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UK Human Rights Blog - 1 Crown Office Row
Search Results for: environmental/page/35/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
Axel Rudakubana, who murdered three children at a dance class in Southport earlier this year, pleaded guilty last week and has been sentenced to a minimum of 52 years. He unexpectedly pleaded guilty to all charges last Monday, including weapons and terrorism offences. Mr Justice Goose stated in his sentencing remarks that Rudakubana’s actions had ‘caused such extreme shock and revulsion that it must be seen as the most extreme level of crime’. Given Rudakubana was 17 when the attack occurred, he cannot legally be sentenced to a whole life order (which would mean he could never be considered for release). Despite the chances being very high that Rudakubana will never be released under his current sentence, some believe the sentence is not harsh enough. Southport MP Patrick Hurley has said the sentence is ‘not severe enough’ and does not ‘reflect the crimes committed’. Conservative leader, Kemi Badenoch, has called for the law to be changed so that whole life orders can be imposed on under 18s. However, a spokesperson for Downing Street said that while they ‘share the public’s disgust’, they are ‘restricted in [their] ability to extend whole life orders by UN laws’ – specifically the UN Convention on the Rights of the Child. Rudakubana’s sentence has been referred to the Attorney General, who has 28 days to decide whether to ask the Court of Appeal to reconsider it for being ‘unduly lenient’.
The Joint Committee on Human Rights announced on Friday that it is launching an inquiry into transnational repression in the UK. While acknowledging that there is no universal definition, the Committee stated that transnational repression ‘is generally understood to include instances of intimidation, violence and harassment by a state against people in another state’. Lord Alton, launching the inquiry, said: ‘People from countries around the world come to the UK as a place of safety from repression. It is deeply concerning to hear reports that foreign governments are moving beyond their own national borders to persecute people here’. The inquiry seeks to investigate whether the human rights of immigrants in the UK are being respected by foreign governments, and whether the UK should be doing any more to safeguard them. The inquiry is calling for evidence to be submitted over the coming month.
In Other News
Donald Trump was sworn in last Monday as the 47th president of the United States. On his first day in the White House, he signed multiple executive orders he said in his inaugural speech will lead to the ‘complete restoration of America’. Among the orders were ones providing for the US to leave the World Health Organisation and the Paris Climate Accords, to end birthright citizenship (the guarantee of citizenship to anyone born on US soil), to rename the Gulf of Mexico the Gulf of America, and to create a policy that the US only recognises ‘two genders, male and female’. The American Civil Liberties Union has accused the administration of ‘undoing decades of federal anti-discrimination policy’ with these orders. US District Judge John Coughenour has granted a temporary block on the order ending birthright citizenship on the grounds that it is ‘blatantly unconstitutional’. The executive order and any enforcement measures will now be held for the coming 14 days pending further legal proceedings.
In the Courts
The European Court of Human Rights ruled last week in HW v France that France’s divorce laws, which recognise a refusal to engage in sexual relations as grounds for fault in a divorce, constitutes a violation of Article 8 ECHR – the right to respect for private and family life. The case was brought by a French woman after the divorce, which was granted in 2019 by the Versailles Court of Appeal, attributed fault to her on the basis that not having sex with her husband constituted a ‘serious and repeated breach of marital duties and obligations, making it impossible to continue in a state of matrimony’. In judgment, the ECHR objected to the fact that the concept of ‘marital duties’ recognised in French law pays no attention to the importance of consent to sexual relations. The very existence of this fault-based ground infringed upon the right to sexual freedom and bodily autonomy. The Court could not find any possible justification for the interference with the applicant’s Article 8 rights.
Prince Harry has proclaimed a ‘monumental’ legal win after reaching a settlement moments before his lawsuit against Murdoch newspapers was due to return to court last week. The case alleged that Murdoch’s media group, News Group Newspapers, had carried out unlawful information gathering, the principal allegation concerning the phone hacking scandal that came to light in 2006. Prince Harry’s barrister, David Sherborne, said in a statement read outside of court that ‘News UK is finally held to account for its illegal actions and its blatant disregard for the law’. The settlement includes a specific admission of wrongdoing by The Sun newspaper against Prince Harry; a formal apology was issued and read in court. The apology was said to finally take accountability for wrongdoing against not only the Duke of Sussex, but all the other victims of the information scandal whose cases never reached court.
