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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoner voting/page/11/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate./page/70/[2001] EWCA Civ 1546
The Appellant, Harry Miller, succeeded in this appeal. Image: The Guardian
In R (Harry Miller) v The College of Policing [2021] EWCA Civ 1926, the Court of Appeal ruled that current police guidance on the recording of ‘hate incidents’ unlawfully interferes with the right to freedom of expression. The decision overturns a 2020 ruling by the High Court in which Mr Miller’s challenge to the lawfulness of the Hate Crime Operational Guidance was dismissed (discussed previously on this Blog here).
Facts
The central issue raised in the appeal is the lawfulness of certain parts of the Hate Crime Operational Guidance. The Guidance, issued in 2014 by the College of Policing, sets out the national policy in relation to the monitoring and recording of what are described as “non-crime hate incidents”. At the root of the challenge is the policy of “perception-based recording”, which states that non-crime hate incidents must be recorded by the police as such (against the named person allegedly responsible) if the incident is subjectively perceived by the “victim or any other person to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender” and irrespective of any evidence of the “hate” element.
Mr Miller, who is described as having “gender critical” beliefs, was reported to Humberside Police by Mrs B in January 2019 for posting comments on his Twitter account, which she asserted were “designed to cause deep offence and show his hatred for the transgender community.” Whilst there was no evidence of a criminal offence, the incident was recorded as a “hate incident” and Mr Miller was visited at work by a police officer who told him to “check his thinking.” Mr Miller subsequently brought a claim for judicial review.
R (o.t.a P & others) v. Secretary of State for Home Department & others [2017] EWCA Civ 321, Court of Appeal, 3 May 2017 – read judgment
The Court of Appeal has upheld challenges to the system of the police retaining information about past misconduct. It held that the system, even after a re-boot in 2013 in response to an earlier successful challenge, remains non-compliant with Article 8.
The problem is well summarised by Leveson P in the first paragraph of the judgment, namely the interface between a system of rehabilitation of offenders and the minimisation of risk to the public caused by the employment of those with misconduct in their pasts.
On 29/10/2020, the Court of Appeal dismissed an appeal against an aggravated burglary conviction brought by a teenage victim of human trafficking.
The applicant’s personal circumstances, including as a victim of trafficking, were properly reflected by way of mitigation of sentence. But his culpability and criminality were not extinguished or so diminished as to lead to the conclusion that he would or might not have been prosecuted.
Seton v. the United Kingdom, Application no. 55287/10, 31 March 2016 – read judgment.
The European Court of Human Rights (“ECtHR”) has held that the use of telephone recordings as evidence in a criminal trial, despite the inability of the accused to challenge the caller, did not violate his rights under Article 6, ECHR. This judgment follows a number of Grand Chamber judgments on similar issues that have altered the ECtHR’s stance on the subject of absent witness evidence.
by Fraser Simpson
Background
The applicant, Mr Seton, was on trial for murder. Prior to the trial, he submitted a defence statement stating that he believed that the murder had been carried out by Mr Pearman. The applicant alleged that he had previously been involved in a drug deal with Mr Pearman and the victim.
Mr Pearman, who was at the time imprisoned for drug dealing, was interviewed by the police but he refused to cooperate and answered “no comment” to all questions. Following these interviews, Mr Pearman phoned his wife and son from the prison and stated that he had never heard of the applicant and had no knowledge of the murder. These calls were recorded – a standard practice that Mr Pearman would have been aware of.
During the applicant’s trial for murder, it was accepted that the primary issue to be determined by the jury was whether the applicant or Mr Pearman had committed the murder. Mr Pearman had refused to attend the trial or make a formal witness statement. Accordingly, the prosecution sought to rely upon these recordings to disprove the applicant’s version of events. The trial judge, in deciding whether the recordings could be admitted as evidence, referred to s.114, Criminal Justice Act 2003 (“CJA 2003″). After considering the relevant considerations – such as the probative value of the evidence, whether it was self-serving, the reliability of the recording, and the prejudice that the applicant would face if it were to be admitted – the judge decided that the recordings could be relied upon during the trial. In summing up, the trial judge outlined the limitations of the telephone recordings and stated that it was up to the jury, in light of these limitations, to decide the relevant weight to be attached to the recordings. The applicant was subsequently convicted by the jury and sentenced to life imprisonment.
