ECtHR orders Turkey to immediately release pro-Kurdish opposition leader

11 January 2021 by

Selahattin Demirtaş delivering a speech in 2016. Photograph: Ozan Köse/AFP/Getty Images. Source: The Guardian

On 22 December 2020, the European Court of Human Rights (“ECtHR”) published a Grand Chamber decision against Turkey, requiring the immediate release of the pro-Kurdish opposition leader Selahattin Demirtaş from pre-trial detention (Selahattin Demirtaş v Turkey, Application no. 14305/17). The ECtHR said that Mr Demirtaş’ detention went against “the very core of the concept of a democratic society” and was in breach of Articles 5, 10, 18 and Article 3 of Protocol 1 of the European Convention on Human Rights (the “Convention”).

The decision is particularly significant given Mr Demirtaş’ high profile status and the numerous cases against Turkey that the ECtHR is now hearing, following the attempted coup in July 2016 and the government’s subsequent crackdown on civil society. Shortly after publication of the judgment, the ECtHR website was subject to a cyber-attack and rendered temporarily inaccessible. A group of pro-Turkish hackers claimed responsibility for the attack via a Twitter post.


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The Weekly Round-up: domestic abuse, stop and search, computer hacking

11 January 2021 by

In the news:

Last week’s round-up looked at the measures and messaging of the UK’s latest lockdown. This week we ask what it means for vulnerable children and victims of domestic abuse. Are sufficient legal safeguards in place?

For vulnerable children, it unfortunately seems not. On Wednesday, a Guardian investigation revealed that thousands of children were sent to unregulated care homes last year, while local authority provisions were stretched throughout many months of restrictions. These homes include supported accommodation facilities for over 16s, which are not subject to any inspections by regulators in England and Wales. The Children’s Commissioner for England Anne Longfield has warned that the children’s care system has been ‘left to slip deeper into crisis, seemingly unable to stop some of the most vulnerable children from falling through the gaps.’


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Article 3 psychiatric cases: history and latest developments (Part 2) — Ruby Peacock

8 January 2021 by

The exterior of the European Court of Human Rights in Strasbourg

In this two-part article, Ruby Peacock, an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town, examines the history of medical claims brought under Article 3 of the European Convention on Human Rights.

The first part analysed the history of how such cases have been decided, with particular focus on claims based on psychiatric illness. This second part will examine the recent developments in the law and what these may mean for the future.

The author is very grateful to Greg Ó Ceallaigh and Sapan Maini-Thompson for their insights and comments when preparing this article.

Paposhvili v Belgium

By the time Paposhvili v Belgium came to be considered by the Grand Chamber, the applicant had sadly passed away. Before his death, he faced a proposed removal to Georgia. However, he had been suffering from several medical conditions, the most serious of which was chronic lymphocytic leukaemia. Crucially, the applicant accepted that, because his medical conditions was stable, he did not meet the D criteria. Intervening, the Human Rights Centre of Ghent University argued that the case presented a unique opportunity to ‘depart from the excessively restrictive approach adopted by the Court in N’ (at para 165).  In a unanimous verdict, the Court seized upon this opportunity.

As outlined in Jonathan Metzer’s article, Paposhvili expanded the circumstances in which a person could resist removal to a third country on Article 3 grounds to include:


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Article 3 psychiatric cases: history and latest developments (Part 1) — Ruby Peacock

7 January 2021 by

Courtroom of the European Court of Human Rights in Strasbourg

In this two-part article, Ruby Peacock, an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town, examines the history of medical claims brought under Article 3 of the European Convention on Human Rights.

The first part analyses the history of how such cases have been decided, with particular focus on claims based on psychiatric illness. The second part will examine the recent developments in the law and what these may mean for the future.


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Law Pod UK latest episode: Catherine Barnard on Brexit

5 January 2021 by

On Wednesday 30 December, the UK parliament passed Boris Johnson’s trade and cooperation agreement with the European Union. Professor Catherine Barnard of Cambridge University is continuing her series 2903 CB. Everyone agrees this is a bit of a thin deal – as Catherine predicted – but is it a good deal?

As Catherine said, the negotiating team has delivered on sovereignty. There’s no reference in the text to the CJEU or EU law. On the other hand, there’s very little about services of any sort in the deal. This is because the UK was so keen not to be subject to the European Court of Justice, so it was not looking for concessions in this area.

The document is a daunting 1246 pages long – but the first four hundred odd are the meat of the deal, and in Episode 133 Professor Barnard delivers a succinct and truly helpful summary of what she calls a “Canada minus” free trade deal.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

The Weekly Round-Up: Lockdown Again (Again)

5 January 2021 by

In the News:

So: here we are again.

