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UK Human Rights Blog - 1 Crown Office Row
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CG v Facebook Ireland & Another [2015] NIQB 11 (20 February 2015) – read judgment
The plaintiff was a former sex offender who had been identified on a Facebook page run by the second defendant called “Keep Our Kids Safe From Predators 2”. He had been released on licence and he was apprehensive about his safety upon his return to the community.
He resides with his father, who is disabled, and with his adult children one of whom is also disabled. He was particularly fearful of the reactions of others to his conduct in the light of the fact that his name had been published on the internet. I have posted on an earlier case where another former sex offender won an injunction against Facebook Ireland Limited in respect of the original KOKSFP, which was subsequently taken down (XY v Facebook Ireland Ltd[2012] NIQB 96). Continue reading →
I gave the keynote speech at yesterday’s 8th Annual Withington Girls’ School’s Model United Nations Conference. It was an honour to be asked, especially as it was only a few hundred meters from where I went to school, and also inspiring to see hundreds of young people giving up their Sunday to debate important human rights issues.
In case you are interested, I have reposted the text of my speech below and as a PDF here. It’s a long-read, but in it I work through why I came to human rights as a career choice and why I think they are important.
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.
(b) to have adequate time and facilities for the preparation of his defence.
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
There is no directly corresponding provision in the EU Charter of Fundamental Rights. Article 20 – the right to equality before the law – is more related to ECHR Art.14, and Article 47, the right to an effective remedy and to a fair trial is based on Art. 13 ECHR which guarantees the right to an effective remedy for human rights violations. However, it has been argued before the European Court of Justice that Article 6 ECHR and Article 47 contain effectively the same fair trial rights (see David Hart’s post on this issue).
The protection of Article 6 ECHR only extends to those disputes that concern a “civil right” (as well of course to the determination of any criminal charge against an individual). The jurisprudence on what does or does not constitute a “civil right” is complex and lengthy but a general rule is that the characterisation of the matter in domestic law is not determinative – Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 – and while such civil rights could be brought into play either by direct challenge or by administrative action, it was the nature and purpose of the administrative action that determined whether its impact on private law rights was such that a legal challenge involved a determination of civil rights. In R(Begum) v Tower Hamlets London Borough Council [2003] 2 AC 430 the House of Lords was prepared to assume that a decision as to housing for a homeless person did involve a “civil right” but in the more recent case of Ali v Birmingham City Council [2010] 2 AC 39 the Supreme Court confronted that question and decided that it did not.
A parent’s rights to contact with, and custody of, a child constitute “civil rights” for the purposes of Art.6. This means that they must have a fair hearing before an independent and impartial tribunal. When a mother was refused access to her child by the local authority, and she was unable to challenge that refusal in court, there was found to be a breach of her Art. 6 rights (although the case was settled after it was declared admissible in Strasbourg: Application no. 11468/85, 15 December 1986). A more recent case against Croatia indicated that exclusion of a mother from the adoption (X v Croatia, 17 July 2008).
It is hardly surprising that domestic courts encounter some confusion when they come to determine whether a matter involves a “civil right” or not; Strasbourg case law on the point is far from clear. In trying to determine whether a freezing order on a claimant’s assets affected his civil rights, Sedley LJ observed that the Strasbourg Court is very clear about the concept having an autonomous meaning, but “What is neither certain nor clear is what that meaning is.” (Maftah v FCO [2011] EWCA Civ 350, and see our post on this case here)
Particular difficulties have been caused by the fast-changing Strasbourg case law on employment disputes involving public servants, which until recently have been excluded from the purview of Article 6. The Court decided in Pellegrin v France (2001) 31 EHRR not to allow administrative servants the guarantees of Article 6 because their employment involves important state imperatives, but defining this kind of employment is far from easy, as was demonstrated by the case of an army chaplain who sought redress for alleged unfairness; after considering the authorities Nichol J found that the claimant fell within the Pellegrin exception under the test laid down in Eskelinen v Finland (2007). See our discussion on this judgment here.
