19 April 2010
The National DNA database has become another key human rights issue in the 2010 Election. It is by far the largest such database in the world, with over 1 in 10 people now on the database. The issue of whether innocent people will have their DNA retained has now become highly politicised.
The Tories have now dropped their opposition to the Crime and Security Bill 2010, which has since become law. They had initially opposed provisions which allowed the police to retain the DNA samples of innocent people for up to 6 years. However, they have pledged if elected to bring in early legislation to ensure the DNA profiles of innocent people accused by minor crimes would not be retained.
The Prime Minister and the Home Secretary recently accused the Tories of not being tough enough on crime, whilst appearing at a press conference with Linda Bowman, whose daughter was raped and murdered at age 18. Her killer was convicted in 2008 with the help of DNA evidence. Liberty, the civil liberties organisation, commented that Labour had deliberately confused the issue.
The Conservatives pledge in their manifesto to “Reform Labour’s DNA system with the slimmer and more efficient Scottish system as our model” and “Change the rules on the DNA database to allow a large number of innocent people to reclaim their DNA immediately”.
The Liberal Democrats agree they will “Remove innocent people from the police DNA database and stop storing DNA from innocent people and children in the future, too.”
For their part, Labour say they will “ensure that the most serious offenders are added to the database no matter where or when they were convicted – and retain for six years the DNA profiles of those arrested but not convicted.”
It is probably no coincidence that the criticism of the Tory policy coincides with the Government’s recent concession to strong criticism from the European Court of Human Rights (ECtHR).
Continue reading →
18 April 2010
Recent news posts which you may have missed:
You can also read our archive of news posts here
17 April 2010
Recent case law posts which you may have missed:
You can also read our archive of case law posts here
16 April 2010
We posted last week on issues of breach of duty in cases involving child protection, and mentioned the MAGA case as an important decision in extending the duty of care to priests in the Catholic church. The lawyers in the case have now written up the judgment.
Case comment by Elizabeth-Anne Gumbel QC and Justin Levinson
(Barristers for the Claimant, MAGA)
MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church  EWCA Civ 256, Court of Appeal (Lord Neuberger MR, Lord Justice Longmore and Lady Justice Smith) (read judgment)
This appeal was brought with permission from the trial Judge Mr Justice Jack. The claim arose out of sexual abuse suffered by the Claimant whilst a child living in the area of the Church of Christ the King in Coundon, Coventry. This was a Catholic church under the control of the the Trustees of the Birmingham Archdiocese of the Roman Catholic Church. The priests appointed to work at that church in the 1970s included a senior priest father McTernan and a younger priest Father Clonan. The Claimant was seriously and repeatedly sexually assaulted over a number of months by the younger priest known as Father Clonan. The abuse took place after Father Clonan befriended the Claimant, invited him to the church youth club and then to the Presbytery where Father Clonan and other priests including the senior Priest Father McTernan lived.
Continue reading →
16 April 2010
The Lord Chief Justice used a recent lecture to argue that the European Court of Human Rights (ECtHR) is being given too much respect in the UK courts, with its judgments being cited by lawyers and judges with alarming regularity.
Joshua Rozenberg writing the Law Society Gazette suggests that Lord Judge’s lecture was in fact misunderstood by many in the media, who used the speech to “call for the judiciary to give the good old English common law supremacy over that nasty foreign stuff they make in ‘Alsace, France’”
The issue an important one, as it goes to the heart of the debate over whether the Human Rights Act 1998 should be repealed. The original intention of the 1998 Act was to “bring rights home”; in other words, to prevent decisions on matters of great public importance and local sensitivity being decided in Strasbourg rather than the UK. Before the 1998 Act, the only human rights cases which could be cited were from Strasbourg. But the UK courts now have almost ten years of home-grown human rights case law to consider. The effect of the 1998 Act was therefore to diminish the relevance of ECtHR cases, and the Lord Chief Justice was reminding lawyers of this point.
Analysing the speech, it is clear that Lord Judge’s main complaint was that too many lawyers cite ECtHR authorities at inappropriate times, and that modern technology (including, it would seem, overzealous use of copy and paste) has meant that too many European authorities are creeping back into arguments.