The applicant unsuccessfully appealed his conviction to the Court of Appeal (see, Seton v. R., [2010] EWCA Crim 450). The Court of Appeal considered that compelling Mr Pearman to attend the trial, which was an option, would have “been a fruitless exercise”. Mr Pearman could have invoked the protection against self-incrimination and had consistently refused to cooperate so the “prospect of any sensible evidence being given by him was, on a realistic view, nil” (paragraph 22 of Court of Appeal judgment). The Court of Appeal would only interfere with the trial judge’s decision if the decision was “marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made”. The Court of Appeal held that the relevant consideration under s.114(2), CJA 2003 had been covered by the trial judge and there were no other grounds to overturn the conviction.
Further, the Court of Appeal commented on the safety of the conviction. Due to the “overwhelming” evidence against the applicant, including eye-witness accounts, telephone call records between the applicant and the victim and cell site location evidence placing the applicant in the vicinity of the murder, the conviction was deemed to be safe.
The Strasbourg Court
The applicant applied to the European Court of Human Rights and alleged that his right to a fair trial within Article 6(1) and 6(3)(d) had been violated. Article 6(1) includes the right to a fair hearing when facing criminal charges whilst Article 6(3)(d) ensures that the individual has the right:
“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”
The default position is that witness evidence should be provided during the trial and the accused should have the opportunity to challenge this evidence during this trial. However, the use of witness evidence when the witness does not attend the trial does not automatically result in a violation of Article 6(1) and 6(3)(d). The Grand Chamber has previously set out specific guidance in assessing whether the use of such evidence complies with Article 6. In Al-Khawaja and Tahery v. the United Kingdom (GC), Application nos. 26766/05 and 22228/06, 15 December 2011 (see paragraphs 118-151), the Grand Chamber outlined a general three-part process:
Consider whether good reasons exist for the absence of the witness.
Consider whether the evidence was the “sole or decisive” decisive evidence against the accused.
Assess the existence of sufficient counterbalancing factors and procedural safeguards which allow the reliability of the evidence to be fairly and properly tested.
This process was clarified in Schatschaschwili v. Germany (GC), Application no. 9154/10, 15 December 2015. The Grand Chamber stated that the lack of good reasons for lack of attendance was not sufficient to result in a violation of Article 6, but it was a strong factor to be considered when assessing the overall fairness of the proceedings (paragraph 113). Additionally, the necessary extent of counterbalancing factors depends upon the weight of the evidence provided by the absent witness in the overall context of the proceedings (paragraph 116).
Were there good reasons for the non-attendance of Mr Pearman? (paragraphs 61-62)
The ECtHR has previously adopted a robust approach to assessing whether “good reasons” existed for the absence of the witness at the trial. Previously, even in situations where the witness was located in another country (Gabrielyan v. Armenia, Application no. 8088/05, 10 April 2012), or could not be located at all (Lučić v. Croatia, Application no. 5699/11, 27 February 2014), the ECtHR have held that the authorities have failed to satisfy their duty to secure attendance of the witness. In light of this, the ECtHR unsurprisingly concluded that no good reasons existed for Mr Pearman being absent from the trial. The trial court could have compelled Mr Pearman to attend the trial and whilst they could not compel him to give evidence, due to his right to silence, the jury would have at least been able to assess his demeanour when facing cross-examination.
Was the evidence of Mr Pearman the “sole or decisive” evidence? (Paragraphs 63-64)
The ECtHR considered that the recorded telephone calls could not be considered the “sole or decisive” evidence in the criminal trial. The Court of Appeal, in commenting on the safeness of the conviction, had listed the other “overwhelming” evidence against the applicant. However, the evidence had been described as “important” by the trial judge. Accordingly, following the Grand Chamber decision in Schatschaschwili, it was necessary to consider whether sufficient counterbalancing factors existed during the trial.
Did sufficient counterbalancing factors exist? (Paragraphs 65-68)
In the present case, the ECtHR highlighted the detailed legislative scheme intended to ensure that evidence from the absent witness could only be relied upon in limited circumstances. The need to assess the significance of the evidence, its reliability, and the prejudice that the applicant would face as a result of being unable to challenge the witness was an important procedural safeguard intended to uphold respect for the applicant’s rights. Additionally, the instruction of the judge as to the limitations of the evidence was another important counterbalancing factor.