Rampant spread, fuelled by a combination of a new variant that is around 50-70% more transmissible, plus a lifting of restrictions at the beginning of December, brings us into another national lockdown.

In many ways, Prime Minister Boris Johnson’s first address of 2021 felt unpleasantly like a return to early 2020.

The original “Stay Home” messaging made a comeback. The Prime Minister was deliberately vague about how long lockdown would last. Big Brother Watch criticised the  government for “yet again … evading the democratic process” by denying MPs a meaningful vote on the new national restrictions prior to their televised announcement to the nation, or their coming into force. The new guidance differs from the Tier 4 guidance in emphasis, if not substance.

Ever the optimist, the Prime Minister was keen to emphasise “one huge difference” between this lockdown and the first one: the UK is “rolling out the biggest vaccination programme in its history”. He also managed to get in a jab at the UK having delivered more vaccines than the rest of Europe combined.

There were other, more subtle differences, as No. 10 tweaked its messaging in light of past mistakes.


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The Weekly Round-Up: Brexit, Brexit, Brexit: done and dusted?

27 December 2020 by

Ursula von der Leyen, President of the European Commission

Four and a half years after Britain voted to leave the EU, and 12 months after Boris Johnson was elected Prime Minister with his ‘oven-ready’ Brexit deal, the UK and European Union finally concluded a trade agreement on Christmas Eve. The deal, yet to be ratified by Parliament, is expected to gain approval without difficulty on 30th December, with the Leader of the Opposition, Keir Starmer, whipping his MPs to approve it. So did this deal supply the Christmas joy we’ve been missing in 2020? What does the deal contain?


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10 cases that defined 2020

24 December 2020 by

The Christmas decorations at Middle Temple. Photo by the author.

This time last year I wrote that 2019 had been “perhaps the most tumultuous period in British politics for decades”. Little did I know what 2020 would have in store.

The Covid-19 pandemic has caused loss, suffering and anxiety across not only the UK but almost all of the globe. At the UK Human Rights Blog, we feel deep gratitude to the doctors, nurses, carers and essential workers who have kept society going in what has been a deeply difficult year for so many of us.

In light of this, it is perhaps harder to summon the usual festive spirit that graces the approach of the holiday period — particularly as so many of us will be separated from our loved ones. And yet, perhaps it makes holding onto some spirit of joy all the more necessary.

Writing the article summing up the legal developments of the year is one of the highlights for me as commissioning editor of this blog. Let us embark together on a tour of what the courts had to say over the last 12 months. As ever, it has been a very interesting year.


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Do Environmental Impact Assessments apply to products derived from a development?

23 December 2020 by

horse hill uk oil gas investments

R (Finch) v. Surrey County Council et al [2020] EWHC 3559 (QB) – read judgment

Environmental Impact Assessment or EIA is the process by which a developer and a planning authority look at whether a particular project is likely to have significant direct or indirect effects on the environment. And an EIA must address a factors such as human health, biodiversity, land, water and climate as well as cultural heritage and landscape.

But how far does the enquiry have to go? This is the very stark question raised by this planning case.

The developer wanted to drill oil from the Horse Hill site in Surrey (see pic) for a production period of 20 years. The crude oil thus won would be tankered offsite for refining by others. The refined product would probably be used for transportation, but also for heat, manufacturing and in the petrochemical industry.

The issue was whether the local authority could stop its EIA lines of enquiry when it had considered the setting up works and the oil production processes, or whether it had to assess the wider climate change implications of long-term use of the oil so produced.

The judge, Holgate J was firmly of the view that the assessment process was limited to the first. Surrey’s EIA process was thus sufficient.


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Freeman on the Land: Canadian lawyer responds

23 December 2020 by

What’s a judge to do when the Magna Carta/Freeman on the Land crew threaten you with hanging and start menacing court clerks as well?

As Rosalind English noted in a previous post, Canada’s latest Freemen judicial decisions in AVI and MHVB and Jacqueline Robinson (I and II) have had to answer those pointed questions.

Rosalind’s note canvassed the first decision by Justice Robert Graesser of the Alberta Court of Queen’s Bench calling out the actions of Jacqueline Robinson who had inserted herself into a high-conflict child custody case with disastrous results for the mother she was ‘helping’.  Robinson’s efforts included invoking Article 61 of the 1215 Magna Carta despite it having been repealed some 800 years previous and a demand for the return of the mother’s “property” (read ‘child’).  With Robinson’s Magna Carta Lawful Rebellion help, the mother went from having shared child access to no access and being removed as a guardian.


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When is a policy not a policy: Supreme Court on Heathrow expansion

21 December 2020 by

R (o.t.a Friends of the Earth et al) v. Heathrow Airport Ltd [2020] UKSC 52 – read judgment

In February 2020, the Court of Appeal decided that the Government policy on airport expansion at Heathrow was unlawful on climate change grounds. The Supreme Court has now reversed this decision.

