Lotfi Raissi, a pilot accused of being one of the 9/11 plotters, has been told by the Ministry of Justice that he is entitled to compensation for the effect that the accusations have had on his life. The announcement comes 9 years after his prosecution began.
Commentators have been scathing of the Government’s handling of the case. Afua Hirsch in The Guardian says that the case highlights “the unrestrained assaults on individual rights in response to allegations of terrorism and the long, drawn-out process of establishing the truth in the courts” and
The row over proposals to detain terrorist suspects for 90 days without charge takes on a surreal quality when looking at a case such as Raissi’s. The US authorities’ use of extradition proceedings – ensuring the co-operation of the CPS – became “a device to circumvent the rule of English law that a terrorist suspect could (at that time) be held without charge for only seven days”, the court of appeal said in a judgment of the case in February 2008.
Finally, eight years after he was released by order of the courts, the Ministry of Justice has said that he is to be regarded as “completely exonerated”. The length of time it has taken the Government to reach that conclusion is nothing short of disgraceful.
Lord Phillips, the head of the Supreme Court, spoke to lawyers this week on the future of the Human Rights Act 1998, which the Conservative Party have threatened to repeal. He said that now that the Act is in place, it would be very difficult to imagine a court ignoring the rights enshrined by it, even if it were repealed.
We will post the full speech if and when it becomes available. In the mean time, Afua Hirsch writing in the Guardian summarises his argument (reproduced after the page break below).
On a second-hand reading, it does seem somewhat hopeful to assume, as Lord Phillips appears to, that if the Act were repealed courts would still place rights in anything like the central position they have been since the its passing, largely through momentum. Lawyers tend to concentrate on points which win cases, rather than on first principles, and whilst human rights were a relevant consideration before the Act’s passing (judgments of the European Court of Human Rights were persuasive but not binding), they amounted to little more that.
That said, the Conservative party have pledged to replace the Act with something similar, a Bill of Rights. It is not yet clear what form it will take, but it is highly likely that the European Convention on Human Rights will be the starting point for its drafting, and it is likely to be a recalibration rather than a replacement. As such, human rights are most probably “here to stay”, but we should not overestimate the constitutional power of judges, or underestimate the power of Parliament to set the legal agenda.
Adetoro v United Kingdom (Application no. 46834/06, ECtHR)
The European Court of Human Rights has ruled that there was no violation of of the European Convention on Human Rights when a man was convicted after the judge failed to direct a jury properly in relation to the Defendant’s silence in a police interview.
The Court found there was no violation of Article 6 as the Defendant had not been convicted on the strength of his silence alone and there had been no unfairness in the trial as a whole.
The Applicant had been convicted of offences relating to a string of robberies. When interviewed by the police he had answered “no comment” to questions in relation to his movements recorded by police surveillance, association with other persons and whereabouts when the robberies were occurring. At trial, he admitted involvement in dealing in stolen cars and claimed that this explained the matters which the police had observed. He explained his silence on the basis that he did not wish to incriminate others.
In summing up, the judge omitted from his direction to the jury words to the effect that no inferences could be drawn from the Applicant’s silence unless its members were satisfied that the reason for his silence was that he had no answer to the questions asked or none that would stand up to scrutiny.
Google have announced the launch of a new Government Requests tool, which according to the Official Google Blog aims to “give people information about the requests for user data or content removal we receive from government agencies around the world.”
According to the tool, the UK currently ranks number 2 in Europe for information removal requests, behind Germany, and 3rd in the world for data requests, behind the US and Brazil.
It appears that the internet search company, whose unofficial corporate motto is “Don’t be Evil“, is attempting to make up for recent public controversies over censorship in countries where rights to freedom of information and expression are lacking. Google has had a particularly rocky relationship with China, who insisted that certain sites were blocked from Google search. After public pressure and a number of public confrontations, Google have recently moved operations to Hong Kong and shut down the search service completely.
Yesterday’s announcement begins by quoting the Universal Declaration of Human Rights, which is similar to the European Convention on Human Rights. It says:
A prisoner is suing the UK Government in the European Court of Human Rights for the right to vote in the upcoming General Election. With voting registration already closed, he won’t be voting in the election, but he may receive compensation. This could open the door to claims from tens of thousands of prisoners in the UK.
The BBC reports that Leon Punchard, 19, who is serving an 18-month sentence at Norwich prison for burglary, has filed an application to the European Court for a declaration and compensation.
The Government insists that it is still considering the responses to its second stage consultation on the issue, despite it closing over six months ago. With voter registration for the 2010 General Election closing on 20 April, prisoners will not get their chance to vote in a general election for at least a few more years.
However, Mr Prichard may well win a compensation payment from the UK Government, which the European Court of Human Rights has the power to award in cases where a contracting state has breached a citizen’s human rights. This could open the door to the other 87,883 serving prisoners to bring their own legal actions.
The Supreme Court has unanimously ruled that lifelong requirements for sex offenders to notify the police when they move house or travel abroad are a breach of Article 8 of the European Convention on Human Rights. 24,000 former offenders will potentially be affected by the decision.
Under section 82 of the Sexual Offences Act 2003 all persons sentenced to 30 months’ imprisonment or more for a sexual offence become subject to a lifelong duty to keep the police notified of where they are living and when they travel abroad. Crucially, there is no right to a review of the necessity for the notification requirements.
The Respondents were convicted sex offenders. Both challenged the notification requirements by way of judicial review, on the basis that the requirements were a disproportionate manner of pursuing a legitimate aim of preventing crime and therefore breached their rights under Article 8.
