16 February 2016 by Guest Contributor
Introduction
The opening of the Strasbourg Court’s judicial year every January always provides an opportunity for reflection on the themes and challenges which will define the Court’s jurisprudence for the coming year. This year, the theme of the seminar held at the Court to mark that opening was “International and national courts confronting large-scale violations of human rights””. I should like to offer eight predictions as to the other themes which will define the work of the Strasbourg Court this year. Given the Court’s pending caseload is still over 64,000 cases, these predictions are necessarily impressionistic. It will be for readers to judge whether, by this time next year, they have proven accurate.
(1) Security
The Court will continue to grapple with the security situation in Eastern Europe. Foremost on its docket are the inter-state cases involving Russia and Ukraine, but the Grand Chamber will also return to the issue of jurisdiction in Transdniestria in Mozer v. Moldova and Russia, in which it held a hearing on 4 February 2015.
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15 February 2016 by Guest Contributor
Curiosity is not a sin…But we should exercise caution with our curiosity… yes, indeed.
Dumbledore, Harry Potter and Goblet of Fire
Facts
Like the 179,000 or so people selected at random from the electoral register each year in England and Wales, in July 2011 Ms. Theodora Dallas was summoned to attend jury service. Along with other jurors summoned that day, she was shown a video about their service, and told by the court’s jury officer that internet research about anyone involved in the trial was not permitted. For good measure, the jury waiting room contained notices stating “You may also be in contempt of court if you use the internet to research details about any cases you hear along with any cases listed for trial at the Court…”. The notices made it clear that contempt of court was punishable by a fine or by imprisonment.
Ms. Dallas was selected to serve as a juror in a trial involving a defendant charged with grievous bodily harm with intent. On being sworn in, each juror made an oath or affirmation that they would faithfully try the defendant and give a true verdict according to the evidence. Amongst his introductory directions, the judge reiterated the importance of avoiding the internet and specifically mentioned the cautionary tale of a juror who had been in trouble recently for going on Facebook during his jury service. During the course of the trial, the judge discovered from another juror that Ms. Dallas had been on the Internet and had informed her fellow jurors that the defendant had previously been charged with rape. The defendant had been acquitted of this charge at the time.
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15 February 2016 by Matthew Hill
Samia Wasif and another v Secretary of State for the Home Department [2016] EWCA Civ 82
Read judgment here
What is the difference between a case that is “totally without merit” and one that is “not arguable”? Are either of those more or less hopeless than a case that is “bound to fail”?
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15 February 2016 by Hannah Lynes
Photo credit: The Telegraph
In the news
The Prime Minister has this week set out his “agenda for a revolution in the prison system”. His speech outlines plans for governors to be given greater autonomy, prisoners to be provided with better opportunities for work and education, and the making of “alternative provision” for people struggling with severe mental health problems.
Commentators have reacted with cautious optimism. David Cameron is “absolutely right to point to the waste of money, time and lives that characterises today’s prison system,” writes Frances Crook of the Howard League for Penal Reform. His speech could herald “a seismic shift in policy.”
Christopher Stacey in the Justice Gap welcomes in particular the Prime Minister’s expression of support for the ‘Ban the Box’ campaign, which calls on employers to remove the tick box from application forms and ask about criminal convictions later in the recruitment process. The policy would give people with convictions “a chance to enter work – significantly reducing their likelihood of re-offending”.
Sentencing reform was, however, “notably absent” from the speech. Ellie Butt in the Huffington Post contends that this seriously undermines Cameron’s policy proposals. With the current prison population standing at 85,634, it is “a nonsense to believe we can really make prisons places of education, hard work and rehabilitation without tackling the sheer number of people inside them.”
Legal blogger Jack of Kent is in agreement that “the most significant thing about the speech was that the Prime Minister was giving it”. Yet he suggests that a move in right wing thought against custodial sentences as the default punishment for crime “may be having an influence on Michael Gove.” If such a speech is indeed “the political price Michael Gove has extracted from David Cameron for support on the EU referendum issue”, then it is “a good bargain”.