The policy decision under challenge was an Airports National Policy Statement (ANPS). An NPS sets the fundamental framework within which further planning decisions will be taken. So, in traditional terms, it is not a planning permission; that would come later, via, in this case, the mechanism of a Development Consent Order (DCO), which examines the precise scheme that is proposed. The ANPS (like any NPS) narrows the debate at the DCO stage. Objectors cannot say, for example, that the increase in capacity could better be achieved at Gatwick. Government policy has already decided it shouldn’t be.

The ANPS was made in 2018 by the Secretary of State for Transport (Chris Grayling), after many years of commissions and debates about airport expansion.

The other major policy player in this litigation was the Paris Agreement on Climate Change. This was concluded in December 2015, and was ratified by the UK on 17 November 2016. The Paris Agreement commits parties to restrict temperature rise to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.

The UK’s domestic climate change legislation derives from the Climate Change Act 2008. The Planning Act 2008 (setting out the NPS system) required government in a given NPS (a) to explain how it takes account of its policy on climate change (s.5(8)) and (b) to exercise its NPS functions with regard to the desirability of mitigating and adapting to climate change (s.10).

The challenges debated in the Supreme Court revolved around (1) these two sections of the PA 2008, (2) a debate about the impact of the Strategic Environmental Assessment Directive (2011/92/EU), and (3) claims that the SoS has failed to take into account long-term (post-2050) and non-CO2 emissions.

One curious element of this appeal is that it was Hamlet without the Prince. After seeking to defend the case in the CA, the SoS did not appear in the SC, where Heathrow did all the running. Whether this non-appearance by the SoS was anything to do with the Honourable Member for Hillingdon’s undertaking (Boris Johnson MP) some years ago to lie in front of the bulldozers before the third runway was laid is of course unknowable. But as we shall see, this did not stop Heathrow’s arguments winning the day. So, possibly, central government’s policy objective achieved without political risk.


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Trafficking victim conclusive grounds decision admissible evidence at trial

21 December 2020 by

DPP v M [2020] EWHC 3422 (Admin) (15 December 2020) — judgment here

On 15 December 2020, the High Court ruled that a positive conclusive grounds decisions by the Single Competent Authority (“SCA”) that a defendant was a victim of trafficking and modern slavery was admissible evidence in a criminal trial where the defendant raises the defence in s.45 Modern Slavery Act 2015 (“MSA 2015”) that the act took place by reason of slavery or exploitation.

BACKGROUND

M was a 15-year-old boy with no history of offending.  On 16 May 2019, he was at a KFC in Tooting, an area of London to which he had he had no connection, along with two other boys (MP and KM) who were known by police to be gang members and habitual knife carriers. When the group were searched by police officers, M had 5 wraps of cocaine, 2 wraps of diamorphine (heroin) and a hunting knife in his possession.

On 23 May 2019, M was referred to the National Referral Mechanism (“NRM”) by Lewisham Children’s Social Care. On 21 August 2019 the Single Competent Authority (“SCA”) made a positive conclusive grounds decision that, on a balance of probabilities, M had been recruited, harboured and transported for the purposes of criminal exploitation.


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Sentences in PC Harper case upheld by Court of Appeal

17 December 2020 by

The Attorney General, Suella Braverman MP, appeared for the Crown in this appeal

R v Long, Bowers and Cole [2020] EWCA Crim 1729 (16 December 2020) — judgment here

The Court of Appeal held yesterday morning that the sentences of the three men responsible for the manslaughter of PC Harper in 2019 were neither ‘unduly lenient’ nor ‘manifestly excessive’. The Court rejected applications from both the Defendants and the Attorney General (AG), meaning there will be no substantive change to the manslaughter sentences passed at first instance. The Court also refused to grant permission to two of the co-defendants to appeal against their convictions.

BACKGROUND

The case concerned the killing of PC Andrew Harper which in August 2019. PC Harper was killed as he tried to apprehend the three defendants, all part of a group of thieves in the process of stealing a quad bike. As the defendants made off at speed in a car driven by the first Defendant (Henry Long), PC Harper was caught and dragged for more than a mile behind the car.

Long (18 at the time, now 19) alongside co-defendants Albert Bowers (17 now 18) and Jessie Cole (17 now 18), were jointly charged with conspiracy to steal, murder and manslaughter. In the lead-up to trial, all three pleaded guilty to the conspiracy to steal, and Long pleaded guilty to manslaughter. On 24 July 2020, after a 5-week trial at the Central Criminal Court, all three were acquitted of murder, but Bowers and Cole were found to be guilty of manslaughter.

