Human rights – Strasbourg or Luxembourg?

9 September 2011 by Rosalind English

When a Convention right arises in circumstances which also engage EU law, which court is the final arbiter of their meaning and application?

This is not as arcane a question as it appears, since in the UK many cases engage points of EU law, so Convention rights, which are part of the “general principles” of Community law, get in under the wire via the   European Communities Act 1972.  And  in July the Council of Europe published the draft agreement for accession of the European Union as a signatory to the European Convention, which either adds another string to the ECHR bow, or a further layer of constitutional obscurity of interest only to international jurists, or both: – time will tell.
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UK may not have to give prisoners the vote after all

8 September 2011 by Adam Wagner

The Ministry of Justice has just released its annual report to the Joint Committee on Human Rights, Responding to human rights judgments.

The report is worth reading. It contains useful summaries of the 17 European Court of Human Rights judgments against the UK in 2010 and the government’s response to them.

But what is really interesting is what it says about prisoner votes, and the government’s 6-year delay in implementing the 2005 decision in Hirst (No.2) v UK.

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Baha Mousa Public Inquiry finds “Corporate failure by MoD”

8 September 2011 by Rosalind English

The 1,400 page final report on the inquiry into the death of Baha Mousa  has been published today after three years of hearings. The chairman of the inquiry, retired Court of Appeal judge Sir William Gage, has condemned members of the 1st Battalion The Queen’s Lancashire Regiment for their “lack of moral courage” to report abuse  and the use of banned interrogation after Mousa died of 93 injuries in British army custody in Basra in 2003.

Mousa was arrested with nine other Iraqi men after 1QLR soldiers found weapons, fake ID cards and military clothing at the hotel where he was working as a receptionist. 
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Telegraph wrong again on foreign deportation

8 September 2011 by Adam Wagner

In a recent speech about the August riots, the Prime Minister bemoaned the “twisting and misrepresenting of human rights”. Unfortunately, this practice is common in the press, sometimes by accident but often by design.

One common accusation against the Human Rights Act is that it prevents the state deporting some foreign criminals. This is sometimes true; for example, the state cannot deport anyone if to do so would put them at a real risk of being tortured. But other law can be “to blame” too for preventing deportation of criminals, as was the case with Learco Chindamo, the killer of head teacher Philip Lawrence. This has not prevented the Daily Telegraph from again using his case as an example of human rights gone wrong.

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The revolution will be televised

7 September 2011 by Adam Wagner

The Justice Secretary Ken Clarke has announced that the ban on broadcasting in courts is to be lifted. Broadcasting will initially be allowed from the Court of Appeal, and the Government will “look to expand” to the Crown Court later. All changes “will be worked out in close consultation with the judiciary“.

Broadcasting in court is currently prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. However, the rules do not apply to the Supreme Court, the UK’s highest court of appeal. Since it launched in October 2009, the court has been filming hearings and making the footage available to broadcasters. And, since May of this year, the court has been streaming the footage live on the Sky News website.

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Two new legal blogs

5 September 2011 by Adam Wagner

Two welcome additions to the legal blogosophere have just launched, both of which will be of interest to readers of this blog.

RightsNI (Twitter: @RightsNI) is a great looking human rights blog from Northern Ireland. It joins another fantastic blog from across the Irish Sea, the Human Rights in Ireland Blog. Rights NI already has a wide range of contributors including academics and human rights NGO workers. Recent posts include:

• Dale Farm shows dynamics at play across the UK and Europe
• The activist-brick road
• International Race Discrimination Committee publishes observations on the UK

Monstering, 9/11 and supporting human rights – The Human Rights Roundup

5 September 2011 by Graeme Hall

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Graeme Hall

In the news

Monstering of the innocent?

Once again the Press finds itself in the spotlight, this time over the reporting of former suspect Rebecca Leighton and the deaths at Stepping Hill Hospital. Obiter J sets out the charges against Leighton and also the tests which prosecutors must meet for charges to remain in place. Describing the test as “quite remarkable” given the gravity of the charges, as well as noting the “immense damage” which has undoubtedly been done to Leighton’s reputation, Obiter J predicts a complex human rights challenge to the police’s conduct and calls for Parliament to take a closer look at the existing powers for charging people.

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Anti-terrorism powers for a rainy day

4 September 2011 by Adam Wagner

Updated | Next week will mark the 10th anniversary of the 11 September 2001 terrorist attacks. Despite the intervening decade, the states threatened by terrorism are still puzzling out the right balance between the powers of security services and the rights of suspected terrorists to due process.

Although terrorism is now mercifully low on the public agenda, the effects of 9/11 are still being felt across the legal system. The United Kingdom is soon to open an independent inquiry into the improper treatment of detainees by security services following the terrorist attacks. As things stand, the UK’s major human rights groups are boycotting the inquiry for fear that the government will be able to suppress evidence.

The intelligence services have now tightened up their policy towards interviewing detainees overseas, but one policy which is still in flux is the control order regime, soon to be succeeded by Terrorism Prevention and Investigation Measures (TPIMs).

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Kicking and damning corporate souls

1 September 2011 by Rosalind English

As of today, government or private institutions tasked with keeping people in custody will be accountable in criminal law if it can be shown that a “gross duty of care” has led to the death of a detainee.