As scientists gather more and more information about the very large and the very small, where will they stop? Put another way, if ethics and religion can’t deliver, do we look to science for an answer?
The novelist Ian McEwan has no hesitation in incorporating the latest discoveries in physics and neuroscience in the messy psychological drama that constitutes a novel; in his latest bestseller he investigates the possibility of embedding a mathematical problem within an ethical one which drives along the story within the story. And last week the Guardian hosted a debate between physicist Lawrence Krauss and Julian Baggini on whether science can provide better answers to the big questions of morality than any of the canons of philosophy; now we have a report from the USA in which a Georgia Tech professor has hypothesized lethal weapons systems that are ethically superior to human soldiers on the battlefield (by substituting for the unreliable human hairbreadth trigger robots that are programmed to comply with international rules of war).
Military technology aside, the essential question asks for a bit of out of the box thinking. If we can identify specific biological answers to why we make certain decisions and judgments, then we can look to science as a basis for moral decisions, which are after all only sensible if they are based on reason, which is itself based on empirical evidence. In Lawrence Krauss’ view, ultimately
our understanding of neurobiology and evolutionary biology and psychology will reduce our understanding of morality to some well-defined biological constructs. Continue reading →
Nine of the Hooded Men. Photo by Cyril Byrne/The Irish Times
In one of its final decisions of 2021, McQuillan, McGuigan and McKenna, the UK Supreme Court addressed challenges to the effectiveness of police investigations into events which took place during the Northern Ireland conflict. The European Court has long maintained that the right to life (Article 2 ECHR) and the prohibition upon torture and inhuman and degrading treatment (Article 3 ECHR) carry with them positive obligations on the state to conduct effective investigations. These “legacy” cases not only draw the Courts into debates over some of the most contentious aspects of the Northern Ireland conflict, in particular the involvement of state agents in killings and the infliction of serious harms upon individuals, but they also pose questions about how human rights law applied in the context of Northern Ireland as a jurisdiction before the enactment of the Human Rights Act 1998.
The decisions
For reasons of economy, this post will focus on the facts of the McGuigan and McKenna elements of this litigation, which concerned the ill-treatment of detainees who had been interned in the 1970s (while also exploring broader questions which concerned all elements in the litigation). The scope of this ill-treatment, involving the subjection of internees to the infamous “five techniques” (including hooding of detainees to disorient) as part of interrogations, has long been known. Indeed, the resultant case of Ireland v United Kingdom remains a key turning point in the development of the European Convention on Human Rights, demonstrating that the Strasbourg Court would be willing to uphold human rights claims against an important member state even as it sought to tackle political violence. In that decision, although the Court found that the five techniques breached Article 3 ECHR, it discussed them in terms of inhuman and degrading treatment and not torture. Releases of documents by the National Archives (highlighted in a 2014 RTÉ documentary), however, showed UK Cabinet Ministers discussing the extent of the interrogation practices when they were taking place, and led to calls for fresh police investigations into whether there has been a coverup.
Thacker & Ors v R. [2021] EWCA Crim 97 (29 January 2021), judgment here
The Court of Appeal held today that a group of activists who broke into Stansted Airport in an act of protest should “not have been prosecuted” for an “extremely serious” terror-related offence under s.1(2)(b) of the Aviation and Maritime Security Act 1990 (“AMSA”).
BACKGROUND
The defendants/appellants in this case were a group of activists who have become known as the “Stansted 15”.
On 27 March 2017, the appellants surrounded a Boeing 767 at Stansted Airport which had been chartered by the Home Office for the purpose of deporting 60 individuals to Ghana, Nigeria, and Sierra Leone.
