Challenge to new voter ID pilot dismissed by Court of Appeal

9 June 2020 by Jake Richards

The Government’s announcement that eleven local authorities across England would be taking part in voter ID pilots for the 2019 local elections was controversial. There is a heated debate as to whether citizens should have to provide photo identification before receiving their ballot at elections. For some, it is a straight-forward measure to avoid the risk of fraud. For others, it is a policy that, by design or inadvertently, leads to the disenfranchisement of certain groups.

This debate was not considered by the courts in the challenge to the legality of the pilot schemes brought by Mr Neil Coughlan, a former district councillor from Witham Essex. But the consequences of the decision of the Court of Appeal in R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 could be profound for our electoral law.

Sarah Everard vigil cancelled

13 March 2021 by Shaheen Rahman

Reclaim These Streets v Metropolitan Police

Sarah Everard, a 33 year old woman living in London, was walking home from a friend’s house at around 9pm on Wednesday 3^rd March 2021 when she disappeared without trace. In the days that followed, public appeals for information and press coverage ensured that the case was widely discussed. A profound sense of unease and desperation for her to be found alive was voiced by many, before the worst news was confirmed. Shockingly, a serving Metropolitan Police Officer has been charged with her kidnap and murder. 

The most important thing to say about the case is contained in the statement of Sarah Everard’s family.  They describe the sort of person that she was and what she meant to them.  

One former colleague of Sarah Everard sharing her own memories of her added 

she’s a real person, not some hanger on which to display your views about women.  

But the case has prompted a wider discussion about how the risk of violence and harassment against women going about their ordinary business has been normalised and accepted as part of everyday life, such that calculations as to how to minimise that risk have become second nature to many.  The MP Jess Phillips, speaking during a parliamentary debate to mark International Women’s Day said: “Killed women are not vanishingly rare.  Killed women are common”, before reading the names of every woman killed in the UK in the last year where a man has been convicted or charged as the main perpetrator, that exercise taking more than four minutes.

Against this background, an organisation called “Reclaim These Streets” (“RTS”) stated that they wished to “channel the collective grief, outrage and sadness in our community” and decided to hold “a short gathering on Clapham Common, centred around a minute of silence to remember Sarah Everard and all women lost to violence”.  The event was described as a “socially distanced vigil” having regard to the restrictions currently in place due to the Covid-19 pandemic.  It was scheduled to take place at 6pm on Saturday 13 March 2021, close to where Sarah Everard was last seen alive.

The European Court of Human Rights Uncovered

14 August 2015 by Adam Wagner

I am are delighted to announce the launch of RightsInfo’s new infographic project: 

The European Court of Human Rights Uncovered: What it does, who it protects, why it matters

If you care about spreading accurate information on human rights, then please share the infographic and individual cards as widely as possible.

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Court of Human Rights: five recent Article 10 cases – Hugh Tomlinson QC

21 January 2011 by Guest Contributor

Over the past month, the Court of Human Rights has handed down judgment in six Article 10 cases.  We have already posted about the most recent, MGN v United Kingdom. Of the other five, two involved civil defamation claims in domestic cases.  In both civil defamation cases it was held that the State had infringed the right to freedom of expression but there was no finding of violation in any of the other cases.  The reasoning is not straightforward in any of these cases and there are continuing doubts about the quality of the Court’s Article 10 case law.

The only “media case” amongh the five was Novaya Gazeta V Voronezhe v. Russia([2010] ECHR 2104) in which a unanimous First Section found a violation of Article 10 as a result of a domestic defamation award of RUB 25,000 (£525) and an order for the publication of an apology.  The applicant newspaper had published an article which concerned abuses and irregularities allegedly committed by the mayor of Novovoronezh and other municipal officials. It also made references to services supplied by a local businessman. The article relied on and quoted from a town administration audit report.  The domestic court allowed the plaintiffs’ action, holding in particular that the article implied the embezzlement of funds by the mayor and the businessman, of which the newspaper had failed to adduce any proof.  It pointed out that no criminal proceedings against the plaintiffs in connection with the audit of some of the financial matters in question had been opened and that the article thus lacked a factual basis.

