Feature | The duty to investigate deaths under human rights law: Part 1

12 July 2010 by

Silih v Slovenia (2009) 49 E.H.R.R. 37 – Read judgment, McCaughey and Quinn’s Application [2010] NICA 13 – Read judgment

This is Part I of Matthew Hill’s feature. Click here for Part II.

A recent decision of the Strasbourg Court has reopened the issue of the State’s obligation to investigate deaths under the European Convention on Human Rights, leaving a tension between the European Court’s view and that of the highest UK court.

In Silih v Slovenia (2009) 49 E.H.R.R. 37, the European Court looked again at the question of whether the investigative obligations under Article 2 ECHR have retrospective effect in domestic law. A majority of the Court held that Slovenia’s failure to provide an effective independent judicial system to determine responsibility for the death of a patient receiving medical treatment violated Article 2 even though the death itself took place before the Convention came into force in that state.

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Worries over US justice system as Abu Hamza extradition delayed

9 July 2010 by

Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom – 24027/07 [2010] ECHR 1067 (6 July 2010) – Read judgment

The European Court of Human Rights has delayed the extradition of four men, including the notorious Mustafa Kamal Mustafa (Abu Hamza), from the United Kingdom to the United States due to concerns that long prison sentences and harsh conditions in a “supermax” prison could violate their human rights.

In this admissibility application, the four men mounted a wide-ranging attack on the US Justice system to the Strasbourg court, in terms usually reserved for lawless rogue states. The men claimed their extradition would put them at risk of harsh treatment, extraordinary rendition and the death penalty, amongst other draconian penalties. They said that the trial of non-US citizens on terrorism charges would lead to a “flagrant denial of justice”.

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A good and bad week for gay rights

9 July 2010 by

In two recent but separate developments, homosexuals fleeing persecution have been granted a lower threshold for refugee status and the Strasbourg Court has rejected a complaint by a same sex couple that Austria was in violation of the Convention for not granting them the right to marry.

We posted earlier on the case of HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010), in which the Supreme Court ruled as unlawful the government’s policy of sending refugees back to their home countries because they could avoid persecution if they acted discreetly.

There are two questions raised by this judgment and its implications. One concerns the extraterritorial reach of rights observed by signatory states to the Refugee and Human Rights Conventions. The second is the sheer practical difficulty of examining the veracity of a persecution claim based on these particular grounds.

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Stop and search scrapped after human rights ruling

8 July 2010 by

The controversial stop and search anti-terrorism powers are to be scrapped after a decision of the European Court of human Rights that they violated human rights law.

According to a press release on the Home Office website, the decision will have immediate effect and is a direct response to the European Court’s decision:

Theresa May today tells Parliament that the government will change how stop and search powers under section 44 of the Terrorism Act are used, with immediate effect.

The move is in response to a decision by the European Court of Human Rights (new window), which found that the use of stop and search powers under section 44 of the Terrorism Act 2000 (new window) amounted to a violation of the right to a private life.
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Removal of baby from mother without court order not breach of human rights

8 July 2010 by

A v (1) East Sussex County Council (2) Chief Constable of Sussex (2010) – Read judgment

The Administrative Court has held that the removal of a baby from her mother due to fears that she was fabricating symptoms was not a breach of human rights. The court did, however, identify ways in which the situation could have been handled less heavy-handedly.

Elizabeth-Anne Gumbel QC, who appeared in the case for the Appellant, analyses the judgment

This case involved a claim under the Human Rights Act 1998 for damages for breach of Article 8 of the European Convention. The Claimant was a young mother who had taken her baby into hospital when she was worried he appeared to have episodes when he stopped breathing. The baby was admitted to hospital and the medical assessment was there was nothing wrong with the baby. The paediatrician was concerned that the mother, having reported incidents that were not observed by medical staff, might be suffering from factitious illness, i.e. that she was deliberately fabricating the symptoms. He alerted social services who held a meeting on 29 December.

