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UK Human Rights Blog - 1 Crown Office Row
Search Results for: justice and security bill/page/29/www.bailii.org/eu/cases/ECHR/1975/1.html
R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011 – read judgment; press summary here
Unappealable decisions of the Upper Tribunal are still subject to judicial review by the High Court, but only where there is an important point of principle or practice or some other compelling reason for the case to be reviewed. Unrestricted judicial review in this context is unnecessary and a waste of resources.
This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three was the extent to which decisions of the Upper Tribunal, established under the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”), are properly subject to judicial review by the Administrative Court in England and Wales and the Court of Session in Scotland.
In all of them the claimant failed in an appeal to the First-tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First-tier Tribunal and by the Upper Tribunal. In all three the claimant sought a judicial review of the refusal of permission to appeal by the Upper Tribunal. Continue reading →
The families of the 96 people who died at Hillsborough in 1989 have been vindicated at last, following a 27-year long fight for justice. An inquest jury has returned a conclusion of “unlawful killing”, in a damning indictment of South Yorkshire Police. The jury unanimously concluded that the behaviour of football supporters had in no part caused or contributed to the disaster.
Following the conclusion a number of questions still remain, including whether former chief superintendent David Duckenfield, the match commander, will now face fresh charges of manslaughter. A private prosecution ended in 2000 after a jury failed to reach agreement. Joshua Rozenburg observes that the inquest findings are clearly prejudicial – but “juries should be trusted to put prejudicial material out of their minds”.
Legal commentator David Allen Green points out that “without the Human Rights Act and ECHR there would not have been this new Hillsborough inquest”. The effect of Article 2 ECHR (the right to life) has meant it is no longer enough for an inquest to decide the means by which a person died; the circumstances in which the death occurred must also be determined. Barrister Michael Mansfield QC further notes that “one of the unusual features of these inquests has been the way the friends and relatives of the deceased have been accorded a central status” – a requirement of the European Court of Human Rights.
It is the jurisdiction of this same Court that Theresa May has declared the UK should leave, claiming this week that “the ECHR can bind the hands of Parliament, adds nothing to our prosperity…[and] makes us less secure by preventing the deportation of dangerous foreign nationals”. Mark Elliott describes the argument as “legally clumsy and constitutionally naïve”, while David Allen Green suggests human rights are being used “as a token in the game of politics”. He goes on to note that examples of the positive influence of the ECHR, such as the Hillsborough Inquests, will make this more difficult in the future: “even superficial politics can lose their shine”.
In other news:
According to a report in the Telegraph, each year up to 40,000 dying patients are having “do not resuscitate orders” imposed on them without the knowledge of their families. In many cases there is no record of any consultation with the patient. Adam Wagner suggests at RightsInfo that this might be in breach of patients’ human rights.
Figures released by the Ministry of Justice indicate a worsening crisis in the UK prison system. Between 2010 and 2015, the number of sexual assaults recorded has more than doubled from 137 incidents per year to 300. In the same period, the number of deaths in prisons has risen from 198 to 257 per year. Campaigners say that serious overcrowding and staff shortages are largely to blame. The Independent reports.
The Bar Council has warned that plans put forward by the Ministry of Justice to increase fees for those seeking justice through the Immigration and Asylum tribunal system by 500% is yet another step towards putting access to justice beyond the means of those who most need it. Further details can be found here.
The Guardian: According to a new report by charity Transform Justice, legal aid cuts have led to a sharp rise in unrepresented defendants. In one example given to the charity, an unrepresented defendant remained silent during his appearance via video link from a police station. Only after he had been sent to prison did it emerge that he was deaf.
The applicant was a Dutch national sentenced to life imprisonment for the murder of a six-year-old girl. The Court found that the lack of any kind of treatment for the mental health condition suffered by the applicant meant that his requests for pardon were in practice incapable of leading to his release, since his risk of re-offending would continue to be assessed as too high. Accordingly, the Court found a violation of Article 3 of the Convention (prohibition of inhuman or degrading treatment).
R (ota Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015 (see judgment)
The Supreme Court has reminded us, in a tour de forceby Lord Reed, that there is no such thing as one-stop proportionality. It varies between ECHR and EU law, and the tests of EU proportionality then vary according to the nature of the EU issue in play.
And all this in a case about trying to improve standards for barristers’ advocacy.
Barristers challenged the Quality Assurance Scheme for Advocates or QASA, on EU grounds. QASA requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.
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.
This week saw some commentary on Lord Sumption’s latest speech, which may indicate further advances into the domain of the government by the judges, and on secret justice and vicarious liability for Catholic priests. There have also been two important new decisions on child tax credit for separated parents and when costs will be awarded in settled judicial reviews under the Housing Act.
