RT v (1) The First-Tier Tribunal (Social Entitlement Chamber) and (2) Criminal Injuries Compensation Authority  UKUT 0306 (AAC) – read judgment.
The Upper Tribunal has ruled that, in deciding whether or not an applicant has cooperated with the prosecution of her assailant where she made and later retracted an allegation of rape, it was necessary to see why that retraction was made and whether it was done truly voluntarily, rather than simply assessing whether she was responsible for the retraction.
The Applicant (“RT”) was married to H and had four children with him between 2001 and 2008. From 2004, she was subject to physical and mental abuse by H, culminating in three incidents of rape. What followed was a somewhat protracted and complicated course of events relating to H’s prosecution.
Initially, H was arrested and charged with six counts of rape. He was bailed subject to certain conditions. While H was in custody, RT wrote to him saying that she missed him and wanted him back home. Over Christmas 2009, H returned home and he and RT had “something of a reconciliation”, including having consensual sexual intercourse.
By January 2010, RT sought to withdraw the complaint (she had commenced divorce proceedings against him). In February 2010, RT telephoned the police to ask what would happen if she had lied about the rapes. Later that month, she retracted her allegations, saying that all of them were untrue. H appeared at the Crown Court and was acquitted after the prosecution offered no evidence. Continue reading →
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: The Guardian
The House of Commons has passed amendments which are likely to liberalise the law on abortion and same-sex marriages in Northern Ireland.
The amendments were added to the NI Executive Formation Bill. The first was put forward by Conor McGinn (Labour). It states that if the NI Assembly is not restored by the 21st October, the government must create secondary legislation to allow same-sex marriage in Northern Ireland. This means there will be no further debate in the House of Commons, because the government will make use of regulations. The second amendment, tabled by Stella Creasy (Labour), has a similar effect. However, both are subject to the condition that the Northern Irish Assembly can legislate to change the law.
Prior to the vote, Ms Creasy said “At this moment in time, if somebody is raped in Northern Ireland and they become pregnant and they seek a termination, they will face a longer prison sentence than their attacker”.
The Conservative leadership contenders were split on the vote. Boris Johnson stated that both subjects were devolved matters, whilst Jeremy Hunt voted for both proposals. Karen Bradley (the Northern Ireland Secretary) and Theresa May (PM) abstained.
Unusually, MPs in the Scottish National Party were given a free vote. The party ordinarily abstains from voting on devolved issues in other countries. Continue reading →
British Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad (Rev 1)  EWHC 13 (Admin) – Read judgment
The High Court ruled that the Justice Secretary’s refusal to grant the BBC permission to have and to broadcast a face-to-face interview with terrorism suspect Babar Ahmad was unlawful.
The BBC and one of its home affairs correspondents, Dominic Casciani, had applied for permission to conduct the interview with Mr Ahmad, who is currently detained at HMP Long Lartin, and is fighting extradition to the USA. The BBC also wished to broadcast the interview. The Justice Secretary refused the permission, which refusal the BBC challenged in a judicial review claim.
Remember Pearl Harbour? Not the 1941 attack which propelled the USA into World War II, but the awful 2001 film starring Ben Affleck. What really sticks in the mind wasn’t the film itself, but the critical reaction. It is hard to remember a more gleeful spectacle, captured here, than reviewers falling over themselves to see who could produce the most withering response.
No doubt inspired by the Prime Minister’s own World War II analogy (on reflection, something of a hostage to fortune), legal commentators and organisations have also been falling over themselves, if not gleefully, to express their collective displeasure and disbelief at the poor quality of the Government’s proposals to reform Judicial Review.
Updated x 2 | Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts. Part 1 is here.
Meanwhile, north of the border in Scotland, a more significant constitutional storm may be brewing following Wednesday’s decision of the UK Supreme Court in Fraser v Her Majesty’s Advocate. Rosalind English has already posted on the ruling, which related to a Scottish murder appeal. As Rosalind said,
this was a Scottish criminal case and the Supreme Court would normally have had no business dealing with it … The Supreme Court’s appellate jurisdiction extends only to a consideration of a “devolution issue” , including whether an exercise of a function by a member of the Scottish Executive is incompatible with any of the Convention rights.
Parliament, through Schedule 6 to the Scotland Act 1998, has given the Supreme Court jurisdiction in relation to devolution issues arising in criminal proceedings. It has been suggested that this was to ensure that a consistent and coherent view upon them could be given across the UK.
A short examination of whether the policy endorsed by the Labour Party as part of its pledge to support social justice can be justified in law or is a flagrant contravention of human rights. This article was first published in Counsel magazine.
It didn’t take long for some rather well-known lawyers to point out there may be a flaw in this plan. Lord Lester QC of Herne Hill in a letter to the Times that weekend pithily explained that as long ago as 1982, he and David Pannick had advised the school governing bodies that ‘Labour’s plan would violate the European Convention on Human Rights and its first protocol. Our opinion was published. No one disputed our advice and the policy was dropped.’ He expressed surprise about the plan being reignited and continued to be of the view that the plan would violate the European Convention on Human Rights (‘the Convention’).
With Covid-19 having driven jury-trials to a grinding halt, it is no overstatement to suggest that justice itself has been suspended.
To remedy this situation, the Lord Chief Justice, Lord Burnett, last week told the BBC that it will be necessary to consider “radical measures” to enable jury trials to continue. To satisfy social distancing requirements in courtrooms, he said he would support reducing the number of jurors from twelve to seven. The historical precedent for this proposal is the Administration of Justice (Emergency Provisions) Act 1939 which similarly reduced the size of juries to accommodate for the pressures of national conscription during the Second World War.
