Category: International
13 July 2011 by Rosalind English
1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.
Al Rawi and others (Respondents) (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 – read judgment; read press summary
At the centre of this appeal was the court’s power to order a “closed material procedure” for the whole or part of the trial of a civil claim for damages. The question arose as a “preliminary issue” – a point to be determined on its own – in the appellants’ compensation claim for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay.
In countering the respondents’ claim for compensation, the appellant security services claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They therefore sought a “closed material procedure” for this part of their defence – a procedure whereby a party can withhold certain material from the other side where its disclosure would be contrary to the public interest.
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8 July 2011 by John Joliffe
Access to environmental justice is as topical as ever. Delegates at the recent conference of the United Kingdom Environmental Law Association (UKELA), held in late June at UEA in Norwich (yards from the Climatic Research Unit much in the news) argued that the current regime in this country is unsatisfactory – because of the cost, but also, and less predictably, because of a lack of basic fairness.
One QC who specialises in planning law pointed to the fact that a developer who is dissatisfied with a planning decision can appeal it, but an affected third party (often a disgruntled resident) cannot. He commented off the record that in his experience both as an advocate and as a decision-maker, decisions were affected by the knowledge that developers could readily challenge refusals, whereas third parties could not challenge grants other than by way of judicial review.
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7 July 2011 by Adam Wagner
Updated | The legal blogs have been busy reporting on this morning’s important decisions of the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda – see my post.
There has been coverage already from PHD Studies in Human Rights, the Human Rights in Ireland Blog (update – see also EJIL: Talk: “Let me put this as strongly as I can: this is as close as we’ve ever come to the European Court overruling Bankovic. And good riddance – except, as we will see, the Court’s disavowal of Bankovic is only half-hearted at best.”). The Guardian has also published an article on the case in which Phil Shiner of Public Interest Lawyers claims that the decisions will reopen the case for a wider public inquiry into alleged detainee mistreatment in Iraq; the firm recently failed in a judicial review of a decision not to hold a public inquiry on behalf of 127 Iraqis.
Many thanks to Antoine Buyse of the ECHR Blog for highlighting the lyrical and eminently quotable concurring opinion of Maltese Judge Giovanni Bonello, who since writing the judgment has retired from the court. Bonello said that he would have applied a slightly different “functional jurisdiction” test to decide whether the applicants fell within the jurisdiction of the United Kingdom.
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7 July 2011 by Adam Wagner
Al-Skeini v. United Kingdom, European Court of Human Rights Grand Chamber (Application no. 55721/07) – Read judgment / press release
Al-Jedda v. the UK (Application No. 27021/08)- Read judgment / press release
The Grand Chamber of the European Court of Human Rights has ruled that from 1 May 2003 to 28 June 2004 the UK had jurisdiction under Article 1 (obligation to respect human rights) of the European Convention on Human Rights in respect of civilians killed during security operations carried out by UK soldiers in Basrah.
The court went on to find in Al-Skeini that there had been a failure to conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 (right to life) of the Convention. The court awarded 17,000 euros to five of the six applicants, in addition to 50,000 euros in costs jointly.
In Al-Jedda, the court found a violation of Article 5 (1) (right to liberty and security) of the European Convention in relation to the internment of an Iraqi for more than three years (2004- 2007) in a detention centre in Basrah.
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1 July 2011 by Adam Wagner
Smith & Ors v Ministry of Defence [2011] EWHC 1676 (QB) – Read judgment
Update, 20 June 2013: This decision has been reversed by the Supreme Court: Supreme Court gives the go ahead for negligence and human rights claims for British servicemen deaths in Iraq
The Human Rights Act applies in the UK. That much is clear. Whether it applies outside of UK territory is a whole other question, and one for which we may have a new answer when the Grand Chamber of the European Court of Human Rights gives judgment in the case of Al-Skeini and others v. the United Kingdom & Al-Jedda v. the United Kingdom next week.
The court is to give its long-awaited ruling at 10am (Strasbourg time) on Thursday 7 July. In short, the 7 applicants in the case were killed, allegedly killed or detained (Al-Jedda) by British forces in Iraq between 2003 and 2007. Both of the claims reached the House of Lords in the UK (now the Supreme Court), and in all but one case, which involved a death in a military detention centre, the court found that the Human Rights Act did not apply in Basra at the time, and therefore the UK military had no obligation to observe the requirements under the European Convention on Human Rights, and in particular article 2 (the right to life) and article 5 (right to liberty).
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22 June 2011 by Isabel McArdle
The European Commission has begun a consultation process to explore the impact of pre-trial detention in the European Union (EU). The particular focus, summarised in its Green Paper, is how pre-trial detention issues affect judicial co-operation generally within the EU.
The issue is being debated at the moment in the UK, with a group of MPs urging an overhaul to international extradition rules. The Joint Committee on Human Rights has published its report on The Human Rights implications of UK extradition policy (read summary here), in which it concludes that the current statutory framework does not provide effective protection for human rights.
The EU has an interest in these questions, given the fundamental rights which is seeks to uphold. Article 4 of the EU Charter mirrors Article 3 of the European Convention on Human Rights, prohibiting torture and inhuman and degrading treatment.
