Category: Art. 6 | Right to Fair Trial


Does Art 5 entail a right to legal representation when facing prison for contempt of court?

30 March 2016 by Fraser Simpson

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Hammerton v. the United Kingdom, Application no. 6287/10 – read judgment.

The European Court of Human Rights has held that the detention of an individual following his breach of a civil contact order, where he had no legal representation, did not violate his rights under Article 5, ECHR (Right to Liberty and Security of Person). However, the decision not to provide compensation to the individual following a failure to provide him with a lawyer during domestic proceedings resulted in a violation of Article 6 (Right to a Fair Trial).

by Fraser Simpson

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Saudi execution of political prisoners sparks protest – the Round-up

4 January 2016 by hannahlynes

The first round=up of 2016 is brought to you by Hannah Lynes.

In the news

The interior ministry of Saudi Arabia has confirmed this week that it has executed 47 people in a single day. Included among those put to death was prominent Shia  cleric Sheikh Nimr al-Nimr, who had been a vocal supporter of the 2011 anti-government protests in the country’s Eastern Province.

The execution of Sheikh Nimr has provoked demonstrations across Iran, Bahrain, Iraq and Shia-majority areas in Saudi Arabia. A spokesperson for the Iranian foreign ministry has said that the Saudi Government would pay “a heavy price” for its actions, while the US state department has expressed concern that the execution “risks exacerbating sectarian tensions at a time when they urgently need to be reduced.”

International human rights organisation Reprieve has noted with alarm that “the Saudi Government is continuing to target those who have called for domestic reform in the kingdom”, with at least four of those executed having been convicted of offences related to political protest. The organisation said it had “real concerns” that protestors Ali al-Nimr (Sheikh Nimr’s nephew), Dawoud al-Marhoon, and Abdullah al-Zaher, sentenced to death as children, would be “next in line”.

A statement released by the UK foreign office has emphasised that “the UK opposes the death penalty in all circumstances and in every country.” But despite the much-criticised record of Saudi Arabia on human rights, it recently emerged that Britain had entered into a vote-trading deal with the kingdom to ensure the election of both states to the UN human rights council.

The UK Government has also come under pressure to discontinue its supply of weapons to Saudi Arabia, in circumstances where its bombing campaign in Yemen has led to thousands of civilian deaths. In a legal opinion commissioned by Amnesty International, lawyers from Matrix Chambers concluded that authorisation of the transfer of weapons to the state would “constitute a breach by the UK of its obligations under domestic, European and international law.”

In other news:

The Guardian: A gay British man has avoided extradition to Dubai on charges of theft. A judge at Westminster magistrates court ruled that the UAE had failed to provide adequate assurances that the trial and treatment of Mr Halliday, given his circumstances, would meet the required human rights standards.

The Telegraph: Lord Lester of Herne Hill QC has expressed concern that the Government is undermining freedom of information laws, and is “obsessively secretive”about things that should be in the public domain. The latest  releases by the National Archives included only 14 files for the years 1987 and 1988, whereas last year more than 500 files were released.

The Law Society and the Bar Council have issued a joint call for legally privileged communications data to be protected by express provisions in the investigatory powers bill. Current proposals have been criticised as threatening a common law right traceable back to the 16th Century. The Law Society Gazette reports.

The Independent: Senior civil servant Sir Jeremy Heywood is understood to be opposed to the implementation of any major reforms to the Freedom of Information Act. A Government commission is considering proposals to introduce charges for information requests and stricter rules for the obtaining of information.

In the Courts:

This case concerned an allegation of inconsistent case-law amounting to a breach of Article 6 ECHR (the right to a fair trial). The applicants complained about the rejection of their civil claims against Serbia by domestic courts, and the simultaneous acceptance by the same courts of other claims which were based on similar facts and concerned identical legal issues.

The Court reiterated the principle that an assessment of whether conflicting decisions of different domestic courts were in breach of Article 6 consisted in establishing whether “profound and long-standing differences” existed in the relevant case-law. The Serbian judiciary had, generally speaking, harmonised their case-law on the matter, and the rejection of the applicants’ cases was exceptional. The possibility of conflicting court decisions was an inherent trait of any judicial system based on a network of trial and appeal courts with authority over a certain area. That in itself, however, could not be considered to be in breach of the Convention. The Court therefore found no violation of Article 6.

Events

If you would like your event to be mentioned on the Blog, please email Jim Duffy at jim.duffy@1cor.com

 

Supreme Court: Failure to disclose evidence did not breach Art 6

18 December 2015 by Thomas Raine

Macklin v Her Majesty’s Advocate [2015] UKSC 77, 16th December 2015 – read judgment

The Supreme Court has unanimously dismissed an appeal against a decision of Scotland’s High Court of Justiciary (available here) in which it refused to overturn a criminal conviction on the basis that the non-disclosure of evidence breached the appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).

