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After a brief hiatus, the Human Rights Round-up is back. Our new team of expert summarisers – Hannah Lynes, Alex Wessely and Laura Profumo – is installed and ready to administer your regular dose of UK human rights news.
This week, Hannah reports on the Global Law Summit, access to justice, and what’s happening in the courts.
In the News
‘If you wrap yourself in the Magna Carta…you are inevitably going to look ridiculous if you then throw cold water on an important part of its legacy.’ Lord Pannick QC was not alone last week (23-28th February) in suggesting that there was some irony in Lord Chancellor Chris Grayling evoking the spirit of the Magna Carta at his launch of the three-day Global Law Summit.
In both cases Christian bakery owners refused to create certain cakes for customers on the basis that it would contravene their religious objection to gay marriage. The judgments in Masterpiece may foreshadow some of the arguments to be discussed in the upcoming UK decision.
In this case, the US Supreme Court held that the Colorado Civil Rights Commission failed to approach the matter in accordance with its obligation of religious neutrality. The baker’s appeal was therefore upheld — but only on technical grounds.
Background
The owner of Masterpiece, Jack Phillips, refused to create a wedding cake for a same-sex marriage ceremony between two of his potential customers, Charlie Craig and Dave Mullins. He did, however, say that he would be prepared to make birthday cakes or other products. His stated reason for refusing to make a wedding cake was that to do so would have been a personal endorsement and participation in a ceremony and relationship which contravened his deep and sincerely held religious beliefs.
Associated Newspapers Ltd, R (on the application of) v Rt Hon Lord Justice Leveson [2012] EWHC 57 – Read judgment
On Friday 20 January 2012 the Administrative Court dismissed the second application for judicial review of the Leveson Inquiry. The Court dismissed an application by Associated Newspapers (supported by the Daily Telegraph) to quash the decision of the Chairman, Lord Justice Leveson. decision to admit evidence from journalists who wish to remain anonymous on the ground that they fear career blight if they identify themselves.
Lord Justice Toulson commented “that the issues being investigated by the Inquiry affect the population as a whole. I would be very reluctant to place any fetter on the Chairman pursuing his terms of reference as widely and deeply as he considers necessary”.
The Law Pod UK podcast for this roundup is available on iTunes – Episode 7
In the news…
The Unduly Lenient Sentence Scheme
Disgraced surgeon Ian Paterson’s sentence has been referred to the Court of Appeal under the Unduly Lenient Sentence Scheme. Paterson was jailed for 15 years in May, having been found guilty of 17 counts of wounding with intent and three of unlawful wounding. The breast surgeon was accused of negligence in performing so-called ‘cleavage-sparing mastectomies’, an unapproved procedure leaving tissue behind for cosmetic reasons and for some women leading to the return of their cancer, and furthermore, of carrying out unnecessary operations where a simple biopsy would have sufficed.
The Unduly Lenient Sentence Scheme was also in the news this week when the Ministry of Justice announced that 19 terror offences would be incorporated, including encouraging terrorism and sharing terrorist propaganda. The Scheme allows anyone to refer a sentence that they feel was lenient to the Attorney-General, who has the power to refer it to the Court of Appeal for reconsideration. Continue reading →
In Northern Ireland, the Troubles are not the only part of its troubled past and present. In March this year, the Stormont administration found itself mired in controversy over women’s reproductive rights and access to abortion services. In April, a fresh controversy arose: a legislative ban on so-called “gay conversion therapy”. On 18 March 2021, Ulster Unionist Party MLAs Doug Beattie and John Stewart tabled a private member’s motion in the Northern Ireland Assembly calling for a legislative ban on the practice. The motion was debated on 20 April, with one amendment ringfencing religious activities from the proposed ban, taking centre-stage.
To characterise the debate which followed as polarising would be to put it mildly. The Assembly Hansard for 20 April records angry, frustrated exchanges between MLAs who called for safeguarding the LGBTQ community from harmful practices (condemned by the UN Human Rights Council as creating “a significant risk of torture”) and MLAs who called for safeguarding the free exercise of religion.
In the event, the DUP amendment failed and the UUP motion was passed unamended by 59 votes to 24, providing Communities Minister Deirdre Hargey MLA with a strong mandate to bring legislation to ban conversion therapy in Northern Ireland. However, that was not the end of the matter. In the immediate aftermath of the Assembly vote, the DUP signalled its intent to block legislation unless “robust protections for churches” were included. Eight days after the vote, the Northern Ireland First Minister and DUP leader Arlene Foster MLA faced significant rebellion in the party against her leadership and announced her intention to resign both the leadership of the DUP and the First Ministership. The extent to which the motion to ban conversion therapy played a part in the rebellion against Foster remains a matter for debate, especially given concerns about the impact of the DUP’s political stance on the very recently enacted access to abortion and same-sex marriage in Northern Ireland.
