War remains inside the court room – Part 2: the Torture Convention

iraqAl-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment.

This is the second in a series of posts on a very important judgment on the human rights obligations imposed on the British Armed Forces when operating abroad. The background to the case can be found in Dominic Ruck Keene’s post here, with David Hart QC’s analysis of the ECHR jurisdiction aspect here.

This short post looks at the third question raised in this judgment, namely whether or not the UN Convention Against Torture (CAT) could be relied upon in domestic law proceedings.

As well as being a fascinating question itself, this is part of a wider issue about the use of international law in the domestic courts. Countries are usually divided into ‘monist’ and ‘dualist’ legal systems. In a monist system international law is automatically included into domestic law. However, in a dualist system like the UK the general principle has always been that international treaties must be explicitly incorporated into UK domestic law by Parliament before they can be applied to an individual case.

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War remains inside the court room: jurisdiction under ECHR

iraqAl-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016  – read judgment

This is an extremely important judgment from the Court of Appeal on the reach of the ECHR into war zones, in this case Iraq. The CA, with the only judgment given by Lloyd Jones LJ, disagreed in part with Leggatt J – for whose judgment see Dominic Ruck Keene’s post here.

3 main points arose on appeal.

The first was the jurisdictional question under Art.1 of the Convention – were  Iraqi civilians killed or injured by British servicemen covered by the ECHR?

The second is the extent to which the UK is under a duty to investigate ECHR violations alleged by Iraqis, under Arts 3 (torture) and 5 (unlawful detention).

And the third is the question of whether the UN Torture Convention could be relied upon in domestic law proceedings.

I shall cover the first point in this post. The blog will cover the other points shortly. The points arose by way of preliminary legal issues in various test cases drawn from the 2,000 or so Iraqi claimants.

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Juncker’s ban on post-Brexit negotiations may be illegal

30n02junckertwoap-485712Shortly after the Brexit referendum, the President of the EU Commission Jean-Claude Juncker declared that he had

forbidden Commissioners from holding discussions with representatives from the British government — by presidential order.

In effect, he has prohibited any executives in the EU Commission from embarking on negotiations with British government representatives before the government triggers the exit process under Article 50. Now a legal challenge is being proposed to the legality of Mr Juncker’s declaration. There is no basis for this so-called “presidential order”, say the challengers, a group of British expats seeking to protect their interests in the negotiations over the UK’s exit. Continue reading

RightsInfo is recruiting

RI_anim_02-1024x576The UK Human Rights Blog’s sister project, RightsInfo, is looking for up to five new trustees and a new Coordinator.

Trustee Board (deadline 30 September)

We are seeking to appoint up to five new Trustees to join out Trustee Board. We are particularly interested in exceptional candidates with experience across a range of areas, including:

  • journalism, media and communications;
  • advertising and creative sector;
  • human rights law, policy and practice;
  • charity finance, governance and development; and
  • technology and startups.

Further details about the role and application process are available here.

Coordinator (deadline 9 September)

We are looking to employ an enthusiastic Coordinator to help us change the face of human rights. The role is part-time (3 days per week, which may be scheduled to suit other work arrangements). Salary is £1,354 per month (£26,000 pro rata).

Further details about the role and application process are available here. To learn more about RightsInfo see here.

Please send any queries to joinus@rightsinfo.org.

Look out for more opportunities which we will be advertising in the coming weeks.

Does a judge have to consider Article 8 in possession proceedings brought by a private landlord? – Millie Polimac

Image result for front doors terrace guardian

Photo credit: the Guardian

No, said the Supreme Court in McDonald v McDonald [2016] UKSC 28 – read judgment.

Facts

Fiona McDonald was a private sector tenant.  The landlords were her parents who had purchased the property by obtaining a secured loan from a private company.  They fell into arrears of the monthly payments, and the company sought possession pursuant to a s.21(4) Housing Act 1988 (‘HA 1988’) notice. The arrears were not substantial, but they had persisted for some time.

An Article 8 defence was raised as Fiona had mental health problems in the form of psychiatric and behavioural issues.

The Supreme Court rejected her defence for the following reasons.

No Article 8 assessment

The appellant argued that the court, as a public authority under s.6(1) of the Human Rights Act 1998 (‘HRA 1998’), was required to carry out an Article 8 assessment in such circumstances. Continue reading

No protection for Indy Camp under Articles 10 and 11

q-icon-scottish-flag-3Petition of the Scottish Parliamentary Corporate Body for an Order under Section 46 of the Court of Session Act 1988 [2016] CSOH 113 – read the judgment here

The Court of Session recently ruled in favour of the eviction of the Indy Camp outside Edinburgh Parliament.

Background

Since November 2015, the foot of Arthur’s Seat has been home to a continuous encampment, known as Indy Camp, promising to remain stationed until a second referendum on Scottish independence is called.  In December 2015 the Scottish Parliamentary Corporate Body brought proceedings seeking the eviction of the camp, as it encroached on the property of the Parliament.

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Successful compensation appeal by rape victim

By Pritesh Rathod

RT v (1) The First-Tier Tribunal (Social Entitlement Chamber) and (2) Criminal Injuries Compensation Authority [2016] UKUT 0306 (AAC) – read judgment.

The Upper Tribunal has ruled that, in deciding whether or not an applicant has cooperated with the prosecution of her assailant where she made and later retracted an allegation of rape, it was necessary to see why that retraction was made and whether it was done truly voluntarily, rather than simply assessing whether she was responsible for the retraction.

Background facts

The Applicant (“RT”) was married to H and had four children with him between 2001 and 2008.  From 2004, she was subject to physical and mental abuse by H, culminating in three incidents of rape.  What followed was a somewhat protracted and complicated course of events relating to H’s prosecution.

Initially, H was arrested and charged with six counts of rape.  He was bailed subject to certain conditions.  While H was in custody, RT wrote to him saying that she missed him and wanted him back home.  Over Christmas 2009, H returned home and he and RT had “something of a reconciliation”, including having consensual sexual intercourse.

By January 2010, RT sought to withdraw the complaint (she had commenced divorce proceedings against him).  In February 2010, RT telephoned the police to ask what would happen if she had lied about the rapes.  Later that month, she retracted her allegations, saying that all of them were untrue.  H appeared at the Crown Court and was acquitted after the prosecution offered no evidence. Continue reading