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Hate speech and the meaning of “unacceptable behaviour”

26 April 2012 by Matthew Flinn

Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – read judgment

1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.

Late last year I posted about the case of Mr Mahajna, a national of Israel (but of Palestinian origin), who appealed against a deportation order issued by the Home Secretary under section 3(5) of the Immigration Act 1971 on the basis that his presence in the United Kingdom was not conducive to public good. To recap:

1. The Government has a list of “Unacceptable Behaviours” which forms the basis of its policy on excluding non-nationals under that provision. This includes actions expressing views which are likely to foster hatred and lead to inter-community violence in the UK (this policy was recent the focus of judicial consideration in the Court of Appeal in the case of R (Naik) v Secretary of State for the Home Department [2011] EWCA Civ 1546).
2. The Home Secretary relied on five pieces of evidence which were said to fall within the scope of the list of unacceptable behaviours and justify her conclusion that Mr Mahajna’s presence was not conducive to the public good.
3. The First-Tier Tribunal (FTT) examined those pieces of evidence. It concluded that the Home Secretary was entitled to conclude that they constituted examples of unacceptable behaviour and fell within the scope of the exclusion policy.
4. Although the order to deport Mr Mahajna constituted an interference with his right to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR) because he was unable to carry out a number of public speaking engagements in the UK, the views of the Home Secretary as to what was in the public interest were entitled to significant weight in assessing whether or not that interference was proportionate.
5. The FTT ultimately concluded that the interference was proportionate, and the deportation order was upheld.
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Lost renewables subsidies successfully claimed as human rights damages

13 February 2013 by David Hart KC

Ofgem (Gas & Electricity Markets Authority) v. Infinis) [2013] EWCA  Civ 70, Court of Appeal 13 Feburary 2013 read judgment, on appeal from decision of Lindblom J Read judgment and my previous post

This decision upholding an award of damages for a claim under Article 1 Protocol 1 (right to possessions) may seem rather straightforward to a non-lawyer. Infinis lost out on some subsidies because the regulator misunderstood a complex legal document.  It could not claim those subsidies any more, so it claimed and got damages from the regulator. But the relatively novel thing is that English law does not generally allow claims for damage caused by unlawful action by the state. And yet the Court of Appeal found it easy to dismiss the regulator’s appeal on this point.

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Police may have duty to inform victims of phone hacking

25 May 2011 by Adam Wagner

Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) (23 May 2011) – Read judgment

The police may have a duty under article 8 of the European Convention on Human Rights (the right to privacy) to inform members of the public that their phone calls have been intercepted. 

This was only a judicial review permission hearing, which means that the full “substantive” judicial review will still have to be argued at a later date. In short, the case is the latest in the long-running News of the World phone hacking affair (see this post and this one on Inforrm’s Blog for the latest developments).

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Article 12

1 June 2010 by Adam Wagner

Article 12 | Right to marry / found family

Read posts on this Article

Article 12 of the European Convention on Human Rights provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

There are therefore two constituent rights, marriage and founding a family, which have been explored and developed in the case law. Because Article 8 has proved such a reliable source for claims relating to family, relationships and home the jurisprudence on Article 12 itself is fairly thin. However it has been invoked in challenges to the government’s efforts to prevent sham marriage as a way of evading immigration controls. The Strasbourg Court has recognised that countries are entitled to restrict the rights of third party-nationals to marry in such circumstances: O’Donoghue v United Kingdom, 2010.