Section 2(1) of the Human Rights Act 1998 states that a court determining a human rights question must “take into account” any “relevant” judgment of the ECtHR. However, as the Lord Chief Justice pointed out, unlike decisions of the European Court of Justice, “the decisions of the European Court of Human Rights in Strasbourg do not bind our courts… What I respectfully suggest is that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court.”
Lord Judge also appears to despair of lawyers and even judges’ use of copy and paste. He said:
Continue reading →
15 April 2010
The British Chiropractic Association (BCA) has dropped its libel action against Simon Singh, in light of the stinging rebuke it received from the Court of Appeal earlier this month.
Dr Singh was being sued by the BCA in respect of an article he wrote in The Guardian (now reprinted) in April 2008, in which he said there was not enough evidence to prove that chiropractic treatment is effective against certain childhood conditions including colic and asthma.
We posted on April 1 on the preliminary decision. The Court of Appeal judges used their judgment on two preliminary issues (in particular, whether Dr Singh could use the defence of “fair comment”) to mount a robust and somewhat lyrical defence (quoting Milton, amongst other things) of the right to scientific freedom of expression.
Given the unusually strong tone of the Court of Appeal judgment, the BCA will have questioned their chances of success in the final hearing. The BCA say in their statement:
The Court of Appeal, in its recent judgment, has taken a very different view of the article [than Mr Justice Eady in the High Court]. On its interpretation, the article did not make any factual allegation against the BCA at all; it was no more than an expression of ‘honest opinion’ by Simon Singh. While it still considers that the article was defamatory of the BCA, the decision provides Dr Singh with a defence such that the BCA has taken the view that it should withdraw to avoid further legal costs being incurred by either side.
15 April 2010
The three main political parties have now have set out their stalls on human rights in their election manifestos, and the future of the Human Rights Act is very much in the balance.
We have been following the arguments for and against a Bill of Rights, which has been proposed either as a replacement for or supplement to the Human Rights Act 1998.
After a period of uncertainty, now only the Conservative Party say they will actually replace the Human Rights Act, with both Labour and the Liberal Democrats committing to keeping it on the statute books. The Conservatives have not spelled out how or within what time frame their plans will take shape. Dominic Grieve, the shadow justice secretary, spoke to lawyers recently on the issue but provided little further detail.
The Human Rights Act 1998 came into force in October 2000, and despite approaching its 10th birthday, it still inspires strong views either in support or opposition. As Francis Gibb writes in The Times, “it… became derided by the Government’s own ministers as well as by the Conservatives as a “charter for the undeserving” and for criminals.”
The two parties which support keeping the Act may be reluctant to raise the issue over other more obvious vote winners, and as such it remains to be seen how much it will feature in debate leading up to the election. However, whether or not it becomes a key issue on the soap boxes, the fate of the Human Rights Act will be one of the important lasting effects of this election.
The manifestos can be found (in alphabetical order) below:
Continue reading →
14 April 2010
Humberstone, R (on the application of) v Legal Services Commission  EWHC 760 (Admin) (13 April 2010)
It would seem that legal aid is the topic of the day. Mr Justice Hickinbottom in the High Court has quashed the decision of the Legal Services Commission (LSC) not to grant an applicant for Judicial Review, Mrs Humberson, legal aid for representation at the inquest enquiring into the death of her son, Dante Lee Kamara. The judge took the opportunity set out five criteria which the LSC should apply when considering future applications (listed after the page break below).
Dante died in hospital on 1 July 2008 after an asthma attack. He was aged 10. The judge criticised the LSC’s decision not to grant funding to his mother, saying:
95. I regard the failure of the Commission to take into account the true nature and seriousness of the allegations Miss Humberstone faces at the inquest as a particularly serious defect in the decision making process: one reason why this case is unusual and essentially exceptional is because of the serious allegations Miss Humberstone faces, at the instigation of the agents of state who, she suspects, may have caused or contributed to her son’s death. This case does not open up any floodgate. I do not demur from the view in the Lord Chancellor’s Guidance, which itself reflects comments in Khan, that “in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above). Given the nature of an inquest, and the specialist nature of coroners, that must be so.
