Category: CONVENTION RIGHTS
22 November 2012 by Rosalind English
Oakes and others v R [2012] EWCA Crim 2435 – read judgment
The imposition of whole life orders for extremely serious crimes does not violate the prohibition on inhuman and degrading treatment under Article 3.
Until relatively recently, the Secretary of State decided the minimum term to be served by a “lifer” – a defendant who subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the 2003 Criminal Justice Act. Schedule 21 para 4 allows judges to order a whole life minimum term, a jurisdiction of last resort in cases of exceptional criminality.
It was submitted in these conjoined appeals that this provision contravenes Article 3 of the European Convention of Human Rights. Not so, said the Court of Appeal, Criminal Division.
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22 November 2012 by Adam Wagner
Update | The Voting Eligibility (Prisoners) Draft Bill has been released. It will not be put straight before Parliament for a vote; rather, it will be put to a Committee of both Houses for full Parliamentary scrutiny which could propose amendments, then back to the Government which will “reflect on its recommendations” and subsequently introduce a bill. There is no timetable set out for this process, but I imagine the Council of Europe may want a timetable imposed.
The bill sets out three options:
- A ban for prisoners sentenced to 4 years or more.
- A ban for prisoners sentenced to more than 6 months.
- A ban for all convicted prisoners – a restatement of the existing ban.
One interesting point on a quick read through is that option three “would re-enact the current general ban on prisoner voting, with some minor changes.” The language is indeed different to that used to enact the current ban, which is contained in section 3 of the Representation of the People Act 1983.
21 November 2012 by Guest Contributor
For justice to be seen to be done, judgments given in open court must be accessible in two senses. They must be clearly written so that a reasonably well informed member of the public can understand what is being decided. But they must also be available to the public, and in this sense their accessibility depends on their being reported.
Lord Neuberger, President of the Supreme Court, so stated in the first BAILII annual lecture, hosted by Freshfields Bruckhaus Deringer LLP at their premises in Fleet Street last night. The full speech can be read here.
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21 November 2012 by Rosalind English
Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) – read judgment
Turner v East Midlands Trains [2012] EWCA Civ 1470 – read judgment
Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority.
It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.
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18 November 2012 by David Hart KC
R v. Waya [2012] UKSC 51, 14 November 2012, read judgment
Traditionally, the qualified right to peaceful possession of property conferred by Article 1 of the 1st Protocol (A1P1) has been thought of as a rather feeble entitlement, easily outweighed by public interests. After all, every day of the week, the modern state affects that right – think taxes or planning restrictions, or business bans arising out of public health concerns (e.g. see here), where removal and confiscation or restriction on what we do with property is readily accepted. Last week the Supreme Court ruled that the Proceeds of Crime Act 2002 (POCA) needs a bit of remedial HR surgery as and when its blunderbuss rules would otherwise have a disproportionate effect on those affected. But the importance of the ruling extends far beyond the specific statutory context.
The story is a familiar one. Parliament, quite rightly, decided that we needed a way of taking the benefits of crime away from criminals on conviction – over and above the system of fines. But it also realised that without some set rules this will prove difficult, if not impossible, to administrate. If the exercise were to be to ascertain the net benefit of the crime, then we get into frightful tangles. Can a defendant set off against his profit of crime his expenses – the cash to the getaway driver, the bung to the dodgy public official, or the contract killing payment? The answer in the statute, and in this decision, is – No. This would be offensive and impractical. So far, so good.
But how far may the answer to the question – what did D really gain from this crime – diverge from the answer given by the statute? This was the conundrum facing the Supreme Court. And it found it very difficult. It had an initial hearing in 2011 in front of 7 judges – but then requested a re-hearing in front of 9. And those 9 split 7-2 in the result, thought the critical reasoning was common to all 9 judges.
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18 November 2012 by Adam Wagner
It is being reported that Parliament will, after all, get the opportunity to decide whether the blanket ban on convicted prisoners being able to vote will be lifted. MPs could get three options to choose from, including removing the ban for prisoners serving six months or less and those serving four years or less. A third option will be to maintain the status quo, with no convicted prisoners being able to vote.