As clarified by the Grand Chamber in Schatschaschwili, the assessment of counterbalancing factors is a relative one – fewer factors will be required if the evidence provided by the absent witness is not especially important. In light of the existence of separate “overwhelming” evidence against the accused, the counterbalancing factors in the present case were considered sufficient.
In conclusion, the ECtHR decided that the criminal proceedings as a whole had been fair. Having following the procedure outlined in Al-Khawaja, the ECtHR concluded that there had been no violation of Article 6.
Comment
This decision of the ECtHR is the consequence of previous Grand Chamber decisions tending to dilute the procedural protections contained within Article 6(3). The right to examine witnesses has slowly been weakened in favour of a more holistic approach that focusses upon the overall fairness of the proceedings instead of potential individual deficiencies.
When considering the three part test in Al-Khawaja, the first step – whether good reasons existed for the non-attendance of the witness – was previously considered determinative. If no good reasons existed, then Article 6 had been violated. Such a stance has even been adopted by the ECtHR following the judgment in Al-Khawaja and only months before the decision in Schatschaschwili (see Karpyuk and Others v. Ukraine, Application nos. 30582/04 and 32152/04, 6 October 2015, paragraph 123). Additionally, if such good reasons did exist but the evidence was the “sole or decisive” evidence in the case, then Article 6 had also been violated (Saïdi v. France, Application no. 14647/89, 20 September 1993, paragraph 44). Now, the position is that these considerations are merely factors that can be balanced away.
But the balancing process places an undue weight upon the existence of other incriminating evidence against the accused. The position appears to be that it is more acceptable to deny the accused the right to cross-examine a witness if the prosecution’s case against him/her is strong. This move towards focussing on the accuracy of the verdict, as opposed to upholding the rights of individuals, is a potentially worrying development. Indeed, the contemporary Strasbourg position appears, in effect, similar to the Court of Appeal’s consideration of the safety of the conviction.
It could be argued that the ECtHR may be surrendering its role as an upholder of fundamental human rights and moving towards that of an international criminal appeal court.
Regina v Budimir and another; Interfact Ltd v Liverpool City Council [2010] EWCA Crim 148; [2010] EWHC 1604 (Admin); [2010] WLR (D) 166
CA and DC: Lord Judge CJ, David Clarke, Lloyd Jones JJ: 29 June 2010 – read judgment
A new High Court decision has struck a blow for legal certainty and enforced the sometimes forgotten right under human rights law against retrospective criminal sanctions, which applies even in cases where the UK had failed to enact European Community legislation. In this case, the lack of retroactivity meant that a company and two men could not have their convictions for supplying videos illegally quashed.
The High Court held that where defendants had been convicted of criminal offences under national legislation which was unenforceable owing to a failure by the UK to comply with a pre-enactment procedural requirement imposed by EU law, it was not incumbent upon the Court of Appeal to re-open their cases out of time unless their convictions had given rise to any substantial injustice.
The Video Recordings Act 1984 made it an offence to supply pornographic videos “from” rather than “in” a licensed sex shop (Section 12); it was also an offence under the Act (Section 10 (1)) to supply videos with no classification certificate. The applicants had been convicted under these sections in 2004 and 2008 respectively.
R v M(L) and others [2010] EWCA Crim 2327; [2010] WLR(D) 266 – Read judgment
The Court of Appeal (Criminal Division) has provided further guidance to prosecutors on whether or not they should bring charges against victims of human trafficking who go on to commit crimes. In the same judgment, the Court considered the extent of the obligation on the police to refer such victims to specialist agencies.
The New York Times reports that after years of promising leads gone cold, the final piece of evidence which led to Osama Bin Laden was found by interrogating detainees in Guantanamo Bay, Cuba. Given the rough interrogation techniques which were in use at the prison camp, the killing has reopened the debate over torture, and whether it is ever justified.
Blogger David Allen Green, amongst others, asks whether the Bin Laden scenario may amount to an exception to the “otherwise absolute rule” that torture is wrong. I would like to pose a slightly different question: on the basis of current UK law, would it have been lawful for UK authorities to use information obtained under torture to capture or kill a known terrorist?
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The New York Times 
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