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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoner voting/page/22/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
The UN Commission of Inquiry on Ukraine found that 1,205 children have been systematically deported and forcibly transferred from Russian-occupied areas in Ukraine to Russia. Of those cases, eight in ten children have not yet returned. According to the findings, Russian authorities have acted in contravention with international humanitarian law, under which evacuation can only be temporary and for the legally justifiable reasons of health, medical treatment or safety.
The Courts and Tribunals Bill passed its second reading in the House of Commons last week. The Bill introduces a range of reforms aimed at reducing court backlogs, including proposals to restrict jury trials and raising magistrates’ sentencing powers. The House of Commons Public Bill Committee has issued a call for evidence from experts in fields relevant to the Bill.
The Netherlands and Iceland sought permission to intervene in the International Criminal Court (ICJ) case initiated by South Africa against Israel’s actions in Gaza. The ICJ had previously received 16 requests to intervene, including from Palestine, Ireland and Colombia.
[* note from editor: The United States and other countries have also filed declarations of intervention in South Africa’s case of genocide against Israel at the International Court of Justice. Article 63 of the Statute of the Court allows countries to intervene in cases involving the interpretation of a convention to which they are parties, even if they are not parties to the dispute.
In its 11-page declaration the US rejected South Africa’s accusations of genocide against Israel.
“To avoid any doubt, the United States affirms, in the strongest terms possible, that the allegations of ‘genocide’ against Israel are false. They are also unfortunately nothing new,” it said.
The US said it considered it necessary to intervene in this case in order to offer its interpretations of the provisions of the Genocide Convention, informed by its role in drafting the 1948 text]
In the Courts:
On Wednesday, the Joint Committee on Human Rights (JCHR) launched an inquiry into the recent changes to laws relating to protest. The inquiry will examine whether the Government has correctly balanced its duty to protect the public from disruption or fear, with its duty to protect the right to protest – described by JCHR chair, Lord David Alton, as “a cornerstone of our democracy”.
On Thursday, the High Court ruled that the Ministry of Defence’s (MoD’s) refusal of an Afghan Relocation and Assistance Policy (ARAP) application was unlawful, on the grounds of an error of fact and a failure to publish related caseworker guidance. Although the MoD withdrew the decision shortly after the hearing, Saini J still handed down judgment, noting that the Court’s findings could affect other ARAP cases [1-2].
The judicial review challenge was brought by CHD, an Afghan national who was tortured by the Taliban and is currently in hiding in Afghanistan. For 13 years, until the takeover of Afghanistan by the Taliban in 2021, CHD held a key public-facing role within a partly UK-funded organisation that promoted the rule of law and combatted the Taliban’s influence.
CHD’s application to re-locate to the UK was rejected by the MoD on the grounds that he failed to meet Condition 2 Category 4 of ARAP, which requires applicants to have made, in the course of their employment, “a substantive and positive contribution to the UK’s military objectives or national security objectives (which includes counter-terrorism, counter-narcotics and anti-corruption objectives) with respect to Afghanistan” [15].
Saini J held that MoD decision makers had made an error of fact when determining that the objectives of CHD’s employer – the advancement of the rule of law and a functioning legal system – were not also part of the UK’s national security objectives at the time of CHD’s employment [75-77].
Saini J also noted that he would have been inclined to find the unpublished guidance and any decision made pursuant to it unlawful, had it been necessary to decide the issue [21]. Applying R (Lumba) v SSHD [2012] 1 AC 245, Saini J held that the MoD’s failure to publish interfered with the general rule of law that the publication of policies is necessary for applicants to make informed and meaningful representations [84].
The recent claim in Parliament by Liberal Democrat MP John Hemming (pictured right) that Sir Fred Goodwin has obtained an injunction to prevent him being identified as a banker has reignited interest in the suggestion that the media can in some way sidestep the secrecy of an injunction through the indirect use of Parliamentary privilege. The incident is reminiscent of Paul Farelly’s revelation to Parliament that Trafigura had obtained a so-called “super-injunction” against the Guardian in October 2009.
In his blog on the Guardian website, Roy Greenslade asks: “Have MPs, and the media, found a way to overcome super-injunctions?” This question is worth considering from a legal perspective. This post will attempt to answer it by focussing on two areas: (i) the ability of MPs to disclose confidential information in Parliament and (ii) the ability of the media to report on these disclosures in order to evade liability for contempt of court.
Updated x 2 | A 20-year-old has been sent to prison for twelve weeks for posting offensive and derogatory comments about missing five-year-old April Jones on his Facebook page. His attempts at humour were undoubtedly stupid, offensive and exhibited incredibly poor taste and timing. But is a long spell in prison really the way we should be dealing with offensive idiots? Is a law which was passed before social media existed now placing a significant chill on our freedom of expression rights?
