KENNEDY v. THE UNITED KINGDOM – 26839/05  ECHR 682 (18 May 2010) – Read judgment
The European Court of Human Rights has held that the UK’s Regulation of Investigatory Powers Act (RIPA) does not breach Article 8 of the European Convention on Human Rights, the right to private life or Article 6, the right to a fair trial. The judgment is timely, with the new Government debating at present whether intercept evidence should be allowed to be used in court.
The case has a long and intriguing history. On 23 December 1990, Mr Kennedy was arrested for drunkenness and taken to Hammersmith Police Station. He was held overnight in a cell shared by another detainee, Patrick Quinn. The next day, Mr Quinn was found dead with severe injuries. Mr Kennedy was charged with his murder. He alleged that the police had framed him for the murder in order to cover up their own wrongdoing. He was subsequently was found guilty of the murder of Mr Quinn and was sentenced to life imprisonment.
R (on the application of Dennis Gill) v Secretary of State for Justice – Read judgment
The Secretary of State for Justice should have done more to enable a prisoner with learning difficulties to participate in programmes which could have helped him gain an earlier release. In finding that the prisoner was discriminated against, the High Court has set down a precedent which will affect many other learning disabled prisoners.
Mr Justice Cranston held that participation in offender behaviour programmes would have made it easier for Mr Gill to persuade a Parole Board that he was suitable for release. His participation in them had been recommended but his learning difficulties had prevented him from taking part, and as such the Secretary of State for Justice had discriminated against him contrary to the Disability Discrimination Act 1995.
We posted this morning on the case of the “Pathway students”, in which two suspected terrorists used human rights law to avoid deportation due to fear of torture. Almost immediately after the decision was announced, the BBC reported that a “commission” is to be set up to address the future of the Human Rights Act. Has the case prompted a swift reconsideration of the Coalition’s position on human rights?
Probably not. It would appear that a commission to review the 1998 Act will be set up, as part of a wide raft of civil liberties reforms to be announced by Deputy Prime Minister Nick Clegg later today. However, the timing of the announcement alongside the terror decision is probably coincidental and the commission is likely to have been planned since last week’s Coalition agreement.
Abid Naseer, Ahmad Faraz Khan, Shoaib Khan, Abdul Khan and Tariq Ur Rehman (Appellants) v Secretary of State for the Home Department (Respondent), Special Immigration Appeals Commission, 18 May 2010 – Read judgment
Two men suspected of attempting to mount a mass casualty attack can stay in the UK because they risked ill treatment if they were to be sent back to Pakistan. Rosalind English examines whether the extra territoriality reach of Article 3 makes a mockery of the core protections provided by European Convention on Human Rights.
Risk of torture
The alleged operatives appealed against deportation orders/refusals of re-entry on the grounds that they risked ill treatment contrary to Article 3 of the European Convention on Human Rights at the hands of the Pakistani security services. Appeals against deportation were upheld because the reassurances as to the safety of their return was based on evidence that could not be disclosed in open court.
British Airways Plc v Unite the Union Queen’s Bench Division, 17 May 2010 – Read judgment
Update (07/06/20) – this decision was reversed by the Court of Appeal on 20/05/10. We will comment on the Court of Appeal decision when it is available.
The High Court has granted an injunction for the second time in 6 months against a strike planned by British Airways cabin crew, scheduled to begin today. Those who had trips planned will be delighted, but the Unite trade union who represented the workers have called the decision a “landmark attack on free trade unionism and the right to take industrial action” and are to appeal the judgment.
The union argued that a recent series of similar injunctions against strike action ran foul of the Human Rights Act 1998. Article 11 of the European Convention on Human Rights grants the right to freedom of assembly. However, the right can be restricted in certain limited circumstances, as it was in this case.
Moulton v Chief Constable of the West Midlands  EWCA Civ 524 (13 May 2010) – Read judgment
The Court of Appeal has rejected an appeal by a man acquitted of rape as well as his argument that the law of malicious prosecution should be changed in order to bring it into line with Article 5 of the European Convention on Human Rights, the right to liberty.
In 2000, Kirk Moulton spent Christmas in jail due to administrative errors by the police. However, unlike in other jurisdictions it is not possible in England to sue the police for damages for negligence. Claims for ‘malicious prosecution’ are possible, but they are notoriously difficult to prove as the aggrieved person has to show the police acted with malice. Mr Moulton’s lawyers argued that the lack of a remedy for police maladministration meant that English law ran contrary to human rights law. But the court, whilst showing sympathy, rejected the argument. As a result the bar for claims against the police remains dauntingly high.