The crucial question is: will this be enough to satisfy the Council of Europe, which monitors compliance with judgments of the European Court of Human Rights? The Government appears to think so. For my part, I am not so sure. To explain why, it is important to get a few of the facts right first.
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16 November 2012 by Adam Wagner
You may have heard that the Special Immigration Appeals Commission (SIAC) decided on Tuesday that Abu Qatada, an alleged terrorist who has been detained for the best part of the last seven years awaiting deportation to his native Jordan, cannot be deported. There would be a real risk, ruled SIAC, that he would face a flagrant denial of justice in his ensuing trial.
Jim Duffy has already commented on the case here, but I thought it would be useful to look at some of the commentary which followed the decision. A bit like the latest Israel-Gaza escalation, controversial human rights decisions now elicit an almost instant (and slightly sad) our-camp-versus-theirs reaction. Following a decision each ‘side’ trundles into action, rolling out the clichés without thinking very hard about the principles. The Prime Minister himself somewhat petulantly said he was “fed up” and “We have moved heaven and earth to try to comply with every single dot and comma of every single convention to get him out of this country.”
It is easy to moan about inaccurate coverage (I often do). But in this case, I do think the strong, almost visceral, reaction to the decision is justified. Leaving aside the slightly mad tabloid anti-Europe or effectively anti-justice coverage, it is understandable that people are uneasy and upset about this decision to keep a suspected terrorist within our borders, and then release him. But that doesn’t mean the decision is wrong.
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14 November 2012 by Matthew Hill
Methadone
Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors [2012] EWHC 2768 (Admin) – read judgment
The High Court – including the new Chief Coroner – has held that the enhanced investigative duty under Article 2, the right to life, is not engaged in an inquest into the death of a 14 year old boy, despite “many missed opportunities” for intervention by social services being identified.
Another sad case on when and how the enhanced investigative duty under Article 2 ECHR is engaged. EB, a troubled 14 year old, died of a methadone overdose in November 2009. He was known to the claimant’s social services department, who were the subject of criticism in a serious case review following his death. The review found that there had been “many missed opportunities” to intervene, but felt that: “It cannot be concluded that a different approach … would have prevented [EB]’s death, but there is a possibility that there may have been a different outcome.” The council have since apologised unreservedly to the family.
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13 November 2012 by Jim Duffy
Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 – read judgment
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.
Earlier today, Abu Qatada was released from Long Lartin prison following his successful appeal before the Special Immigration Appeal’s Commission (SIAC). Qatada was challenging the decision to deport him to Jordan, where he faces a retrial for alleged terrorism offences.
For most of the last decade, Abu Qatada has been detained pending deportation to his home country. At his two original trials, he was convicted in absentia and sentenced to full life imprisonment with 15 years’ hard labour.
In his latest challenge to his deportation, SIAC concluded, as the European Court of Human Rights had in May 2012, that due to the real risk of a flagrantly unfair trial in Jordan, Qatada could not be deported there.
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9 November 2012 by Adam Wagner
Last month 1 Crown Office Row hosted a fascinating panel debate on the Court of Protection and the incredibly difficult issues surrounding assisted dying. The panel included Philip Havers QC, the philosopher A.C. Grayling and Leigh Day & Co.’s human rights partner Richard Stein. You can now view the video here or below. Also see here for Rosalind English’s report of the event.
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9 November 2012 by Guest Contributor
Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 – Read judgment
Updated – the first two paragraphs of this post have been amended as they were factually inaccurate. Many apologies for this.
Last month, the Court of Appeal decided that the negligence claims of the families of five British soldiers killed or injured on duty in Iraq could go ahead. It would be for the High Court to decide on the facts whether decisions made about troops’ equipment and training fell within the long-standing doctrine of ‘combat immunity’. The appellants were however unsuccessful in arguing that the Human Rights Act 1998 (HRA) applied.
