Category: LEGAL TOPICS
24 March 2010 by Adam Wagner
According to Alex Bailin QC and Alison Macdonald writing in The Guardian, the European Court of Human Rights will soon have much needed power to filter cases at an early stage, and therefore begin to clear its huge backlog of cases:
Fortunately, in January a significant stalemate was broken when Russia finally ratified a six-year-old provision which will speed up the court’s processing of cases. Protocol 14 provides for a more robust and rapid filter of weak cases, with a single judge having the power to declare wholly unmeritorious cases inadmissible, without any right of appeal. “Repetitive cases” can also be blocked if a relevant ruling on similar issues has already been given. Most controversially, the court can also refuse to hear cases in which the applicant has suffered “no significant disadvantage”, providing the case was properly considered by the domestic courts in the relevant state. Russia had previously blocked the entry into force of Protocol 14 in protest at what it considered were “political rulings” of the Strasbourg court, primarily relating to the conduct of its operations in Chechyna.
One immediate effect which the change will have on the UK, according to the authors, is in relation to prisoners voting rights. Until now, even though the Court has criticised the UK in relation to this issue, the criticisms have not led to an actual change in UK policy. However, as a result of Protocol 14:
The Committee of Ministers can refer a case back to the European court if it considers that the state has not fully complied with a decision of the court. If the court agrees, the committee can decide to take action against the state for noncompliance – including, in theory, suspension or expulsion from the Council of Europe
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17 March 2010 by Adam Wagner
Baroness Deech, the Chair of the Bar Standards Board, has given the second lecture in her series on family law at Gresham College. In this lecture she questions whether the current law of marriage is compatible with human rights law. In particular, homosexual couples cannot legally marry, and hetrosexual couples are disbarred from entering civil partnerships. She said:
“Since [the] acceptance and recognition [of gay rights] has grown, advanced by the Human Rights Act 1998 and the Equality Bill 2010. Gay couples may adopt children (Adoption and Children Act 2002); they have access to fertility services and full parentage of donor conceived children (Human Fertilisation and Embryology Act 2008). Same sex childless couples are deemed to be a “family” for the purpose of succeeding a deceased partner to a tenancy (Fitzpatrick v Sterling Housing Association [1998] Ch.304). This trend culminated in the legislative establishment of civil partnerships in the Civil Partnership Act 2004, creating a union almost identical to, but not marriage.”
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16 March 2010 by Rosalind English
Colonel Richard Kemp, former Commander of British Forces in Afghanistan, has written in the Times that lawyers have no place on the battlefield. He said: “In the heat of battle, a commander can’t worry about the Human Rights Act. It would make war impossible”
- Read the full article here.
- Read our previous post on this topic here
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12 March 2010 by Adam Wagner
David Pannick QC says in an article in the Times that the controversy surrounding the Binyam Mohammed case has been a disaster for the security services and has highlighted the need for more effective supervision:
The sorry saga of the Binyam Mohamed litigation has required the judiciary to strip away evasions and half-truths by the Security Services that have inflicted a body blow on their own reputation.
He concludes:
The courts, here and in the US, have performed their constitutional role of identifying and publicising unlawful acts of torture. There is now an urgent need for effective supervision and accountability of our intelligence services. Existing methods of parliamentary control have plainly been inadequate. As MI5’s in-house lawyer acknowledges in John le Carré’s novel The Russia House, his “old law tutor would have turned in his grave” at the lack of legal controls.
The full article is available here. You can read our analysis of the case here.
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5 March 2010 by Rosalind English
Norris v United States [2010] UKSC 9
SC (Lord Phillips, Lord Hope, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Judge, Lord Collins, Lord Kerr) 24 February 2010
In determining whether interference with an individual’s right to a family life was justified to achieve the aim of extradition, the court should not consider whether the circumstances were exceptional but should consider whether the consequences were exceptionally serious
SUMMARY
The appellant had recently retired from his job as CEO of a company that had been involved in price fixing. He had successfully resisted an extradition order sought by the United States on the grounds that price-fixing in the UK was not illegal (Norris v United States (2008) UKHL 16, (2008) 1 AC 920). However, the court held that the other charge against him – obstructing justice – justified extradition and his case was remitted to a district judge. The district judge decided that he should be extradited. His decision was upheld by the divisional court, which concluded that the obstruction of justice charges were very grave and that a high threshold would have to be reached before the appellant’s rights under Article 8 could outweigh the public interest in extradition ((2009) EWHC Admin 995, (2009) Lloyd’s Rep FC 475).
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5 March 2010 by Adam Wagner
Re W (Children) [2010] UKSC 12 [On appeal from [2010] 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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2 March 2010 by Adam Wagner
The proposals for a UK Bill of Rights will be an important issue in the coming election, and we aim to keep you updated on developments. The Equality and Human Rights Commission has published a research report on a potential UK Bill of Rights. All three of the major UK political parties have pledged to institute a bill of rights in some form. The Report summarises the position:
The Labour Government is consulting the public on a UK Bill of Rights and Responsibilities, while maintaining its commitment to the HRA, including both the rights enshrined in it and the mechanisms used to implement those rights. The Conservative Party has pledged to repeal the HRA and replace it with a ‘modern British Bill of Rights’. Repealing the HRA would mean that the European Convention on Human Rights (ECHR) would no longer be incorporated into domestic law; the party has not indicated whether, or how, a future Bill of Rights might incorporate the ECHR using a different mechanism. The Liberal Democrats are committed to a written constitution with, at its heart, a Bill of Rights which would strengthen and entrench the rights guaranteed in the HRA.