Whilst this proposal is compelling on its practical merits, it could pose significant risks to a defendant’s right to a fair trial, with a reduced jury potentially affecting the procedural fairness of a trial.
R (on the application of Philip James Woolas) and The Parliamentary Election Court  EWHC 3169 (Admin) – Read judgment / press summary
Phil Woolas has lost his appeal by way of judicial review of the decision to strip him of his election victory in Oldham East and Saddleworth in the 2010 General Election. He has said he will not appeal the decision.
Mr Woolas had to first convince the Administrative Court, which handles judicial reviews of the decisions of public bodies, that it had jurisdiction to hear the claim. He won on this point. However, once it had accepted it could hear the case, the Administrative court went on to uphold most of the decision of the Election Court.
Lord Neuberger, the Master of the Rolls, provided an interesting discussion on so-called “super injunctions” in a speech on 28 April 2010. He said that “Where justice is carried out in secret, away from public scrutiny, bad habits can develop. Even if they don’t develop, the impression may arise that they have done so.”
Super injunctions came to prominence as a result of the case involving footballer John Terry, who initially used the courts to block publication of details of his extra marital affair, as well as all mention of the case.
The speech will be of particular interest to libel lawyers, as Lord Neuberger is currently chairing a high-profile panel to review super-injunctions which may lead to their demise. The speech provides a useful background to the issue in terms of human rights law, as well as in relation to freedom of speech in the United States (see our recent post on the topic).
Lord Neuberger gave little away, but does strongly emphasise the importance of open justice, which the super injunction has arguably diminished. The following paragraph may worry lawyers and celebrities who hope that the super injunction will survive:
29. But what of the substantive issue? How do we reconcile such injunctions with the principle of open justice? The first thing we could say is, as Mr Justice Tugendhat, the judge in the Terry case, pointed out, where such an issue is raised it requires intense scrutiny by the court. It does so because openness is one of the means by which public confidence in the proper administration of justice is maintained. Where justice is carried out in secret, away from public scrutiny, bad habits can develop. Even if they don’t develop, the impression may arise that they have done so. Neither reality nor suspicion are an acceptable feature of any open society.
Update 2/5/10 – Joshua Rozenberg writes on libel reform in Standpoint: “… this mixture of cherry-picking and window-dressing had been the only libel reform that Straw could have got through before the general election.”
HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group & Anor  EWHC 1294 (QB) (17 May 2010) – Read judgment
The High Court has effectively thrown out a libel action against a journalist who claimed in an article that a Sikh holy man was a “cult leader”. The judge’s reasoning was that the disputed points of religious principle were not questions which a secular court could properly decide. In refusing to rule on such cases, are the courts taking an increasingly anti-religious view, and are they now in breach of the human right to religious freedom?
The decision was reported in mid-May, but Mr Justice Eady’s judgment was made publically available yesterday. It highlights controversial issues of whether religious believes are getting a fair hearing in the English courts, and whether “secular” judges are qualified to decide points of religious principle.
In order to address the fall in number of children placed for adoption, the government has issued guidance to local authorities whereby people wanting to adopt can no longer be turned away on the grounds of race, age or social background.
Welcome back to the UK Human Rights Roundup, your weekly buffet of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The news this week has been dominated by issues relating to Article 8 and the right to die. First, we had Tony Nicklinson, a man suffering from locked-in syndrome, and then there was the case of E, a woman suffering from anorexia who was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die. In other news, just when you (or rather, I) thought the fat lady had sung for Julian Assange, there was another twist in the tale as he requested asylum at the Ecuadorian embassy.
The Justice Select Committee has found that steep rises in court fees are damaging access to justice. The report examines the recent and proposed changes to fees for court users in the civil and family courts and tribunals, including those introduced for employment tribunals and the proposed increase to asylum and immigration fees. The Committee, chaired by former barrister Bob Neill MP, raises serious concerns about the quality of the Ministry of Justice’s research into the impact of the fees, sharing the view expressed by the senior judiciary who gave evidence that it does not provide a sufficient basis to justify the proposals. Lord Dyson, Master of the Rolls, described the research as “lamentable”.
The Coalition Government over the course of the 2010-15 Parliament pursued policies aimed at decreasing the net cost to the public purse of Her Majesty’s Courts and Tribunals Service, by introducing and increasing various fees for court users. This included introducing fees for employment tribunals, the now extinct criminal courts charge, and a range of fees for civil proceedings, including “enhanced fees”, which are set at a level greater that the costs of the proceedings themselves. The pursuit and implementation of fees has been continued in the current Parliament. Continue reading →
Updated x 2 | The lord chancellor Ken Clarke has announced plans for significant cuts to the legal aid system, which provides funding for legal representation to those who otherwise cannot afford it. The plans were largely as expected and will be open to consultation.
Update: The MoJ has published full details of the plans:
The main documents, including impact assessments are here
Much controversy has been raised by the sentencing meted out to some of those charged with offences committed during the recent disorder. Many cases have already been sentenced either in the Magistrates’ Court. A lesser number of cases have been dealt with by the Crown Court. (Given the short time between committal to Crown Court and sentence, the latter would be guilty pleas).
In the Magistrates’ Courts, the majority of the cases have been dealt with by professional District Judges (Magistrates’ Courts). The use of “lay benches” has been very much the exception. The reason for that is not entirely clear at this time.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.