Category: Article 3 | Torture / Inhumane Treatment
8 July 2010 by Adam Wagner
HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010) – Read Judgment
The Supreme Court has ruled that the government’s “Anne Frank” policy of sending back gay refugees to their home countries where they feared persecution is unlawful as it breached their human rights..
HJ and HT are both homosexual men and had been persecuted in their home countries – Iran and Cameroon respectively – after their sexual orientation had been discovered.
The court criticised the controversial policy, practised since 2006, of telling gay asylum seekers who feared prosecution in their home countries to hide their sexuality upon their return, rather than granting them asylum. In the Court of Appeal the men’s barrister had referred to this as an “Anne Frank” policy, in that, like Anne Frank, the men would be safe if they hid from authorities but not if they didn’t.
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6 July 2010 by Adam Wagner
Binyam Mohamed
The details of the forthcoming wide-ranging public inquiry into British complicity with “rendition” and torture abroad have been announced by the Prime Minister.
He also announced the public release of guidance, formerly secret, on the questioning of suspects overseas, and that a new committee is to review the use of secret evidence in court proceedings.
The statement can be read in full here. Contrary to some reports, the new inquiry is to be judge-led. It will be headed by Sir Peter Gibson, a retired Court of Appeal Judge, who amongst other things headed up the Omagh bombing intelligence review in 2008, and currently is serving as the Intelligence Services Commissioner, a post which involves reviewing actions taken by the Secretary of State under the Intelligence Services Act 1994 and the activities of British intelligence.
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6 July 2010 by Rosalind English
The Master of the Rolls Lord Neuberger has given the first lecture to the meeting of the newly-formed the European Circuit of the Bar. Along with the contributions of Lord Judge, Lord Hoffmann and Lady Justice Arden, this address forms part of an elegant but increasingly intense debate that reflects unease about Strasbourg.
At the end of his speech Lord Neuberger calls for a “dialogue” with the European Court of Human Rights that
will require from Strasbourg a more acute appreciation of the validity of the differential approaches by Convention states to the implementation of rights…Strasbourg might well benefit from developing the margin of appreciation to take greater account of practical differences which arise between Convention states and their implementation of high level principles.
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21 June 2010 by Adam Wagner
Binyam Mohamed
Al Rawi & Ors v the Security Service & Ors [2010] EWHC 1496 (QB) (21 June 2010) – Read judgment
The Government has received another in an increasingly long line of blows in the Al Rawi & Others foreign torture case, with Mr Justice Silber ordering a closed hearing to see whether two key security service documents are to be disclosed to the claimants. If the Government chooses not to claim public interest immunity, which is unlikely, the documents will be disclosed immediately.
The compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment. They claim to have been subjected to false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breaches of their rights under the Human Rights Act 1998.
The Government has recently ordered a public inquiry into the security services’ alleged complicity in torture, but this is not likely to start until after the Al Rawi claims are resolved.
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9 June 2010 by Adam Wagner
Lord Phillips
Lord Phillips of Worth Matravers, the head of the UK Supreme Court, has responded to accusations that the Human Rights Act is hampering the fight against terrorism, and that “respect for human rights is a key weapon in the ideological battle”.
With reports this morning that the Government has written to High Court judges encouraging then not to delay a deportation flight to Bagdad, the speech presents a well timed defence of judicial independence.
The Gresham Special Lecture: The Challenges of the new Supreme Court is available in text and audio format. Lord Phillips used the opportunity to defend the judiciary in light of their regular use of the Human Rights Act to limit the effects of the anti-terrorism laws enacted by the government in the past decade, including controversial measures such as control orders and the Special Immigration Appeal Commission (SIAC). He said:
After 9/11 the British Government decided that the threat of terrorism in Britain was such as to amount to a public emergency threatening the life of the nation and purported, on that ground, to derogate from the Convention.
He continued:
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27 May 2010 by Angus McCullough KC
Amnesty International published its 2010 Report yesterday, documenting torture and other human rights abuses around the world.