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Gay refugees cannot be sent home and told to hide their sexuality

8 July 2010 by

HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010) – Read Judgment

The Supreme Court has ruled that the government’s “Anne Frank” policy of sending back gay refugees to their home countries where they feared persecution is unlawful as it breached their human rights..

HJ and HT are both homosexual men and had been persecuted in their home countries – Iran and Cameroon respectively – after their sexual orientation had been discovered.

The court criticised the controversial policy, practised since 2006, of telling gay asylum seekers who feared prosecution in their home countries to hide their sexuality upon their return, rather than granting them asylum.  In the Court of Appeal the men’s barrister had referred to this as an “Anne Frank” policy, in that, like Anne Frank, the men would be safe if they hid from authorities but not if they didn’t.

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Human right to education a “weak right”?

7 July 2010 by

A recent Supreme Court decision has reopened a debate on whether it can properly be said that there is a human right to education under the European Convention on Human Rights.

We posted last week on the decision in the Norther Ireland matter of JR17, where The Supreme Court found that there was no breach of a pupil’s right to education where he was unlawfully suspended from school but was provided with work to do and home tutoring.

Today Aidan O’Neil QC, writing on the UK Supreme Court Blog, provides an interesting analysis of the European case-law on the right to education. He also points out that the right to education exists as a protocol (effectively an appendix) rather than in the main body of the European Convention as “no consensus could initially be reached about the recognition of these claims as being fundamental rights.

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Torture inquiry details announced

6 July 2010 by

Binyam Mohamed

The details of the forthcoming wide-ranging public inquiry into British complicity with “rendition” and torture abroad have been announced by the Prime Minister.

He also announced the public release of guidance, formerly secret, on the questioning of suspects overseas, and that a new committee is to review the use of secret evidence in court proceedings.

The statement can be read in full here. Contrary to some reports, the new inquiry is to be judge-led. It will be headed by Sir Peter Gibson, a retired Court of Appeal Judge, who amongst other things headed up the Omagh bombing intelligence review in  2008, and currently is serving as the Intelligence Services Commissioner, a post which involves reviewing actions taken by the Secretary of State under the Intelligence Services Act 1994 and the activities of British intelligence.

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Human Rights Watch slams stop and search

6 July 2010 by

Human Rights Watch has released a comprehensive report into the Government’s controversial anti-terrorism stop and search powers.

The reportWithout Suspicion Stop and Search under the Terrorism Act 2000 – runs to 64 pages and seeks to systematically dismantle the case for area-based stop and search under  section 44 of the Terrorism Act 2000, which allows the police to stop and search without suspicion. Responding to proposals to cut the scope of the scheme, the reports states:

… we believe that even if the law were improved——if its geographic scope were permanently narrowed or its use restricted to specialist officers——the reforms would not entirely address the risk of arbitrary use, including profiling of ethnic minorities or stops of children. It is impossible to give clear guidance to officers on the use of a power that requires no reasonable suspicion. The risk of arbitrary use also makes the power incompatible with the traditional discretion given to UK police officers in course of their duties. The use of section 44 compromises the UK’’s human rights obligations and is counterproductive.

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Master of the Rolls calls for more restraint from Strasbourg judges

6 July 2010 by

The Master of the Rolls Lord Neuberger has given the first lecture to the meeting of the newly-formed the European Circuit of the Bar. Along with the contributions of Lord Judge, Lord Hoffmann and Lady Justice Arden, this address forms part of an elegant but increasingly intense debate that reflects unease about Strasbourg.

At the end of his speech Lord Neuberger calls for a “dialogue” with the European Court of Human Rights that

will require from Strasbourg a more acute appreciation of the validity of the differential approaches by Convention states to the implementation of rights…Strasbourg might well benefit from developing the margin of appreciation to take greater account of practical differences which arise between Convention states and their implementation of high level principles.
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Spy cameras to be regulated following criticisms

6 July 2010 by

The Coalition Government is to introduce a system of statutory regulation to govern the use of automatic number plate recognition (ANPR) cameras, responding to criticism of its scheme in Birmingham which was said to be targeting Muslim residents.