In other news
A police regulator has found that UK police forces continue to disobey rules to prevent the abuse of stop and search powers. Home Secretary Teresa May has described the failings as ‘unacceptable’, and has taken action to suspend 13 of the worst offending forces from the scheme. The Guardian reports.
Law Society Gazette: The Attorney General has suggested that in disputes over freedom of information, politicians may sometimes be better placed than the courts to make decisions on matters of public interest. The speech can be read in full here.
The Guardian: Police should no longer operate on a presumption that alleged victims of sexual assault are to be believed, according to Metropolitan police commissioner, Sir Bernard Hogan-Howe. Investigators should instead test the evidence “with an open mind, supporting the complainant through the process”.
The death of Justice Antonin Scalia at the weekend marks the end of an era for the United States Supreme Court. It also creates the potential for something of a constitutional crisis in America, coming only eleven months before the end of the Obama presidency and prompting calls from some Republicans for his replacement to be selected by the next Commander-in-Chief. Scalia’s visit to the UK last summer featured plenty of the examples of the acerbic turns of phrase the world had come to expect from the Court’s most divisive figure. You can read Jim Duffy’s account of Justice Scalia’s appearance at the Federalist Society here.
In the courts
Dallas v UK
The applicant in this case had been found guilty of contempt of court for conducting Internet research while serving on a jury. A complaint was brought under article 7 ECHR (no punishment without law) that the common law offence of contempt of court had not been sufficiently clear.
The Court held that the judgment rendered in the applicant’s case could be considered, at most, a step in the gradual clarification of the rules of criminal liability for contempt of court through judicial interpretation. The law was both accessible and foreseeable. There had accordingly been no violation of article 7 of the Convention.
UK HRB Posts
Cavalier with our Constitution: a Charter too far – Marina Wheeler
Watery rights and wrongs – and causation too – David Hart QC
Press restrictions may continue after trial in the interests of national security – HH Keith Hollis
It’s time to overhaul the Investigatory Powers Bill – Cian C. Murphy and Natasha Simonsen
Hannah Lynes
Events
If you would like your event to be mentioned on the Blog, please email Jim Duffy at jim.duffy@1cor.com
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15 February 2016 by Guest Contributor
Libby McVeigh is Legal and Policy Director for Fair Trials, a London and Brussels based nongovernmental organization campaigning for the right to a fair trial globally. It is currently campaigning for better defence rights standards in Europe and is also leading research into the use (and abuse) of plea bargaining across the globe.
New guidelines incentivising people accused of criminal offences in England and Wales to plead guilty as early as possible were proposed last week. While existing rules allow for a maximum one-third reduction in the sentence to those who plead guilty at the ‘first reasonable opportunity’, this benefit is now only available to those who plead guilty at their very first court hearing, with the available reduction falling on a steeper sliding scale thereafter.
The Sentencing Council responsible for such matters has emphasised the efficiency gains and cost savings resulting from the swift disposal of cases, and the development has been welcomed by organisations which provide support to victims of criminal offences who will be “spared the stress and anxiety of a trial”. Little attention has been paid, however, to the impact on the rights of criminal defendants who are being encouraged to waive their right to the full trial process which undoubtedly remains the best method for preventing injustice.
Numerous cases illustrate the miscarriages of justice which can result when individuals are incentivised to plead guilty without adequate safeguards. The US case of Phillip Bivens, Bobby Ray Dixon and Larry Ruffin shows how innocent people can be persuaded to confess to a crime they did not commit – in this case the rape and murder of a young mother in front of her 4-year old son – if the stakes are high enough and fair trial rights protection absent. And while a guilty plea may be quick and easy to make, the process of reversing the injustice is far more complex and lengthy. Larry Ruffin died of a heart attack after 23 years in prison before his name was cleared, and Bobby Ray lost his battle against cancer only weeks before his full exoneration. Phillip Bivens regained his freedom 30 years after his arrest and still awaits the conclusion of his civil lawsuit for compensation.
