Child rape case sparks debate on child witnesses in criminal courts

28 May 2010 by

The recent Old Bailey case involving two boys aged 10 and 11 accused of rape on an eight year gold has reignited the long running debate over the treatment of child witnesses in the adversarial courts system.

In a Daily Telegraph article John Bingham and Caroline Gammell report that

More than 1,000 children under the age of 10 are called to give evidence in courts in England and Wales every year.Almost two thirds are themselves the victims of crime, asked to relive a traumatic experience, often as much as a year after the event. Although special measures are in place to make the ordeal of giving evidence in court less stressful, the current system remains open to criticism.There is no legal minimum age to give evidence in court but prosecutors must be satisfied that a child is capable of understanding evidence and being cross-examined before they can be called.

It should be noted at the outset that evidence from children can only be compelled by the courts in criminal prosecutions. We posted recently on the case of Re W (Children) [2010] UKSC 12 , where the Supreme Court 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). Lady Hale said at para 22 of the judgment:  
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Amnesty International report criticises UK’s record on deportation and torture

27 May 2010 by

Amnesty International published its 2010 Report yesterday, documenting torture and other human rights abuses around the world.

In relation to the UK, Amnesty’s report condemns the UK’s continuing reliance on “diplomatic assurances” in deportation cases where individuals were likely to be at risk of torture or other abuse if sent to countries where the Government accepts they would otherwise be abuse, in particular Algeria and Jordan. The report summarises that:

Reports implicating the UK in grave violations of human rights of people held overseas continued to emerge. Calls for independent investigations into the UK’s role in these violations went unheeded. The government’s attempts to return people to countries known to practise torture on the basis of “diplomatic assurances” (unenforceable promises from the countries where these individuals were to be returned) continued. The European Court of Human Rights found that, by detaining a number of foreign nationals without charge or trial (internment), the UK had violated their human rights. The implementation of measures adopted with the stated aim of countering terrorism led to human rights violations, including unfair judicial proceedings.

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Transsexual’s NHS breast enlargement claim rejected

27 May 2010 by

AC v Berkshire West Primary Care Trust [2010] EWHC 1162 (Admin) (25 May 2010) – Read Judgment

An NHS Trust acted rationally in refusing to provide breast enlargement surgery to a transsexual, the High Court has ruled, even though there was credible medical evidence that the surgery would have been beneficial. The case raises issues as to when treatment can truly be said to be “necessary” in light of increasingly tight purse strings, and whether NHS policy could be discriminatory towards transsexuals.

The Claimant, AC, had been diagnosed with gender identity disorder (GID). As part of its GID treatment program the PCT had been prepared to provide genital reassignment surgery, which AC had refused.

As part of her treatment, AC was given hormone therapy but was disappointed with her subsequent breast development. Her GP wrote in 2006 that AC had found that her lack of breasts made it “much more difficult for her to feel feminine. It tends to get her down although she does not have a history of significant depressionWhilst we can offer her what support we can with this, this is never clearly going to be as effective as a surgical solution.”
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Detention of man suspected of insurgency and terrorism was unlawful

27 May 2010 by

HXA v Home Office (King J) [2010] EWHC 1177 (QB) – Read judgment or our full case comment

The authorities’ statutory power to detain pending deportation had to be motivated purely by the need to remove a subject from the United Kingdom, not to ensure his surrender into custody of the authorities operating in the receiving country. A subject detained not only for the purpose of effecting his removal from the UK, but also for the purpose of investigating whether acceptable arrangements could be made to return him into detention in the receiving country, was being detained unlawfully.

The claimant sought damages and declaratory relief against the defendant both at common law for the tort of false imprisonment and pursuant to s. 6(1) and s.7(1) of the Human Rights Act 1998, by reason of a claimed breach of Article 5(1) of the European Convention of Human Rights.


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Sarah Ferguson scandal raises debate on right to privacy

26 May 2010 by

Sarah Ferguson, the Duchess of York, is in trouble for offering to sell her influence for cash. She proposed to sell access to her ex-husband Prince Andrew, a “trade envoy”, for £500,000 to an undercover reporter from the News of the World. The circumstances of the sting raise interesting issues in respect of the right to privacy under the Human Rights Act.