In relation to the UK, Amnesty’s report condemns the UK’s continuing reliance on “diplomatic assurances” in deportation cases where individuals were likely to be at risk of torture or other abuse if sent to countries where the Government accepts they would otherwise be abuse, in particular Algeria and Jordan. The report summarises that:
Reports implicating the UK in grave violations of human rights of people held overseas continued to emerge. Calls for independent investigations into the UK’s role in these violations went unheeded. The government’s attempts to return people to countries known to practise torture on the basis of “diplomatic assurances” (unenforceable promises from the countries where these individuals were to be returned) continued. The European Court of Human Rights found that, by detaining a number of foreign nationals without charge or trial (internment), the UK had violated their human rights. The implementation of measures adopted with the stated aim of countering terrorism led to human rights violations, including unfair judicial proceedings.
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27 May 2010 by Rosalind English
The authorities’ statutory power to detain pending deportation had to be motivated purely by the need to remove a subject from the United Kingdom, not to ensure his surrender into custody of the authorities operating in the receiving country. A subject detained not only for the purpose of effecting his removal from the UK, but also for the purpose of investigating whether acceptable arrangements could be made to return him into detention in the receiving country, was being detained unlawfully.
The claimant sought damages and declaratory relief against the defendant both at common law for the tort of false imprisonment and pursuant to s. 6(1) and s.7(1) of the Human Rights Act 1998, by reason of a claimed breach of Article 5(1) of the European Convention of Human Rights.
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19 May 2010 by Rosalind English
Abid Naseer, Ahmad Faraz Khan, Shoaib Khan, Abdul Khan and Tariq Ur Rehman (Appellants) v Secretary of State for the Home Department (Respondent), Special Immigration Appeals Commission, 18 May 2010 – Read judgment
Two men suspected of attempting to mount a mass casualty attack can stay in the UK because they risked ill treatment if they were to be sent back to Pakistan. Rosalind English examines whether the extra territoriality reach of Article 3 makes a mockery of the core protections provided by European Convention on Human Rights.
Risk of torture
The alleged operatives appealed against deportation orders/refusals of re-entry on the grounds that they risked ill treatment contrary to Article 3 of the European Convention on Human Rights at the hands of the Pakistani security services. Appeals against deportation were upheld because the reassurances as to the safety of their return was based on evidence that could not be disclosed in open court.
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4 May 2010 by Adam Wagner
Binyam Mohamed
Al Rawi & Ors v Security Service & Ors [2010] EWCA Civ 482 (04 May 2010) – Read judgment
The Court of Appeal has roundly rejected a request by the Government that evidence in a high-profile torture compensation claim should be kept secret from the public. It has also used the opportunity to emphasise that the interests of open justice would be serious compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.
This compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment.
The judgment is the latest in a series of reverses suffered by the Government in matters involving Binyam Mohamed and others in relation to their alleged torture. In February the Court of Appeal ordered it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by American authorities.
In the latest judgment, the Court of Appeal rejected the previous judgment of Mr Justice Silber in the High Court. The issue was whether the judge was right to conclude that it is open to a court, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty.
The appeal judges concluded that it was not open for a court to order a closed material procedure, stating that:
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27 April 2010 by Adam Wagner
A number of newspapers reported yesterday that the Council of Europe, is to criticise the UK for failing to introduce a total ban on smacking children. The coverage splits along predictable lines, with the Daily Express and The Star both referring to “meddling” bureaucrats telling British parents what to do with their children.
The foreshadowed comments will apparently come in a debate to be held later today on “The smacking ban 30 years on: international debate“, where advocates against the corporal punishment of children will take stock of how far the smacking debate has come since Sweden banned corporal punishment 30 years ago, becoming the first country to forbid all forms of violence against children, including at home.
The Council of Europe, which monitors States’ compliance with the European Convention, have recommended that all states should secure to everyone within their jurisdiction, including children, the right to be protected from torture and inhuman or degrading treatment or punishment (Article 3 ECHR), the right to liberty and security (Article 5), and the right to a fair trial (Article 6).