Matthew Woods pleaded guilty to an offence under s.127 of the Communications Act 2003, which prohibits a person sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character“. He was sentenced at Chorley Magistrates’ Court.
It was reported on Thursday, 5 July 2018, that three core participants in the Undercover Policing Inquiry are intending to launch a legal challenge against the Home Secretary’s decision not to appoint a panel to sit with the Chair, Sir John Mitting.
They say a diverse panel is needed who will better understand the issues of racism, sexism and class discrimination that the inquiry will inevitably raise. So where has this challenge come from, and is it likely to succeed?
Background
Three years ago, Home Secretary Theresa May announced the establishment of the Inquiry, amid great controversy concerning the conduct of undercover police officers over a number of decades. Lord Justice Pitchford was appointed as chairman, but as a result of ill-health, he had to step down in 2017 and was replaced by Sir John Mitting (a judge of the High Court).
Mitting J has experience of surveillance and the security services, having been Vice-President of the controversial Investigatory Powers Tribunal and Chairman of the Special Immigration Appeals Commission.
However, his chairmanship of the inquiry has been mired in dispute, starting with a series of decisions to grant anonymity to many officers because public disclosure of their real names would breach their Article 8 rights to private and family life. Some had also raised concerns about Mitting J’s membership of the all-male Garrick Club.
Compounding matters, at a hearing on 5 February 2018, Phillippa Kaufmann QC, counsel for the victims (who had core participant status at the Inquiry), made the point that it was impossible to rule out wrongdoing, including deceptive sexual activity, on the basis of an individual’s personal or family circumstances. Mitting J responded:
Of course it is impossible to rule it out, but you can make a judgment about whether or not it is more or less likely. We have had examples of undercover male officers who have gone through more than one long-term permanent relationship, sometimes simultaneously. There are also officers who have reached a ripe old age who are still married to the same woman that they were married to as a very young man. The experience of life tells one that the latter person is less likely to have engaged in extramarital affairs than the former.
The comments were not well received and, later in the hearing, Mitting J acknowledged that he “may stand accused of being somewhat naive and a little old-fashioned” but that he would “own up to both of those things” and would take it into account and revisit his own views.
The first concerns the failure to ensure that the Inquiry is heard by exactly that, a panel representing a proper cross-section of society and in particular — and this is absolutely essential for reasons I’m going to come to — including individuals who have a proper informed experiential understanding of discrimination both on grounds of race and sex. Two issues that lie absolutely at the heart of this Inquiry. I’m sorry to say this, but instead we have the usual white upper middle class elderly gentleman whose life experiences are a million miles away from those who were spied upon. And the very narrow ambit of your experience is not something I’m simply creating out of thin air. It has been exemplified already in the way that you have approached these applications.
She then referred to Mitting J’s comments at the February hearing and concluded by inviting him to either recuse himself or appoint a panel to sit alongside him. She then walked out of the hearing, accompanied by her legal team and the core participants.
Welcome back to the UK Human Rights Roundup, your regular booster shot 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.
Unsurprisingly, Theresa May’s views on the role of immigration judges sparked much debate this week – yet haven’t stopped the judges making findings that Immigration Rules are unlawful. The consequences of the dismissal of the Pryce jury are still playing out, while the Strasbourg Court has made an important ruling on discrimination based on sexual orientation. Keep an eye out on some new events advertised this week, and various updates in the legal blogging world.
I recently came across this judgement by the South African Constitutional Court. As a “Saffa” myself, I rejoice in the case’s title, pairing the name of the penultimate prime minister of the old apartheid South Africa (Botha), and the name (Smuts) of a much earlier Prime Minister of the Union of South Africa from 1919 to 1948.
But this case concerned two ordinary people, an insurance broker and an environmental activist, locking horns over their respective rights to privacy and freedom of expression under the South African Bill of Rights. The Constitutional Court judgment – running into nearly 100 pages in the Butterworths Human Rights Cases – is an interesting example of “salami slicing”, where the court takes apart a protected right and determines which bits of it can be upheld in the circumstances, and which can be set aside. It is also a fascinating insight into how information on social media platforms involves constant “re-publication”, and what that means for privacy and free speech rights. And finally, the judicial reflections on publication of someone’s personal address in the days of WFH show how far we have changed as a society since the pandemic.
The facts can be set out briefly.
Background facts and law
The applicant, Mr Botha, is an insurance broker who resides and conducts business in Gqeberha. He is also the owner of the farm Varsfontein situated in Alicedale in the Eastern Cape Province, a hundred kilometers away from his home.
The first respondent, Mr Smuts, is a wildlife conservationist, farmer, researcher and activist. The second respondent (amicus) is the Landmark Leopard and Predator Project – South Africa, a conservation non-governmental organisation focusing on human wildlife conflict management and leopard and carnivore conservation. It was founded by Mr Smuts who is its executive director.