The Facts

On 26th September 2003, Paul Macklin was convicted of possessing a handgun in contravention of section 17 of the Firearms Act 1968 and of assaulting two police officers by repeatedly presenting the handgun at them. At trial, the key issue was the identification of the gunman, with both police officers identifying the appellant in the dock. Two witnesses testified that the man in the dock was not the gunman, however, their evidence was undermined for various reasons including discrepancies in police statements and unreliable alibis.

Several years later, following a change in practice regarding the disclosure of evidence, the Crown disclosed the fact that a fingerprint from another individual with a serious criminal record had been found in a car abandoned at the scene of the crime. The Crown also disclosed statements from six further individuals who had seen the incident.

The High Court’s Decision

Macklin appealed against his conviction on the grounds that the Crown had failed to disclose material evidence, and that by leading and relying on dock identifications without having disclosed that evidence and without an identification parade, the Lord Advocate had infringed his rights under Article 6 ECHR.

The Appeal Court of the High Court of Justiciary dismissed his appeal. The court held that the fingerprint evidence and three of the undisclosed statements neither materially weakened the Crown case nor materially strengthened the defence. Whilst the other three statements should have been disclosed, there was not a real possibility of a different verdict had there been disclosure. Finally, leading dock identifications from the two police officers without an identification parade did not infringe Article 6.

The Supreme Court

The Supreme Court first dealt with the issue of its jurisdiction. Under section 124(2) of the Criminal Procedure Scotland Act 1995, every interlocutor (decision) and sentence of the High Court of Justiciary is final, conclusive, and not subject to review by any court. However, under section 288ZB of the 1995 Act, as inserted by section 35 of the Scotland Act 2012, the Supreme Court has jurisdiction to hear an appeal concerning the question of whether a public authority has acted compatibly with the ECHR. As the question raised by the appellant was whether the conduct of the prosecution was compatible with Article 6 the Supreme Court had jurisdiction to hear the matter.

As the European Court of Human Rights explained in Edwards v United Kingdom the question of whether a failure of disclosure breached Article 6 had to be considered in light of the proceedings as a whole. Translating the Strasbourg approach into domestic law in McInnes v HM Advocate (available here), Lord Hope set out two stages to the analysis. First, should the material which had been withheld from the defence have been disclosed? The test here was whether the undisclosed evidence might have materially weakened the Crown case or materially strengthened the defence. Second, taking into account all of the circumstances, was there a real possibility that the jury would have arrived at a different verdict in the event of disclosure?

The appellant challenged the High Court’s conclusion that some of the undisclosed material did not have to be disclosed under Article 6 on the basis that under current Crown practice the evidence would be disclosed. The Supreme Court dismissed this argument. For Lord Reed the argument was a “non sequitur” and Lord Gill described it as “specious”. The fact that the evidence would now be disclosed did not mean that non-disclosure breached Article 6.

Regarding the evidence which should have been disclosed, the appellant argued that the High Court had failed to apply the second part of the test from McInnes. The Supreme Court also rejected this argument. As it was confined to compatibility issues, the Supreme Court could only ask whether the High Court had applied the correct test, not whether it had applied the test correctly. The Crown’s submission to the High Court was expressly founded on the McInnes test and, by reciting the words of the test, the court made clear that it had applied it. The appellant tried to argue that the High Court’s conclusions on the second part of the McInnes test were so manifestly wrong that it had not in reality applied that test. However, this was essentially an argument that the High Court had applied the test incorrectly and the Supreme Court was not prepared to entertain it. The High Court had applied the correct tests for the purposes of Article 6 and found that the appellant’s trial was fair.

In the end, the role of the Supreme Court was limited. As Lord Reed made clear, the court was not sitting as a criminal appeal court exercising a general power of review. The Article 6 issues had been authoritatively determined by the High Court of Justiciary when it dismissed Macklin’s appeal against his conviction. All the Supreme Court could do was ensure that in exercising its appellate function, the High Court had applied the appropriate Article 6 tests as set out in McInnes.

by Thomas Raine

Bank Mellat and disclosure in closed material proceedings

28 October 2015 by David Hart QC

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2015] EWCA Civ 105, 23 October 2015  read judgment

Bank Mellat is an Iranian bank, initially subjected to a 2009 order which prohibited anybody in the UK from dealing with it – until the Supreme Court quashed it:  here, and my posts here and here.  

The Treasury tried again, by orders made in 2011 and 2012 addressed at all Iranian banks, not just Bank Mellat. The EU has now taken over regulation of these banks.