According to Karen Reid, the Strasbourg court takes a conservative view of Article 12: “the right to marry guaranteed by Art.12 refers to the traditional marriage between persons of opposite biological sex, which interpretation is supported by reference to to the founding of a family” (A Practitioner’s Guide to The European Convention of Human Rights, Sweet & Maxwell 2015, 5th edition). In the relatively recent case of Schalk and Kopf v Austria, Application no. 30141/04, 25 June 2010, the Court observed that the choice of wording “men and women” instead of “everyone” meant that the Article must be regarded as deliberate and seen in the context of the 1950s as marriage in the traditional sense.

But in the UK the position is different. Until recently English law has permitted civil partnerships for same-sex couples but prevented them from marrying.  But the campaign to allow civil partnerships to be registered in religious institutions and the legal challenge to UK law has led to the recognition of same-sex marriage, enshrined in the Marriage (Same Sex Couples) Act 2013.

The “founding a family” limb of Article 12 does not create a right to access to reproductive technologies or adoption. This involves issues of resource allocation and costs which are usually outside the purview of the Convention, although there may be an argument based on the prohibition on discrimination under Article 14 if such treatment is arbitrarily allocated.

• Return to Incorporated Rights Index
• Introduction to the Human Rights Act 1998

The Round-up: Domestic Violence Consultation and some Strasbourg cases

28 January 2019 by Alethea Redfern

In the News 

The Home Office has published a domestic violence consultation response and draft bill  as part of a landmark overhaul of domestic abuse laws. Theresa May promised an overhaul almost two years ago, and the bill was a key pledge in the 2017 Queen’s Speech. 

The bill introduces the first statutory definition of domestic abuse, which encompasses financial and emotional abuse as well as coercive and controlling behaviour. It would prohibit perpetrators from cross-examining their victims in court, impose polygraph tests on high-risk offenders as a condition of release, and create new powers to force perpetrators into rehabilitation programmes. Among other new protections for victims, the bill would make domestic abuse complainants automatically eligible for special measures in the criminal courts. It would also establish a new “office of the Domestic Abuse Commissioner” tasked with improving response and support for victims across public services. 

Domestic violence is a major human rights issue which can deprive women of their rights to health and physical and mental integrity, freedom from torture, inhuman and degrading treatment, and the right to life. The bill has been welcomed by some as a significant step towards combatting the issue . However, writing in the Guardian, Julie Bindel criticises the new measure as “impossible to implement” and likely to be “misued by vindictive men” and “misunderstood by those tasked with protecting women”.

Criminalising the possession of “terrorist propaganda”: a human rights analysis

21 January 2020 by Sapan Maini-Thompson

The Home Office is proposing to legislate for a new criminal offence relating to the “possession of the most serious material glorifying or encouraging terrorism”.

This follows a suggestion made by the Chief Coroner, HHJ Mark Lucraft QC, in his report concerning the 2017 London Bridge terrorist attack. In his view, the lack of such an offence may sometimes prevent counter-terror police taking disruptive action against terror suspects, even when the extremist propaganda they possess is of the most offensive and shocking character. That propaganda might include, for instance, footage of sadistic violence.

The criminal law is ultimately concerned with the prevention of harm. The normative classification of harm with a political dimension, however, engages the right to freedom of thought under Article 10 of the European Convention on Human Rights, as protected under the Human Rights Act. To ensure a proper balance is struck between protecting the public and safeguarding civil liberties, any new offence ought to satisfy a three-limb test:

1. It must provide a specific definition for the “most serious” category of materials which “glorify or encourage” terrorism. This should be supplemented with empirical guidance to ensure a high and objective threshold is set for criminal sanction.
   
2. The mens rea requirement for the offence must be deliberate possession of harmful material, with the knowledge that said material glorifies or encourages terrorism. The standard of liability must be one of intention rather than recklessness or negligence. This would ensure that only harmful purposes are penalised.
   
3. It must establish statutory defences to such possession on grounds of reasonable excuse and/or working in the public interest.