Lord Philips gave the leading judgment. He emphasised that the question (as in the case of all human rights claims involving a “qualified” right in general and Article 8 in particular) was one of proportionality, and that the correct test, as had been set out in previous decisions, was:
whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective (para 17)
The Court went on to discuss UK and European authorities, and in particular referred to the Marper judgment, which we discussed earlier this week in relation to the retention of DNA samples (para 31). The European Court of Human Rights had been particularly concerned that in cases involving DNA there was no provision for independent review, as was the case with the notification requirements in this appeal.
The Court were concerned about risks of disclosure to third parties inherent in offenders having to visit police stations to report. They said:
MAK and RK v United Kingdom (Application Nos 45901/05 and 40146/06) European Court of Human Rights March 23, 2010 – Read judgment
The taking of blood samples and photographs of a child by the medical authorities in the absence of the parents violated the child’s and parents’ rights to respect for their private and family life under Article 8 of the European Convention, and the inability of the parents to take an action for damages at common law against the hospital breached their right to a remedy under Article 13.
The applicant M.A.K was the father of R.K., who was born in 1989. In 1997 and again in 1998 M.A.K. took her to their family doctor because he, his wife and their daughter’s swimming teacher were concerned about what appeared to be bruising on her legs. This was followed by a visit to a paediatrician who had blood samples and pictures of the girl taken in the absence of either of the parents and despite the father’s indication that any tests should be done in the mother’s presence or with her explicit consent. The paediatrician concluded, after examining the girl’s genitalia and legs, that she had been sexually abused and informed the social workers.
One of the main human rights debates of the General Election is whether the Human Rights Act 1998 will be replaced with or bolstered by an American-style Bill of Rights.One aspect of the debate which has been mostly ignored in the British media has been the impact which a Bill of Rights would have in Northern Ireland.
The need for an additional human rights framework that reflects the particular circumstances of Northern Ireland was recognised in the Belfast Agreement and given shape through the commitment to set up a Bill of Rights Forum as part of the St Andrews Agreement… The fundamental principle of mutual respect for the rights and freedoms of all the people of Northern Ireland has been at the heart of this progress, and still has a crucial role to play in its future success.
The Northern Irish Human Rights Commission responded in February, welcoming the proposal to produce a separate Bill of Rights. However, the Commission was sharply critical of the tone and content of the substantive proposals. Amongst other things, it accused the proposal of failing to take appropriate account of international standards and of suggesting that existing human rights standards are actually lowered.
The Committee for the Administration of Justice (CAJ), an independent human rights organisation, have also recently published their own response to the interim report, and have also argued that the proposals are too weak and do not go far enough in increasinghuman rights protections. CAJ say:
A Bill of Rights is one of the final parts of the human rights jigsaw; it ensures that rights currently enjoyed cannot be taken away at the whim of any government. It is intended to ensure, in a divided society, that whoever exercises governance over this disputed ground cannot rule without respecting the rights of everyone who lives here. It also ensures that those who are not or do not identify primarily as part of the two main communities will have their rights respected also.
The Bill of Rights for Northern Ireland is clearly in its early planning stages, and may not go ahead at all. That said, it is more advanced than English and Scottish proposals, which, if they ever happen, will certainly not do so until long after the Election.
This was an appeal against the decision of the judge at first instance granting the local authority a full care order and placement order in respect of the appellant mother’s children. One of the children had been admitted to hospital as a baby with a fracture injury that was diagnosed as being non-accidental, following which both children were immediately taken from their parents’ care and placed with their maternal grandmother.
A later fact finding hearing determined that the baby’s injury had probably been caused by her father and that the mother had failed to protect the baby, although the judge did find that the mother had very many good qualities and her parenting abilities, per se, were not in issue, and that apart from the fracture injury there was no evidence that the children had suffered any harm.
Maya Evans, an activist, is brining a judicial review against the Ministry of Defence in respect of the British Army’s detainee transfer policy in Afghanistan. It is alleged that British forces knew of the torture risks when handing over prisoners to the Afghan security services.
This is the latest in a series of cases where the Government have been criticised in the courts for defence policies in Iraq and Afghanistan. In 2007, the House of Lords (the old Supreme Court) inAl-Skeinieffectively opened the door to such claims by foreign nationals by holding that the Human Rights Act applies outside of the UK.
The most notable recent example is the Binyam Mohamedcase, where the Court of Appeal heavily criticised the security services. Similar issues in relation to secret evidence appear to have arisen in Evans, with The Guardian reporting:
So concerned is the Ministry of Defence about the challenge to the practice, that it is insisting that evidence it had passed to her lawyers must now be suppressed.
As a result, skeleton argument from her lawyers – a document consisting of an outline of the case – includes a number of passages blacked out at the insistence of the MoD.
Following one long excised passage, the document revealed in court today reads: “The lessons from these shocking events is … investigation by the NDS [Afghanistan’s National Directorate of Security] is obviously incapable of providing any satisfaction of the UK’s human rights obligations.”
Our posts on the Binyam Mohamed litigation can be found here, here, and here
Our case comment on R (Mazin Mumaa Galteth Al Skeini and others) v Secretary of State for Defence
The University of Salford have informed us that they will be hosting the first post-election Human Rights conference, which aims to address these issues. The Conference also coincides Human Rights Act 1998’s tenth birthday.
The Conference is ‘Ten years on’: A Multi-perspective Evaluation of the Human Rights Act – Salford Human Rights Conference 2010″, at the University of Salford on Friday and Saturday 4-5 June 2010. Full details can be found here and a list of speakers here.
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).
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