The challenges which ‘plea bargaining’ presents to fair trials protections were highlighted at a recent meeting of criminal justice experts in the US, where 95% of all criminal cases are now resolved through guilty pleas. With an estimated 20,000 factually innocent people in prison for crimes to which they pleaded guilty but did not commit, the drivers of injustice were identified as including:
- the excessive trial penalty and the unaccountable power of prosecutors, who are rewarded for volumes of convictions rather than quality of investigations and routinely over-charge to obtain guilty pleas;
- overworked and underpaid public defenders who are financially incentivised to dispose of cases quickly by encouraging clients to plead guilty;
- income inequality leading defendants who cannot afford to pay bail to plead guilty to avoid pre-trial detention; and
- the erosion of fair trial rights protection in the context of guilty pleas, including the right against self-incrimination, access to evidence, judicial oversight and the right to appeal.
The concerns raised in the US will hopefully be taken into account during the consultation launched by the Sentencing Council last week. Consideration should be given not only to the impact of legal aid cuts on the advice given to those considering a guilty plea, but also the inter-relationship between the proposed guidelines and the Better Case Management scheme (BCM) rolled out across UK courts in January 2016. With changes made by the BCM to the timing and extent of disclosure by the prosecution, defendants will now be required to enter their plea at the first hearing on the basis of the limited evidence included in the Initial Details of the Prosecution Case rather than the full case papers which be provided only after the opportunity to obtain the maximum reduction in sentence has passed.
As experiences in the US and current developments in England and Wales demonstrate, questions about the fairness of plea bargaining systems need to be pushed further up the global human rights agenda. Plea bargaining is on the rise worldwide, sometimes under the influence of US funding for global rule of law reform, and countries that introduce such practices tend to rely on them to resolve a larger percentage of their criminal cases over time.
Fair Trials and its pro bono partner, Freshfields Bruckhaus Deringer, are currently conducting a scoping study that aims to establish the global reach of the practice, examining criminal procedure in approximately 70 national jurisdictions globally to see whether plea bargaining exists and to identify its defining features. A more detailed study in a select number of jurisdictions will involve analysis of the operation of plea bargaining and the extent to which key human rights safeguards are enjoyed in practice.
The results of the research will be published in later 2016, including recommendations for a human rights based approach to plea bargaining which we hope will inform the development of such practices, not only in England and Wales, but in jurisdictions across the globe. The human rights implications of an inefficient criminal justice system demand that solutions to lengthy procedures are found. But the failure to analyse the impact of guilty plea regimes on fair trial rights protection is resulting in the introduction of practices which already do result in injustice and will gradually erode trust in the rule of law. We hope that a global commitment to reform plea bargaining processes to ensure respect for fair trial rights will enable efficiency to be enhanced without fair criminal justice being undermined.
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11 February 2016 by Guest Contributor
By Cian C. Murphy and Natasha Simonsen
This morning, the Joint Committee on the Draft Investigatory Powers Bill issued a 200-page report on the draft new law. It’s the next step in the scrutiny of a foundational piece of UK national security law – capabilities and safeguards on internet surveillance. The Report is remarkable and comprehensive work – not least because it was done in a few short months. The Committee has made no fewer than 86 recommendations for how the Bill can be improved.
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11 February 2016 by Guest Contributor
HH Keith Hollis discusses the Judgment of the Court of Appeal in Guardian News and Media Ltd v R & Erol Incedal
Terrorism has brought many changes in the ways in which we go about our lives. Many of these are quite minor, irritating but generally sensible. The holding of trials where much of the evidence is kept secret is not minor, and in principle must be considered an outrage rather than an irritant. But there are clearly occasions when this has to happen, and it is a great challenge to those who on the one hand have responsibility for preventing terrorism and those on the other hand responsible for ensuring that justice has been done.