The Coalition Government is only a few days old but it is already receiving a cautious welcome from civil liberties commentators and bloggers, with all eyes on significant policy commitments in the Con-Lib deal. The previous government enacted major civil liberties legislation within a year of taking power; the question now is whether the Coalition has the time, will and co-operative potential to fulfil its lofty promises.
In its final years, New Labour was regularly criticised on civil liberties issues, particularly in relation to anti-terrorism law. But it is undeniable that within around a year of coming to power it had enacted a major piece of civil liberties legislation in the Human Rights Act 1998, which was followed shortly after by two others; the Data Protection Act 1998 and Freedom of Information Act 2000. Some, such as the Human Rights in Ireland Blog, say that sadly this was a high water mark and not to be repeated.
The Con-Lib coalition has already made significant early promises. The focus of commentators has been on the cabinet appointees who will influence law and order policy, as well as the surprisingly full civil liberties section in the Con-Lib Coalition agreement. Just as important, however, is what has been left out.
We are pleased to announce that the UK Human Rights Blog has joined the new Guardian Legal Network.
The Guardian’s website launches its Legal Network today. This “brings together the best blogs and sites that cover legal affairs and developments from around the world” and we are delighted to have been asked to be a partner in this project.
The Guardian will be featuring content from our blog, and we welcome new followers who have arrived here by this route. You can subscribe to free email alerts by entering your address in the ‘Email Subscription’ box (below and to the right), or follow us on Facebook or Twitter.
Update 18/05/10 – our article featured on the new site, and another one here
We posted earlier this week on whether those who were locked out from voting in the 2010 General Election can claim for compensation under the Human Rights Act 1998 (read our post here). Liberty are asking spurned voters to contact them with a view to further legal action. But Joshua Rozenberg argues in this morning’s Law Society Gazette that those voters will face significant difficulties finding a legal remedy.
Our post concentrated on potential remedies under the Human Rights Act 1998, highlighting that the European Court of Human Rights has been reluctant to award monetary compensation in the past. The European Court has generally held that the “just satisfaction” remedy under human rights law was fulfilled by the fact that criticism from the court would lead to a change in the respective State’s voting system. As such, financial compensation to reflect the breach of the voters’ rights was not seperately awarded. It should be noted, however, that many of the recent cases involved prisoners and ex-convicts being barred from voting. We concluded that
Jack Straw, the Justice Secretary, has already said that the problem “shows a lack of foresight and preparation”, so it seems unlikely that voters will be left without a remedy, and that may come in the form of compensation probably by way of an out of court settlement… However, how much that will be is by no means clear, and it may be difficult to prove in practice that a person was prevented from voting as a direct result of administrative difficulties.
What about trying to get the election re-run in a constituency where a lot of people were unable to vote? A dissatisfied voter may present a petition which may be tried by an election court. But there is little chance of a second poll unless the number of people who were locked out in a particular constituency is more than the winning candidate’s majority. Even then, there might need to be some evidence that the non-voters were likely to have supported the candidate who came second rather than, as seems more likely, that they would have voted in proportion to the constituency as a whole.
That is because section 23 of the Representation of the People Act 1983 says that ‘no parliamentary election shall be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty… if… the election was so conducted as to be substantially in accordance with the law as to elections and the act or omission did not affect its result’.
It will be clearly be difficult for spurned voters to bring claims. However, there is a strong duty imposed by human rights law on the State to conduct free and fair elections. Further, it seems that at least some of the constituencies where voters were turned away were ultimately decided by a small majority. This is unsurprising, as one would expect turnout to be higher in places where people expect the vote to be close. So, the uphill climb which spurned voters face may still lead to some kind of legal remedy.
ZN (Afghanistan) (FC) and others (Appellants) v Entry Clearance Officer (Karachi) (Respondent) and one other action, UKSC 21. Read judgment
The Immigration Rules, which applied lighter requirements for entry clearance for the dependants of persons granted asylum than for other British Citizens, should be interpreted to mean that a person should always be a refugee for the purposes of Rule 352D even though that status has technically expired on grant of citizenship.
This appeal raised a question the true construction of the Immigration Rules, House of Commons Paper 395 (‘HC 395’): what rules apply to family members seeking entry to the United Kingdom, where the sponsor has been granted asylum and has subsequently obtained British citizenship. Put another way, the issue was whether the sponsor must enjoy refugee status at the time his spouse or child seeks to join him under the paras 352A and 352D.