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15 June 2011 by Matthew Flinn
R (on the application of E and Ors) v The Director of Public Prosecutions [2011] EWHC 1465 (Admin) – Read Judgment
In a case involving rather distressing facts, the High Court has quashed a decision of the Crown Prosecution Service to prosecute a 14-year-old girl (identified only as “E”) for the sexual abuse of her younger siblings.
On 26 January 2010 the Child Exploitation and Online Protection Centre discovered a video on the internet, in which E appeared to be sexually abusing her two younger sisters. The acts portrayed allegedly occurred between January and November 2001, when E was aged 12, and her sisters were aged 2 and 3.
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13 June 2011 by Matthew Hill
McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment
The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?
The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length. The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.
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7 June 2011 by David Hart KC
Our guest post from Frances Aldson last week drew many and varied comments from our readers on this blog and elsewhere, including those at each end of a spectrum ranging from the enthusiastic to the choleric.
This follow-up post is designed for those who have no strong views but who want to muse on the implications of the proposal which is due to be raised, via one route or another, with the UN, either this year or next.
The proposal, by Polly Higgins, is to add a new crime of “ecocide” to the jurisdiction of the International Criminal Court, namely:
Ecocide is the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.
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18 May 2011 by Isabel McArdle
R (on the application of Evans) v The Lord Chancellor and Secretary of State for Justice [2011] EWHC 1146 (Admin) – Read judgment
The High Court has found that the Ministry of Justice, when making a decision to cease the state’s funding of judicial review challenges on purely public interest grounds (apart from one exception), took into account the fact that to do so would reduce the number of decisions being made which were not in the government’s interests. Unsurprisingly, the Court to concluded that the decision was unlawful and should be quashed.
The Applicant applied for judicial review of a decision by the Respondent to amend the Legal Services Commission (LSC) Funding Code, which funds litigation for those who meet certain criteria. The effect of the amendments, which were introduced in April 2010, was to prevent public funding by the LSC for judicial review proceedings (challenging decisions of public bodies) which were pure public interest challenges. That is, where the Applicant stood to gain nothing from the litigation and was bringing it solely to promote a particular public interest. The one exception was in environmental cases.
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9 May 2011 by Adam Wagner
A near-hysterical reaction has greeted some recent European court rulings. If you believed the coverage, you would think that unelected, underqualified and frankly bonkers judges are dictating our laws and making our Prime Minister physically ill.
With this week potentially heralding another hang-the-judges media storm over Max Mosley’s Strasbourg privacy case, it is a relief to read three sensible and balanced pieces on European courts this week, all of which highlights the courts’ shortcomings, but also the risks of a UK withdrawal.
First up is Charlemagne, the European columnist in The Economist, who finds a European court system which is “bewildering” – rightly wondering what the difference is between the European Council and the Council of Europe – and staffed by judges who “annoy most national politicians some of the time and infuriate some most of the time“.
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14 April 2011 by Catriona Murdoch
As we posted earlier this week, US State department has released its 35th annual Country Reports on Human Rights Practices, including an in-depth analysis of human rights in the UK.
The report overall gives a balanced view of the Human Rights Practices in the UK, with some criticism but also some praise. It touches upon many of the issues reported in the UK Human Rights Blog but also misses some important topics that have emerged since the last annual country report.
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11 April 2011 by Adam Wagner
The US State department has released its 35th annual Country Reports on Human Rights Practices relating to over 190 countries. This includes a report on the United Kingdom, which can be access here and here (pdf).
The reports are mandated by US statute and require that the Secretary of State shall transmit to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate, “a full and complete report regarding the status of internationally recognized human rights”, as set forth in the Universal Declaration of Human Rights. The UK Foreign Office has also recently published its own report into human rights around the world, which only deals with “countries of concern”, and as such doesn’t mention the US once in 355 pages .
Secretary of State Clinton introduced the US reports, saying:
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23 March 2011 by Isabel McArdle
AS v Secretary of State for the Home Department [2011] EWHC 564 (Admin) – Read Judgment
In a strange case, reminiscent of the film The Terminal in which Tom Hanks plays a person unable to leave an airport because he is temporarily stateless, an Applicant lost a judicial review application despite being unable to enter the UK lawfully and unable to acquire travel documents to return to Kuwait.
This was an application for judicial review of the decision by the Secretary of State to refuse to treat further representations by a failed asylum seeker as a fresh claim. The Applicant claimed to be a Bedoon, a member of an ethnic group mostly living around the borders of Iran, Iraq, Syria, Saudi Arabia and Kuwait. The Kuwaiti government is not permitting Bedoon outside Kuwait to return there, and since the 1980s the country has taken away from the Bedoon a great number of rights and benefits. It was accepted by both parties that in Kuwait, the Bedoon are at risk of persecution.
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3 March 2011 by Adam Wagner
Snyder v. Phelps (09-751), United States Supreme Court – Read judgment
A recent decision of the United States Supreme Court, in which it upheld the rights of a radical anti-gay Christian group to protest at military funerals, provides a useful opportunity to compare free speech protections here to those provided over the pond.
By way of comparison, five men recently failed in a challenge to their public order criminal convictions for protesting with similar signs at a homecoming parade for British soldiers. What does this say about our respective free speech protections?
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