The requirements of fairness imposed on Member States by this Article apply to civil and criminal litigation. Art.6 , taken as a whole, has been held to ensure not only a fair trial once litigation is under way but to impose an obligation on States to ensure access to justice (Golder v United Kingdom (1975) 1 EHRR 524: interference with a prisoner’s correspondence with a solicitor constituted a breach of his right of access to court under Art.6 , even though litigation was not pending). Most recent litigation has concerned the matter of costs; whilst the right of access to justice is implied in Article 6(1), the original case on costs, Airey v Ireland (1979), has not been interpreted to impose on states an obligation to provide a legal aid scheme. Legal aid constitutes one avenue to justice but there are others, such as the availability of representation under a contingent or conditional fee agreement. Legal representation is not considered indispensable in all cases. Where there are no particularly complicated points of law, the state is not compelled to provide a publicly funded lawyer (HH (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 504 ). In environmental challenges, on the other hand, the right of access to (affordable) access coincides with the obligation on states imposed by the Aarhus Convention to avoid prohibitive expense where individuals or groups ask the courts to enforce environmental law. The Aarhus Convention is part of EU law therefore may be relied upon in UK courts, until such time as the UK’s departure from the EU is finalised.
The requirement that the trial be conducted by an “independent and impartial tribunal” is satisfied if an internal disciplinary appeals board consists equally of members of the relevant profession and members of the judiciary: Le Compte, Van Leuven and De Meyere v Belgium (1981)4 EHRR 1.
At the Strasbourg level the most litigated requirement in Art.6 is the obligation on States to ensure that proceedings do not exceed a “reasonable time”. The circumstances of the case may determine the importance of expedition; in AIDS cases the Court’s approach has been stricter than in other areas, since the rapid dispatch of compensation claims is essential in respect to terminally ill patients (X v France (1992)14 EHRR 483). The Court has also take a strict approach to delay in child care cases where the child may have bonded with its new carers: H v United Kingdom (1987) 10 EHRR 95.
The requirement of a public hearing relates to proceedings in courts of first and only instance. The failure to provide a public hearing will not be cured by making the appeal proceedings public where the case is not reheard on its merits: Le Compte .
If the initial hearing (eg by a regulator) does not fulfil the requirements of independence and impartiality, appeal may cure the defect: Bryan v United Kingdom (1996). In any event if the matter is essentially one of policy, the detailed requirements of Art.6 do not necessarily apply: see the House of Lords ruling in Alconbury (2001) and the line of cases preceding the House of Lords’ analysis in R(Begum) v Tower Hamlets London Borough Council .In many administrative fields, such as planning, an administrator may be decision-maker, and not “an independent..tribunal” within the meaning of Article 6(1), but the process will be Article 6(1) compliant, if an aggrieved party has a right of appeal or review from that decision before such a tribunal.
Updated x 2 | At the risk of sounding like a broken record, The Sun has got it badly wrong on human rights. Again. On 24 August 2014 Craig Woodhouse reported that “Euro judges go against UK in 3 out of 5 cases” (£). This is false and seriously misleading.
I explored this issue in detail back in 2012 when the Daily Mail as well as others claimed that the UK loses 3 out of 4 cases. Since that debacle, the European Court of Human Rights has produced some very clear documents on the statistics page of its website.
According to page 8 of this document, there have been 22,065 applications against UK 1959-2013. That means that 22,065 people or so have brought cases against the UK. Of those cases, there have been 297 resulting in a violation.
I am no statistician but 297 as a percentage of 22,065 is not “3 out of 5”. It is in fact 1.35%. Less than 2 in 100.
The October 2014 Conservative Party proposals promised to:
End the ability of the European Court of Human Rights to force the UK to change the law. Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement.