In 2008 the Corporate Manslaughter and Corporate Homicide Act 2007 came into force, creating  a new offence of corporate manslaughter. An offence is made out under this Act where a corporation’s activities cause a person’s death and the failure was because of a breach that falls far below what can reasonably be expected of the organisation in the circumstances.

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Freedom of expression: is filming the police in public a fundamental right? – Hugh Tomlinson QC

31 August 2011 by Guest Contributor

As a number of recent cases have made clear, the filming of policing activity in public places is a vital method of holding police to account.  But there have been continuing tensions between the police and photographers over filming police activity. In January 2010 there was a protest in Trafalgar Square by photographers against the use of terrorism laws to stop and search photographers.  A campaign called “I’m a photographer, not a terrorist” was launched to protect the rights of those taking photographs in public places.

However, although Guidance issued by, for example, the Metropolitan Police has made it clear that

Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel.

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Hillsborough, Hemming and hostilities – the Human Rights Roundup

29 August 2011 by Melina Padron

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Melinda Padron

In the news:

President of the Family Division’s Press Release

Last week the President of the Family Division, Sir Nicholas Wall, issued a press release concerning two judgments in the case Re X which will soon be released in full (save for the identities of the children) to the public. The case involves allegations by a woman who her former partner abused her child and consequently custody issues. There was public support for the woman involved in the proceedings, and amongst these supporters were John Hemming MP (who used parliamentary privilege to name the woman despite the confidential nature of the proceedings) and Christopher Booker (a reporter for the Telegraph).

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There’s no place like home… if you have one

25 August 2011 by Isabel McArdle

There are somewhere in the region on 12 million people worldwide who have no nationality. Being stateless can create enormous problems, from being unable to rely on diplomatic assistance to having no home country with an automatic right to return to. The risk to stateless of people of having their human rights breached to is great. The United Nations has expressed its concern repeatedly, and is encouraging states to sign up to two conventions which provide basic rights to those without a state.

Back in March we considered a case where a man claiming asylum alleged that he was a member of a particular ethnic group which, it was accepted by the parties, is at risk of persecution in Kuwait. His claim failed as the court found him to be Kuwaiti. However, because he had no documents to show he was Kuwaiti, the Kuwaiti authorities would not allow him to enter their state. Hence the Catch-22 situation of many stateless people, where they cannot establish a right to reside in one state but have no other state to return to.

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President of Family Division’s press release on paedophile allegations case

25 August 2011 by Adam Wagner

With thanks to the Judicial Press Office, below is the full press release from the President of the Family Division in a case involving a “super injunction”, John Hemming MP, false allegations of pedophilia and some poor press reporting.

I will blog about this once the full rulings are released, but in the meantime see Lucy Reed: Bared Teeth – Grrrrr! | Pink Tape; Inforrm; News: Hemming MP’s “super injunction victim” named as sex abuse fabricator « Inforrm’s Blog, and the Fighting Monsters blog: Hemming and Haigh – The Journey of an Injunction.

Press Release from the president of the Family Division: Re X  (a child)

I am today giving two judgments, both of which will be in open court.

The first judgment will put into the public domain matters which, in care proceedings under the Children Act 1989 Parliament has decided are normally confidential to the court and to the parties. The second will explain why I have found a woman called Elizabeth Watson in contempt of court. After giving the second judgment. I will adjourn to hear any mitigation Ms Watson may wish to put forward as to why I should not send her to prison.

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Anemometers, environmental information, and legal advice: the Planning Inspectorate’s duty to disclose?

25 August 2011 by David Hart KC

Case EA/2010/0204 Robinson v. Information Commissioner & Department for Communities & Local Government, First-Tier Tribunal, 19 July 2011

This interesting decision of the First-Tier Tribunal (not linked to this post, for reasons I shall explain below) goes to the circumstances in which a public authority can refuse under environmental information rules to disclose legal advice received by it. All lawyers will know that such advice is covered by legal professional privilege. But such privilege does not necessarily prevent it from being disclosed by a public authority. Under the Freedom of Information Act (FOIA) regime, it is a ground for refusing to produce documents, but only when that is in the public interest. Under the exemptions in the Environmental Information Regulations  privilege is not even a ground of exemption; the public authority must show a rather different thing, namely that disclosure of the legal advice would adversely affect the course of justice, and in all the circumstances of the case, the public interest in maintaining that exemption outweighs the public interest in disclosure. In addition, there is a presumption in favour of disclosure.

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Human rights on tour

24 August 2011 by Adam Wagner

The Human Rights Act has been blamed for many things, but recent suggestions that it caused a series of riots were tenuous by any standards.

A major problem with human rights law is that there is so much disinformation in the public domain. Thankfully, the British Institute on Human Rights is going on tour to try to correct the balance. The organisation is visiting 16 venues around the UK from September to December, seeking to answer the following questions:

What’s the role of human rights in a period of cut backs to public services? What is the role of human rights in protecting the vulnerable? Do human rights offer an effective tool for people wishing to challenge the impact of service cuts or changes? How do we make sure we balance one person’s rights against the interests of society as a whole?

The full list of venues and dates here and you can book here.