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Marie-Bénédicte Dembour calls them ‘forgotten cases’. As Adam Wagner demonstrated in a blog post of last week, Eurosceptic newspapers have a particular interest in overlooking the European Court of Human Right’s decisions of inadmissibility, seeking to buttress claims that the Court is wildly interventionist, imposing alien “European” logics on Britain with gleeful abandon.
Both the Telegraph and Daily Mailcovered the findings of a report commissioned by backbench Tory MPs critical of the Court’s jurisdiction, both simply replicating its astonishingly misleading content. The papers contended that the UK was defeated in three in four cases brought against it, with violations of the Convention being found in 75% of human right petitions to Strasbourg.
The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd and Serco plc [2012] EWHC 8 (Admin) – read judgment
Although certain restraining measures had been taken unlawfully against young people in secure training centres for a number of years, the court had no jurisdiction to grant an order that the victims of this activity be identified and advised of their rights.
The claimant charity alleged that children and young persons held in one or other of the four Secure Training Centres in the UK had been unlawfully restrained under rules which approved certain techniques of discipline. It sought an order requiring the defendant to provide information, to the victims or their carers on the unlawful nature of restraint techniques used in Secure Training Centres (“STCs”) and their consequential legal rights.
The Telegraph’s Andrew Hough and Tom Whitehead chime in with Britain loses 3 in 4 cases at human rights court. But are they right? To add a bit of spice to this statistical journey, I will aim to use at least one analogy involving a popular TV singing contest.
The “explosive research” is a report by Robert Broadhurst, a Parliamentary legal researcher for a group of Conservative MPs. The headline grabbing figures are in this paragraph:
Mr Abdullah Manuwar and Secretary of State for the Home Department IA26/543/2010 – Read decision
We have posted on this blog previously on some of the poor reporting of human rights cases. Alarm bells were ringing as the Sunday Telegraph reported student Abdullah Munawar’s appeal on human rights grounds against a refusal to grant him leave to stay in the UK, citing his playing cricket as a reason he had a private life under Article 8 of the ECHR.
However, considering the judgment, the Telegraph article makes a valid point on the limits provided by human rights on immigration decisions, and shows that not all journalism critical of the Human Rights Act is inaccurate.
Alarmed at the corrosion of the rule of law and standards of public behaviour that the judgment propagates, the author of the article admonishes Bean J for ignoring the moral and social significance of “such insolent defiance” of the Police.
Updated x 2 | Today, guardian.co.uk’s Comment is Free (CIF) was “taken over” by the Occupy London movement. This has led to two particularly worrying articles being published. Both purport to offer legal advice which, if followed, could lead you straight to prison.
For that reason, Guardian CIF goes straight to the legal naughty step, where it can share a tent with the Occupy London movement. I understand that the Guardian’s online legal editors had nothing to do with the commissioning of the articles, and I also realise that “comment is free“. But there has to be a limit, and there is a huge difference between a controversial but plausible point of view and quackery. As C. P. Scott’s phrase continues “… comment is free but facts are sacred“.
Headlines are important. They catch the eye and can be the only reason a person decides to read an article or, in the case of a front page headline, buy a newspaper. On Thursday The Times’ front page headline was “Britain can ignore Europe on human rights: top judge”.
But can it? And did Lord Judge, the Lord Chief Justice, really say that?
To paraphrase another blog, no and no. The headline, which I am fairly sure was not written by Frances Gibb, the Times’ excellent legal correspondent and writer of the article itself, bears no relation to Lord Judge’s comments to the House of Lords Constitution Committee (see from 10:25). It is also based on a fundamental misunderstanding of how the European Convention on Human Rights has been incorporated into UK law.
Updated |I have been sent the first appeal judgment in the political frenzy which has been termed “Catgate”. I had promised myself not to do any more Catgate posts or use any more cute pictures of kittens, but I have now broken that promise.
Having read the short, 6-page judgment dated 9 October 2008 by Immigration Judge JR Devittie – reproduced here by Full Fact – I will quote from it at length (apologies for any transcribing errors) and say the following.
First, when referring to a legal judgment in a speech make sure you get the outcome right. Particularly when prefaced by “I am not making this up”. Secondly, if said speech is being broadcast live, there are plenty of lawyers on Twitter who will enjoy nothing more than tracking down the judgment, reading it and exposing the fact that you have got it wrong.