In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point at which our Bill comes into effect.” (see proposals here )
The Conservative Party’s manifesto included a much shorter summary of the proposals without the specific details about the relationship with the ECtHR of the Council of Europe and the Queen’s Speech on 27th May promised that there would be a consultation exercise (see summary here) Continue reading →
Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
In the news
Lord Neuberger is to be our next Supreme Court President, replacing Lord Philips who is retiring and pipping rival candidates Lady Hale and Lord Mance. In other news, some interesting cases were decided this week, including the Catholic Church’s loss in a vicarious liability case in the Court of Appeal, and the residents of the Fred Wigg Tower lose their judicial review action challenging the decision to put a missile defence system atop the building for the Olympics. We also have more law reform updates, as the Commission for a Bill of Rights published its second consultation paper, the House of Lords debated the ever-controversial Justice and Security Bill, and a commentator provided an illuminating and worrying discussion of the “snooper’s charter”, the Draft Communications Bill.
Please welcome our new rounder upper, Sarina Kidd, a student on the GDL course at City University. Sarina joins Daniel Isenberg (our other rounder upper) and replaces Sam Murrant, who has moved on to pastures new after producing a fantastic run of human rights roundups. We wish him all the best and welcome Sarina on to the team – Adam Wagner
Welcome back to the UK Human Rights Roundup, your regular smorgasbord 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.
In the News
The Human Rights Act and Strasbourg
The debate continues over the suggestion that a future Conservative government would repeal the Human Rights Act and withdraw from the European Convention.
Earlier this week Lady Hale, the UK’s most senior female judge, warned that her fellow judges would ‘regret’ a decision to repeal the HRA and that such a repeal would allow Parliament to pass laws incompatible with the ECHR.
The Sentencing Council has suspended plans for new guidelines which could have led to different sentences depending on someone’s age, sex and ethnicity. The Sentencing Council’s decision to suspend plans comes in the wake of ministers preparing to “disapply” wording in the revised sentencing guidelines on the imposition of community and custodial sentences, through primary legislation. Justice secretary, Shabana Mahmood, had aimed to pass a bill through Parliament to halt the guidelines within 24 hours but was informed that it would be impossible before the Easter recess. Given that the revised sentencing guidelines were due to take effect in England and Wales last Tuesday, there would have been a “confusing period” during which time the guidelines would be enforced before being declared illegal.
These guidelines had specified a list of 10 groups for whom pre-sentence reports would “normally be necessary”. The groups in question included “those from an ethnic minority, cultural minority, and/or faith minority community.” In other words, the guidelines would have required magistrates and judges to consult a pre-sentence report before deciding whether to imprison someone of an ethnic and religious minority, in addition to other groups like young adults, abuse survivors and mothers. In doing so, the system would have “taken into account structural disparities in sentencing outcomes” and would have introduced measures targeted at combating racism in the courts. Senior legal figures, and the Society of Black Lawyers, have emphasised that the guidelines were an attempt to achieve “equal treatment” after “racist two-tier policing for 500 years”, specifically through attempting to address disparities in sentencing between white and non-white offenders.
After a meeting on Monday, the Sentencing Council confirmed it would not be introducing the guidelines when “there is a draft bill due for imminent introduction that would make it unlawful”. This follows the Sentencing Council having previously rejected a request from Mahmood to remove the ten specified groups as she said they would “single out specific cohorts for differential treatment”. In making this request, Mahmood had sought to demonstrate to the public that “Parliament is sovereign” and “everyone is treated equally by the criminal justice system”.
Hungary is due to leave the International Criminal Court on grounds that it has become “political”. This was announced during a visit to Hungary by Benjamin Netanyahu, Israeli Prime Minister, who is the subject of an ICC arrest warrant which was issued on 21st November 2024. Prior to this visit, Human Rights Watch had urged Hungary to deny entry to Netanyahu or to arrest him upon entry, in light of the arrest warrant. Specifically, Liz Evenson, international justice director at Human Rights Watch outlined how Hungary’s Prime Minister Viktor Orbán’s invitation to Netanyahu was an “affront to victims of serious crimes” and urged Hungary to “comply with its legal obligations as a party to the ICC.”
As a member of the ICC, Hungary was in theory obliged to arrest Netanyahu in line with the ICC warrant. However, Orbán had previously said the ruling would have no effect in Hungary. Hungary’s Foreign Minister Peter Szijjártó had notably criticised the warrants as “shameful and absurd” and “unacceptable”. Hungary has aligned itself with other European countries including France, Italy, Poland, Romania and Germany who have emphasised their non-committal to enforcement of the ICC’s warrant to arrest Netanyahu.