Equipped with makeshift tripods made from scaffolding pipes and some builder’s foam, the appellants cut through the perimeter fence of the airport and used the tripods a to lock themselves together, surrounding a plane and using the foam to secure the locking mechanisms. By ‘locking on’ to each other, the group prevented the use of the plane.
Updated | Welcome back to the UK Human Rights Roundup, your regular swirling snow flurry of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
This week, there are criticisms over the delay of inquiries both into the mistreatment of terrorism suspects and the Iraq War. Meanwhile, discussion continues over the relevance of the EU Charter of Fundamental Rights for UK law, and a dying asylum seeker on hunger strike will not be released.
Request for help – religion and law
Courting Faith: Religion as an Extralegal Factor in Judicial Decision Making Barristers sought to participate in PhD Research project exploring the relationship between religion and judicial decision making. If you are interested in taking part, please contact Amanda Springall-Rogers at A.Springall-Rogers@uea.ac.uk
The crux of the issue in this appeal is both narrow and, to some degree, exceptionally broad. It is narrow in that the central issue before the Court of Appeal was “whether an application made under s.75(2) of the Mental Health Act 1983 by a mental health patient to the First-tier Tribunal while subject to a conditional discharge is extinguished by the recall to hospital of that patient by the Secretary of State for Justiceunder s42(3) of the Act” [1]; a pithy, glamorous summary.
However, the appeal has simultaneously broad implications; the Court considered whether certain mechanisms of judicial oversight were effective as judicial safeguards and in providing speedy consideration of a person’s deprivation of liberty as required by Article 5(4) ECHR. In what was ultimately an academic discussion which was somewhat removed from the generative facts, the Court of Appeal examined whether there was indeed a “lacuna” in the FtT’s oversight of offenders who have been conditionally discharged with a restriction order.
The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.
This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.
Background
The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8. Continue reading →
Sanade, Harrison & Walker v Secretary of State for the Home Department [2012] UKUT 00048(IAC) – Read judgment.
This case concerns the application of human rights exceptions to the deportation of individuals who were married to British citizens or who had British children.
The Upper Tribunal (Immigration and Asylum Chamber) (the “Tribunal”) noted that in Mr. Walker’s case, it was accepted before the Court of Appeal that there was an error of law by reason of the failure of the Tribunal to examine the interests of British national children as a primary consideration in light of the guidance in (ZH) Tanzaniav SSHD [2011] UKSC 4. It found that similar errors existed in the other two cases and, as such, it would set aside and re-make the decisions.
Refugees are airlifted out by British forces. Image: The Guardian
On 15 August, the government of Afghanistan collapsed, President Ashraf Ghani fled and shortly afterwards the Taliban took power. Thousands of the 39 million population have been scrambling to flee the future that now awaits Afghanistan. Countries are working to accommodate Afghan refugees — including the UK, which decided to resettle 20,000 refugees.
What is happening in Afghanistan?
The Afghan government’s rapid collapse came two decades after the U.S. invaded Afghanistan to as part of the ‘War on Terror’ to seek to deny Al-Qaeda a safe base for operations in the country following the 9/11 terrorist attacks and the refusal of the Taliban government to extradite Osama bin Laden. The immediate context is the decision in April of this year by President Biden to withdraw the 3,200 troops U.S. and NATO troops by the twentieth anniversary of the 9/11 attacks. Although Afghan security forces were well funded and equipped, in the event they put up little resistance as Taliban militants seized much of the country as soon as the troops began withdrawing. The Taliban regime that was once toppled in 2001 is now back in power. Moreover, the fall of Kabul came much sooner than expected by U.S. intelligence analysts.
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Constitutional and international lawyers, behold! The issue of a referendum into whether Scotland should become independent from the UK is promising to give you plenty to read and talk about.
There are already a number of pieces on the subject matter, with some of the most interesting ones featuring in the UKCLG Blog and the UKSC Blog. For example, Nick Barber, writing for the UKCLG Blog, discussed whether it should be the UK Parliament or the Scottish Parliament who should hold the referendum, and what role should the UK Parliament play in the process to enable a negotiated transition into independence, should that be the outcome of the vote.
