Sharper teeth for the European Court of Human Rights?

24 March 2010 by

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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Recent case summaries

20 March 2010 by

Not unlawful for a Roman Catholic adoption agency to reject same-sex couples

19 March 2010 by

Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales (Equality and Human Rights Commission intervening) [2010] EWHC 520 (Ch)

The High Court have found that a Roman Catholic adoption agency (Catholic Care) could rely on regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007 in refusing same-sex couples adoption services.


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Are civil partnerships compatible with human rights law?

17 March 2010 by

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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Key armed forces case opens in the Supreme Court

16 March 2010 by

Private Jason Smith

The case of R (on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another is being heard today in the Supreme Court.

The Secretary of State is appealing the 2009 decision of the Court of Appeal: See our case comment from the Court of Appeal judgment.

In short, the respondent’s son Smith was a member of the Territorial Army who had been posted to Iraq in June 2003. He had spent eight days in Kuwait for the purpose of acclimatisation. The room he occupied in Iraq did not have air conditioning. In August 2003 temperatures in the shade reached in excess of 50 degrees C, which was the maximum that available thermometers could measure. He reported sick complaining that he could not stand the heat. Some days later he suffered a cardiac arrest.

In this appeal the secretary of state appeals against the decision of the Court of Appeal ([2009] EWCA Civ 441) that the deceased had been within the jurisdiction of the United Kingdom for the purposes of the Article 1 of the European Convention on Human Rights 1950 and the Human Rights Act 1998 and that, consequently, the inquest into his death had to comply with Article 2.

The hearing is expected to last for four days. See coverage in The Times and the The Guardian.

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Have MI5 “inflicted a body blow on their own reputation”?

12 March 2010 by

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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Exceptionally serious circumstances must be established to resist extradition order says Supreme Court

5 March 2010 by

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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Should children be protected against giving evidence in court?

5 March 2010 by

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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Towards a UK Bill of Rights?

2 March 2010 by

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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EU Directive on Refugee status does not enhance asylum rights under Strasbourg Convention

28 February 2010 by

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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Mutual confidentiality between intelligence services trumped by open justice requirements

25 February 2010 by

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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New assisted suicide guidance “focused on motivation of the suspect rather than characteristics of the victim” – DPP [updated]

25 February 2010 by

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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Hindu wins right to be cremated on a traditional funeral pyre

24 February 2010 by

The Queen on the Application of Ghai v Newcastle City Council & Others [2009]EWHC 978 (Admin)

Read the 1COR case comment

A devout Hindu man has won the right to have his body to cremated in accordance with his religious beliefs as a Hindu.

In the previous hearing, the Judge, Cranston J, proceeded  on the assumption that the cremation desired by Mr Ghai would be in the open air, i.e. not within any structure. It was accepted by Mr Ghai that such an open air cremation would have been precluded by the legislation relating to cremation, at least if interpreted without reference to section 3 of the Human Rights Act 1998. Mr Ghai’s primary case before the Judge was that, if this was the right interpretation of the legislation, there would be an impermissible interference with his right to manifest his religion or belief under Article 9 of the European Convention. Although the Judge accepted that Article 9 was engaged, he went on to hold that the interference was justified . Mr Ghai also relied on Article 8 and Article 14 of the Convention, but the Judge held that they were not engaged.

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