Category: Article 6 | Right to Fair Trial
18 January 2012 by Isabel McArdle
The Government of the United States of America -v- O’Dwyer, Westminster Magistrates’ Court – Read judgment
It seems appropriate, on the day when Wikipedia shut down for 24 hours to protest against US anti-piracy legislation, to talk about piracy (in the copyright sense) and what role human rights law has to play in the perpetual battle against it.
It is a topic that polarises, with some considering piracy to be no more moral than any other theft, and others seeing those who commit piracy offences as fighting for freedom of expression and liberal copyright laws. In the case of Richard O’Dwyer, a young man who is accused of setting up a website which breaches US copyright law and who is facing extradition to the US for trial, he attempted to block his extradition by relying on a combination of human rights and other objections relating to the manner and circumstances surrounding the request.
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18 January 2012 by Rosalind English
Joseph Lennox Holmes (Appellant) v Royal College of Veterinary Surgeons (Respondent) [2011] UKPC 48 – read judgment
The disciplinary procedures of the Royal College of Veterinary Surgeons did not give rise to any appearance of bias so as to breach a practitioner’s right to a fair trial under Article 6.
Despite the fact that the membership of the committee dealing with the prosecution of charges was drawn from the College’s governing body, in whose name any charges were brought, and that the body dealing with the determination of charges was also drawn from the College’s governing body, in practice their procedures were fair.
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18 January 2012 by Adam Wagner
A bit like news of a wayward celebrity, judgments from the European Court of Human Rights are now awaited with a mixture of trepidation and excitement. Whatever are those crazy unelected judges going to do next? Will this be the latest “Judgment day” for the enfant terrible of Strasbourg?
Yesterday the court released three judgments involving the United Kingdom. All three were about controversial issues: extradition, murder sentencing and terrorist deportation. The UK triumphed in the first two but failed in the third, although for surprising reasons. None of the judgments are “final”, in that the parties can still attempt an appeal to the court’s Grand Chamber if they wish. The rulings were:
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17 January 2012 by Rosalind English
Othman (Abu Qatada) v United Kingdom – read judgment | updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
The Strasbourg Court has ruled today that whilst diplomatic assurances may protect a suspected terrorist from torture, he cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him.
The following summary is based on the Court’s press release.
The applicant, Omar Othman (Abu Qatada), is a Jordanian national, currently detained in Long Lartin prison. He is suspected of having links with al-Qaeda.He arrived in the United Kingdom in September 1993 and made a successful application for asylum, in particular on the basis that he had been detained and tortured by the Jordanian authorities in 1988 and 1990-1. He was recognised as a refugee in 1994, being granted leave to remain until June 1998.
While his subsequent application for indefinite leave to remain was pending, he was detained in October 2002 under the Anti-Terrorism, Crime and Security Act. When that Act was repealed in March 2005, he was released on bail and made subject to a control order under the Prevention of Terrorism Act. While his appeal against the control order was still pending, in August 2005 he was served with a notice of intention to deport him to Jordan.
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5 January 2012 by Adam Wagner
Government proposals to increase the number of court hearings held in secret, and in which parties can only see minimal evidence relied upon by the court, have been severely criticised by the “Special Advocates” who play the central role in closed hearings.
The group of 57 barristers, including 19 Queen’s Counsel, argue that despite attempts, for example, to give those subject to “Closed Material Procedures” a summary of the evidence against them, they remain “fundamentally unfair” and
represent a departure from the foundational principle of natural justice that all parties are entitled to see and challenge all the evidence relied upon before the court and to combat that evidence by calling evidence of their own.
The document is a response to the Government’s Consultation (see my and Angus McCullough QC’s previous posts) which have to be sent via email or post by tomorrow, Friday 6 January 2012. I will be collating summaries of responses as I did with the Bill of Rights Commission consultation. If you would like your response to be included, please send it to 1crownofficerow@gmail.com, with the subject “Consultation response”.