The appointment of Ken Clarke as the new Justice Secretary may have saved the Human Rights Act 1998 from repeal. The Conservative plans for the Act to be replaced with a Bill of Rights may be scrapped in any case under the full terms of their agreement with the Liberal Democrats. In the mean time, supporters of the Act will be encouraged by supportive statements by the new Justice Secretary.
The policy agreement between the two parties has now been published, and the Human Rights Act is notable by its absence under section 10, entitled “Civil Liberties”, which promises to “reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion“. What the agreement does promise, amongst other things, is the scrapping of the ID card scheme and the Contact Point Database, extending the scope of the Freedom of Information Act and protecting the right to trial by jury. There will also be a “Great Repeal” or “Freedom” bill.
No withdrawal from the European Convention
Whilst the Human Rights Act is not mentioned in the document, its supporters will take heart at the new Justice Secretary Ken Clarke’s comments on today’s BBC The World At One. He said ”We are not committed to leaving the European Convention on Human Rights, we have committed ourselves to a British Human Rights Act. We are still signatories to the European Convention on Human Rights”. He continued that he has “also got to see when the coalition agreement is completed how high a priority this is going to be given.”
Whilst he may have hedged his answer, Mr Clarke gave an even clearer indication of his views in 2006, when David Cameron first announced his plans to repeal the Human Rights Act. He said that “I think he’s going to have a separate task force on the Bill of Rights, isn’t he? He’s going out there to try to find some lawyers that agree with him, which I think will be a struggle myself.” Even more strikingly, he went on to describe the presentation of the Act as a foreign invention to be “anti-foreigner” and that “I think the Convention of Human Rights was written by a Conservative lawyer after the war. It was a British document“.
Ken Clarke, well known within his party as a fan of European integration, is to be the new Lord Chancellor and Secretary of State for Justice. Like his predecessor Jack Straw, he started out as a barrister and became a QC in 1980 whilst he was already part of the Thatcher Government. His views will be key in shaping the new Government’s policies towards civil liberties.
Safety for the 1998 Act?
The coalition partners have opposing policies towards the Human Rights Act, and the policy agreement suggests that these remain. In their manifesto, the Conservative Party pledged to repeal the Human Rights Act, a key early New Labour reform, and replace it with a Bill of Rights. The form and content of the Bill has remained deliberately vague. By contrast, the Liberal manifesto promised to “ensure that everyone has the same protections under the law by protecting the Human Rights Act.”
Of course, Mr Clarke’s 2006 comments do not necessarily reflect his views now, and his word will not be final when it comes to policy. Further, it is notable that the Act’s repeal, a well publicised plank of the Conservative Party manifesto, has been left out of the draft policy agreement. Given that the civil liberties section is fairly detailed, this is probably deliberate. It may be that a Bill of Rights in some form is still on the policy agenda, perhaps to work in tandem with, rather than as a replacement to, the Human Rights Act.
It is also notable that the Liberal Democrats’ longstanding policy to introduce a written constitution, which some commentators argue would be the best way of enshrining and protecting the Human Rights Act in future, is also absent from the policy agreement.
However, on balance it seems likely that the new Justice Secretary’s pro-European outlook and past comments, an addition to the Liberal Democrats’ manifesto commitment to protect the Human Rights Act, puts the Human Rights Act in a far stronger position than it would have been in the face of Conservative majority parliament.
Lord Neuberger, the Master of the Rolls (head of the Court of Appeal), has only been in post for six months but has already made significant waves, particularly in a series of judgments on the impact of terrorism law on civil liberties. In a speech yesterday, he discussed the experience of having his judgment censored during the Binyam Mohamed appeal.
He used an old Woody Allen joke to describe the experience, saying that his “favourite of his aphorisms is I’m not afraid of dying – I just don’t want to be there when it happens.” He continued that the this has some resonance for him now, as “I’m not afraid of changing my judgments – I just don’t want to be there when I do.”
The tone of the speech was light – Lord Neuberger has been praised for his unusually (for a judge) affable manner – but it does provide an opportunity to take stock of the Master of the Rolls’ eventful first six months in post.
An eventful six months
Lord David Neuberger turned down the chance to be an inaugural member of the UK Supreme Court in order to head up the Court of Appeal, the second highest appeal court. He had already been highly critical of the evolution of the House of Lords to the Supreme Court. Six months later, it already seems clear that the Court of Appeal under its new Master of the Rolls is to be an activist court, and particularly in relation to civil liberties.