In the current proceedings, the Bank seeks to set the 2011 and 2012 orders aside. These restrictions are, the Treasury says, addressed at the financing of Iran’s nuclear programme, in which all Iranian banks are complicit. Bank Mellat denies this, and the conundrum in the case is how to make sure that the challenge is fairly tried.  Collins J (my post here) thought that the Treasury had not revealed enough about its case, and, in substance, on appeal the CA agreed.

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Supreme Court on EU and ECHR proportionality – back to basics

27 June 2015 by David Hart QC

seo-marketing-320x200R (ota Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015 (see judgment)

The Supreme Court has reminded us, in a tour de force by Lord Reed, that there is no such thing as one-stop proportionality. It varies between ECHR and EU law, and the tests of EU proportionality then vary according to the nature of the EU issue in play.

And all this in a case about trying to improve standards for barristers’ advocacy.

Barristers challenged the Quality Assurance Scheme for Advocates or QASA, on EU grounds. QASA requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.

Its EU-ness arises in this way.

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‘Killer Robots’ and ‘Conversion Therapies’ – The Human Rights Round-up

14 April 2015 by acwessely

A scene from the 2003 film Terminator 3: Rise of the Machines

This week’s Round-up is brought to you by Alex Wessely.

In the news:
Military chiefs have criticised the influence of Human Rights law in a report published this week, arguing that the “need to arrest and detain enemy combatants in a conflict zone should not be expected to comply with peace-time standards”. This follows a series of cases over the years which found the Ministry of Defence liable for human rights violations abroad, culminating in allegations of unlawful killing in the Al-Sweady Inquiry that were judged “wholly without foundation” in December.

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No entitlement to human rights damages after ‘caste discrimination’ case collapse

25 February 2015 by Michael Deacon

Photo via Guardian.co.uk

Photo via Guardian.co.uk

Begraj v Secretary of State for Justice [2015] EWHC 250 (QB) – Read judgment

Adam Wagner acted for the Secretary of State in this case. He is not the author of  this post.

The High Court has ruled that when long-running employment tribunal hearing collapsed as the result of the judge’s recusal due to apparent bias the claimants in the action could not obtain damages for wasted costs under section 6 of the Human Rights Act (HRA) 1998 (specifically Article 6, the right to a fair trial) or the EU Charter.

The High Court confirmed that the County Court had acted lawfully in striking out the claim for having no reasonable prospects of success and for being an abuse of process. The state immunity for judicial acts in section 9(3) HRA 1998 applied, and in any event there had been no breach of Article 6 as the judge’s recusal preserved the parties’ Article 6 rights. 
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The worrying new anti-terrorism measures that are set to become law – Angela Patrick

2 February 2015 by Guest Contributor

Credit: guardian.co.uk

Credit: guardian.co.uk

The Counter-Terrorism and Security Bill begins its final stages in the House of Lords today. This blog considered the Bill on its introduction to the Lords. In the interim, both the Joint Committee on Human Rights and the Constitution Committee of the House of Lords have reported, both recommending significant amendments.

Despite repeat flurries of excitement as a coalition of Peers suggest time and again that most of the controversial Communications Data Bill – popularly known as the Snoopers’ Charter – might be a late-stage drop in; the press has, perhaps regrettably, shown little interest in the Bill.

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“Lamentable”, “egregious” and “wholly indefensible”: High Court lambasts local authority’s conduct of care proceedings

1 February 2015 by Jim Duffy

imgres-1Northamptonshire County Council v AS, KS and DS [2015] EWFC 7 – read judgment

A Family Division judge has awarded damages under the Human Rights Act against a local authority in what he described as an “unfortunate and woeful case” involving a baby taken into foster care. Mr Justice Keehan cited a “catalogue of errors, omissions, delays and serial breaches of court orders” by Northamptonshire County Council. Unusually, the judge decided to give the judgment in this sensitive case in public in order to set out “the lamentable conduct of this litigation by the local authority.

On 30 January 2013, the local authority placed the child (known as ‘DS’) with foster carers. He was just fifteen days old. In the weeks prior to DS’s birth, his mother’s GP had made a referral to the local authority due to her lack of antenatal care and because she claimed to be sleeping on the street. The mother then told a midwife that she had a new partner. He was a heroin addict.