The Independent sums up the position in the UK, where smacking in most schools but not at home is banned:
Though we have a partial ban in place and are about to close an eccentric loophole in that law which allows private tutors to whack their pupils (“reasonably”) our right to cuff our own children is still protected. Sir Roger Singleton, the Government’s independent adviser on child safety, recently published a report – Physical Punishment: Improving Consistency and Protection – which essentially recommended that smacking should be banned everywhere except in the home, by parents and those in loco parentis.
Read more:
- Council of Europe Integrated Strategy against Violence
- Independent report by Sir Roger Singleton, Chief Adviser on the Safety of Children
- Update 30/04/10 – Libby Brooks writing in The Guardian: “Only the Liberal Democrats have committed in their manifesto to incorporating the UN convention into British law, which is probably about as hopeless a daydream as proportional representation. But, in the meantime, we cannot rely on benign self-regulation by parents alone. Smacking is assault, however you dress it up. It brings with it all the guilt, shame and assumptions of weakness and power that come with any attack on another human.“
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27 April 2010 by Adam Wagner
Frodl v Austria (Application no. 20201/04) 8 April 2010 – Read judgment
The European Court of Human Rights has taken another opportunity to criticise a European state for not allowing a prisoner, in this case convicted of murder, to vote. Prisoners will not be voting in the upcoming UK General Election, which may yet lead to a slew of compensation claims against the Government.
We posted recently on the continuing refusal of the UK Government to comply with the 2005 judgment of Hirst v UK, where the European Court held that the ban on prisoners voting in the UK was a breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
In Frodl v Austria the Court said that any restriction on voting rights must be proportionate to the end pursued, and
“must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.”
The Court went on to find a violation of the European Convention, for the reason that “it is inconceivable… that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction“.
The Court added that a prisoner’s right to vote could in some cases be taken away, but only in the limited scenario where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. In other words, there needs to be a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“.
In the UK, the Government have shown little willingness to enfranchise prisoners and convicts. This may well be because it prefers the risk of thousands of compensation claims, as well as continuing criticism from Europe, to taking the politically unpopular decision of allowing convicted criminals to vote.
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20 April 2010 by Adam Wagner
The case of The Queen on the application of Evans v Secretary Of State For Defence is continuing today in the Royal Courts of Justice in London, before Lord Justice Richards and Mr Justice Cranston.
Maya Evans, an activist, is brining a judicial review against the Ministry of Defence in respect of the British Army’s detainee transfer policy in Afghanistan. It is alleged that British forces knew of the torture risks when handing over prisoners to the Afghan security services.
This is the latest in a series of cases where the Government have been criticised in the courts for defence policies in Iraq and Afghanistan. In 2007, the House of Lords (the old Supreme Court) in Al-Skeini effectively opened the door to such claims by foreign nationals by holding that the Human Rights Act applies outside of the UK.
The most notable recent example is the Binyam Mohamed case, where the Court of Appeal heavily criticised the security services. Similar issues in relation to secret evidence appear to have arisen in Evans, with The Guardian reporting:
So concerned is the Ministry of Defence about the challenge to the practice, that it is insisting that evidence it had passed to her lawyers must now be suppressed.
As a result, skeleton argument from her lawyers – a document consisting of an outline of the case – includes a number of passages blacked out at the insistence of the MoD.
Following one long excised passage, the document revealed in court today reads: “The lessons from these shocking events is … investigation by the NDS [Afghanistan’s National Directorate of Security] is obviously incapable of providing any satisfaction of the UK’s human rights obligations.”
Read more:
- Our posts on the Binyam Mohamed litigation can be found here, here, and here
- Our case comment on R (Mazin Mumaa Galteth Al Skeini and others) v Secretary of State for Defence
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9 February 2010 by Adam Wagner
Binyam Mohamed
Read our case comment here
The Government has lost its appeal (see the BBC report) against the Divisional Court’s decision to order it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by the Americans. The Foreign and Commonwealth Office (FCO) had previously argued that to release the full email would damage national security. The full email can now be read on the FCO website.
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