UKHRB Seminar Podcasts Available
The podcasts and full presentations by 1 Crown Office Row barristers Shaheen Rahman, Adam Wagner and Matthew Hill for UKHRB’s million-hit seminar are now available. The major topics: the Brighton Declaration, Article 8 and when States are complicit in torture. Check them out here if you missed the seminar.
Welcome back to the UK Human Rights Roundup, your regular party gathering of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, the Conservative Party will unveil its plans for human rights reform in the UK. In other news, Chris Grayling’s decision to drastically reduce the number of legal aid contacts granted is successfully challenged, while a prosecution for assisted suicide keeps the assisted dying debate alive.
US President Donald Trump and Supreme Leader of North Korea Kim Jong-un
In the News
A number of reports and warnings on working conditions for junior judges, the criminal justice system’s treatment of victims of sexual violence, and prison sentencing for individuals with mental health issues have been published this week.
The Criminal Bar Association has warned that junior judges are being put on what are in effect zero-hours contracts, as their working days have been slashed and requests are being made for them to sit at the bench at impossibly short notice. The Guardian’s legal affair correspondent Owen Bowcott attributes the worsening working conditions to ‘a fresh round of austerity’, noting that the Ministry of Justice has suffered deeper cuts than any other Whitehall department since 2010. Conversely, the MoJ insists that the reason for the change is that the number of cases going to court has fallen and therefore fewer recorders are required. Caroline Goodwin QC, vice-chair of the Criminal Bar Association, said: ‘Exactly how recorders are to fulfil their sitting obligations and maintain any real career progression simply beggars belief.’
Baroness Newlove, the outgoing victim’s commissioner for England and Wales, has warned in her annual report that there has been a ‘breakdown in confidence between victims of sexual violence and the criminal justice system’. She cited recent data that suggests fewer than 2% of victims of sexual assault will see their perpetrator convicted in the courts. Arguing that the criminal justice system had become a ‘hostile environment’ for victims, Newlove called for them to be offered free legal advice before consenting to handing over their phones or personal records, expressed concern over defence barristers cross-examining victims on their previous sexual history, and echoed Sir John Gillen’s call for a ‘large-scale publicity campaign and training for juries’ to counteract rape myths and stereotyping.
In the Guardian, Fern Champion, a survivor of sexual violence who is campaigning to ensure access to specialist counselling services, observed that rape crisis centres and services are being forced to turn thousands of women away because high demand and long-term underfunding have resulted in waiting lists as long as 14 months. She expressed concern that the Tory leadership candidates Boris Johnson and Jeremy Hunt demonstrate ‘clear inability to understand’ the extent and severity of the crisis. In the same paper, Emily Reynolds called for a duty to be imposed on employers to prevent sexual harassment in the workplace.
Ten years since the publication of the landmark Bradley Report, a new report by the Centre for Mental Health has recommended further change to ensure that people who suffer from mental ill-health and addictions are not sent to prison when alternatives are more effective. The report finds too many people are sentenced to short prison sentences without any pre-sentence report on their needs, and recommends that Liaison and Diversion services should be resourced to enable effective screening of all those who come into police custody or attend voluntarily.
In Other News
China, North Korea and Hong Kong have been in the headlines this week for a number of diplomatic developments which engage human rights issues.
At the G20, President Trump and Xi Jinping agreed to restart trade talks, with the US president saying he would not impose threatened tariffs on Chinese goods, and indicating his readiness to lift a ban on American companies selling components to Huawei. Writing in the Times, Philip Sherwell observed that the American president ‘seemed most at ease among authoritarians’ and deflected questions about human rights abuses in Russia and Saudi Arabia.
An impromptu early morning tweet at the G20 led to President Trump becoming the first United States leader to enter North Korea, during a hastily arranged meeting with Kim Jong-un at the border with South Korea. The two men then crossed the border to greet the South Korean president, Moon Jae-in. Four months after the failure of Trump and Kim’s last summit in Vietnam, the three leaders talked for just under an hour before announcing that teams of North Korean and US diplomats will resume negotiations on denuclearisation. Kim stated that the meeting indicates an intention to ‘bring an end to the unpleasant past and build a new future’, while Trump said it would ‘start a process and we will see what happens’, and Moon characterised it as ‘a significant milestone in the peace process on the Korean peninsula’.
Responses have been mixed. Professor Robert Kelly of South Korea’s Pusan National University derided the meeting as a ‘photo op for the 2020 election’ driven by Trump’s ‘lust for optics and drama rather than substance’. Taking a similar tone, Victor Cha, a former American negotiator with North Korea, said ‘theatrics are no substitute for denuclearisation’. In contrast, Pope Francis praised the meeting as a ‘good example of the culture of encounter’.