As we posted recently, ANPR cameras were controversially introduced in two predominantly Muslim areas of Birmingham under a scheme funded by an counter-terrorism initiative; the cameras have since been covered with plastic bags while a consultation process is undertaken

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Illegal video supply convictions stand despite failure to comply with European law

3 July 2010 by

Regina v Budimir and another; Interfact Ltd v Liverpool City Council [2010] EWCA Crim 148; [2010] EWHC 1604 (Admin); [2010] WLR (D) 166

CA and DC: Lord Judge CJ, David Clarke, Lloyd Jones JJ: 29 June 2010 – read judgment

A new High Court decision has struck a blow for legal certainty and enforced the sometimes forgotten right under human rights law against retrospective criminal sanctions, which applies even in cases where the UK had failed to enact European Community legislation. In this case, the lack of retroactivity meant that a company and two men could not have their convictions for supplying videos illegally quashed.

The High Court held that where defendants had been convicted of criminal offences under national legislation which was unenforceable owing to a failure by the UK to comply with a pre-enactment procedural requirement imposed by EU law, it was not incumbent upon the Court of Appeal to re-open their cases out of time unless their convictions had given rise to any substantial injustice.

The Video Recordings Act 1984 made it an offence to supply pornographic videos “from” rather than “in” a licensed sex shop (Section 12); it was also an offence under the Act (Section 10 (1)) to supply videos with no classification certificate. The applicants had been convicted under these sections in 2004 and 2008 respectively.

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Human rights news and case-law roundup

2 July 2010 by

Delicious!

We recently started adding links to interesting new articles and case-law the sidebar under the heading “Recent selected sources (del.icio.us)”. Below is a quick rundown of the most recent links. The full list of links can be found here.

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Government asking for views on civil liberties on “Your Freedom” website

1 July 2010 by

The Coalition Government has today launched the “Your Freedom” website, “giving people the opportunity to suggest ideas on restoring liberties that have been lost, repealing unnecessary laws and stripping away excessive regulation on businesses”.

The website can be accessed here, although it appears to be having some bandwidth issues at the moment. Amongst other things, it asks the public “which current laws would you like to remove or change because they restrict your civil liberties?” According to the Number 10 press release, the answers will be taken into account in the Freedom Bill later this year.

In its Program for Government, the Coalition promised a “Freedom” or “Great Repeal Bill”, which is a marrying together of the two parties’ manifesto promises (the Liberal Democrats and Conservatives respectively). Whether the eventual legislation will be as wide-ranging as the draft Bill published by the Liberal Democrats is not clear, although interestingly a substantial number of the Bill’s proposals made it into the Coalition agreement, notably children’s biometrics, freedom of information, trial by jury, ID cards, DNA, regulation of CCTV and the right to public assembly.

Human rights on the battlefield – a postscript on ‘dicta’ (and ‘dicta’)

1 July 2010 by

Even if technically obiter, it is suggested that the reasoned decision of the majority of the Supreme Court in Smith is likely to be regarded as binding in practice, if not in strict theory.

This is a postscript to Adam Wagner’s post this morning on the UKSC decision in R (Smith) v. MOD (see our post summarising the decision or read the judgment), commenting on the debate as to the authority of the judgment of the majority on the jurisdictional issue.

It may be worth bearing in mind the weight likely to be accorded by any lower court to the views of the majority of a 9 judge constitution of the Supreme Court.  Even if not technically binding, it is hard to imagine any judge at first instance, or even the Court of Appeal, having the courage to depart from the reasoned views of the majority on this point, unless arising in some unforeseen or unusual factual context.

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