Category: Article 6 | Right to Fair Trial
29 April 2010
McFarlane v Relate Avon Ltd  EWCA Civ B1 (29 April 2010) – Read judgment
Gary McFarlane, a Christian relationship counsellor, has lost his application to appeal his Employment Appeal Tribunal decision in the High Court. Mr McFarlane was sacked by a marriage guidance service after he said he would not promote gay sex. He claimed he had been discriminated against on religious grounds.
The case caused a furore as the former Archbishop of Canterbury Lord Carey submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the High Court has now rubbished that suggestion. He said:
18. Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”. Nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.
19. It is possible that Lord Carey’s mistaken suggestions arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination. In cases of indirect discrimination (such as are provided for by paragraph 3(1)(b) of the 2003 Regulations, which is centre stage in the present case) the law forbids discriminatory conduct not by reference to the actor’s motives, but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects – outcomes – as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where (in a carefully controlled legislative setting) it can be shown to have justifiable effects. Accordingly the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey’s position.
- More posts on religious discrimination
- Judgment in Mcfarlane v Relate Avon Ltd.
- Update 30/4/10 – Lord Carey responds: legal battle against believers is “”a deeply unedifying collision of human rights””
29 April 2010
The ghost of Cromwell?
With all of the talk of the Conservative Party’s proposed new Bill of Rights, it is easy to forget that we have had one on the statute books since 1688. This will now be brought into sharp focus through the Parliamentary expenses scandal, where three ex-MPs are planning to use the 322-year old Act to argue that their prosecutions should be dropped as they have Parliamentary privilege.
The 1688 Bill of Rights (passed by Parliament in 1689) established many of the democratic rights which now find form in the European Convention on Human Rights (ECHR) and other similar sources, such as the First Amendment of the United States Constitution. Some of the language is familiar, such as the provision against “cruel and unusual punishments”, which foreshadows Article 3 of the ECHR.
The intention of the 1688 Act, which is still in force, was to establish rights seen as essential to restricting the power of the monarch, and bolstering the power and independence of Parliament. The Sovereign was restricted, for example, from establishing new courts or act as judge.
The key provision in respect of the three ex-MPs is:
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
Joshua Rozenberg, in a very interesting Law Society Gazette article, outlines the main issue:
The 1688 act is still in force, and there is no doubt that it protects MPs and peers from legal action over what they say in parliament. But what is meant by ‘proceedings’? Does it cover a claim for parliamentary expenses? The defendants say it does.
And who should decide such a question? The former MPs are expected to argue that leaving it to the courts would interfere with separation of the powers, a fundamental constitutional principle under which the judges do not question the way in which parliament conducts its affairs.
The Bill of Rights is still occasionally cited in court. One notable example was during the “cash for questions” affair in the 1990s. Neil Hamilton, then a member of Parliament, brought an action in libel against The Guardian newspaper. The trial was stopped, as Mr Justice May considered that the prohibition on courts questioning Parliamentary proceedings would prevent The Guardian obtaining a fair trial. This led directly to the drafting of s.13 of the Defamation Act 1996 which allows someone being sued for defamation to waive “the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.”
In his article, Rozenberg goes on to discuss what he considers to be the comparative case of Les Huckfield, a Member of the European Parliament who was accused of dishonestly obtaining expenses of over £2,500 by deception.
Old and new
Clearly the battle lines are now being drawn in what will be interesting and potentially important litigation from a perspective of constitutional law. It is also an odd coincidence that three ex-MPs may save themselves from prison by citing a 322-year-old bill of rights at the same time that their Parliamentary ex-colleagues are attempting to enact a brand new one.
26 April 2010
Lotfi Raissi, a pilot accused of being one of the 9/11 plotters, has been told by the Ministry of Justice that he is entitled to compensation for the effect that the accusations have had on his life. The announcement comes 9 years after his prosecution began.