In summary, the special advocates argue:
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21 December 2011 by Guest Contributor
Freezing
One could be forgiven, amidst the furore over the European Court of Human Rights’ Al-Khawaja judgment last Thursday, for missing the first report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorist Asset-Freezing etc Act 2010. The Report runs to over 100 pages and is the most comprehensive account of UK terrorist asset freezing in print.
It is the third report of the current Independent Reviewer, David Anderson Q.C., since he took up the post in February. Asset freezing is something of a speciality of his, as he has appeared in litigation in both EU and UK courts on the matter. It is therefore unsurprising that the Report exhibits the same attention to detail that made the Anderson’s previous two efforts essential reading.
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17 December 2011 by Alasdair Henderson
Edwards v Chesterfield Royal Hospital and Botham (FC) v Ministry of Defence [2011] UKSC 58 – read judgment.
Although not strictly speaking a human rights case, the Supreme Court handed down an important employment law decision this week which has significant impact on employees’ ability to claim damages if they are sacked unfairly or if an internal disciplinary process isn’t properly followed by their employer.
Both cases, which had been conjoined for the purposes of the appeal, dealt with situations where an employee had a contractual right to a particular disciplinary procedure but the procedure was not properly followed. The employees argued that as a result of the flawed disciplinary process, incorrect and highly damaging findings of fact were made against them, which prevented them from finding future employment. In both cases the incorrect findings of fact concerned allegations of inappropriate sexual conduct, in the case of Mr Edwards (a surgeon) with patients and in the case of Mr Botham (a youth worker) with teenage girls in his care, so the employees’ upset is readily understandable.
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13 December 2011 by Adam Wagner
You don’t need to be a brain scientist to see that lawyers would benefit from a more sophisticated understanding of the human brain. Neuroscientists seek to determine how brain function affects human behaviour, and the system of law regulates how those humans interact with each other. According to a new Royal Society report, lawyers and neuroscientists should work together more.
The report, Neuroscience and the law, argues that neuroscience has a lot to offer the law, for example:
might neuroscience fundamentally change concepts of legal responsibility? Or could aspects of a convicted person’s brain help to determine whether they are at an increased risk of reoffending? Will it ever be possible to use brain scans to ‘read minds’, for instance with the aim of determining whether they are telling the truth, or whether their memories are false?
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5 December 2011 by David Hart KC
Mortgage Agency Services Number Four Limited v. Alomo Solicitors, HHJ Simon Brown QC, [2011] EWHC B22 (Mercantile)
Every so often, a judge gets so infuriated with the prolixity of an advocate that he has a real go at him in the resulting judgment, and this solicitors negligence case is a good example. However, this judge spiced up his reasoning with a tale of how long-winded advocates were treated in the past when their legal documents went on too long:
“One early remedy that had an effect was used by the Lord Keeper in England in 1596 in the case of Mylward v Weldon…[1595] EWHC Ch 1]. He ordered that a pleading 120 pages long be removed from the file because it was about eight times longer than it need have been. He ordered that the pleader be taken to the Fleet prison. His Lordship then ordered that on the next Saturday the Warden of the Fleet bring the pleader into Westminster Hall at 10 a.m. and then and there cut a hole in the midst of the pleading and place it over the pleader’s head so that it would hang over his shoulders with the written side outwards. The Warden had to lead the pleader around Westminster Hall while the three courts were sitting and display him “bare headed and bare faced” and then be returned to the Fleet prison until he had paid a £10 fine – a huge sum in those days.”
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1 December 2011 by Angus McCullough KC
This is an expanded version of a comment made on Adam Wagner’s post: Should more trials be held in secret?
Our recent post highlights the Government’s consultation on the Justice and Security Green Paper. Having been involved as a Special Advocate in many hearings involving closed material, I am troubled about these proposals, as well as the lack of public debate that they have generated.
The main proposals in the Green Paper are based on the highly debatable assumption that existing closed material procedures (CMPs as per the acronym adopted) have been shown to operate fairly and effectively. CMPs, were first introduced in 1997 and have escalated in their application since then. At §2.3 of the Green Paper it is stated that:
The contexts in which CMPs are already used have proved that they are capable of delivering procedural fairness. The effectiveness of the Special Advocate system is central to this … .
