Search Results for: justice and security bill/page/27/www.bailii.org/eu/cases/ECHR/1975/1.html

We need to think about Kevin

29 May 2012 by Rosalind English

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).
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Human rights roundup: Control orders, Google rapped and Henry VIII clauses

5 November 2010 by Adam Wagner

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.

A breathtaking Bill of which even Henry VIII would have been proud – Law and Lawyers: The Public Bodies Bill is making its way through Parliament, and the Law and Lawyers blog has sounded the alarm that the bill, if passed into law, will amount to a “permanent extension to Ministerial powers exercisable with quite minimal Parliamentary oversight.” It is “replete” with so-called Henry VIII clauses, which could provide unchecked power to the Executive. I discussed the issue of Henry VIII clauses in July, in light of the Lord Chief Justice’s comments on the issue.

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The Weekly Round-Up: Pride and Policing

6 July 2021 by Byul Ryan-Im

In the news:

The Prime Minister this week held a garden reception celebrating Pride Month and welcoming members of the LGBTQ+ community from across the UK.  The PM told the reception audience “we’ve got your back here in this government, we’re determined to stick up for equalities for LGBT people in any way we can.”  This assertion came three years after his own government promised to ban conversion therapy, a term used to describe a variety of practices which attempt to erase, repress or change a person’s sexual orientation and/or gender identity. 

Johnson’s promise to support the LGBTQ+ community also came after the first meeting of the Ban Conversion Therapy Legal Forum, a group of lawyers, academics, cross-party MPs and campaigners, chaired by Baroness Helena Kennedy.  The group released a statement advising the government that the “best way of banning conversion therapy is by using a combination of both civil and criminal remedies” and that the legislation “must be human rights compliant”, prioritising the rights of victims and potential victims.  The Forum acknowledged a ban might impact certain other rights including freedom of religion and belief and freedom of expression, but said the harm caused to LGBTQ+ people, which “amounts to degrading and inhuman treatment”, justified a proportionate restriction of those rights.

In other news:

The All-Party Parliamentary Group on Democracy and the Constitution released a report on its independent inquiry into whether the rights to freedom of expression and peaceful assembly were respected in the policing of the Clapham Common vigil for Sarah Everard on 13 March and the “Kill the Bill” protests in Bristol from 26-29 March.  The report, published 1 July, found that the Metropolitan Police Service (MPS) and the Avon and Somerset Constabulary (A&SC) “failed to understand the nature of the right to protest and how it must be applied in practice” and that their use of power “exacerbated tensions and increased the risk of violence”.  The APPG recommended a new statutory code for the right to protest and policing of protests; removing clauses 55-61 of the Police, Crime, Sentencing and Courts Bill; and a consultation on the creation of an Independent Protest Commission.

In the courts:

In Rashad Maqsood Abbasi and Aliya Abassi (Applicants) v Newcastle upon Tyne Hospitals NHS Foundation Trust (Respondent) and PA Media (Intervener) [2021] EWHC 1699 (Fam) and Takesha Thomas and Lanre Haastrup (Applicants) v Kings College Hospital NHS Trust (Respondent) and PA Media (Intervener) [2021] EWHC 1699 (Fam) the court considered the jurisdiction, if any, that the High Court Family Division has to maintain a Reporting Restriction Order (‘RRO’) prohibiting the naming of any medical clinicians as being involved in the care and treatment of a child who had been the subject of “end of life” proceedings before the High Court prior to their death.

Law Pod UK Summer Listening

1 August 2019 by Emma-Louise Fenelon

To celebrate reaching 200,000 listens, and in the event that any of our listeners wish to keep their grey matter ticking over during the heatwave/whilst sipping poolside pina coladas, we have prepared a Summer “Greatest Hits” playlist of our most popular episodes of 2019 so far. We hope you enjoy it, and wish all of our listeners a relaxing summer break.

1.     Lord Sumption’s Reith Lectures and Responses (Episode 88, Episode 89)

A veritable powerhouse panel respond to Lord Sumption’s 2019 Reith lectures, as part of the Constitutional and Administrative Bar Association’s summer conference featuring Lord Dyson, Sir Stephen Laws, Professor Vernon Bogdanor, Professor Meg Russell, Lord Falconer and Chaired by Mrs Justice Thornton. This episode is followed by a conversation between Lord Sumption and Lord Justice Singh, responding to the panel. Enjoy! 

2.     Consent and Causation with Robert Kellar QC (Episode 70)

Emma-Louise Fenelon talks to Robert Kellar about consent and causation, discussing the development of the law since Chester v Afshar through to Khan v MNX.

Judge releases court papers in hacking cases

29 February 2012 by Rosalind English

Application by Guardian & Various Claimants v. NGN & Mulcaire- read judgment

A high court judge has allowed the media unrestricted access to documents submitted to the court for use in litigation by victims of phone hacking who have now reached settlements with News Group Newspapers (NGN).