Commentators have been scathing of the Government’s handling of the case. Afua Hirsch in The Guardian says that the case highlights “the unrestrained assaults on individual rights in response to allegations of terrorism and the long, drawn-out process of establishing the truth in the courts” and
The row over proposals to detain terrorist suspects for 90 days without charge takes on a surreal quality when looking at a case such as Raissi’s. The US authorities’ use of extradition proceedings – ensuring the co-operation of the CPS – became “a device to circumvent the rule of English law that a terrorist suspect could (at that time) be held without charge for only seven days”, the court of appeal said in a judgment of the case in February 2008.
Sean O’Neil, The Times’ Crime Editor, says:
Finally, eight years after he was released by order of the courts, the Ministry of Justice has said that he is to be regarded as “completely exonerated”. The length of time it has taken the Government to reach that conclusion is nothing short of disgraceful.
23 April 2010
Adetoro v United Kingdom (Application no. 46834/06, ECtHR)
The European Court of Human Rights has ruled that there was no violation of of the European Convention on Human Rights when a man was convicted after the judge failed to direct a jury properly in relation to the Defendant’s silence in a police interview.
The Court found there was no violation of Article 6 as the Defendant had not been convicted on the strength of his silence alone and there had been no unfairness in the trial as a whole.
The Applicant had been convicted of offences relating to a string of robberies. When interviewed by the police he had answered “no comment” to questions in relation to his movements recorded by police surveillance, association with other persons and whereabouts when the robberies were occurring. At trial, he admitted involvement in dealing in stolen cars and claimed that this explained the matters which the police had observed. He explained his silence on the basis that he did not wish to incriminate others.
In summing up, the judge omitted from his direction to the jury words to the effect that no inferences could be drawn from the Applicant’s silence unless its members were satisfied that the reason for his silence was that he had no answer to the questions asked or none that would stand up to scrutiny.
The Applicant argued that
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14 April 2010
Three MPs who are being prosecuted for their role in the parliamentary expenses scandal have been granted legal aid.
However, contrary to what the the Prime Minister said yesterday afternoon, Jim Devine, David Chaytor and Elliot Morley will only have to pay back the money if they are found guilty.
The case and ensuing political furore highlight two important aspects of the legal aid scheme from a human rights perspective.
First, that financial legal assistance in criminal cases is a human right. As Joshua Rozenberg points out on his Standpoint Blog:
Article 6(3)(c) of the Human Rights Convention says that everyone charged with a criminal offence has the right to defend himself through legal assistance of his own chosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
The second important point is that from June, the right to legal aid in serious criminal prosecutions will be limited by the introduction of means testing.
The scheme is undergoing significant changes primarily in order save costs. In 2008/9 £2.186 billion was spent on legal aid, with 53% spent in the criminal courts, amounting to 1/630 of government expenditure. In order to reduce that figure, from June 28 this year criminal legal aid in the Crown Court, where more serious criminal offences are tried, will become means tested. Legal aid in the Magistrates’ Courts, where less serious offences are tried, is already subject to means testing. The Legal Services Commission now hopes to save a further £35m per year.
From June, anyone with a net (i.e. after tax) disposable income of more than £3,398 per year and with capital of over £10,000 will have to contribute to their own legal expenses when prosecuted in the Crown Court. As such, the three MPs would probably not receive full legal aid under the new scheme.
13 April 2010
The conviction of the “Heathrow heist four” at the Old Bailey has raised serious concerns that the historic right to trial by jury may be slipping away.
For the first time in 350 years, the four men were convicted in the Crown Court by way of a trial without a jury. On March 31st each received long prison sentences for their part in the robbery.
Henry Porter, writing in The Guardian, has severely criticised the reforms which allowed the trial to proceed with no jury. He says:
A profound change has occurred in Britain where it is now possible for counsels and a judge to decide the fate of defendants without the involvement of 12 ordinary citizens – the fundamental guarantee against arbitrary state punishment represented so well by the use of the star chamber under King Charles I.
The right to trial by jury has been steadily eroded in recent years. Civil courts now operate almost entirely without juries, as do some lower-level criminal courts such as Magistrates’ courts, which are only able to impose custodial sentences up to a maximum length of one year.