The Lord Chief Justice, supported by Lady Justice Hallett and Lady Justice Sharp, supported Mr Justice Nicol’s dismissal of applications made by The Guardian and other media organisations that reporting restrictions applied during the trial of Erol Incedal be varied so as to permit the publication of reports of most, if not all, of what took place during hearings held in private, but in the presence of accredited journalists.
Readers may recall that Mr. Incedal had been subject to two trials on charges relating to terrorism. He was convicted at the first trial on one count (possessing a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section 58(1)(b) of the Terrorism Act 2000), but acquitted of a more serious count following a retrial. He was sentenced to 42 months imprisonment.
There had been reporting restrictions from the outset. After a pre-trial hearing, a differently constituted Court of Appeal had directed that the trial should have three elements: part would be open; part could be attended by nominated and approved journalists, but without taking notes (and indeed significant steps taken to ensure that there were none); and finally part in camera). Nicol J, who now found himself with the burden of actually conducting such a trial, had originally ordered that the whole trial should be in camera.
The first point of note is the nature of the appeal (and indeed the earlier appeal). As the Lord Chief Justice made clear, referring to Ex p The Telegraph Group, “it is the duty of an appeal court, when considering issues relating to open justice as an appellate court, not simply to review the decision of the judge, but to come to its own independent decision.”
The presently constituted Court of Appeal was concerned about the nature of the earlier decision of the Appeal Court. They paid “an especial tribute to the way in which this trial was managed by the trial judge in consequence of the order” and his making of “the very difficult decisions which arose with conspicuous skill and ability”, coming to “the firm conclusion that a court should hesitate long and hard before it makes an order similar to that made by this court on 4 June 2014, given the unexpected effect it had on the conduct of the trial”. As it happened significantly more evidence was given in open hearings than had been anticipated, and without the need for judicial intervention. An indication of the professionalism and concern of the advocates and those instructing them.
The present appeal was dismissed as, having read the relevant evidence, the Court was “quite satisfied….. for reasons which we can only provide in a closed annex to this judgment that a departure from the principles of open justice was strictly necessary if justice was to be done” and that “because of the nature of that evidence those reasons continue to necessitate a departure from the principle of open justice after the conclusion of the trial and at the present time”.
The judgment acknowledges the loss of the “watchdog function” of the press, and says that public accountability now has to be left to the Intelligence and Security Committee of Parliament. To which it could be added that the relevant material has now been considered by the two relevant Secretaries of State, the DPP, the trial Judge, and it seems six Court of Appeal judges, including the Lord Chief Justice, who have all, albeit with different roles, come to the same regrettable conclusion as to the nature of the material that remains unreported. Indeed even the media seems to have accepted that some of the material at least should be kept out of the public domain.
Much of the real interest in this judgment will be in the analysis of the different constitutional responsibilities respectively of the executive in the form of the relevant Secretaries of State, the DPP, and of course the roles of Counsel and the trial judge.
Independence is the watchword. The DPP has to be independent of the executive so that she can exercise her own judgement firstly as to whether or not to bring a prosecution, and secondly whether or not to bring an application to the Court for the openness of the proceedings to be limited in some way (normally in camera).
But it is for the Court to “determine whether the evidence in issue should be heard in camera by consideration of the nature of the evidence”. The matter cannot be determined on the basis of an implicit threat not to prosecute: “the proper approach of the court is to examine the nature of the evidence and to determine the effect of hearing it in public. Deciding the issue on the basis that the DPP might not continue with the prosecution does not satisfy the test of necessity. In effect, it transfers the decision on whether to depart from the principle of open justice to the DPP”.
If the court rejects a submission for the withholding of material, and the DPP decides that the trial should still go ahead, the Court stressed that:
“the Executive cannot then refuse to provide the evidence required by the DPP on the basis that it perceives that it is not in the interests of national security to provide it. The court has made its decision and the Executive must abide by it… If the DPP decides on continuation, then the Executive must give the prosecution its full cooperation and assistance”.
