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Monsters are born, not made: the latest round in the debate about criminal responsibility questions the very existence of intuitive morality.
US neuroscientist Sam Harris claims in a new book that free will is such a misleading illusion that we need to rethink our criminal justice system on the basis of discoveries coming from the neurological wards and MRI scans of the human brain in action.
The physiologist Benjamin Libet famously demonstrated in the 1980s that activity in the brain’s motor regions can be detected some 300 milliseconds before a person feels that he has decided to move. Subjects were hooked up to an EEG machine and were asked to move their left or right hand at a time of their choosing. They watched a specially designed clock to notice what time it was when they were finally committed to moving left or right hand. Libet measured the electrical potentials of their brains and discovered that nearly half a second before they were aware of what they were going to do, he was aware of their intentions. Libet’s findings have been borne out more recently in direct recordings of the cortex from neurological patients. With contemporary brain scanning technology, other scientists in 2008 were able to predict with 60% accuracy whether subjects would press a button with their left or right hand up to 10 seconds before the subject became aware of having made that choice (long before the preparatory motor activity detected by Libet). Continue reading →
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
An eventful week in Europe
Advocate-General Trstenjak has issued her opinion in NS v SSHD, a case currently pending before the Court of Justice of the EU. As reported by Cian Murphy for the Guardian, the case involves an Afghan asylum seeker who arrived in the EU via Greece before making his way to the UK to seek refuge.
Under the Dublin regulation it is for the EU country of first entry to consider the asylum claim, so the UK sought to return the claimant to Greece. The claimant then challenged his transfer by claiming that Greece was unable to process his case and that return would violate his fundamental rights. If he is successful, no asylum seeker could be returned to Greece under current conditions. In her opinion, AG Trstenjak made recommendations on a number of points, including the following:
Updated | For your weekend reading pleasure, some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here.
Abu Hamza wins passport appeal – BBC: Radical Muslim cleric Abu Hamza has won his appeal in the Special Immigration Appeals Commission against government attempts to strip him of his British passport. Apparently he won as taking his passport away would have rendered him “stateless”. We will comment on the case once the judgment is released (update – judgment is here and our post is here). In the meantime, you can read the background to his extradition appeal here.
The Prime Minister’s recent decision to delay plans to lift coronavirus restrictions by a month has been met with criticism among some legal commentators. The removal of restrictions is now due to take place on 19 July, instead of 21 June. The new deadline was described by the PM as a “terminus date” after which we must “learn to live with Covid”.
In his announcement, the Prime Minister cited the spread of the highly transmissible Delta variant, which now accounts for more than 90% of cases in the UK, and promised to use the extra time to accelerate the vaccination programme. New analysis by Public Health England shows for the first time that two doses are highly effective against hospitalisation from the variant. More than half of UK adults have had their second jab, including 91% of people over 50, and people as young as 18 will be invited to book a jab from the end of the week.
Former Supreme Court Justice Lord Sumption, a prominent critic of the government’s lockdown measures, called the continued lockdown “wicked” and raised the “extreme example” of “Nazi race laws” in arguing that there was no moral obligation to comply with certain laws. In response, barrister Adam Wagner quipped that Lord Sumption’s comments represented “the best case for his own argument that judges should not get involved in politics.”
Elsewhere, however, Wagner acknowledged that the courts have been reluctant to intervene with Covid restrictions, but suggested that at this stage a legal challenge to a refusal to allow a business such as a nightclub to open to double vaccinated customers might be effective. Wagner suggested that “the continued closure of a small number of businesses when the balancing factors have radically changed due to vaccination” might engage Article 1 of protocol 1 of the European Convention on Human Rights, which requires any interference with the ‘peaceful enjoyment of property’ to be proportionate. The delay is predicted to cost UK hospitality £3bn in lost sales and have a “critical impact on struggling businesses.
The announcement was widely anticipated and the public response has been understated. However, it remains to be seen whether the midsummer “terminus date” will truly put lockdowns behind us once we enter the darker, colder months of this pandemic’s second year.
In this consultation announced this week, the Ministry of Justice is trying to get itself out of the multiple Aarhus problems facing UK justice. Infraction proceedings are threatened in the EU Court, and adverse conclusions were reached by Aarhus Compliance Committee; all much posted about on this blog, for which see below. The main problem is that the Aarhus Convention requires that environmental challenges not be “prohibitively expensive”, and everybody now appears to agree that the basic UK system of “loser pays the costs” does not achieve that objective without changes. So what does MoJ propose to do about it?