The outcome means that, whilst the jury could be sure that PC Harper died as a consequence of the unlawful acts of the Defendants, they could not be sure that the Defendants actually intended to kill anyone, or to cause anyone really serious harm. In this instance, it means that the jury will have had at least some reasonable doubt as to whether the Defendants knew that they were dragging PC Harper behind them as they drove away.

On 31 July 2020, Long received an extended determinate sentence of 16 years with an extended licence period of 3 years. Bowers and Cole were sentenced to 13 years detention in a Young Offenders Institution. Concurrent sentences were imposed in respect of the conspiracy to steal (32 months for Long, and 38 months for Bowers and Cole).

THE COURT OF APPEAL

There were three applications before the Court of Appeal:

  1. Bowers and Cole applied for leave to appeal against their convictions of the offence of manslaughter;
  2. The Attorney-General (“AG”) applied for leave to refer the sentences arguing that all three were unduly lenient; and
  3. All three defendants sought leave to appeal their respective sentences.

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The right to establish identity: donor offspring — David Gollancz

17 December 2020 by

Image: Pixabay

This is the second of two posts by David Gollancz, a barrister at Keating Chambers and donor-conceived adult, about the UK system of birth registration and certification.  The first post concerned the treatment of transgender parents.  This second post deals with the position of the offspring of gamete donation.

In two recent claims by trans parents, JK and TT/McConnell, the court determined that the law requiring trans people to be registered as parents in their native gender interfered with their Article 8 ECHR rights to respect for their private and family life, but that the interference was justified under Article 8(2).  A significant, possibly decisive, reason for the court’s decision was the right of the children concerned to identify their biological ascendants. – described by the judge in JK [109] as “an important element of his or her fundamental identity”. 

This is nothing new.  The ECtHR has repeatedly emphasised that Article 8 includes the right to establish identity and, accordingly, the right to know the identity of one’s biological ascendants (Mikulić [53], Jäggi [37 – 38], Godelli [52]).   The domestic court, in Rose [45] held (on the preliminary issue of whether Article 8 ECHR was engaged) that

Respect for private and family life requires that everyone should be able to establish details of their identity as individual human beings. This includes their origins and the opportunity to understand them.

But where a person is conceived in a UK licensed fertility clinic (a “clinic”) — like Mr McConnell’s son — their birth registration does not record, and their birth certificate does not disclose, the fact that they are donor-conceived, let alone the identity of their donor parent.   Their donor’s identity is recorded by the Human Fertilisation and Embryology Authority (“HFEA”) (s31 Human Fertilisation and Embryology Act 1990).  Since 1 April 2005, under the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 (the “disclosure regulations”), a person aged 18 or over can require the HFEA to disclose whether they are donor-conceived and the identity of their donor (if the donor provided the relevant information after 31 March 2005).  But that right is unlikely to be exercised unless someone tells them the truth, or it is obvious because their legal parents are of the same sex. 


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The right to respect for identity: transgender parents — David Gollancz

16 December 2020 by

Freddy McConnell, who was unsuccessful in the courts in his attempt to be registered as the father or parent of his child. Image: The Guardian

This is the first of two posts by David Gollancz, a barrister at Keating Chambers and donor-conceived adult, about the UK system of birth registration and certification.  This first post concerns the treatment of trans parents.  The second post will deal with the position of the offspring of gamete donation.

In two recent applications for judicial review by trans parents, JK, discussed on the UK Human Rights Blog here and TT (McConnell in the Court of Appeal), discussed on the blog here and here, it was held that the current UK rules on birth registration, interpreted in light of ss9 and 12 Gender Recognition Act 2004 (the “GRA”), require a woman (JK) to be or remain registered as her children’s father and a man (McConnell) to be registered as his son’s mother.  The requirement interfered with the Article 8 ECHR rights of the parents.  In an echo of the ECtHR in Goodwin (see in particular [77]) the Court of Appeal said (McConnell [55])

… requiring a trans person to declare in a formal document that their gender is not their current gender but the gender assigned at birth …represents a significant interference with their sense of identity, which is an integral aspect of their right to respect for private life.

The requirement also interfered with the children’s rights.  The registration of parents as “father” and “mother”, when the children in question knew them respectively as a woman and a man, would be at odds with their family relations and might create anxiety and tension.  However children also have a countervailing right, to know the identity of their biological parents. 

The defendant Registrar General (the “RG”) admitted the interference but argued that it was justified in the interests of maintaining an “administratively coherent system” of birth registration and to protect the child’s right to identify its biological father.  Absent an ECtHR judgment directly on point or a common approach among the signatory states, the UK enjoyed a margin of appreciation. The interference was held to be justified.


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