Almost a month later, Mr Justice Scoffield in the Northern Ireland High Court handed down judgment in JR111’s application for judicial review [2021] NIQB 48, declaring the language of “disorder” in the Gender Recognition Act 2004 (GRA) to be in breach of the ECHR.
As many around the world celebrated the International Day against Homophobia, Biphobia and Transphobia on 17 May, the events of the past month were a reminder of how different the story of LGBT equality was in Northern Ireland, compared to Great Britain.
Whyte and Mackay Ltd v. Blyth & Blyth Consulting Engineers Ltd, Outer House, Court of Session, Lord Malcolm, 9 April 2013 read judgment
One to read if you have any interest in summary justice in civil litigation – not simply for those who can tell their rebar from their roof tile.
The first instance Scottish judge refused to order enforcement of a £3m adjudication – a form of interim justice -in complex professional negligence proceedings, because to do so would have involved a violation of A1P1 – the right to property. But he ruled against a similar submission based on Article 6 – the right to a fair trial.
The Labour MP Harriet Harman has proposed a change in the law that would prevent rape complainants from being cross-examined in court about their sexual history.
Harman claims that the introduction of a complainant’s sexual history as evidence has “no evidential value.” Describing the practice as “outdated”, Harman said that “it’s based on the old notion that there were two sorts of women – those who were ‘easy’ and those who were virtuous – and if you were easy, you would have sex with anybody, because you were that sort of woman.”
New rules on the disclosure of electronic documents came into force on 1 October. This many not sound as exciting as the trendy new Equality Act 2010, which has also begun operating, but the new rules may be of great significance to the justice system.
A new section has been added to the Civil Procedure Rules providing guidance on the disclosure of electronic documents.
This sounds perfectly sensible. What is surprising is how long it has taken for this much needed guidance to reach the justice system. According to the Ministry of Justice the aim of the new rules is “to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues.”
Welcome back to the UK Human Rights Roundup, your regular Swiss Army Knife of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
The focus of this week’s news was on the European Court on Human Rights’ views on whole life tariffs and miscarriages of justice, which has fed into the recent Abu Qatada deportation and continuing questions about the relationship between the UK, the Convention and the Court. Elsewhere, the Attorney-General was deemed to have lawfully exercised his override to suppress disclosure of Prince Charles’ letters, and there will be no public inquiry into the death of Litvinenko.
Supreme essay success
Top billing this week comes from our very own Daniel Isenberg’s fantastic winning essay in the UK Supreme Court, which has now been published on Guardian.co.uk – Do we need more or fewer dissenting voices in the UK supreme court?[Daniel did not put his own essay in top billing, it was me – but from everyone at UKHRB, we wish him hearty congratulations! Adam]
Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom – 24027/07 [2010] ECHR 1067 (6 July 2010) – Read judgment
The European Court of Human Rights has delayed the extradition of four men, including the notorious Mustafa Kamal Mustafa (Abu Hamza), from the United Kingdom to the United States due to concerns that long prison sentences and harsh conditions in a “supermax” prison could violate their human rights.
In this admissibility application, the four men mounted a wide-ranging attack on the US Justice system to the Strasbourg court, in terms usually reserved for lawless rogue states. The men claimed their extradition would put them at risk of harsh treatment, extraordinary rendition and the death penalty, amongst other draconian penalties. They said that the trial of non-US citizens on terrorism charges would lead to a “flagrant denial of justice”.
The road to hell, so the saying goes, is paved with good intentions. While not quite as dire, well-intentioned laws can nevertheless sometimes have severe consequences. In Re Mediahuis and others’ applications for judicial review [2024] NIKB 45, the Northern Ireland High Court declared 5 sections of one such well-intentioned law, the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (the 2022 Act), invalid. This is the first invalidation of devolved Northern Ireland statutory provisions since the present devolution settlement (the Northern Ireland Act 1998) was enacted 26 years ago. On one level, the judgment is fairly unremarkable – courts are empowered to declare invalid any devolved statute (or statutory provision) which is found to be outwith devolved legislative competence (in this case because of incompatibility with Article 10 of the ECHR) and have done so without raising eyebrows since the advent of devolution in the UK. On a deeper level, however, the judgment and the justification for the relevant provisions of the 2022 Act show the limits of formal equality in addressing substantive injustice.