Article 2(1) of the European Convention on Human Rights provides: “Everyone’s right to life shall be protected by law“. That primary obligation includes not only a duty on the state not to take life, but also a duty on the agents of the state to take appropriate legislative and administrative steps to protect individuals from threats to life when in their care. This also encompasses a duty, in some circumstances, to investigate a death, and if necessary, provide funding so that the investigation, including an inquest, functions properly.
Continue reading →
14 April 2010
Three MPs who are being prosecuted for their role in the parliamentary expenses scandal have been granted legal aid.
However, contrary to what the the Prime Minister said yesterday afternoon, Jim Devine, David Chaytor and Elliot Morley will only have to pay back the money if they are found guilty.
The case and ensuing political furore highlight two important aspects of the legal aid scheme from a human rights perspective.
First, that financial legal assistance in criminal cases is a human right. As Joshua Rozenberg points out on his Standpoint Blog:
Article 6(3)(c) of the Human Rights Convention says that everyone charged with a criminal offence has the right to defend himself through legal assistance of his own chosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
The second important point is that from June, the right to legal aid in serious criminal prosecutions will be limited by the introduction of means testing.
The scheme is undergoing significant changes primarily in order save costs. In 2008/9 £2.186 billion was spent on legal aid, with 53% spent in the criminal courts, amounting to 1/630 of government expenditure. In order to reduce that figure, from June 28 this year criminal legal aid in the Crown Court, where more serious criminal offences are tried, will become means tested. Legal aid in the Magistrates’ Courts, where less serious offences are tried, is already subject to means testing. The Legal Services Commission now hopes to save a further £35m per year.
From June, anyone with a net (i.e. after tax) disposable income of more than £3,398 per year and with capital of over £10,000 will have to contribute to their own legal expenses when prosecuted in the Crown Court. As such, the three MPs would probably not receive full legal aid under the new scheme.
13 April 2010
Sir Nicholas Wall, the new head of the Family Division, is being sworn in today. The Times reports this morning on comments he made in a recent judgment in the case of EH v London Borough of Greenwich & Ors  EWCA Civ 344.
He said of social workers:
What social workers do not appear to understand is that the public perception of their role in care proceedings is not a happy one. They are perceived by many as the arrogant and enthusiastic removers of children from their parents into an unsatisfactory care system, and as trampling on the rights of parents and children in the process. This case will do little to dispel that perception. (paragraph 109)
A profile of Sir Nicholas in The Times suggests that he arrives at his new post with a reputation as a forthright critic of social services, local council, social workers and politicians. Indeed, it has been suggested that the Justice Minister Jack Straw may have been trying to block the appointment of Sir Nicholas for that very reason.
We posted earlier this week on the issues regarding child protection and the duty of care of local authorities. The courts are often finding themselves having to balance the competing rights of children, who must be protected against abuse, and parents, who are sometimes themselves the victims of overzealous prosecutions by local authorities. It would appear that the pressure on public authorities will only increase once the new Family Division head is in post.
13 April 2010
The conviction of the “Heathrow heist four” at the Old Bailey has raised serious concerns that the historic right to trial by jury may be slipping away.
For the first time in 350 years, the four men were convicted in the Crown Court by way of a trial without a jury. On March 31st each received long prison sentences for their part in the robbery.
Henry Porter, writing in The Guardian, has severely criticised the reforms which allowed the trial to proceed with no jury. He says:
A profound change has occurred in Britain where it is now possible for counsels and a judge to decide the fate of defendants without the involvement of 12 ordinary citizens – the fundamental guarantee against arbitrary state punishment represented so well by the use of the star chamber under King Charles I.
The right to trial by jury has been steadily eroded in recent years. Civil courts now operate almost entirely without juries, as do some lower-level criminal courts such as Magistrates’ courts, which are only able to impose custodial sentences up to a maximum length of one year.