The Round-Up: Rights in war, Rights at work, Rights in marriage

20 August 2017 by Thomas Beamont

The mother of a British soldier who was killed in a roadside bomb while on duty in Iraq has received an apology from Defence Secretary Sir Michael Fallon. Sue Smith’s son, Pte Phillip Hewett, died while travelling on patrol in a lightly armoured “snatch” Land Rover in July 2005.

Following a settlement of the case, Sir Michael has written to Ms Smith:

“I would like to express directly to you my deepest sympathies and apologise for the delay, resulting in decisions taken at the time in bringing into service alternative protected vehicles which could have saved lives.”

What did Ms Smith allege?

The circumstances around Pte Hewett’s death have been the subject of litigation for the last 6 years.

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Cabinet Reshuffle, Legal Aid Residence Test and DRIP – the Human Rights Roundup

28 July 2014 by Celia Rooney

Welcome back to the UK Human Rights Roundup, your regular fracktastic frisson of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

In recent weeks, the Prime Minister’s cabinet reshuffle has sparked fears of human rights reform, while Parliament has come under fire for the speed at which it passed emergency legislation on data retention. In other news, the residence test for legal aid faced legal challenges, while Lindsay Sandiford lost her final appeal in the UK courts in her attempt to stop her execution in Indonesia.

In the News
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Failure to deport Philip Lawrence killer was not about human rights

29 November 2010 by Adam Wagner

It has been widely reported that Learco Chindamo, who was convicted of killing headmaster Philip Lawrence in 1995, has been rearrested only months after being released from jail. The story has reopened a debate over the Human Rights Act, on the basis that it prevented Chindamo from being deported to his native Italy. But did it?

In fact, what the case really highlights is that the unpopularity of the Human Rights Act is in part due to inaccurate media reporting of human rights cases, even 10 years after it came into force.

The Telegraph reported at the end of last week that Frances Lawrence, Philip Lawrence’s widow, has urged the prime minister to act on his previous pledges to scrap the Human Rights Act, as

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Gay discrimination and Christian belief: Analysis of Bull v. Hall in the Supreme Court

11 December 2013 by Alasdair Henderson

Bull v. Hall and Preddy [2013] UKSC 73 – read judgment here.

The recent confirmation by the Supreme Court that it was unlawful discrimination for Christian hotel owners to refuse a double-bedded room to a same-sex couple was of considerable interest as the latest in a string of high-profile cases involving religious belief and discrimination on the basis of sexual orientation (and the first such judgment involving the highest court in the land). We have already provided a summary of the facts and judgment here, and our post on the Court of Appeal ruling can be found here.

The case has been  portrayed in some media as a clash between gay rights and religious freedom, with gay rights winning – see e.g. the Daily Mail’s headline: B&B owners’ right to bar gay couple crushed by ‘need to fight discrimination’. This is despite the best efforts of Lady Hale, who gave the main speech, to emphasise at paragraph 34 that this decision did not amount to replacing legal oppression of one community (homosexual couples) with legal oppression of another (Christians and others who shared the appellants’ beliefs about marriage), because the law equally prohibits a hotel keeper from refusing a particular room to a couple because they are heterosexual or because they have certain religious beliefs. However, moving beyond this simplistic portrayal of the issue at stake, there are several interesting legal points in the decision, which may raise more questions than it answered.

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Human rights, anti-obesity surgery and the NHS purse

13 April 2011 by Adam Wagner

Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (07 April 2011) – Read judgment

What happens when the money for medical treatment runs out? The National Health Service has a limited budget. It also is obliged by law to provide necessary medical services to the public.  Inevitably, some treatments will be considered unaffordable, and this sometimes leads to court challenges.

Two such challenges have arisen recently. One is interesting because it has been rejected (unless it is appealed) by the High Court, and the reasoning behind that rejection highlights how difficult it is to succeed in such claims, especially on human rights grounds. The other, because of the way it, and in particular its human rights aspects, has been reported. Not quite bad enough to merit placing on the legal naughty step, but not far off.

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