly biting: “You can’t do any worse than the situation you’re in now”.
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The “Black Cab Rapist” – Court of Appeal rules on Article 3 investigative duty

6 July 2015 by Hannah Lynes

Commissioner of the Police for the Metropolis v DSD and NBV and Alio Koraou v Chief Constable of Manchester [2015] EWCA Civ 646 – read judgment

The Court of Appeal has ruled that the police have a positive duty under Article 3 ECHR to conduct investigations into alleged ill-treatment by private individuals. There is a sliding scale from deliberate torture by State officials to the consequences of negligence by non-State agents. The margin of appreciation enjoyed by the State in terms of complying with the Article 3 procedural duty widens at the bottom of the scale but narrows at the top.

Background

This was an appeal brought by the Metropolitan Police Service (MPS) against the decision of Green J in the High Court that the police force were in breach of the prohibition on inhuman or degrading treatment or punishment under Article 3 ECHR. A summary of the judgment at first instance can be found here.

The claimants were two women, DSD and NBV, who had been victims of rape and sexual assault committed by John Worboys, the “black cab rapist”. Administering sedative drugs and alcohol to his passengers, Worboys was the perpetrator of more than 105 assaults on women between 2002 and 2008.

In a conjoined appeal, the claimant Alio Koraou appealed a finding against him by HHJ Platts. He had been subject to an assault in a bar and part of his ear had been bitten off.

Both of these claims alleged that the failures of which the police were accused constituted violations of a duty to investigate said to be inherent in the right guaranteed by Article 3.

Decision

The Court of Appeal rejected submissions made on behalf of the MPS that a positive duty to investigate was not part of domestic law. It held that allegations of ill-treatment of the gravity stipulated by Article 3 gave rise to a duty under that Article to conduct an official investigation. Moreover, this obligation was not limited solely to cases of ill-treatment by State agents, but could arise where crimes were committed by private actors.

The reach and nature of the investigative duty

The Court emphasised that an appreciation of the reach and nature of the investigative duty under Article 3 demanded a broader consideration of the aims of this part of the ECHR. It was important to keep in mind the Article’s overall purpose.

“The idea at the core of the Article is that of safeguarding or protection in all the myriad situations where individuals may be exposed to ill-treatment of the gravity which the Article contemplates” [para. 44].

Reference was made to a sliding scale: from deliberate torture by State officials to the consequences of negligence by non-State agents. The energy required of the State to combat or redress these ills is “no doubt variable, but the same protective principle is always at the root of it” [para. 45].

Further, the margin of appreciation enjoyed by the State as to the means of compliance with Article 3 widens at the bottom of the scale but narrows at the top. At the lower end of the scale where injury happens through the negligence of non-State agents, the State’s provision of a judicial system of civil remedies will often suffice. Serious violent crime by non-State agents is of a different order, lying higher up the scale. Such cases, which included those of  the respondent women, generally require a proper criminal investigation by the State.

Were the MPS in breach of their duty?

The Court went on to consider whether the judge had placed the cases in front of him too high on the sliding scale in terms of the degree of rigour required of the police investigation. A contrast between the ECHR and common law negligence was in this regard crucial. Whereas the purpose of English private law is compensation for loss, the strategic aim of the ECHR is to secure minimum standards of human rights protection. This distinction marks important differences in practice.

“The contrast between damages as of right and compensation at the court’s discretion is one. But another, in my judgment, goes to the standard applicable to the ascertainment of breach of the Article 3 investigative duty, as compared with what might constitute breach of a common law duty of care. Because the focus of the human rights claim is not on loss to the individual, but on the maintenance of a proper standard of protection, the court is in principle concerned with the State’s overall approach to the relevant ECHR obligation” [para. 67].

“The enquiry into compliance with the Article 3 duty is first and foremost concerned, not with the effect on the claimant, but with the overall nature of the investigative steps to be taken by the State” [para. 68].

Drawing on the account of Green J, the Court noted the judge’s findings that there were systematic and operational failures in the cases of both claimants. Applying the above legal principles to the facts, the Court held it to be “inescapable” that Green J was right to find a violation of Article 3.