Continue reading →
12 April 2010
The Equality Act 2010 received royal assent on 8 April 2010. The Act aims to consolidate what until now has been a messy jigsaw of 116 pieces of legislation, and further harmonise UK law with the four key EU Equal Treatment Directives.
The Bill passed despite the unusual opposition from the Pope, who complained in February that it would run contrary to “natural law”. His comments were most likely directed at the effect of the new legislation on Catholic adoption agencies, making it more difficult for them to turn down gay couples. We previously posted on this topic in relation to the Catholic Care case, which resulted in a victory for a catholic adoption agency.
The Equality and Human Rights Commission, which has welcomed the passing of the Bill, points out some of the key features:
- Making the law easier to understand and implement by simplifying 116 pieces of equality legislation into a single Act for individuals, public authorities and private organisations.
- Giving people the right not to be treated less favourably by public authorities because of their age, religion or belief, sexual orientation, or transgender status; as well as their disability, gender, or race which were already covered.
- Extending anti-age discrimination rules to include goods, facilities and services, thereby stopping people being unfairly refused insurance or medical treatments based on what age they are, for example.
The key sections of the Act will begin to come into force in October 2010 and will continue to do so until 2012.
12 April 2010
The Bribery Bill received Royal Assent on 8 April 2010, heralding a new approach to tackling corruption and seeking to make the UK compliant with the OECD Anti-Bribery Convention.
Anti-corruption body Transparency International welcomed the new law, describing it as historic, long overdue and sending out a strong message that the UK will not tolerate bribery. It is hoped that the new legislation will encourage ethical practices in the business world.
The connection between corrupt business practices and breaches of human rights has long been recognised. In their comment on the draft Bribery Bill, The Corner House said:
“most large-scale bribery is committed for the benefit and on behalf of businesses and that bribery often infringes upon a wide range of human rights, both directly and indirectly. As such, a commercial organisation’s negligent failure to prevent bribery should remain a criminal offence.”
Meanwhile, the Campaign Against Arms Trade and The Corner House are not pursuing an appeal for permission for judicial review of the Serious Fraud Office’s decision to enter a plea bargain settlement with BAE Systems and to drop “conspiracy to corrupt” charges against a BAE former agent. The organisations say that the action has been withdrawn with regret as a recent admission by the SFO makes it difficult to sustain any legal challenge.
12 April 2010
Prisoners will be unable to vote in the general election despite the European Court of Human Rights ruling almost five years ago that the blanket ban was unlawful.
The House of Lords discussed the issue in the small hours of 7 April 2010 when Lord Ramsbotham, former Chief Inspector of Prisons, tabled an amendment to the Constitutional Reform and Governance Bill which would have removed the ban.
Lord Ramsbotham lamented that the Government was “frightened of offending reactionary public opinion by appearing not to be tough on criminals” and “determined to prevaricate for as long as possible, going to absurd lengths, such as suggesting that prisoners had lost the moral authority to vote.”
The Government insists that it is still considering the responses to its second stage consultation, despite it closing over six months ago.
The Parliamentary Joint Committee on Human Rights has also expressed serious concern, noting that the Government risks not only political embarrassment at the Council of Europe, but will be in breach of its international obligation to secure the full enjoyment of Convention rights for everyone within its jurisdiction.
12 April 2010
SAMUEL KINGSFORD BUDU v THE BRITISH BROADCASTING CORPORATION  EWHC 616 (QB), 23 March 2010
A claim for libel in respect of three articles in a news website’s archive has been struck out in the Hight Court by Mrs Justice Sharp. When read in context, the articles were incapable of bearing the alleged defamatory meaning, the publisher had attached Loutchansky notices to them, and it would be a disproportionate interference with the publisher’s rights under ECHR Article 10 to allow the claim to proceed where it had been brought after four years had passed since the publication of the articles.
The Claimant brought proceedings in respect of three archived articles published by the BBC in mid 2004. They related to the decision of Cambridgeshire Constabulary to withdraw an oral job offer made to the Claimant after subsequently investigating the legality of his immigration status. Within weeks of first being published, the articles became accessible only in the archive, via search engines. The action related to the articles in the archive and the related Google snippets.
Continue reading →