Full disclosure of this material was resisted by the private investigator Glenn Mulcaire on the grounds that it would create a “substantial risk” that the course of justice in the criminal proceedings he faces will be seriously impeded or prejudiced. The Telegraph and other papers have now published passages of the documents which were previously censored following this order from Vos J, the judge who has presided over more than 50 hacking claims against NGN.

Mulcaire was jailed in 2007 together with Clive Goodman, the News of the World’s then royal editor, after police found they had hacked phones belonging to members of the Royal household. The Telegraph reports that a section of the documents released in these proceedings that had been previously redacted

alleges that from 1998, when Mulcaire first started working with the News of the World, he “entered into a conspiracy with senior executives of [NGN] including Clive Goodman and Journalists A,B,C,D and E whereby he would, on their behalf, obtain information about individuals of interest to [NGN] journalists and use electronic intelligence and eavesdropping in order to obtain this information.
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Removal of baby from mother without court order not breach of human rights

8 July 2010 by Guest Contributor

A v (1) East Sussex County Council (2) Chief Constable of Sussex (2010) – Read judgment

The Administrative Court has held that the removal of a baby from her mother due to fears that she was fabricating symptoms was not a breach of human rights. The court did, however, identify ways in which the situation could have been handled less heavy-handedly.

Elizabeth-Anne Gumbel QC, who appeared in the case for the Appellant, analyses the judgment

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Value to the community can be taken into account in immigration cases

24 August 2010 by Matthew Hill

UE (Nigeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 975

The Court of Appeal has held that in deciding whether the removal of a person from the UK is compatible with their human rights, their value to the community can and in many cases should be taken into account.

The court ruled that when a decision-maker is undertaking the balancing exercise required to determine whether the removal of an individual from the UK is proportionate under Article 8 ECHR (right to family life), the individual’s value to the community in this country is a relevant consideration to be taken into account. However, this judgment was qualified by indications from the judges that, in practice, this factor is unlikely to carry much weight in the decision-maker’s evaluation.

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Challenge to prosecution policy on assisted suicide in Scotland fails – Fraser Simpson

10 September 2015 by Fraser Simpson

Ross, Re Judicial Review, [2015] CSOH 123 – read judgment

The Outer of House of the Court of Session has refused an individual’s request for clarification of the prosecution policy relating to assisted suicide in Scotland.

by Fraser Simpson

Factual Background

The Petitioner, Mr Ross, suffers from Parkinson’s disease and currently resides in a care home due to his dependence on others. Although not wishing to currently end his life, Mr Ross anticipates that in the future he will wish to do so and will require assistance.

In July 2014, the Petitioner requested from the Lord Advocate – the head of the prosecution service in Scotland – guidance on the prosecution of individuals who assist others to commit suicide. The Lord Advocate replied that such cases would be referred to the Procurator Fiscal – the Scottish public prosecutor – and dealt with under the law of homicide. The Lord Advocate further stated that decisions regarding whether prosecution would be in the public interest would be taken in line with the published Crown Office and Procurator Fiscal Service Prosecution Code (“COPFS Code”). However, he admitted that it would often be in the public interest to prosecute such serious crimes as homicide.
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The UK and Strasbourg: a victim fantasy

19 September 2012 by Andrew Tickell

Brought to you by Andrew Tickell

Rhubarb, rhubarb. Another defeat for the United Kingdom in Strasbourg yesterday. In James, Wells and Lee v. the United Kingdom, a chamber of the Court’s Fourth Section held that indeterminate sentences of imprisonment for public protection infringed Article 5 of the Convention.  At his first Justice Questions in the House of Commons yesterday, our fresh-minted Conservative Lord Chancellor and Justice Secretary, Chris Grayling, advised MPs that:

“I’m very disappointed with the ECHR decision this morning.  I have to say, it is not an area where I welcome the Court, seeking to make rulings.  It is something we intend to appeal.”

One wonders which areas Mr Grayling would welcome the Court’s jurisdiction, but all in all, a somewhat tepid response from a man whose appointment was greeted by the Daily Mail with the enthusiastic suggestion that Grayling…

“… unlike his predecessor Ken Clarke, will have no truck with the cardboard judges at the European Court of Human Rights.”

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The latest prisoner votes judgment may be our Marbury v Madison – Jamie Fletcher & Charlie Eastaugh

20 October 2013 by Guest Contributor

At first glance, prisoner voting proponents may interpret the Supreme Court’s R (Chester) v Justice Secretary decision (see Adam Wagner’s previous post)  as a defeat for advancing prisoner voting rights in the UK. This blog post offers a different perspective. By comparing Chester to the seminal US Supreme Court case of Marbury v. Madison, we summarise that such proponents should take a step back and see the wood, rather than merely the trees. This is because Lord Mance’s Chester judgment offers human rights advocates, and therefore supporters of prisoner voting rights, an unequivocal foundation from which to defend future human rights claims.

Chester does not achieve the same ends as Marbury. Marbury established the institution of judicial review in the United States, against Congressional legislation. Chester does not disturb the supremacy of the UK Parliament. Comparison arises within the strategies of the leading judgments in each case. Chief Justice Marshall’s judgment in Marbury is celebrated not only for its conclusion, that the Constitution of the United States is the highest form of law and therefore “it is emphatically the province and duty of the judicial department to say what the law is”, but also for how it reached that conclusion.