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9 April 2010
The Law Society of Scotland have sounded the alarm in relation to new Government powers to block an individual’s internet access, and argue that this is likely to amount to a breach of their Human Rights.
The Digital Economy Bill, which has now passed through Parliament and has royal assent, has attracted wide attention in the past few days for a number of reasons. Many have been concerned at the apparent lack of debate in relation to the wide-ranging Bill.
However, a pressing concern amongst internet users has been the proposed new powers for the Government to block an individual’s internet access as a punishment for internet piracy.
The Law Society of Scotland consider that blocking an individual’s internet access would be breach their human rights. They are concerned in particular with the lack of a requirement for a court order before access is cut off, which would amount to a breach of Article 6 of the European Convention. Jim McLean, convener of the Society’s Intellectual Property Committee says:
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31 March 2010
The Parliamentary Joint Committee on Human Rights (‘the Joint Committee’) has released its report on the Annual Renewal of Control Order Legislation 2010, in which it heavily criticised the control order scheme. The scheme, introduced in 2005, allows courts to put terror suspects under restrictions resembling house arrest by placing them under curfews of up to 16 hours a day and, typically, constraints on their movements and communications. There were 12 suspects subject to control orders in December 2009.
Whereas the Joint Committee has previously criticised the scheme, this is the first time that it has recommended for it to be discontinued. The committee said:
We have serious concerns about the control order system. Evidence shows the devastating impact of control orders on the subject of the orders, their families and their communities. In addition detailed information is now available about the cost of control orders which raises questions about whether the cost the system is out of all proportion to the supposed public benefit. We find it hard to believe that the annual cost of surveillance of the small number of individuals subject to control orders would exceed the amount currently being paid to lawyers in the ongoing litigation about control orders. Finally, we believe that because the Government has ignored our previous recommendations for reform, the system gives rise to unnecessary breaches of individuals’ rights to liberty and due process.
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29 March 2010
R (on the application of LG) (Appellant) v Independent Appeal Panel for Tom Hood School (Respondent) & Secretary of State for the Department for Children, Schools and Families (Interested Party)  EWCA Civ 142
(Read judgment here)
CA (Civ Div) (Rix LJ, Wilson LJ, Sir Scott Baker) February 26 2010
An exclusion hearing by a school does not engage the pupil’s Article 6 of the Convention since there is no “civil right” to education recognized as such either by the Convention or by domestic law.
The appellant pupil (VG) had been involved in a fight at the school. He was accused of having a knife, which he denied. The school permanently excluded VG and he appealed. The panel, in accordance with the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 reg.7A, found on the balance of probabilities that he had carried a knife, and upheld his exclusion. VG appealed against a decision ((2009) EWHC 369 (Admin), (2009) BLGR 691) to refuse his application for judicial review of the decision of the respondent panel to uphold a decision to permanently exclude him from a school. He argued that his right to a fair hearing under Article 6 was engaged, either on the basis that the panel had determined his civil right not to be excluded from the school without good reason, or on the basis that the panel had determined a criminal charge against him, and that right had been infringed by the decision to exclude him having been based on allegations established against him on the balance of probabilities rather than on the criminal standard of proof. He also contended that regulation 7A(c), although purportedly made pursuant to the Education Act 2002 s.52, was ultra vires in that a rule about standard of proof was one of evidence and not procedure as permitted by s.52(3)(d).
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5 March 2010
Re W (Children)  UKSC 12 [On appeal from  EWCA Civ 57]
The Supreme Court has ruled that refusing an application for a child to give evidence in a trial may contravene Article 6 of the European Convention on Human Rights (ECHR).
At issue in this case is the care of five children. All the children were taken into foster care and the four younger children are having supervised contact with both parents. The father has since been charged with 13 criminal offences and is currently on bail awaiting trial.
In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. In November 2009 the judge decided to refuse the father’s application for her to be called. Instead, she would rely on the other evidence, including a video-recorded interview with the child.
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