Article 8 of the European Convention on Human Rights provides that “Everyone has the right to respect for his private and family life, his home and his correspondence“. The right is not absolute, and can be breached by a public authority “in accordance with the law and is necessary in a democratic society”, that is, if the breach is in the public interest. Only public authorities need to keep within these rules.

The Inforrm Blog has posted an interesting analysis of the issue, concluding that

it seems to us that there is a proper justification for the publication of the story.   What the Duchess was offering was “access to a public official”, for a payment which appears to be wholly disproportionate to the “monetary value” of the service offered… The fact that neither the Duchess nor the businessman had any specific wrongdoing in mind does not matter.  The whole transaction was “tainted” and its exposure was, we suggest, justified for that reason.
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The Queen’s Speech and human rights [updated]

25 May 2010 by

The Coalition Government has presented its legislative agenda for the coming year in the Queen’s Speech. Below are links to some of our previous posts which address some of the proposed policies.

The full line-up of bills announced can be found on the Number 10 website, or you can also read the full transcript. Our analysis of the Coalition’s human rights policies is here. The list will probably not be exhaustive, as some of the promises made in the Programme for Government may be instituted via secondary legislation or attached to other related Acts of Parliament.

One notable absence is any mention of reform to extradition policy (see our post from yesterday). The Programme for Government included the promise to “review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed.” Liberty, the human rights organisation, had already welcomed the change in a statement on Monday. The family of Gary McKinnon would have also been waiting for this, as Mr McKinnon is currently awaiting a decision from the new Home Secretary as to whether he will be extradited to the United States on computer hacking charges. That being said, a change to the extradition arrangements may be included in another bill, although this seems unlikely.

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The increasing role of human rights law in extradition and deportation cases

25 May 2010 by

Human rights challenges to deportation and extradition seem to be constantly in the public eye. Gary McKinnon’s battle against extradition has caught the public, as has the now notorious “Pathway Students” terrorist deportation case. An examination of three recent decisions highlights the various ways in which the courts approach the human rights arguments in such cases.

There have been a steady stream of high-profile deportation and extradition decisions in the past few weeks, none more controversial than the “Pathway students” case, where two suspected terrorists were saved from deportation to Pakistan as they were thought to be at risk of torture or death upon their return. The Daily Telegraph reports that the Human Rights Act is being invoked in a growing number of asylum and immigration case, although it does not say whether the number of successful uses of the Act has increased.

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Coalition civil liberties policies may be uncontroversial quick wins

24 May 2010 by

The Economist has provided a useful analysis of the Coalition Government’s proposed policies on civil liberties.

The article highlights the fact that the policies detailed may not represent the transformative change which Nick Clegg suggested in his reform speech, but rather “uncontroversial quick wins” which will be dwarfed in policy terms by the incoming government’s policing and immigration policies:

The disagreements can probably be haggled away, with the Lib Dems getting their way (eventually) on human rights in return for agreeing to control orders. Coalition government is such a novel and interesting thing that almost any fudge or u-turn can be passed off as a natural product of the “new politics”, at least for now.
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Are trials without juries always illiberal?

24 May 2010 by

Under threat?

The Coalition Government has pledged to “protect” the right to trial by jury. It is often assumed that the a jury is needed to ensure a fair trial, but Sir Louis Blom-Cooper argues in an interesting article in the Guardian that juries may not always be essential, particularly in cases involving serious organised crime.

Blom-Cooper, an academic and barrister, argues that jury-less trials need not always be illiberal. He says “The experience in Northern Ireland over three decades suggests that serious organised crimes can effectively and efficiently be tried before a professional court ‑ a single judge or perhaps three judges.” He also suggests that defendants ought to be able to waive their right to trial by jury as is the case in many other jurisdictions.
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You may have missed…

22 May 2010 by

Posts on the UK Human Rights Blog that you may have missed in the last week:

Case law –

News –

Electoral commission report opens door for barred voter claims

21 May 2010 by

voter compenationThe Electoral Commission, an independent body which sets standards for the running of elections, has released its report on problems experienced by voters during the 2010 General Election. It calls for “urgent action” to ensure that “the restrictive rules which prevented participation should be changed”. This has probably opened the door to legal claims.