The judgment
The 2022 Act was a partial response to a wide-ranging review into the legal and policy measures around serious sexual offences in Northern Ireland. This review, carried out by retired Court of Appeal judge Sir John Gillen (the Gillen Review) made several recommendations. Among these, the relevant recommendations for this case were (1) an extension of anonymity for complainants of sexual offences beyond their lifetimes, (2) pre-charge anonymity for suspects of sexual offences and (3) a statutory prohibition on the publication of suspects’ identities pre-charge. The 2022 Act implements (1) (by extending complainant anonymity to 25 years after the complainant dies) but goes much further in implementing (2) and (3) than recommended in the Gillen Report. In respect of (2), the 2022 Act allows suspects to remain anonymous pre-charge on almost the same terms as complainants (during their lifetimes and up to 25 years after death), meaning that if a suspect is never charged, no identifying details may be published until after 25 years following their death. The reporting restriction can be lifted by a court on the application of the police, the suspect or (if the suspect has died) the suspect’s close family, personal representative or anyone interested in reporting any prohibited matters relating to the suspect. Importantly, the press may not apply to lift the reporting restriction during the suspect’s lifetime. On (3), the 2022 Act criminalises the unauthorised publication of suspect details and prescribes a custodial sentence or a fine (or both) for the offence.
Plainly, the 2022 Act represents a significant hurdle to public interest reporting. The pre-charge anonymity is just as extensive as complainant anonymity, and may only be lifted on the application of an extremely limited cohort of people. The justification offered by the Northern Ireland Department of Justice (DoJ), to put the matter mildly, lacked much (if any) persuasiveness. The DoJ pointed to the deleterious impact of publishing or reporting on a sexual offence suspect’s details before charge, with consequences ranging from reputational damage to a threat to life (Mediahuis, para 58). But the Act does not provide a general public interest defence to the offence of unauthorised publication. Such a defence would allow a court to carefully scrutinise two competing issues – any public interest in publishing a suspect’s details pre-charge and that suspect’s rights under the ECHR – and balance them. And nor does the process to lift reporting restrictions include the press as applicants. The rationale for this was virtually non-existent, with the DoJ simply saying:
“It was considered necessary to draw a distinction between who can apply before the death of the suspect and who can apply thereafter to reflect the very different circumstances that apply in those varying circumstances.“
But the Court was not provided with the reasons why this distinction was “considered necessary”. The DoJ further claimed that broadening the cohort of people who could apply to lift the reporting restriction (journalists, for example) during a suspect’s lifetime would “run contrary to the aims of key recommendation 10 [of the Gillen Report].” The relevant recommendation (in full) is:
“There should be no change in the current law concerning publication of the identity of the accused post charge. The identity of the accused should be anonymised pre-charge and the accused should have the right to apply for a judge-alone trial in the rare circumstances where the judge considers it to be in the interests of justice.“
Plainly, the DoJ’s claim about the recommendation was unsustainable.
It is therefore unsurprising that the High Court (Mr Justice Humphreys) should have found the relevant provisions to be a disproportionate interference with Article 10 of the ECHR (the freedom of speech and expression), creating a ‘chilling effect’ on public interest journalism (Mediahuis, para 102).
To be clear, laws with categorical exclusions like the 2022 Act are not, by their categorical exclusions alone, inconsistent with the ECHR. Another devolved Northern Ireland statute – the Abortion Services (Safe Access Zones) Act (Northern Ireland) 2023 (which creates areas around abortion services providers for the safety of their users and staff by fining certain conduct within these areas) emerged from the Supreme Court entirely unscathed, despite containing clear categorical exclusions of certain behaviours (in the form of a strict liability offence in respect of those behaviours). But there are important differences between the 2022 Act and the Abortion Services Act. Chief among these is that fact that the former proscribes unauthorised publication with a custodial sentence, whereas the Abortion Services Act provided for a fine. Moreover, the banned behaviours in the Abortion Services Act are spatially limited to the defined safe access zones around abortion services providers; people are free to oppose such services elsewhere, so the limitations on Article 10 rights are themselves limited. By contrast, the pre-charge publication bar in the 2022 Act applies without distinction as to geography or other factor, and continues for a quarter of a century after a suspect’s death if the suspect is not charged. The limitation on Article 10 rights is thus extreme, and could only be justified (if at all) with the clearest and most compelling reasons. In this, the DoJ ultimately failed.