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28 February 2010 by Rosalind English
The Queen on the Application of MK(Iran) v Secretary of State for the Home Department
CA (Civ Div) (Sedley LJ, Carnwath LJ, Smith LJ) 25/2/2010 [2010] EWCA Civ 115
Directive 2004/83, which recognised the right to asylum as part of EU, did not alter the jurisprudence of the European Court of Human Rights that asylum decisions did not constitute determinations of civil rights under Article 6 of the Convention, and consequently a foreign national had no right under Convention law to claim for damages for the delay in processing his asylum application.
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25 February 2010 by Elspeth Wrigley
R(on the application of Binyam Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65
This appeal was brought by the Secretary of State for Foreign and Commonwealth Affairs (“the Foreign Secretary”) against a decision of the Divisional Court to include seven short paragraphs in the open version of a judgment, notwithstanding the fact that the Foreign Secretary had started in a number of Public Interest Immunity Certificates that such publication would lead to a real risk of serious harm to the national security of the UK.
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25 February 2010 by Adam Wagner
Debbie Purdy
The Director of Public Prosecutions has published the long awaited Crown Prosecution Service guidance on assisted suicide, following the judgment of the House of Lords in the Debbie Purdy case. The DPP website says:
The public can have full confidence in the policy the CPS will follow in deciding whether or not to prosecute cases of assisted suicide, Keir Starmer QC, Director of Public Prosecutions, said today.
Mr Starmer published the policy after taking account of thousands of responses received as part of what is believed to be the most extensive snapshot of public opinion on assisted suicide since the Suicide Act 1961 was introduced. Nearly 5,000 responses were received by the Crown Prosecution Service (CPS) following the consultation exercise launched in September.
Mr Starmer said: “The policy is now more focused on the motivation of the suspect rather than the characteristics of the victim. The policy does not change the law on assisted suicide. It does not open the door for euthanasia. It does not override the will of Parliament. What it does is to provide a clear framework for prosecutors to decide which cases should proceed to court and which should not.
Click here to read the CPS guidance and here to read a summary of the Purdy case. See also the Dianne Pretty case.
Update – 26 Feb 2010: Commentary on the guidance from the Guardian and The Times
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11 February 2010 by Rosalind English
Re W (Children) [2010] UKSC 12
SC (Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr) March 3 2010
The facts of this case are set out in the report of the Court of Appeal judgment below. In the Supreme Court the stepfather continued his submission that there should be no presumption against a child giving evidence, as that gave insufficient weight to the rights of all concerned under the European Convention on Human Rights 1950.
Read the judgment
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9 February 2010 by Adam Wagner
Binyam Mohamed
Read our case comment here
The Government has lost its appeal (see the BBC report) against the Divisional Court’s decision to order it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by the Americans. The Foreign and Commonwealth Office (FCO) had previously argued that to release the full email would damage national security. The full email can now be read on the FCO website.
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9 February 2010 by Adam Wagner
R (Degainis) v Secretary of State for Justice [2010] EWHC 137 (Admin)
Mr Justice Saunders
When deciding whether to award damages under Article 5(5) of the European Convention on Human Rights (ECHR) for breach of Article 5(4), regard has to be paid to Article 8 and the limits on damages in that provision. Articles 5 and 8 are not, however, incompatible. There was no basis for the claim that Article 5(4) compensation can only be monetary, and in some cases a finding of a breach can be sufficient compensation.
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7 February 2010 by Adam Wagner
Prisoners could sue if not allowed to vote in the 2010 general election, according to the Barred from Voting Campaign, organised by the Prison Reform Trust.
The group are seeking to remind the Government of the four year old judgment of the European Court of Human Rights in Hirst v UK, which arose out of the 2002 case of R v Home Secretary ex parte Hirst. The European Court held that Section 4 of the Representation of the People Act which prevents prisoners from voting is in breach of the electoral right under Article 1 of Protocol 3 of the European Convention on Human Rights.
The Government has as yet not addressed the Court’s ruling; according to The Guardian, ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate. With the election looming, the Government may well be be vulnerable to a legal challenge.
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4 February 2010 by Adam Wagner
Huitson, R (on the application of) v Revenue and Customs [2010] EWHC 97 (Admin)
Robert Huitson brought a Judicial Review against HM Revenue and Customs in order to challenge under the Human Rights Act 1998 sections 58(4) and (5) of the Finance Act 2008. He contended that these sections of the 2008 Act were incompatible with Article 1 of the First Protocol to the European Convention of Human Rights (“the ECHR”).
The claim related to a tax avoidance scheme based on the Isle of Man, which sought to take advantage of the UK and Isle if Man double taxation arrangement. The Claimant challenged HM Revenue’s attempt to retrospectively claw back taxation under the 2008 Act.
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