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Human Rights Watch has released a comprehensive report into the Government’s controversial anti-terrorism stop and search powers.
The report – Without 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.
The Master of the Rolls Lord Neuberger has given the firstlecture 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. Continue reading →
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
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.
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.
2 July | Police use of protest photos will face review– The Financial Times reports that the use of police databases containing thousands of photographs of demonstrators is to be reviewed by ministers as part of a government vow to expand the right to non-violent protest (a pledge made in the Coalition Program for Government).
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.
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.
The European Court of Human Rights has rejected the United Kingdom’s application to appeal its decision in a recent finding that stop and search powers enacted as part of anti-terrorism legislation breached human rights law.
In January 2010 the European Court held that section 44 of the Terrorism Act 2000 (the broad police power to stop and search without suspicion) violates the right to respect for private life guaranteed by Article 8 of the Convention on Human Rights (Gillan and Quinton v. UK4158/05 [2010] ECHR 28 (12 January 2010)). The claimants received £500 each by way of compensation.
It is possible that yesterday’s controversial Supreme Court decision on human rights on the battlefield was merely an academic exercise and therefore not binding on future courts.
There has been significant commentary and conjecture over the decision in R (Smith) v Secretary of State for Defence & Anor (see our post or read the judgment). The Supreme Court seemed to have decided by a 6-3 majority that the Human Rights Act did not apply once a soldier stepped out his or her base, therefore reversing a previous decision by the Court of Appeal that it did.
But the most interesting comments from a legal perspective have been on the question as to whether the decision was in fact binding. Adrian O’Neil QC picked up the point in an interesting commentary piece on the UK Supreme Court Blog.
The Mayor of London v Hall & Ors [2010] EWHC 1613 (QB) (29 June 2010) – Read judgment
The Mayor of London has won a court order to evict a camp of protesters from Parliamentary Square, with the High Court stating that his response to the protest was proportionate and not a breach of the protesters’ human rights.
The protesters have gained a temporary reprieve by appealing the decision, and according to their website have therefore delayed their eviction until at least 4pm on Friday 2 July
As we posted earlier this month, during the build-up to the General Election a number of protesters erected tents and flags in Parliament Square, a green outside the Houses of Parliament. The protesters named the site “Democracy Village”. Boris Johnson, the Mayor of London, launched an action for possession against the protestors, who he claimed were trespassing on Parliament Square.
R (Smith) v Secretary of State for Defence & Anor [2010] UKSC 29 – Read judgment
The Supreme Court has ruled by a 6-3 majority that the Human Rights Act does not apply on the battlefield and soldiers are not automatically entitled to inquests arising from deaths in foreign conflicts.
The case related to Private Jason Smith, a member of the Territorial Army who died from heatstroke in Iraq in 2003.
The decision has come as a relief to the Ministry of Defence. In recent years, coroners have been highly critical of the armed forces’ protection of soldiers on the battlefield, and this case had the potential to open up the Government to a series of claims for compensation by soldiers and their relatives. However, the Supreme Court has (narrowly) taken the view that the Human Rights Act 1998 was not designed to apply in such cases.
The Mayor of London has won a court order to evict a camp of protesters from Parliamentary Square. The protesters have won a temporary reprieve by appealing the decision.
As we posted earlier this month, during the build-up to the General Election a number of protesters erected tents and flags in Parliament Square, a green outside the Houses of Parliament. The protesters named the site “Democracy Village”.
Boris Johnson, the Mayor of London, launched an action for trespass against the protestors.
The Queen on the Application of Janet Harris (Appellant) v London Borough of Haringey (Respondent) and Grainger Seven Sisters Ltd (2) Northumberland And Durham Property Trust Ltd (Interested Parties) and The Equality and Human Rights Commission (Intervener) [2010] EWCA Civ 703 22 June 2010 – read judgment
In granting planning permission for redevelopment of a site in an area made up predominantly of ethnic minority communities, a local authority had failed to discharge its duties under the Race Relations Act 1976 s.71(1)(b) as the requirements of s.71 had not formed, in substance, an integral part of the decision-making process –
The appellant challenged a decision to grant planning permission to the first interested party (“Grainger”) for the development of a site in Tottenham which incorporated an indoor market. The grant permitted the demolition of all the business and residential units on the site, and erection of mixed use development with parking and “public realm improvements”. Continue reading →
Secretary of State for Home Department (Respondent) v AP (Appellant) (no 2) [2009] EWCA Civ 731 Supreme Court 23 June 2010
AP, who had been subject to a control order and who now continued to live at the same address under bail pending a deportation decision on grounds of national security, was entitled to continuing anonymity because of the risks he faced if his identity were revealed – read judgment
We posted recently on a ruling by the Supreme Court that the social isolation of a suspected terrorist suspect subject to a control order rendered the order unlawful. It will be remembered that the appellant, an Ethiopian national, had been suspected of involvement in terrorist activities. The Secretary of State only withdrew her decision to exclude him from the UK when she was granted permission to make a control order against him, which was later modified to prevent him from contacting extremist affiliates in London by moving him to an address in the Midlands.
In the matter of an application by ‘JR17’ for Judicial Review (Northern Ireland) [2010] UKSC 27
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 – read judgment
A pupil was suspended from school after a complaint from a female pupil about the pupil’s alleged misconduct in school. His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a Scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The principal purported to suspend the pupil in accordance with the Scheme but in fact failed to comply with its requirements. The pupil brought proceedings for judicial review, claiming that the suspension was unlawful and breached his right to education pursuant to Article 2 of the First Protocol of the European Convention on Human Rights, which the Human Rights Act 1998 protects. The Article provides:
No person shall be denied the right to education…
The Court of Appeal made a finding that, although the Scheme had not been complied with, the principal had lawfully exercised a common law power to suspend the appellant.The Supreme Court found that there was no such common law power but that the pupil’s right to education had not been breached by the suspension. During his suspension, work was provided to the boy to do at home and home tuition was arranged.
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Human Rights Watch has released a comprehensive report into the Government’s controversial anti-terrorism stop and search powers.
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