Neil Garnham QC (now Mr Justice Garnham) and Robert Wastell of 1COR acted for the Secretary of State for the Home Department at the Litvinenko Inquiry. David Evans QC and Alasdair Henderson acted for AWE Plc. None was involved in preparing this post.
The publication on Thursday of the long awaited report by Sir Robert Owen into the circumstances of the death of Alexander Litivenko from polonium poisoning on 23 November 2006 has (unsurprisingly) resulted in bitter criticism by the Russian Government of the Inquiry’s conclusions that the poisoning was probably directed by the Russian Federal Security Service, and probably approved by President Putin. The report is long (246 pages not including Appendices), but in page after page of readable and measured prose Sir Robert Owen tells the extraordinary story of Alexander Litvinenko’s death and the subsequent 9 year investigation into it. Continue reading →
The Ministry of Justice has published its annual report to the Joint Committee on Human Rights on the Government response to human rights judgments 2011–12. By signing up to the European Convention on Human Rights, the UK has committed to “abide by” judgments of the court. This commitment is monitored by the Council of Europe’s Committee of Ministers.
The report presents a snapshot of the current state of play in relation to the European Court of Human Rights, makes for very interesting reading (trust me!). Here are some tidbits:
There were 28 judgments involving the UK from 1 August 2011 to 31 July 2012, nine of which the UK lost (UK loses 3 out of 4 cases, anyone?). See the handy table at pages 12-13.
The UK currently has 24 cases before the Committee of Ministers, which means that they have not been implemented.
The UK paid out €454,457 [this originally and wrongly said £] in damages for human rights violations (known as ‘just satisfaction’) in 2011, compared to €371,160 in 2010 (p.58). Fear of this figure ending up in the Daily Mail may be the reason that it is on the last page.
One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.
The US Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.
Headlines are important. They catch the eye and can be the only reason a person decides to read an article or, in the case of a front page headline, buy a newspaper. On Thursday The Times’ front page headline was “Britain can ignore Europe on human rights: top judge”.
But can it? And did Lord Judge, the Lord Chief Justice, really say that?
To paraphrase another blog, no and no. The headline, which I am fairly sure was not written by Frances Gibb, the Times’ excellent legal correspondent and writer of the article itself, bears no relation to Lord Judge’s comments to the House of Lords Constitution Committee (see from 10:25). It is also based on a fundamental misunderstanding of how the European Convention on Human Rights has been incorporated into UK law.
The Sun have printed another correction today in relation to its misleading human rights reporting. The correction, on page 2, can be read online or to the right of this post.
The correction was the outcome of a complaint I made about this article – I posted on it here. The main part of the correction relates to the entirely false claim that “The European Court stopped a British judge imposing a whole-life tariff on Ian McLoughlin”. The reality is that although judges were unsure whether they could impose the orders following Vinter v UK in the European Court of Human Rights, the Court of Appeal clarified in February 2014 that they definitely could. The Sun have now admitted that was the case.
I am happy that the correction has been made although as I have said before, the damage has to a large extent been done as – let’s be honest – how many people read the clarifications and corrections box (which is located immediately adjacent to the eye-catching Page 3…).
But what I found most interesting about the process, which was started by the Press Complaints Commission and concluded by its post-Leveson successor, the Indepenndent Press Standards Orgaisation (IPSO), was the initial response to my complaint (PDF here) by The Sun’s Ombudsman, Philippa Kennedy OBE, which I thought was needlessly aggressive and demonstrates a worrying approach to this issue. I will select a few choice quotes:
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Sanade, Harrison & Walker v Secretary of State for the Home Department [2012] UKUT 00048(IAC) – Read 
Welcome back to the human rights roundup. Our full list of links can be found 
The Ministry of Justice has published its annual report to the Joint Committee on Human Rights on the 
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