The erroneous focus on formal equality
The largely unsurprising ECHR assessment of the 2022 Act by the High Court aside, it is curious that pre-charge suspect anonymity and complainant anonymity should have been placed on the same formally equal plane. This is especially the case given that formal equality between complainant anonymity and (general) suspect anonymity was categorically rejected as ‘flawed’ by Sir John Gillen (Gillen Report, para 12.90). Sir John identified a number of reasons why complainants are entitled to greater anonymity – not least to encourage their participation in the criminal justice process. In the same vein, publishing or otherwise disclosing the identity of suspects of sexual offences encourages other potential complainants to come forward in a society where the conviction rate for such offences remains, in the words of Sir John ‘troublingly’, low (by the time Sir John had published his findings, the conviction rate for sexual offences in Northern Ireland had also been falling, see Gillen Report pg. 10).
Moreover, the social stigma associated with being a survivor of sexual violence or abuse acts as a further barrier. Within his Report, Sir John recognises the myriad ways in which different groups of survivors – women of colour (para 13.76), people with disabilities (e.g. paras 13.46 and 13.55) and men (para 13.148) – experience stigma.
All of these factors combine to highlight one of the main themes underlying the Gillen Report and the implementation of its recommendations by the DoJ over the years since the Report’s publication: the need to ensure that ‘one of the worst violations of human dignity’ – sexual crime – is not compounded by the very system designed to hold its perpetrators to account. This is not to discount the experiences of those whose details are published despite not being charged, and the indignities they suffer as a result. But fundamental to this complex and highly sensitive area is the recognition that different people experience different indignities. The formal equality which characterised the invalidated provisions of the 2022 Act, however, completely failed to recognise this reality. Instead, it effectively flattened the many accounts of survivors and suspects found in the 700-odd pages of the Gillen Report into a highly simplistic equation: whatever anonymity was conferred on complainants must also (mostly) be conferred on suspects while they remain uncharged.
This flat plane of formal equality ultimately imperilled the very provisions which were intended to protect the dignity of those people who, whether voluntarily or otherwise, come into contact with the criminal justice system for sexual offences. In the aftermath of the High Court’s judgment, the Northern Ireland Minister of Justice initially indicated that she was considering an appeal, before confirming that no appeal would be pursued. The resultant situation is that the relevant provisions of the 2022 Act – sections 12-16 – are invalid, so there is no bespoke statutory pathway to ensure suspect anonymity at the pre-charge stage (the UK Supreme Court judgment in Bloomberg LP v ZXC [2022] UKSC 5 recognises an ECHR-derived reasonable expectation of privacy at the pre-charge stage).
Without impugning the good intentions of the DoJ, the Assembly and the Northern Ireland Executive, Mediahuisand others should give Ministers and Departments pause for thought. Addressing the substantive (and sometimes life-altering) injustices which are experienced as a result of or in relation to sexual crime requires much greater sensitivity than a simple formal equality.
Anurag Deb is a PhD candidate at Queen’s University Belfast and a paralegal at KRW LAW LLP.
What is a “tort”? No, not a rich multilayered cake, but rather an “actionable wrong”. Tort law is also the means through which five Kenyans alleging they were mistreated in British detention camps in the 1950s may get damages. How do I know this? Because Mr Justice McCombe told me in a helpful summary of his judgment which was released on Thursday.
In R(on the application of UNISON) v Lord Chancellor[2017] UKSC 51, the Supreme Court gave an important judgment regarding the importance of access of justice. The Supreme Court held that the fees imposed by the Lord Chancellor in employment tribunal and employment appeal tribunal cases were unlawful.
Medical Justice, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin) (26 July 2010) – Read judgment
The High Court has ruled that a fast-track scheme for the removal of failed asylum seekers with little or no notice is unlawful as it does not provide sufficient access to justice.
Permission to appeal has been granted but the decision could put a stop to the policy being implemented for the time being.
The challenge was brought by Medical Justice, a charity which advises asylum seekers, represented by the Public Law Project, a legal charity which aims to improve access to public law remedies (see their press release here). The policy being challenged came into effect in January 2010, and gives individuals who fall into certain specified categories and who have made unsuccessful claims to enter or to remain in the United Kingdom, little or sometimes no notice of their removal directions.
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.
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After a brief hiatus, the Human Rights Round-up is back. Our new team of expert summarisers – Hannah Lynes, Alex Wessely and Laura Profumo – is installed and ready to administer your regular dose of UK human rights news. 
This week the US Supreme Court handed down judgment in 
Associated Newspapers Ltd, R (on the application of) v Rt Hon Lord Justice Leveson [2012] EWHC 57 – 
Welcome back to the UK Human Rights Roundup, your regular Swiss Army Knife of human rights news and views. The full list of links can be found 
What is a “tort”? No, not a 
In 
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