Two procedural matters are of interest. Firstly a recommendation that Judges in such cases involving national security may on occasion need to be provided with the assistance of independent counsel if requested. The other is in a concluding observation that there was no mechanism for retention of closed Judgments, and that there should be. An obvious point perhaps, but one that raises interesting issues as to how such closed Judgments are later accessed, or even known about.
At the end of the day Mr. Incedal was acquitted of the more serious charge. There was a judge, a jury, counsel and solicitors, a number of observing, albeit constrained, journalists, an appeal procedure, and doubtless a recording of the proceedings. In respect of the reporting restrictions, these were considered twice by the Court of Appeal. It would be too easy, and inaccurate, just to dismiss this as “secret” justice.
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10 February 2016 by David Hart KC
R (o.t.a Seiont, Gwyfrai and Llyfni Anglers Society) v. Natural Resources Wales [2015] EWHC 3578, Hickinbottom J, 17 December 2015, read judgment and
Chetwynd v. Tunmore [2016] EWHC 156 (QB), HHJ Reddihough, sitting as a judge of the High Court, 4 February 2016, read judgment
This is a wintry double-bill on two recently decided cases about water quality, quantity, fish – and causation.
In the first, Seiont, Snowdonian anglers complained that the Welsh water regulator (Natural Resources Wales or NRW) had misunderstood what was required by the Environmental Liability Directive in respect of Llyn Padarn, a freshwater lake the home of the Arctic charr, Salvelinus alpinus. So they sought judicial review of NRW’s decision.
The main legal question was – did environmental damage within the Directive include slowing down recovery from previous damage, as the anglers argued, or was it confined to deterioration from an existing state (as the regulator had decided)?
Hickinbottom J held the latter, and the claim was dismissed.
In the second case, the claimant owners of fishing lakes in Norfolk said that their neighbours, in constructing rival lakes (without planning permission) had caused water levels to fall, and hence loss of fish and consequent income. Had that been established, the claimants would have had a claim for breach of statutory duty under section 48A Water Resources Act 1991. Such a claim, the judge held, would have been a strict liability one, in which foreseeability of damage played no part.
But the claimants lost on the facts, not before the judge had given an interesting analysis of the law of causation in this field.
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9 February 2016 by Guest Contributor
Photo credit: Guardian
Marina Wheeler
Last week Donald Tusk, President of the European Council, tabled a set of proposals which the government hopes will form the basis of the UK’s renegotiated relationship with the EU, in advance of an in-out referendum. Politically, the proposals may be just the job: a new commitment to enhance competitiveness, proposals to limit benefits to migrants, recognition that member states’ different aspirations for further integration must be respected, and creation of a (“red card”) mechanism to block EU legislation. Legally, however, they raise more questions than they answer.
My thesis is this: the reach of the Court of Justice of the European Union (CJEU) in Luxembourg has extended to a point where the status quo is untenable. Aside from eroding national sovereignty, which it does, the current situation also undermines legal certainty, which in turn undermines good governance.
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8 February 2016 by Charlotte Bellamy
In the News
The UN working group on arbitrary detention have concluded that the Wikileaks founder Julian Assange has been “arbitrarily detained” by Britain and Sweden in the Ecuadorian Embassy for the last three and a half years. In particular, the working group considered that Mr Assange had not been guaranteed a fair trial, in violation of Articles 9 and 10 of the Universal Declaration on Human Rights, and Articles 9, 10 and 14 of the International Covenant on Civil and Political Rights. They have called on Britain and Sweden to end Assange’s deprivation of liberty, respect his physical integrity and freedom of movement, and afford him the right to compensation – which all seems rather steep for someone who has in effect used the Embassy “as a safe haven to avoid arrest” – in the words of the dissenting member of the working group, Ukrainian lawyer Vladimir Tochilovsky.
Julian Assange sought refuge in the Ecuadorian Embassy in 2012 after the UK Supreme Court rejected his appeal against a European Arrest Warrant issued by the Swedish prosecution authority for rape and sexual assault allegations. He has remained there since, now claiming the UN opinion marks a “sweet victory” – but which the UK and Sweden have flatly rejected, on the basis that only one detaining Assange there is Assange himself.