The case concerned claims brought by the families of five men killed or injured in south-east Iraq. Corporal Allbutt was killed and Troopers Twiddy and Julien injured in Challenger II tanks in fratricide, or ‘friendly fire’, incidents on 25 March 2003. Privates Hewett and Ellis and Lance Corporal Redpath were killed in their Snatch Land Rovers by improvised explosive devices (IEDs) on 16 July 2005, 28 February 2006 and 9 August 2007 respectively (the ‘Snatch Landrover claims’).
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8 November 2012 by Rosalind English
MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment
This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see Adam’s post on the Home Office’s proposals earlier this year).
Before the new immigration rules were introduced in July, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act 2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions to the automatic deportation regime, “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.
But then there was a move to set out an extensive, codified definition of the Article 8 balancing factors, in order to
unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.
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7 November 2012 by Guest Contributor
In a couple of weeks’ time, the government’s relationship with the Council of Europe will reach something of a turning point.
If the UK is going to comply with its international treaty obligations, ministers will have to “bring forward legislative proposals” by 22 November that will end what the European court of human rights calls the “general, automatic and indiscriminate disenfranchisement of all serving prisoners”.
That’s all the government has to do. There’s no need to give all or even most prisoners the vote. Parliament doesn’t even have to approve the proposals, although its failure to do so would lead to further challenges in due course.
But the prime minister painted himself into a corner last month. It’s true he offered to have “another vote in parliament on another resolution”. But a resolution is not the same as a bill. And David Cameron said, in terms: “Prisoners are not getting the vote under this government.”
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6 November 2012 by Martin Downs
REDFEARN v. THE UNITED KINGDOM – 47335/06 – HEJUD [2012] ECHR 1878 – read judgment / press release
The BNP has been a relentless opponent of Human Rights Act and its manifesto for the 2010 General Election made no less than three separate declarations of its intention to scrap the Act and abrogate the European Convention of Human Rights which it described charmingly as being, “exploited to abuse Britain’s hospitality by the world’s scroungers.”
This has not stopped the European Court of Human Rights (ECtHR) riding to the rescue of one of their erstwhile councilors in Redfearn v United Kingdom
The ECtHR, by a majority of four to three (with British judge Sir Nicolas Bratza being one of the dissenters), decided that, despite the margin of appreciation, the positive obligation placed on the UK by Article 11 (right to free assembly and association) meant that a person dismissed on account of his political beliefs or affiliations should be able to claim unfair dismissal despite not having the qualifying one year’s service then applicable.
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3 November 2012 by Rosalind English
Catholic Care (Diocese of Leeds) v Charity Commission (on appeal to the Upper Tribunal) CA/2010/0007 – read judgment
A private adoption agency could not justify its exclusion of same-sex prospective parents by arguing that this policy would keep open a source of funding that would otherwise dry up and reduce the number of adoption placements.
This was an appeal by the Catholic adoption services agency against the First Tribunal’s confirmation of the decision by the Charity Commission that it was not permitted to amend its constitution so as to permit it to continue its previous practice to refuse to offer its adoption services to same sex couples. Here is our post on the FTT’s ruling, which sets out the facts and arguments in the case. To recap briefly, the charity argued that the adoption of its proposed objects was justified under the general prohibition on discrimination under Article 14 ECHR (and its statutory analogy, Section 193 of the Equality Act). The legitimate aim it pursued was that of providing suitable adoptive parents for a significant number of children who would otherwise go unprovided for. The Charity maintained that unless it were permitted to discriminate as proposed, it would no longer be able to raise the voluntary income from its supporters on which it relied to run the adoption service, and it would therefore have to close its adoption service permanently on financial grounds. The FTT rejected this submission, holding that though the charity’s aim of increasing adoption placements was a legitimate one, the evidence before it did not show that the increased funding of the agency’s adoption work under the auspices of the Roman Catholic church would “inevitably” lead to the prospect of an increased number of adoptions.
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Oakes and others v R [2012] EWCA Crim 2435 – read judgment
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