Category: Article 3 | Torture / Inhumane Treatment
7 December 2010 by Clare Ciborowska
Tzipi Livni
Updated | A new bill which seeks to reform the powers of the police also seeks to make it harder to issue private arrest warrants for universal jurisdiction offences, such as war crimes, torture and hostage taking,
The controversial change would mean that they can only be issued where there is a reasonable prospect of a successful prosecution (see our previous post).
The Police Reform and Social Responsibility Bill has now started its passage through Parliament, following its introduction to the House of Commons on 30 November 2010.
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2 December 2010 by Rosalind English
R (on the application of Zagorski and Baze) v Secretary of State for Business, Innovation and Skills and Archimedes Pharma UK Ltd – read judgment
The Administrative Court has put down a marker on the potential applicability of the EU Charter of Fundamental Rights about the morality of certain trade with the United States. The case concerned the export of Sodium Thiopental, an anaesthetic drug that is used as a preliminary to the lethal injection for prisoners on death row. This is the first time a domestic court has made a definitive ruling on the potential role of the EU Charter in domestic law. Earlier this year the Court of Appeal referred a question on the Charter to the ECJ for determination on its relevance to asylum proceedings: see R (S) v Home Secretary & (1) Amnesty International & AIRE Centre (2) UNHCR and our post on the subject.
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26 November 2010 by Rosalind English
MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 49 – read judgment (press summary in earlier post)
The Supreme Court has ruled that where the Asylum and Immigration Tribunal (AIT) had directed itself correctly as to the impact of an asylum seeker’s lies on his claim, the Court of Appeal should have been very slow to find that it had gone on to apply that direction incorrectly.
This case brings to the fore the very difficult task facing immigration judges trying to determine the veracity of claimants’ testimony in asylum cases. The Supreme Court declined to express a conclusive view on the standard of proof in this area, a point which was acknowledged to be “both difficult and important”. It was left for an authoritative decision by that Court – but when such an occasion arise? The importance of settling this point cannot be overstated.
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25 November 2010 by Caroline Cross
Application no. 32666/10 by X, Y & Z against the UK, lodged on 8 June 2010 – Read statement of facts
In a potentially landmark case, the European Court has been asked to determine the extent to which a local authority is under a duty prevent a breach of a person’s rights under Articles 3 (against inhuman and degrading treatment) and 8 (home and family life) in a case where two people with learning difficulties were violently harassed and threatened by a group of teenage youths.
The case concerns vulnerable adults who rely on social services. X and Y, who are married, both have learning difficulties. Z is the mother of X, and acted as a carer and advocate for both X and Y. X and Y lived in Hounslow Borough with Y’s two young children. Three local authority departments were involved with X and Y’s family, providing for their housing needs and allocating social workers for both the adults and children. Over a period from August 1999 until November 2000, X and Y were continually harassed and threatened by a group of teenage youths, who used the flat as a general ‘doss house’, dumping stolen goods, having sex and staying overnight.
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25 November 2010 by Rosalind English
MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 49. Read judgment
Update, 26 November – Rosalind English’s case comment is here
The following report is based on the press summary provided by the Supreme Court.
The issues raised in this appeal were: (1) the correct approach to the relevance of lies told by an asylum seeker in the assessment of real risk of persecution on return to his or her country of origin; and (2) how far it is legitimate for an appeal court to interfere with the assessment of facts made by a specialist tribunal on the grounds of error of law.
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24 November 2010 by Rosalind English
Iraqis whose applications for asylum are unsuccessful will be continued to be deported, according to a government minister. The announcement comes despite the European Court of Human Rights effectively calling for a freeze on the practice.
The BBC reported on Monday that Foreign Office minister Alistair Burt told the them that Iraq was now considered safe enough for people to return to. An earlier post explored the legal implications of the return by the UK of Baghdad last year. The Upper Tribunal (Immigration and Asylum Chamber) held that the degree of indiscriminate violence in Iraq was not so high that the appellants could resist return.
Other parties, such as the UN High Commissioner for Refugees, maintain that much of Iraq remains unsafe, although the majority are sent to the North where explosions and shootings are not the danger they are in the South. But as long as the UK government maintain the view that Iraq is no longer a war-torn country, there are no grounds for the Iraqi’s continued presence in here.
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19 November 2010 by Adam Wagner
RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 1285 (18 November 2010) – Read judgment
The Court of Appeal has ruled that asylum seekers cannot be forced to lie about not holding political beliefs when returning to their home country. The potentially wide-ranging decision extends the protection arising from a recent Supreme Court decision which found that homosexuals could not be sent back to their home country if they would have to lie about their sexuality.
The case concerned four Zimbabwean asylum seekers. In previous asylum cases involving Zimbabwe, it had been assumed that it is legitimate to require applicants, in order to avoid persecution, to demonstrate loyalty to Zanu-PF, itself a persecutory regime. The men in this case did not hold strong political views, but did not support the Zanu-PF either. The question was whether it would breach their human rights to send them back if they would be forced to join the ruling party.