These lessons are important. But they relate to any amusing but forgettable political gaff. There is, however, a third lesson. There has been for a number of years a trend of wilfully or recklessly misreporting human rights cases. This trend is not just mischievous; it threatens to do real damage to our legal system.
May also gave three examples in support of the view that the Human Rights Act “has to go”:
We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had pet a cat.
The most startling of those examples is of course the final one, that an illegal immigrant could not be deported because he “had a pet cat”. As regular readers of this blog will know, there are plenty of mythical examples regularly peddled in order to criticise human rights law. Is the cat deportation one of them?
Doncaster Metropolitan Borough Council v Watson [2011] EWHC 2376 (Fam) (01 September 2011) – Read judgment
Sir Nicholas Wall, the President of the Family Division, has suspended a nine-month prison sentence for contempt of court given to Elizabeth Watson, a “private investigator” who published online sex abuse allegations which had been rejected by a series of judges.
The case has involved many of the foot soldiers in a bitter and public battle between the family law system and campaigners who say it is corrupt and not fit for purpose. Recognised this, Lord Justice wall used the opportunity to “dispel a number of myths”. First,
In a recent speech about the August riots, the Prime Minister bemoaned the “twisting and misrepresenting of human rights”. Unfortunately, this practice is common in the press, sometimes by accident but often by design.
One common accusation against the Human Rights Act is that it prevents the state deporting some foreign criminals. This is sometimes true; for example, the state cannot deport anyone if to do so would put them at a real risk of being tortured. But other law can be “to blame” too for preventing deportation of criminals, as was the case with Learco Chindamo, the killer of head teacher Philip Lawrence. This has not prevented the Daily Telegraph from again using his case as an example of human rights gone wrong.
Pollard is responding to the European Court of Human Rights ruling in Sufi and Elmi v UK, in which the court ruled that the situation in Somalia was so dire that except in very limited scenarios it will not be possible to deport people back to the country. Rosalind English has already examined the case in more detail.
As I say, there are many problems with the article, which follows the standard anti-human rights act playbook. It is worth addressing them as they are likely to be repeated elsewhere. Here are just a few.
L (A Child: Media Reporting), Re [2011] EWHC B8 (Fam) (18 April 2011) – Read judgment
The thought of being personally criticised in a reported judgment would make most lawyers break into a cold sweat. Some journalists wear such treatment as a badge of honour. But surely it is professionally embarrassing for a high court judge to label an article as “unbalanced, inaccurate and just plain wrong“.
That was the treatment handed out by His Honour Judge Bellamy to the Telegraph’s Christopher Booker in a recent ruling. The facts of the case are sad and I will not repeat them in any detail. HHJ Bellamy was asked to make a factual ruling relating to the alleged mistreatment of a baby by its family. He found that the mother was responsible for breaking the baby’s arm, an injury which led to the council forcibly removing the child from its parents’ care, as well as bruising to his hand and cheek. The judge did question, however, why it was necessary for the police to march the parents through a hospital wearing handcuffs.
Human rights and discrimination law are often criticised in the press. Sometimes the criticisms are justified, but the level of anger which a system of universal rights can generate is sometimes surprising. Unfortunately, some of that anger is caused by inaccurate reporting of judgments.
In yesterday’s Telegraph online, Cristina Odone blogged on a recent “scandal” relating to Mr Justice Mostyn’s request to carry out his responsibilities as a duty judge in Tenerife. I will leave comment on the main story to Charon QC, save to say that Odone uses the story as a means of judge-bashing, a sport which is currently popular in the press and even with politicians. “Who”, asks Odone channeling public anger, “do these judges think they are?” Moreover,
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Harvey v Director of Public Prosecutions [2011] EWHC Crim B1 – 
Updated x 2
Doncaster Metropolitan Borough Council v Watson [2011] EWHC 2376 (Fam) (01 September 2011) –
In a 
In today’s Daily Express, Stephen Pollard has written an article entitled 
L (A Child: Media Reporting), Re [2011] EWHC B8 (Fam) (18 April 2011) – 
Human rights and discrimination law are often criticised in the press. Sometimes the criticisms are justified, but the level of anger which a system of universal rights can generate is sometimes surprising. Unfortunately, some of that anger is caused by inaccurate reporting of judgments.
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