We posted last week on the three provocative linked judgments, each written by Lord Neuberger and Lord Justices Maurice Kay and Sullivan, released as a triptych on the same day. The appeals all related to terrorism legislation, and each judgment sought to limit the ability of the Government and security services to keep evidence secret – from the public and even the parties to the litigation – in civil trials. A fourth, relating to control orders in a criminal context, was also released on the same day.
The security services will see the judgments as a fly in their ointment, arguing that the protection of the public from terrorism sometimes trumps the principle of open justice, that justice is done but is also seen to be done. The Government will say in the inevitable appeals to the Supreme Court that the Court of Appeal judgments have stymied their ability to fight terrorism, making it impossible in future for the security services to keep sensitive information from the public domain.
Censorship and the Binyam Mohamed affair
Whilst the three linked judgments were important, by far the most controversial incident involving Lord Neuberger’s court was the censoring of part of a judgment in an appeal relating to Binyam Mohamed (see our post). The court ordered that an email concerning MI5’s knowledge of Mr Mohamed’s alleged torture be disclosed. But part of Lord Neuberger’s judgment, the now notorious paragraph 168, was sharply critical of MI5’s involvement in the material events as well as their conduct in the litigation. Upon an application by the Government, the paragraph was briefly sanitised, and then eventually restored to its original wording.
Lord Neuberger spoke about the experience of “seeing one paragraph of a judgment being discussed in op-ed pieces, headlines. TV and radio bulletins and interviews, and, I imagine, the tweets.” He continued:
One thing the Binyam Mohamed case did teach me was that even a Master of the Rolls should not tempt fate. The day before we initially handed down judgment in the case, the Lord Chief Justice asked me how I was getting on with the new job after my first 20 weeks. Blithely ignorant of what was to happen the following day, tempting fate, I said that, for the first time I was beginning to feel in control of things. Let me tell you: one is never in control of things, above all when one thinks one is. As Woody Allen said, If you want to make God laugh, tell him your future plans. Although my favourite of his aphorisms is I’m not afraid of dying – I just don’t want to be there when it happens. I suppose that that has some resonance for me now: I’m not afraid of changing my judgments – I just don’t want to be there when I do.
The family courts were opened up to media scrutiny by the Justice Secretary Jack Straw at the end of April 2009. One year on, the Times legal editor reports that not only have family courts remained closed, but media access is even more restricted than before the reforms.
In a week where promoting open justice has been high on the Court of Appeal’s agenda in cases involving terrorism, Frances Gibb writes that the family courts are still sealed shut: “After a flurry of interest, the media have stopped reporting family cases in all but rare high-profile disputes because a restrictive reporting regime makes coverage meaningless.”
The Justice Secretary’s 2009 reforms were the outcome of years of campaigning by the media and pressure groups to open up the secretive family courts. The arguments had centred on the conflict between the privacy of those involved in proceedings versus the public benefit of open justice; a balancing exercise which all public authorities are now familiar with by virtue of Article 8 of the European Convention on Human Rights (the right to privacy). It is an often quoted principle of English law that justice must not just be done but be seen to be done, and it seemed that that the family courts were moving onto that side of the balance.
In the heady days of late April 2009, Camilla Cavendish, who had campaigned for the changes predicted that “more than 200,000 hearings involving sensitive and traumatic cases, and with decisions that will have a huge impact on the lives of children and their families, will now be open to media scrutiny.”
Recent weeks have seen considerable media attention paid to the role of inquests and their increasing significance for relatives of the deceased.
Article 2 of the European Convention on Human Rights, providing legal protection for everyone’s right to life, in some circumstances requires investigation into a death such as an inquest. It places a duty upon the state to ensure the investigation is properly conducted. This may entail providing funding, such as legal aid given to relatives so they may be represented at the hearing.
On 1 May 2010, The Times published “How coroners have become the public voice of grieving relatives” which considered the trend in recent years for coroners to take a role similar to that taken by a chair of a public inquiry. Frances Gibb wrote that David Ridley, a coroner in an inquest for two soldiers killed in Afghanistan, made comments which will give some comfort to grieving relatives. Only two days earlier, another coroner, David Masters, “castigated US authorities’ failure to cooperate in an investigation into the “friendly fire” deaths of three British soldiers”.
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