After the birth DS’s mother avoided seeing her midwife. She frequently moved addresses and conditions at home were exceedingly poor. Three days before DS was taken into care, his mother told social workers that her new partner was being aggressive and threatening to her. She reported that he was leaving used needles around the house.
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Acquitted defendants costs regime not incompatible with ECHR

28 January 2015 by David Hart QC

448bbd010e93bd0d21e13a354a3cd82bR (o.t.a Henderson) v. Secretary of State for Justice, Divisional Court, 27 January 2015 – judgment  here

The Court (Burnett LJ giving the sole judgment) has ruled on whether the statutory changes made to the ability of acquitted defendants in the Crown Court to recover their costs from central funds are compatible with the ECHR. 

Its answer – an emphatic yes, the new rules are compatible. This conclusion was reached in respect of the two statutory regimes applicable since October 2012, as we shall see.

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A worrying new anti-terror law is sneaking through Parliament – Angela Patrick

9 January 2015 by Guest Contributor

westminsterAs the world’s press and public stand vigil in support of Charlie Hebdo and the families of the victims of Wednesday’s attack, we wake this morning to reports that our security services are under pressure and seeking new powers. The spectre of the Communications Data Bill is again evoked. These reports mirror renewed commitments yesterday to new counter-terrorism measures for the EU and in France.

This blog has already covered the reaction to the shootings in Paris in some detail.   The spectrum of reaction has been about both defiance and fear. The need for effective counter-terrorism measures to protect us all, yet which recognise and preserve our commitment to the protection of fundamental rights is given a human face as people take to the streets to affirm a commitment to protect the right of us all to speak our mind, to ridicule and to lampoon, to offend and to criticise, without fear of oppression or violence.   It is against this backdrop that we might remember that UK Ministers are already in the process of asking Westminster to expand our already broad framework of counter-terrorism legislation.

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Letting in a chink of light to closed material cases : Bank Mellat again

5 November 2014 by David Hart QC

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2014] EWHC 3631 (Admin), Collins J, 5 November 2014 –  read judgment UPDATED POST

Fireworks here from Collins J in making sure that Bank Mellat got some disclosure of information in its fight to discharge a financial restriction order against it.

Bank Mellat is an Iranian bank, initially singled out by an 2009 order which prohibited anybody from dealing with it.  The order was part of sanctions against Iran in respect of its nuclear and ballistic missiles programme. However, it bit the dust, thanks to the Supreme Court:  see judgment. I  did a post on that decision, and followed it up with one (here) on the (dis)proportionality arguments which led to the order’s downfall. 

However the Bank was subject to two further orders, made in 2011 and 2012. They led to the freezing of €183m held by it in London. The 2012 order has since been revoked, but the 2011 one remains. This is the subject of the Bank’s application to set it aside. On any view, as Collins J recognised, it had caused very serious damage to the Bank’s business.

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Strasbourg and why you must give reasons on domestic appeals

6 October 2014 by David Hart QC

MO201110701289983ARHansen v. Norway, ECtHR, 2 October, read judgment

In any system of appeals, there is always a tension between giving everyone a fair hearing and concentrating on the appeals which do stand a reasonable prospect of success. The UK, like many countries, has introduced some filters on civil appeals in relatively recent times, enabling unmeritorious appeals to be dismissed at the threshold. In doing so, it gives short (sometimes very short) reasons for refusing permission.

You might have thought that this was a classic area where Strasbourg would be wary about intervening in domestic practice and striking the balance between speed and fairness. Yet the Court was persuaded that the Norwegians got the balance wrong, and found a breach of Article 6(1). We therefore need to read it carefully to see whether the same could be said about our system.


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The rise of the secret trial: Closed Material Procedures one year on – Lawrence McNamara

5 August 2014 by Guest Contributor

Justice and SecurityLast week Justice Secretary Chris Grayling reported on how often closed material proceedings (CMPs) have been sought under the Justice and Security Act 2013 (JSA), as he is required to do annually under the Act. As the first and only official consolidated presentation of how the new CMP regime is being used, this two-page written ministerial statement warrants close attention.

The Secretary of State’s report provides only numbers. In the Bingham Centre’s Review of the First Report by the Secretary of State, we have tried to match cases to those numbers and, when read in light of the cases, have found good reasons to be concern about the difficulty of verifying the accuracy of the report, the ways that CMPs are being used, and the adequacy of the reporting requirements.

What are the reporting requirements?  
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Secret trials – a little transparency, a lot to worry about – Lawrence McNamara

12 June 2014 by Guest Contributor

RCJ restricted accessGuardian News and Media Ltd -v- AB CD – Read preliminary judgment

The Court of Appeal has published its decision in Guardian News Media v AB and CD. It is not a judgment, the Court says. Judgments – plural – will be given “in due course.” Still, the 24 paragraph decision contains the order and explanation of the order, and gives an indication of some of the reasons that will follow.

Is this a good decision? It is better than it might have been, but there are still deeply worrying problems.

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