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1 December 2011 by Adam Wagner
There is just over a month left to respond to the Government’s consultation on the Justice and Security Green Paper. Responses have to be be sent via email or post by Friday 6 January 2012.
The proposals have been little reported, save for journalist Joshua Rozenberg, channeling Dinah Rose QC, warning that they will “undermine a fundamental constitutional right:”. Perhaps legal correspondents prefer to pick over testimony from the glamorous Leveson Inquiry as opposed to complicated government proposals involving clunky phrases – some would say fig leaves – like “Closed Material Procedure” and “Special Advocate”.
But these proposals are extremely important. If they become law, which is likely given the lack of opposition from any of the main parties, the justice system will look very different in the coming years. Many civil hearings could be held in secret, and although (as the Government argues anyway) more justice may be done, undoubtedly less will be seen to be done.
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21 November 2011 by Richard Mumford
This is a case in which Philip Havers QC of 1 Crown Office Row appeared for the General Dental Council; he is not the author of this post.
The General Dental Council v Savery and others [2011] EWHC 3011 (Admin) – Read judgment
Mr Justice Sales in the High Court has ruled that the General Dental Council’s (GDC) use and disclosure of the dental records of fourteen patients of a registered dentist who was the subject of investigation was lawful.
The court also offered general guidance about how the GDC may proceed (particularly by reference to Article 8 of the European Convention on Human Rights, the right to privacy and family life) when it wishes to investigate allegations against a dentist of impairment of fitness to practise by reference to confidential patient records in the absence of consent from the patients in question.
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14 November 2011 by Adam Wagner
Updated |Today marks a minor landmark for open justice. For the first time, a public inquiry is being shown live over the internet.
The Leveson Inquiry into Culture, Practices and Ethics of the Press has taken over Court 73 in the Royal Courts of Justice, so when Counsel to the Inquiry Robert Jay QC begins his cross examination, you could even imagine you are watching a live trial – on that note, watch this space.
The Iraq (Chilcott) Inquiry was broadcast live but it was not a public inquiry under the Inquiries Act 2005, as Leveson’s is. The Inquiry’s website has been relaunched and will be hosting the live stream of hearings on this page. My only grumbles about the new website are that the live coverage should be more prominently advertised on the main page.
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11 November 2011 by Adam Wagner
The Civil Justice Council (CJC) has just released a major new report: Access to Justice for Litigants in Person (or self-represented litigants). The report attacks head-on the prospect of thousands more people having to represent themselves in court once civl legal aid is mostly taken away.
The 94-page report, written by a group including a QC and a High Court judge, is a major and ambitious attempt to make the justice system fairer and simpler for people who go to court without a lawyer. A huge amount of research and thought has gone into it, building on the process begun by Lord Woolf in 1997 with the Civil Procedure Act. The CJC was itself a creation of the 1997 Act, its function being to figure out how to make the civil justice system more accessible, fair and efficient.
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9 November 2011 by Rachit Buch
JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011) – Read judgment
Elizabeth Anne-Gumbel QC and Justin Levinson of One Crown Office Row acted for the Claimant in this case. They did not write this post.
A Roman Catholic diocese can be held liable for the negligent acts of a priest it has appointed, the High Court has ruled. The ruling is a preliminary issue in the Claimant’s proceedings against alleged sexual abuse and rape at a children’s home. The trial of these allegations are to follow.
The Claimant, a 47-year-old woman, is suing the Portsmouth Roman Catholic diocese for the injury she alleges she suffered from abuse and rape while living at a children’s home run by the diocese in the early 1970s. The priest involved, Father Baldwin, is now dead. The High Court was asked to determine, before the trial of the allegation, whether the diocese – that is, the district under supervision of the Bishop – could be held liable for Father Baldwin’s acts; whether the principle of vicarious liability applies to a diocesan bishop for the acts of a priest he has appointed.
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