In the Times, Richard Lloyd Parry observed that the ‘gaping divide’ between the ideology of the two sides could render ‘Mr Trump’s hop across the border’ meaningless: ’Kim does not want western style capitalism, because of the danger that it would unlock unrest in his cowed and isolated population’. As with Trump and Kim’s February summit, there was no discussion of North Korea’s woeful record of ‘systemic, widespread and grave human rights violations’, in the words of a 2014 UN Report into conditions in the country.
In Hong Kong, around two million people marched to demand the resignation of leader Carrie Lam a day after she pulled back from a bitterly unpopular proposed law that would allow extradition to China. Lam’s apologises and offers to ‘postpone’ the measure did little to settle public outcry against the bill, which could allow China to exert more influence in Hong Kong to silence critics, undermine civic discourse, and erode the independence of the judiciary.
In the Courts
In Z & Aanor, R (On the Application Of) v London Borough of Hackney & Anor [2019] EWCA Civ 1099, the Court of Appeal unanimously rejected an appeal against a Divisional Court ruling that the Agudas Israel Housing Association’s arrangements for the allocation of social housing, which are currently allocated only to members of the Orthodox Jewish community, were lawful. In his judgement, Lord Justice Lewison pointed with approval to Hackney’s evidence that ‘AIHA’s allocation arrangements are valuable for the purpose of alleviating high levels of child poverty in the Orthodox Jewish community’.
In Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1) [2019] EWCOP 22 Mr Justice Hayden identified a number of principles determining whether permission should be granted in applications for the appointment of personal welfare deputies. The three young people on whose behalf the applications were a non-verbal 24-year-old man with autism, epilepsy and severe learning difficulties; a 24-year-old woman with Down’s Syndrome and a learning disability; and a 20-year-old man with severe autism, requiring constant supervision. In his judgement, Mr Justice Hayden emphasised that the ‘defining principle’ of the Mental Capacity Act 2005 was the ‘recognition of the importance of human autonomy’ in the presumption set out at Section 1(2) that ‘a person person must be assumed to have capacity unless it is established that he lacks capacity’.
In three applications brought against Serbia and the Ukraine, the European Court of Human Rights declared that the applications were admissible and disclosed a breach of Articles 6 and 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms due to the excessive length of administrative proceedings: Case of Milosavljević v Serbia [2019] ECHR 496; Case of Yeryomina and Others v Ukraine [2019] ECHR 507; Case of Tseboyev and Others v Russia [2019] ECHR 505.
A (A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454 (QB)– read judgment
A High Court judge has ruled that a seven-year-old child with severe disabilities caused by medical negligence during his birth should be the subject of an order that prohibits their identification in any newspaper report.
The order was granted in the course of a hearing to approve the settlement between the child and the defendant hospital under Part 21.10 of the Civil Procedure Rules. The judge held that there was a risk that the objective of such proceedings, namely to ensure that settlement money is properly looked after and wisely applied, would be defeated if the Claimant was identified. Further, identification of the child would curtail his and his family’s right to respect for their private and family under Article 8 of the European Convention on Human Rights [‘ECHR’] and there was insufficient general public interest in identifying the child to justify that curtailment.
What happens when someone is convicted of a criminal offence and is given a custodial sentence? Sometimes, the individual will serve at least part of their sentence in prison and the remainder on licence. But, what happens after they’ve served the totality of their sentence?
Some convictions can, after a certain period of time, become “spent”. This means that anyone convicted of such offences is treated as never having been convicted of such offences. The Rehabilitation of Offenders (Northern Ireland) Order 1978 calls these people “rehabilitated persons”. However, the 1978 Order contains a large number of exceptions, so that some convictions can never become spent. JR123’s application for judicial review in the Northern Ireland High Court concerned one of these exceptions: sentences longer than 30 months.
Readers of this blog may be familiar with the changes in disclosure duties for criminal convictions which came about as a result of the cases of Gallagher, P, G & W v Home Secretary [2019] UKSC 3 (see Samuel March’s post on this topic). JR123 looks at another aspect of the framework of rehabilitation: the ability to be rehabilitated in law at all.
The facts
JR123 had been convicted of possession of a petrol bomb, arson, burglary and theft in 1980. Having been given multiple custodial sentences, he had been released from custody in 1982 and had served the remainder of his sentences on license. In the years which followed, JR123 had no further involvement with the criminal justice system. However, given the exceptions in the 1978 Order, his convictions could never be spent and thus he could never be rehabilitated. This was problematic on multiple fronts, particularly his employment prospects and personal life. Many things which we take for granted, for example applying for insurance, obtaining a mortgage, renting properties, and so on, become considerably difficult when having to disclose convictions which are almost 40 years old ([14]).