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Contraception, capacity and coercion: when does a woman lack capacity to decide whether to use contraceptive treatment?

25 August 2010 by Caroline Cross

A Local Authority v Mrs A, by her Litigation Friend, the Official Solicitor, and Mr A [2010] EWHC 1549 (Fam) – Read judgment

In the first case of its kind, the court was asked to consider whether a young married woman lacks capacity to decide whether to use contraception, and whether it would be in her interests to be required to receive it.

Mrs A was a 29-year-old woman who suffered from serious learning difficulties, which put her intellectual functioning at approximately 0.1% of adults her age. In 2004 she gave birth to a daughter, and in 2005 she had a son. Both children were removed from her at birth because she did not have the capacity to take care of them.

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Overseas Operations Bill: Getting Away With Murder – Dr Ronan Cormacain

20 January 2021 by Guest Contributor

Pardons versus failure to prosecute

One of the many outrages perpetrated by Donald Trump in the waning of his Presidency was granting a pardon to four private military contractors for their role in the Nisour Square massacre.  Those military contractors had opened fire indiscriminately, killing 14 Iraqi civilians, including two children.  

As with many of Trump’s assaults on the Rule of Law, the thought was that this kind of abuse could not happen in the UK. But certainty over our moral high ground will be short-lived if Parliament passes the Overseas Operations (Service Personnel and Veterans) Bill – a Bill whose precise aim is to make it much harder to prosecute British military personnel for abuses (including murder) carried out overseas.  The Bill reaches Second Reading this week in the House of Lords.

Hurdles to prosecution under the Bill

The Bill introduces three substantial hurdles to the prosecution of British soldiers if the incident took place overseas more than five years ago.  The first is that prosecutions must only be “exceptional circumstances”.  The second is that the consent of the Attorney General is required.  The third is that, in contemplating prosecutions, prosecutors must place particular weight on a list of exculpatory factors, but with the absence of a list of factors tending in favour of prosecution.

Aarhus shows its teeth to Belgium

31 October 2011 by David Hart KC

C-128/09 Boxus, CJEU, 18 October 2011

Belgium and its airports seem to have been skirmishing with the European Union Courts for some time now. First, in 2008, the ECJ in Abraham decided that a major and well-established expansion of Liege-Bierset airport required Environmental Impact Assessment (EIA), contrary to the contentions of the airport and its operators. Our case, Boxus, concerns a raft of challenges to consents for that airport expansion, and to similar projects affecting Charleroi airport and railways. These challenges ended up in front of the Court of Justice of the European Union on more EIA issues.   This time, it appears that the Walloon Region of Belgium had become impatient with continuing court challenges – so it resorted to Parliamentary Decree, in which Parliament “ratified” the various planning consents.

Hey, presto, the Region thought, any defects in previous procedures are solved, and the court proceedings will fall away – or will they?  Enter, on a white charger, the Aarhus Convention to the aid of the challengers.

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Poland’s disciplinary chamber for judges threatens rule of law – ECJ

10 August 2021 by Rosalind English

I have posted on the extraordinary goings-on in Thuringen, Germany where two Weimar judges, one family and one administrative, have been subject to searches by the public prosecutor’s office following their respective rulings containing comments critical of the various lockdown and testing measures during the C-19 pandemic. You can find my posts here, here and here.

So it’s something of an irony that, whilst a leading member state of the European Union is going after its judges for rulings of which it disapproves, the European Commission lodges an application for interim measures under Article 279 TFEU and Article 160(2) of the Rules of Procedure, requesting that the European Court of Justice order the Republic of Poland to suspend various Polish laws concerning disciplinary cases against judges. As the ECJ said, when considering the request,

The European Union is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article 2 TEU, which respect those values and which undertake to promote them. In particular, it follows from Article 2 TEU that the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice prevails.

Fine words, indeed. But the aspiration needs some enforcement. On the 15th of July the European Court of Justice (ECJ) ruled that the moves by the Polish government to institute a “Disciplinary Chamber of the Supreme Court” interfered with the guarantees of impartiality and independence of the judiciary, as well as the protection of the judiciary from executive disciplinary action, was in breach of EU law (Case C‑791/19, action for failure to fulfil obligations under Article 258 TFEU).

Criminals have human rights too, says Court of Appeal

29 December 2010 by Adam Wagner

Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor [2010] EWCA Civ 1443 (15 December 2010) – Read judgment

The Court of Appeal has ruled that the family of a drug smuggler who died after being poisoned by 116 swallowed cocaine packages can bring a human rights claim against the state, despite his criminal behaviour.

The decision will anger those who say that the Human Rights Act is no more than a villains’ charter, doing more to protect the rights of “asylum seeker death drivers” and the murderers of headmasters. However, the court has done no more than confirm the basic principle that human rights are for all, not just for people we like.

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