The Interim Report found that at least 1,200 people were still queuing at 27 polling stations in 16 constituencies at 10pm. It concludes that the main contributing factors to this problem were:

  • Evidence of poor planning assumptions in some areas.
  • Use of unsuitable buildings and inadequate staffing arrangements at some polling stations.
  • Contingency arrangements that were not properly triggered or were unable to cope with demand at the close of poll.
  • Restrictive legislation which meant that those present in queues at polling stations at the close of poll were not able to be issued with a ballot paper.

There are a number of possible legal remedies for barred voters.
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Coalition agreement calls for Human Rights Act Plus, but will it last?

21 May 2010 by

The full Coalition agreement is now available, and has made things a little clearer on the new government’s plans for the Human Rights Act. But will the promised review of the 1998 Act be anything more than a time-wasting exercise born of irresolvable disagreements between the partners on fundamental rights, and will the changes last?

“The Coalition: our programme for government” is available to download here. The civil liberties section is largely the same as in the draft agreement published last week, but with an added section on the recently announced Commission to

investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.

We posted earlier in the week on three possible outcomes arising from the Commission; first, full repeal of the 1998 Act, second, repeal and replacement with a Bill of Rights or, third, create in effect a “Human Rights Act Plus”, which would bolster the 1998 Act whilst maintaining the UK obligations under the European Convention. As predicted, it appears that the third option has been selected, but under the Bill of Rights banner.
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GMC to announce policy of striking off doctors who prolong the lives of terminally ill patients against their wishes [updated]

20 May 2010 by

If a terminally ill patient has made a “living will”, specifying in advance that they do not want to be resuscitated, doctors must respect these wishes or risk being struck off. The General Medical Council is to announce this guidance in response to the Mental Capacity Act 2005 which gives “living wills” legal status. Doctors must not follow their own personal or religious convictions by prolonging treatment unless there is evidence that a patient may have changed his or her mind.

Update 25/05/10 – The Guidance has been published and can be found here

If a doctor is unwilling to follow the express verbal instructions of a patient – communicated through a friend or relative as legal proxy — they can withdraw from treating the individual. A second medical opinion must sought before hydration and nutrition is withdrawn. Telegraph Medical Correspondent Kate Devlin reports that

Doctors who flouted the guidelines would be forced to attend a fitness to practise hearing before the GMC and would be struck off if the case against them were proved. The rules affect patients deemed to be mentally capable of making these decisions. If they do not have this capacity, or have not designated someone to act on their behalf, doctors are required to make any judgment about treatment in the best interests of the patient. The guidance says that in these cases, when the decision over end of life treatment is “finely balanced”, the patient’s previously stated wishes “will usually be the deciding factor”.

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Rules on intercept evidence not breach of human rights, say European Court

20 May 2010 by

KENNEDY v. THE UNITED KINGDOM – 26839/05 [2010] ECHR 682 (18 May 2010) – Read judgment

The European Court of Human Rights has held that the UK’s Regulation of Investigatory Powers Act (RIPA) does not breach Article 8 of the European Convention on Human Rights, the right to private life or Article 6, the right to a fair trial. The judgment is timely, with the new Government debating at present whether intercept evidence should be allowed to be used in court.

The case has a long and intriguing history. On 23 December 1990, Mr Kennedy was arrested for drunkenness and taken to Hammersmith Police Station. He was held overnight in a cell shared by another detainee, Patrick Quinn. The next day, Mr Quinn was found dead with severe injuries. Mr Kennedy was charged with his murder. He alleged that the police had framed him for the murder in order to cover up their own wrongdoing. He was subsequently was found guilty of the murder of Mr Quinn and was sentenced to life imprisonment.

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Mentally disabled prisoner discriminated against by authorities

20 May 2010 by

R (on the application of Dennis Gill) v Secretary of State for Justice – Read judgment

The Secretary of State for Justice should have done more to enable a prisoner with learning difficulties to participate in programmes which could have helped him gain an earlier release. In finding that the prisoner was discriminated against, the High Court has set down a precedent which will affect many other learning disabled prisoners.

Mr Justice Cranston held that participation in offender behaviour programmes would have made it easier for Mr Gill to persuade a Parole Board that he was suitable for release. His participation in them had been recommended but his learning difficulties had prevented him from taking part, and as such the Secretary of State for Justice had discriminated against him contrary to the Disability Discrimination Act 1995.

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