Joshua Rozenberg answers the question on everyone’s minds – how did the UN get it so wrong? The definition the panel gave for Assange’s “arbitrary detention” was that “non observance … of the international norms relating to the right to a fair trial … is of such gravity as to give the detention an arbitrary character”. Of course, such a definition of arbitrary detention presumes detention in the first place – which in this case, was self-confinement in the Embassy.
Tochilovsky, the lone dissent on the panel, was the only one to make the point that “fugitives are often self-confined within the places they evade arrest and detention” and “self-confinement cannot be considered places of detention for the purposes of the mandate of the working group”.
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3 February 2016 by Guest Contributor
In 2006 David Cameron said the HRA ‘has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country’. In 2014 his party published proposals to amend the HRA, and to withdraw from the Convention.
Readers of this blog won’t need reminding that the media has robustly criticized the ECtHR:
“The Court has never, in its 50-year history, been subject to such a barrage of hostile criticism as that which occurred in the United Kingdom in 2011 Over the years certain governments have discovered that it is electorally popular to criticise international courts such as the Strasbourg court: they are easy targets, particularly because they tend, like all courts, not to answer back.”[2]
In the last four years there were some 80 judgments where the UK was the respondent and in about 40 of those cases one or more violations were found. This does not seem to be particularly (statistically) out of step with previous periods. However do the key cases suggest the widening of the margin of appreciation for the UK?
Al-Khawaja
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2 February 2016 by Guest Contributor
Vintage Balance Scale
In “The Ballad of East and West”, Rudyard Kipling memorably wrote
East is East, and West is West, and never the twain shall meet
Till Earth and Sky stand presently at God’s great Judgment Seat.
Is this an accurate description of the rule of law and Parliament? Is the rule of law a matter best left to lawyers, judges and courts, or do politicians and Parliament also have a role to play in upholding the rule of law, by holding the Government to account over rule of law violations, and ensuring that proposed legislation do not offend the principles of the rule of law?
A new Bingham Centre report published today makes a valuable contribution as the first ever, but hopefully not the last, empirical study on the rule of law in Parliament. By examining references to the rule of law over the 2013-14 and 2014-15 Parliamentary sessions in Parliamentary debates, parliamentary questions and written statements, using both quantitative and qualitative analysis, the report aims to improve our understanding of how the rule of law has been used in Parliament.
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2 February 2016 by David Scott
Mark William Patrick MacLennan v Her Majesty’s Advocate, [2015] HCJAC 128 – Read judgment
The High Court has refused an appeal under Article 6 on the lack of effective cross-examination of child witness, but has provided interesting commentary on how such investigations could be better handled in future to meet Strasbourg standards.
by David Scott
The Facts
The original charge concerned reports made against the appellant, the manager at a nursery in Fort William, from children alleging various forms of sexual contact. After initial allegations, joint investigation interviews (JIIs) were conducted between May and July 2013 with various children from the nursery. The value of some of the interviews was questioned by the High Court, with one described as “leading in the extreme” (paragraph 5), yet none were challenged by the defendant when presented as evidence during his trial.
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2 February 2016 by Michael Deacon
The Court of Appeal has given its judgment in a conjoined appeal of two of the latest challenges to the bedroom tax/removal of spare room subsidy (delete as you see fit), holding that it was unlawfully discriminatory in its application to:
- A female victim of serious domestic violence living in a home significantly adapted (including the provision of a “safe room”) to ensure her safety in the face of threats from her former partner; and
- A severely disabled 15 year old boy cared for by his grandmother and her partner, who required a carer to stay in their home two nights per week.
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1 February 2016 by Guest Contributor
The Young Lawyers’ Committee of the Human Rights Lawyers Association is calling for submission for the 2016 Edition of The Young Human Rights Lawyer Journal. The first edition of the The Young Human Rights Lawyer was published in October 2015 and is available here.
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