Mr Justice Colton observed of JR123: “He finds the process of repeatedly having to disclose the convictions to be oppressive and shaming” ([6]).
At the start of the year, some 1,200 immigrants were being held in immigration detention in the UK. The power to detain immigrants is separate from detention of individuals as part of a criminal sentence. There is a presumption against detention of immigrants and immigration detention, which can only be in accordance with one of the statutory powers (the majority of which are contained in the Immigration Act 1971 and the Immigration and Asylum Act 2002), and is allowed in the interests of maintaining effective immigration control, for example, to effect removal; to establish a person’s identity or the basis of their immigration claim; or where there is reason to believe that the person will fail to comply with any conditions attached to a grant of immigration bail.
In order to be lawful, not only must immigration detention be in accordance with one of the statutory powers, but it must also be in accordance with the limitations implied by the domestic common law and Strasbourg case law (ECHR Article 5), as well as with stated Home Office policy. Under the common law and ECHR Article 5, the statutory powers to detain are to be strictly and narrowly construed, i.e. if detention is not for a statutory purpose (or is no longer for that purpose) it will become unlawful. Additionally, the power to detain is impliedly limited to a period that is reasonably necessary for the statutory purpose to be carried out and must be justified in all the circumstances of the individual case, requiring an assessment of individual factors such as the risk of absconding, the likelihood of imminent removal, and the impact on the detainee.
Following news of the first immigration detainee testing positive for COVID-19, there was concern about the risk of COVID-19 deaths in immigration detention and about the legality of continued detention of immigrants. Detention Action Group has sought to challenge the continued detention of immigrants and the steps taken by the Secretary of State to address the position of persons in immigration detention in light of the COVID-19 pandemic.
An application for urgent interim relief was made by the Detention Action Group in March for the release of some 736 immigrants in detention and was advanced, first in relation to those whose removal is not reasonably imminent as a result of the global pandemic and the consequential travel bans and restrictions around the world, and secondly in relation to vulnerable detainees such as those who are suffering from serious medical conditions or who are aged 70 and over.
A separate application for urgent interim relief was made by Samson Bello, a Nigerian deportee, seeking release from detention on the basis that restrictions to travel to Nigeria meant that his continued detention for the purposes of removal was no longer lawful. Both of these cases are discussed in detail below.
NHS Trust v Y (by his litigation friend, the Official Solicitor) and Others, Supreme Court 30 July 2018 – read judgment
The question for the Court was a simple but important one: whether the permission of a court was always required by law before doctors could withdraw feeding from a person in a persistent vegetative state.
Background
The patient at the heart of this case, known only as Y, had been an active man in his 50s before suffering a cardiac arrest which led to severe brain damage. He never regained consciousness and needed to be fed through a tube (known technically as “clinically assisted nutrition and hydration” or “CANH”) to stay alive.
Doctors had determined that Y was suffering from a “prolonged disorder of consciousness”known as “PDOC”.PDOC covers those who are in a persistent vegetative state and also those in a minimally conscious state, what we might informally call a coma. Continue reading →
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.
A relatively quiet week on the news front, with courts having a well-earned Easter break. Just a few items to focus on, with commentary appearing following the US Supreme Court’s oral hearing on the same-sex marriage. The Employment Tribunal has found that conference motions and debates surrounding Israeli boycotts do not constitute anti-Semitism; and assistance is out there for litigants in person following the enactment of LASPO.
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:
New human rights body must be independent, says Law Society: The Foreign Secretary announced a new independent advisory group, including non governmental organisations and independent experts, to advise ministers on human rights issues (see our post). The Law Society says it should be on it.
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.”
Welcome back to the UK Human Rights Roundup, your regular raging winter storm of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
The Government received an unwelcome early christmas present this week, with the Joint Parliamentary Committee reporting that a blanket ban on prisoner enfranchisement had no rational basis. Meanwhile, Britain’s potentially unlawful treatment of detainees with regard to rendition and torture are coming to light with the Gibson Inquiry, and a senior judge has announced that perhaps, after the ‘forced Caesarean’ escalation, there needs to be more transparency in the family courts and Court of Protection.
On 30 July 2020, the Crown Prosecution Service published its performance statistics on sexual violence cases for the year 2019-20, which vindicate long-held concerns about the “damning” number of cases being lost amid “under-resourced” investigations.
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R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011 – read judgment; press summary here
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found 
Welcome back to the UK Human Rights Roundup, your regular party gathering of human rights news and views. The full list of links can be found 
NHS Trust v Y (by his litigation friend, the Official Solicitor) and Others, Supreme Court 30 July 2018 – 
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found 
Welcome back to the UK Human Rights Roundup, your regular raging winter storm of human rights news and views. The full list of links can be found 
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