A member of a group of cyclists who participated in an organised adventure ride that traversed Mr Botha’s farm (legally) encountered a dead baboon and porcupine in cage traps. The animals appeared to him to have been exposed to suffering and distress. Outraged by what he saw, the cyclist photographed the dead animals in the cages with the intention of sharing the photographs with an organisation capable of taking action. He shared them with Mr Smuts on 1 October 2019.
He also sent Mr Smuts a detailed map depicting the location of Mr Botha’s farm on which he indicated the place on the farm where the photographs were taken.
Mr Smuts published a post on the second respondent’s Facebook page which included, amongst others,
(a) a photograph of a baboon trapped in a cage; (b) a photograph of a porcupine trapped in a cage; (c ) a Google search location of Mr Botha’s insurance brokerage address (which turned out also to be Mr Botha’s residential address) and telephone number.
Six decades ago today, the European Convention on Human Rights came into force. It all started brightly, as a post-war, British-led pact against Fascism and Communism. Now, human rights are under heavy, relentless attack. Politicians, press and public seem to have an endless appetite for tales of human rights gone wrong. The Justice Secretary has recently said “all options are on the table” for “major change” on human rights, and it is likely that the future of the ECHR will be a major general election issue in 2015. In short, the UK may soon withdraw from the longstanding international human rights system which it was instrumental in creating.
That would be a great mistake. It is often said that human rights are something foreign to the UK, whose proud common law tradition negates the need for these “European” protections. But even a brief consideration of the ECHR’s history shows how wrong that perspective is. The ECHR was a fundamentally British document which has had an enormous, beneficial effect. We should be proud of its history, and would be quite mad to reject it now, six decades on.
S.H. and Others v. Austria (Application no. 57813/00), 3 November 2011 – read judgment
The Grand Chamber of the Strasbourg Court has rejected complaints from two infertile couples that the Austrian prohibition on using medically-assisted procreation techniques did not breach their right to respect for family life under Article 8 or the right to found a family under Article 12. The choices the legislature had made reflected the then current state of medical science and the consensus in society and it had therefore not overstepped its (wide) margin of appreciation in this area.
This refusal to allow infertile couples the protection of the Convention against restrictive state legislation comes as some surprise in the light of Strasbourg’s readiness to insist that governments should allow prisoners access to artificial insemination (AI): Dickson v United Kingdom (2006). Why should infertile couples be denied the anxious scrutiny accorded to those behind bars? This giving with one hand and taking with another simply confirms the cynic’s view of the court as being deeply partisan in its approach. And it is far from clear why governments should be allowed such leeway in an area so central to the ECHR’s concerns: the Court itself has said that where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State would normally be severely restricted. The matter of procreation and the genetic relatedness of one’s offspring must surely belong to this “core” area of life. Continue reading →
Though strategic litigation and test cases make essential contributions to the rule of law, there’s concern that they’re being abused. And, as funding comes under attack, there’s a greater need than ever for pro bono lawyers to take on test cases to ensure access to justice and accountability.
Following the fall of communism, the European Roma Rights Centre (ERRC) identified a significant problem with the educational segregation of Roma children in parts of Central and Eastern Europe. Roma children were ending up in what were termed ‘special schools’, supposedly set up for children with intellectual disabilities, and thus segregated from mainstream schooling. In 1998, the ERRC decided to investigate.
To try and bring about reform, it became apparent that the ERRC needed to identify a test case to put before the courts. In order to find the right applicant it interviewed hundreds of Roma families in the region and found 18 Roma children in the Czech Republic to be the test case. The legal angle the ERRC adopted was indirect discrimination: entry tests to mainstream schools were set for all children but they were biased against Roma children because they focused on Czech customs and language. The Roma children often failed and so were subsequently put in the special schools. The centre found that Roma children were twenty-seven times more likely than non-Roma children to be sent to a special school. Continue reading →
Welcome back to the UK Human Rights Roundup, your recommended weekly dose 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 bumper crop of human rights news this week, owing largely to the conclusion of the Eweida case which has been widely discussed in news outlets and legal blogs alike. There have been other significant cases decided this week also: the undercover police case (AKJ and others) and the Rocknroll case, a high-profile celebrity privacy case. In other news this week, public insults are to be legalised, but offensive columnists are censored.
Human Rights Lawyers Association Judicial Review competition
Calling all students! Interested in a career in Judicial Review and human rights? The HRLA is accepting applications for its inaugural Judicial Review competition, deadline 4 February – all details here.
The High Court (Bean LJ and Garnham J) held in R (Gardner) v Secretary of State for Health [2022] EWHC 967 (Admin) that the Government’s March 2020 Discharge Policy and the April 2020 Admissions Guidance were unlawful to the extent that the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.