Koraou

In the second of the conjoined appeals, the Court affirmed the approach of HHJ Platts: a finding that there were clear failings in the police investigation would not lead in every case to liability under Article 3.

It had been noted by the judge that this was not the most serious of cases and that the allegations made by the Claimant were of questionable reliability. In his judgment it was not, therefore, a case where it would have been reasonable to require that the investigation left no stone unturned. Account had to be taken of the fact that police resources were limited. Further, this was not a case where the police did nothing.

The Court concluded that HHJ Platts had weighed the proved deficiencies of the investigation, its difficulties as he found them to be, and the gravity of the case. His decision to dismiss the claim could not sensibly be faulted.

Hannah Lynes

Not dumping on anyone’s living tree: Scalia visits UK

3 July 2015 by Jim Duffy

Photo credit: Guardian

Last week’s decision of the United States Supreme Court in Obergefell v Hodges has been lauded across the world as a quantum leap for equality and human rights – “a victory for America”, according to President Obama. The Court held by a 5-4 majority that, pursuant to the 14^th Amendment, same-sex couples across the United States have a constitutional right to marry. You can read my colleague Matthew Flinn’s analysis of the ruling here.
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‘It’s complicated’: Court of Session considers duty to offer an opportunity to rehabilitate

2 July 2015 by Fraser Simpson

Photo credit: Guardian

Reid, Re Judicial Review, [2015] CSOH 84 – read judgment.

The Outer House of the Court of Session has refused a prisoner’s claim for damages resulting from an alleged  failure to afford him a reasonable opportunity to rehabilitate himself.

by Fraser Simpson

For a refresher on the Scottish Court system, see David Scott’s post here.

This case follows a Supreme Court judgment last year in which it was affirmed that under Article 5 ECHR there exists an implied duty to provide prisoners with a reasonable opportunity to rehabilitate themselves and to show that they are no longer a danger to the public (R (on the application Haney and Others) v. The Secretary of State for Justice, [2014] UKSC 66). According to the Supreme Court, a failure to satisfy this duty does not affect the lawfulness of the detention but it does entitle the prisoner to damages.

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“No union more profound”: The US Supreme Court’s ruling on same-sex marriage

30 June 2015 by Matthew Flinn

Photo credit: Guardian

The Supreme Court of the United States has decided that same-sex couples have a constitutionally protected right to marry.

In the history of American jurisprudence, there are a handful of cases which are so significant that they will be known to all US law students, much of the domestic population at large, and even large segments of the international community. Brown v Board of Education, which ended racial segregation in schools, is one example. Roe v Wade, which upheld the right of women to access abortion serves, is another. To that list may now be added the case of Obergefell v Hodges.

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When the Sh*t hits the Ban

30 June 2015 by Rosalind English

Jack Lowe and Dennis Reynolds, Plaintiffs v Atlas Logistics Group Retail Services

The first prosecution under the 2008 US Genetic  Information Nondiscrimination Act (GINA) has won $2.25 million jury damages for the individuals involved .

I have posted about genetic discrimination here and here. In the US some of these problems have been foreseen and legislated against: GINA prohibits discrimination against healthy individuals for employment decisions or health insurance purposes on the basis of genetic information alone; it also prevents employers and insurance providers from demanding or using information from genetic tests.

The law does include limited exemptions, however. Forensic laboratories can ask workers for their DNA to check that employees’ genetic material does not contaminate the genetic samples that they analyse.
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The Round-up: One nation justice – but will the Government pay for it?

29 June 2015 by Hannah Lynes

Credit: The Telegraph

In the news

In his first major speech as Lord Chancellor, Michael Gove this week set out his vision for ‘one nation justice’. At present a two-tier system provides the “gold-standard” of British justice to the wealthy and a “creaking, outdated system to everyone else”. The emphasis was on making use of technological developments, closing under-used courts and requiring the “most successful in the legal profession” to help “protect access to justice for all”.
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