In announcing Hungary’s decision to leave the ICC this week, Orbán proclaimed that the ICC had “diminished into a political forum”, something that had “become the clearest in light of its decisions on Israel”. Netanyahu has thanked Orbán for taking a “bold and principled” position against the ICC.
This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the European Court of Human Rights (ECtHR) is taking an approach that looks like one of appeasement of certain signatory states.
Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconcilable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?
The proposals have been little reported, save for journalist Joshua Rozenberg, channeling Dinah Rose QC, warning that they will “undermine a fundamental constitutional right:”. Perhaps legal correspondents prefer to pick over testimony from the glamorous Leveson Inquiry as opposed to complicated government proposals involving clunky phrases – some would say fig leaves – like “Closed Material Procedure” and “Special Advocate”.
But these proposals are extremely important. If they become law, which is likely given the lack of opposition from any of the main parties, the justice system will look very different in the coming years. Many civil hearings could be held in secret, and although (as the Government argues anyway) more justice may be done, undoubtedly less will be seen to be done.
Two jury trials will resume at the Old Bailey this week in the first steps toward Crown court cases restarting around the country. It has been almost two months since jury trials were suspended on 23 March amid coronavirus lockdown measures.
In his announcement, the Lord Chief Justice, Lord Burnett of Maldon, began by affirming that “the practice of trial by jury sits at the heart of our criminal justice system.” In contrast, the Lord Chancellor, Robert Buckland QC, began his statement with a more equivocal comment about a well-functioning justice system being the hallmark of a healthy democracy.
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.
Tackling the problem of delay seems to be the heart of the Family Justice Review’s proposals, evidenced by this piece, written by David Norgrove, who chaired the Family Justice Review, about the need to tackle the problem of delay in the family justice system when it comes to child protection cases. Norgrove says such delays are damaging to children and suggests, amongst other things, that children’s welfare should not be trumped by parents’ rights in these circumstances.
On 21/10/2020, the Court of Appeal ruled that the Home Office’s removal window policy (‘the Policy’) was unlawful. The Policy incorporated an unacceptable risk of interference with the right of access to court by exposing a category of irregular migrants — including those who have claims in respect of their right to life and/or freedom from torture and inhuman or degrading treatment — to the risk of removal without any proper opportunity to challenge a relevant decision in a court or tribunal.
Ten years after the Equality Act came into force, the Equality and Human Rights Commission (EHRC) have published their findings and recommendations in a report entitled “Inclusive Justice: a system designed for all”.Although the report recognises where progress has been made, it also identifies very significant problems.
The inquiry, which covered England, Wales and Scotland, heard from defendants, legal professionals, charities, intermediaries and organisations who help people with what are often referred to as “hidden disabilities” – cognitive impairments, mental health conditions, and neuro-diverse conditions.
The EHRC’s key recommendations focus on the pre-trial phase, when important decisions are made about adjustments and whether the defendant will plead guilty or not guilty. The report is concerned both with participation and also the opportunities and risks arising from the increase in modernisation (for example, video hearings).
G v E & Ors [2011] EWCA Civ 939 – Read judgment – 1COR’s Guy Mansfield QC appeared for the Respondent. He is not the author of this post.
Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 – Read judgment
The general rule in civil law cases is that the loser pays the winner’s legal costs, even if the case settles before trial. As with all general rules, there are plenty of exceptions, and many relate to public authorities. Two of those exceptions have just been chipped away at by the Court of Appeal.
Two important judgments increasing the likelihood that local authorities will have to pay out costs emerged the usual last-minute glut before the court term ended on Friday. The first concerned costs in the Court of Protection when an authority has unlawfully deprived a person of their liberty. The second was about costs in immigration judicial review claims which had settled following consent orders.
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CG v Facebook Ireland & Another [2015] NIQB 11 (20 February 2015) – read judgment
I gave the keynote speech at yesterday’s 8th Annual 
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found 
This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (
There is just over a month left to respond to the Government’s 
G v E & Ors [2011] EWCA Civ 939 – 
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