About 20,000 residents of care homes in England died of COVID-19 during the first wave of the pandemic in 2020. Two of them were Michael Gibson, father of the First Claimant, and Donald Percival Maynard Harris, father of the Second Claimant. Mr Gibson died in a care home in Oxfordshire on 3 April 2020; Mr Harris in a care home in Hampshire on 1 May 2020.
The Issues
The Claimants sought declarations that particular policies of the Defendants (the Health Secretary, NHS England and Public Health England) during the relevant period constituted breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively were unlawful and susceptible to judicial review on common law principles.
Welcome back to the UK Human Rights Roundup, your regular late summer bake off of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.
Following the Tory Conference, commentators postulated on the topography of the human rights landscape in 2015. Meanwhile, more looming concerns have been raised about proposed reform of judicial review, while challenges have been raised to the bedroom tax, as well as the UK’s involvement in PRISM.
Updated | Welcome back to the UK Human Rights Roundup, your regular swirling snow flurry of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
This week, there are criticisms over the delay of inquiries both into the mistreatment of terrorism suspects and the Iraq War. Meanwhile, discussion continues over the relevance of the EU Charter of Fundamental Rights for UK law, and a dying asylum seeker on hunger strike will not be released.
Request for help – religion and law
Courting Faith: Religion as an Extralegal Factor in Judicial Decision Making Barristers sought to participate in PhD Research project exploring the relationship between religion and judicial decision making. If you are interested in taking part, please contact Amanda Springall-Rogers at A.Springall-Rogers@uea.ac.uk
R ((AAA) Syria and Ors) v Secretary of State for the Home Department[2023] UKSC 42
The Government’s flagship policy of removing individual asylum seekers to Rwanda for their claims to be decided under the Rwandan asylum system that was announced on 14th April 2022 has been found to be unlawful by a unanimous Supreme Court.
The Claimants were 10 individual asylum-seekers who entered the UK irregularly in small boats, together with one charity, Asylum Aid. There were also several interveners to the case, including the UN High Commissioner for Refugees (UNHCR) (whose counsel team was led by Angus McCullough KC of 1 Crown Office Row). The Home Secretary (whose counsel included Neil Sheldon KC and Natasha Barnes of 1 Crown Office Row) was the Defendant.
In December 2022, the Divisional Court (Lewis LJ and Swift J) dismissed the general challenge to the policy, as discussed here. But in June, the Court of Appeal, by a 2-1 majority (Sir Geoffrey Vos MR and Underhill LJ) found that the policy was unlawful, as discussed here.
The Supreme Court (Lord Reed P, Lord Hodge DP, Lord Lloyd-Jones, Lord Briggs and Lord Sales), in a judgment jointly authored by Lord Reed and Lord Lloyd-Jones, has now held unanimously that the policy is unlawful on the basis that there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement (forcible return) to their country of origin if they are removed to Rwanda.
On Thursday 8 September, Queen Elizabeth II, the UK’s longest-serving monarch, died peacefully at Balmoral aged 96. She is succeeded by her son, King Charles III. He described the death of his mother as a ‘moment of great sadness’ for him and his family, and that her loss would be ‘deeply felt’ around the world. Her state funeral this Monday was watched by around 4 billion people worldwide, and more than a million people lined the streets of London to pay tribute.
On Friday 17 September, the measure known as section 28 was extended to five more crown courts, taking the total number to 63. The policy allows complainants of offences including modern slavery to be cross-examined before trial in front of a limited number of people. Although many barristers support the principle of the policy, some have stated there are insufficient resources for the scheme, particularly in the light of the indefinite walkout over legal aid fees. Many advocates refused to do section 28 cases pre-strike given the amount of extra unpaid work required.
The quarter-of-a-billion-pound IT project rolled out by the Ministry of Justice to increase the efficiency of sharing information between courts, lawyers and police has come under criticism. The Common Platform software system has been accused of putting the justice system ‘at risk’. It is reported the system has been resulting in difficulties for lawyers, unlawful detentions, and wrongful arrests. Whistle-blowers have called the system ‘faulty, unsafe and unfinished’.
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The recent claim in Parliament by Liberal Democrat MP John Hemming (pictured right) that Sir Fred Goodwin has obtained an injunction to prevent him being identified as a banker has reignited interest in the suggestion that the media can in some way sidestep the secrecy of an injunction through the indirect use of Parliamentary privilege. The incident is reminiscent of Paul Farelly’s revelation to Parliament that Trafigura had obtained a so-called “super-injunction” against the Guardian in October 2009.
It 
Welcome back to the UK Human Rights Roundup, your regular booster shot of human rights news. The full list of links can be found 
Six decades ago today, the 
Welcome back to the UK Human Rights Roundup, your recommended weekly dose of human rights news. The full list of links can be found 
Welcome back to the UK Human Rights Roundup, your regular late summer bake off of human rights news and views. The full list of links can be found 
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