It says that costs protection should be provided via codification of the rules concerning Protective Costs Orders. That means that a claimant in any public interest case may ask the court for a PCO, to “cap” his liability to pay the other side’s costs to such a figure as does not deter him from bringing those proceedings. The boundaries of when a PCO can be ordered are much fought over – leading to more costs – but it certainly extends in principle to all public interest judicial review cases, not simply environmental ones. It is possible (at its very lowest) that PCOs can be made in public interest environmental challenges not involving judicial review, though there is not yet a decision either way on that.
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.
Updated | Juries are often being hindered by judges’ interventions, Lord Justice Moses has argued in the Annual Law Reform Lecture at Inner Temple.
In an illuminating and entertaining speech, he argued that many of the directions to juries are unhelpful and given in a “foreign tongue”, and that we should “no longer pretend that judges can assist a jury’s recollection by a recitation of the facts”.
The Court of Justice of the European Union has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.
Background
In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:
‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’
Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.
RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651 – Read Judgment
Further to our recent post on the deportation of foreign criminals, the matter has once again come to the attention of the Court of Appeal.This case determines how the First-tier Tribunal, the first court of call for challenges to threatened deportations, should consider and weigh the issue of deterrence when deciding whether to deport a single offender.
The court made some interesting statements about the “public interest” aspect of deporting foreign criminals, and how the logic of a deterrence system must work.
Last month marked one year since the startling repeal of Roe v Wade on the 24th June 2022 – the day the US Supreme Court rowed back the right of American women to obtain an abortion. Almost exactly a year later, back in the UK, last month saw the conviction of Carla Foster for the late abortion of her 32-week-old foetus. The case has brought abortion law back into the public conscience this year and reignited the fears around the safety of women’s rights to abortion in the UK. Thousands of protestors descended on the steps of the Royal Courts of Justice days after the conviction was announced, fighting for a woman’s right to abortion to be enshrined in UK law and opposing the fact that, legally, abortion remains a crime in the UK.
Civil liberties groups have responded with opprobrium to the Metropolitan Police’s plan to begin using live facial recognition (LFR) cameras on London’s streets as of next month. Purportedly, the Met’s technology compares the structure of faces to those recorded in a database of suspects, and alerts officers on the scene if a match is found. If no alert is generated, the image is deleted. The Met has claimed that the system is 70% effective at spotting wanted suspects and only produced a false identification in one in a thousand cases. In addition, it claimed 80% of people surveyed backed the move.
Earlier this month, the Court of Appeal overturned Andrew Malkinson’s conviction for rape and related assault offences, for which he had spent 17 years in prison. An appeal in 2006 upheld the verdict and applications to the Criminal Case Review Commission (CCRC) in 2012 and 2020 were denied. Finally, a third application last year convinced the CCRC to order fresh DNA analysis. It was this evidence as well as treatment of some previously undisclosed information to do with Malkinson’s witness identification which secured his release.
In a case concerning a lesbian couple and a known biological father, Court of Appeal reconfirms approach when dealing with cases under the Children Act 1989 – the child’s welfare is paramount.
Background
This case concerned an application by a biological father for contact with his son who was living with his mother and his mother’s long-term lesbian partner. The three adults in the case had been friends for many years and indeed the father had married the mother before the child was born in an attempt to placate the mother’s family who were deeply religious. It was accepted that this was a marriage of convenience and as a result the father acquired parental responsibility for the child. Continue reading →
As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
For law students who slept their way through their first latin 101 lessons in ‘ultra vires’, public law and judicial review may have seemed very detached from the realities of everyday life; less relevant to the man on the Clapham Omnibus than the rigours of a good criminal defence or protection from eviction offered by landlord and tenant law.
The Lord Chancellor may be hoping that the public and Parliamentarians are similarly unfocused.
Khuja (formerly known as PNM) v. Times Newspapers [2017] UKSC 49, Supreme Court, read judgment
The outcome of this case is summed up in its title, an unsuccessful attempt to retain anonymity in press reporting. It is a stark instance of how someone involved in investigations into very serious offences cannot suppress any allegations which may have surfaced in open court, even though no prosecution was ever brought against them.
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Monsters are born, not made: the latest round in the debate about criminal responsibility questions the very existence of intuitive morality.
G v E & Ors [2011] EWCA Civ 939 – 
RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651 – 
As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
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