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16 November 2010 by Adam Wagner
Binyam Mohamed
Updated | It is being widely reported that around 12 men, who accused the government of complicity in their mistreatment in various places including the Guantanamo Bay prison camp, have reached a financial settlement worth millions of pounds with the government.
Update, 16:30: Ken Clarke has announced the settlements to Parliament. The terms are confidential, no admission of culpability has been made and the claimants have not withdrawn their allegations. The alternative to any payments would have been “protracted and extremely expensive” litigation. This could have cost between £30m and £50m. There could have been no inquiry while those cases were under way. However, the Gibson inquiry cannot run in parallel with a criminal inquiry. The criminal investigations have to conclude first.
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4 November 2010 by Alasdair Henderson
The air freight bomb plot that came to light over the weekend was a stark reminder that, while new pressures on human rights may come as a result of the economic crisis and budget cuts, the tension between national security and civil liberties as a result of terrorist threats is still a live issue.
However, whereas the New Labour government came under intense criticism for its anti-terrorism policies, the Coalition’s response to last weekend’s events has (so far) been comparatively restrained. The measures announced yesterday were mainly focused on cargo originating from Yemen and other potentially dangerous parts of the world. The government has also said that it will conduct a review of air freight policies and procedures, and consult with the air freight industry on improving security.
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2 November 2010 by Matthew Hill
Updated | R (McDonald) v Royal Borough of Kensington and Chelsea, [2010] EWCA Civ 1109 – read judgment
The Court of Appeal has held that a local authority was entitled to reduce the care package provided to one of its resident following a re-assessment of her needs, even though this had the effect of forcing her, against her wishes, to use incontinence pads and/or absorbent sheets at night.
In doing so, the authority did not breach Article 8 ECHR (right to privacy and family life), or the relevant disability discrimination legislation. The judgment suggests that the courts will only intervene in disputes about the level of care being provided by local authorities in limited circumstances, something that may be significant in an environment of public spending cuts.
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20 October 2010 by Catriona Murdoch
Ben King and Secretary of State for Justice [2010] EWHC 2522 (Admin) – Read Judgment
True or False: 1. A non-independent tribunal can determine your civil rights? 2. A non-independent tribunal can curtail your civil rights?
The high court has answered “true” to both of these questions . The non-independent tribunal in this case was the adjudication system in young offender institutions (YOI). The high court ruled that whilst the governor adjudicator was not an independent tribunal for the purposes of Article 6(1) ECHR, it could still determine and ultimately curtail an inmates civil rights.
The case of “King” raises important issues concerning the regime for adjudication of disciplinary charges brought against inmates at prisons and young offender institutions across England and Wales. In 2008 alone 190,192 punishments were imposed for disciplinary offences in young offender institutions.
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11 October 2010 by Adam Wagner
Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.
Interestingly, two crucial aspects of open justice have been reinforced as a result of a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.
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7 October 2010 by Adam Wagner
Ghailani
The New York Times reports that those prosecuting Ahmed Khalfan Ghailani in the first civilian trial of a man held at Guantanamo Bay have suffered a setback: “just as the trial was to begin on Wednesday, Judge Kaplan ruled that he would not allow [a man who was to testify that Ghailani sold weapons to him] to testify. … the government had acknowledged that it had identified and located the witness through interrogation of Mr. Ghailani when he was earlier held in a secret overseas jail run by the Central Intelligence Agency. His lawyers have said he was tortured there.” The judge said:
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6 October 2010 by Matthew Flinn
CA v Secretary of State for the Home Department [2010] EWHC 2278 (10 September 2010) – Read judgment
The High Court has ruled that a a control order which required the “controlee” to relocate and live at an address in Ipswich, away from his family in Crawley, was unlawful.
In Secretary of State for the Home Department v AP [2010] UKSC 24, the Supreme Court allowed the appeal of a man subject to a control order based on the argument that confinement to a flat 150 miles away from his family amounted to a breach of his human rights under Article 5 of the ECHR (right to liberty). The case of CA provides another example of the court striking down a relocation provision in a control order, and is the latest in a long series of court judgments which have chipped away at the controversial scheme.
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5 October 2010 by Adam Wagner
Updated Al-Saadoon and Mufdhi v the United Kingdom – 61498/08 [2010] ECHR 282 – Read judgment / court press release
The European Court of Human Rights has declared that a decision in the cases of two Iraqi murder suspects in UK custody in Iraq is now final and will not be reconsidered. The court has effectively prohibited the death penalty under the European Convention on Human Rights, despite Article 2 (the right to life) appearing to expressly allow it.
The judgment is an important restatement of the prohibition against the death penalty which has been agreed to by all Council of Europe states. However, the reasoning of the court in prohibiting it under the European Convention, founded on the men’s “mental suffering caused by the fear of execution amounting to inhuman treatment”, rather than a prohibition against states carrying out the death penalty itself, may generate difficulties in future cases relating to inhuman and degrading treatment.
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