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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoner voting/page/32/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
Updated | The reference to sexual orientation in a resolution on extrajudicial, summary and arbitrary executionshas been restored. The General Assembly voted 93 in favour of the US proposal, with 55 countries voting against and 27 abstaining, with some 16 delegations taking the floor to explain their position.
As previously reported, for the first time since 1999 the resolution would not have expressly condemned such killings on the grounds of sexual orientation following an amendment by the African Group and the Organization of the Islamic Conference.
On Monday last week, the government published its long-awaited white paper on online harms. The paper states that the the government will establish a new statutory duty of care on these companies to ‘take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services’. A new regulator will have formidable powers and sanctions at its disposal to oversee and enforce the fulfilment of this duty.
The document was praised by John Naughton in the Guardian as a global first: the first time the government of a major country has attempted to regulate social media companies. He celebrates the paper’s ‘flexible and, at least to some extent, future-proof’ approach as a savvy first step on the road to online regulation.
Conversely, writing in The Times, Greg Hurst criticised the paper for ducking key questions and deferring decision on controversial decisions, characterising it as ‘an important tactical victory’ for social media platforms eager to evade tighter control. In particular, he noted the paper’s insistence that the regulator’s focus should be on ‘on protecting users from harm, not judging what is true or not’, a distinction he called ‘at best hard to maintain and, at worst, unsustainable.’
Commentators across the political spectrum noted that the paper’s implications for free speech were a source of tension and alarm. The paper identifies disinformation or ‘fake news’ as one of many online harms, and says that social media platforms will be expected to use fact-checking services and take action against disseminators of misinformation. The Spectator’s Toby Young states that the proposals pose ‘an unprecedented threat to free speech and could easily be used to impose a censorious code of conduct on newspapers and magazines’; in The Guardian, Alex Hern warned that the measures might prove ‘dangerous’ by ‘creating a regulator without the power to prevent the worst abuse, but with just enough power to scare away the best innovations.’
The intersection of online activity with freedom of expression was also brought into focus by the expulsion of WikiLeaks founder Julian Assange from the Ecuadorean embassy on Thursday. Mr Assange faces charges of sexual assault and criminal theft of US state secrets, and the possibility of a US prison sentence, after Ecuador revoked his asylum and allowed officers from Scotland Yard to remove him from the premises.
A leading article in the Sunday Times argued that Mr Assange’s fate should be left to the courts. Elsewhere, however, Ed Pilkington focused on the indictment’s ‘potentially devastating effect on the basic acts of journalism’. The attitude of many commentators and advocacy groups can be summed up in these words, from a statement by the Freedom of the Press Foundation: ‘Whether or not you like Assange, the charge against him is a serious press freedom threat and should be vigorously protested.’
In Other News
On Thursday, Omar al-Bashir, the military officer who took power in Sudan in 1989, was overthrown. Mr Bashir is the subject of an international arrest warrant issued by the International Criminal Court (ICC), which accuses him of organising war crimes and crimes against humanity in Sudan’s western Darfur region. While the Sudanese people have celebrated the toppling of a regime that has overseen decades of brutal repression and a desperate economic crisis, it remains unclear whether the generals behind the military coup intend to hand power over to civilian rule.
In a decision described as a ‘devastating blow for victims’, the ICC has rejected a request to investigate war crimes and crimes against humanity in Afghanistan, citing a lack of cooperation from the US, Afghan authorities and the Taliban.
In the Courts
Miller and Others v The United Kingdom [2019] ECHR 285 (11 April 2019): The applicants complained that under Article 3 of Protocol No. 1 to the Convention that as convicted prisoners in detention they had been subject to a blanket ban on voting in elections. The ECHR unanimously declared the applications admissible, and held that the finding of a violation alone was sufficient satisfaction for the applicants.
Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20: The Supreme Court heard a procedural appeal about the jurisdiction of the English courts in relation to a group tort claim. The claimants (the respondents to this appeal) are approximately 1,826 Zambian citizens who allege their health and farming activities have been damaged by toxic emissions from the Nchanga Copper Mine into the waterways upon which they rely for drinking water and crop irrigation. The United Nations has recognised access to clean drinking water as an essential human right; this case also engages Article 6 (the right to a fair trial), Article 1 (the right to the peaceful enjoyment of one’s own property) and potentially Article 2 (the right to life). The court found that England was not the ‘proper place’ for the proceedings. However, since there was a real risk that substantial justice would not be obtainable in a more appropriate foreign jurisdiction, namely Zambia, this finding was academic.
Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661: The Court of Appeal heard two separate appeals brought by the Secretary of State against decisions of the Upper Tribunal, which found that the public interest did not require the removal of either Respondent, on the ground of Article 8 (the right to respect for family life). The court found that AB, a father who saw his son three times a week to assist with homework, had a ‘genuine and subsisting relationship’. AO, a father who was only permitted ‘indirect contact’ with his son, did not. The Secretary of State’s appeal was dismissed in the case of AB and allowed in the case of AO.
On the UKHRB:
Jeremy Hyam QC encourages the GMC and the medical profession to reflect as Dr Bawa Garba, a paediatrician convicted of gross negligence manslaughter in November 2015, returns to work.
With Baroness Hale’s recent criticism of the emergency measures taken by the government ringing in our ears, the following information from across the Atlantic might be of interest. The New England firm Pierce Atwood LLP has compiled a list of class actions related to COVID-19 in the United States, including all filed and anticipated cases up to 9 September 2020. Although their survey only covers litigation in the US, a similar trend may be predicted in this country, albeit on a smaller scale, even as the pandemic continues to unfold: indeed Alethea Redfern has made reference to such a likelihood in this week’s Round-Up. The authors of the US report observe that, despite “unprecedented court closures and changing procedural rules”,
class actions have steadily increased and are expected to expand across industries, jurisdictions, and areas of law. The impact of COVID-19 on business operations, consumer activity, and economic forecasts has made clear that the filings to date are only an early indication of what is to come.
The report provides a categorised summary of coronavirus-related class action litigation filed to date, highlighting the core allegations of each complaint. You will find the individual case citations in their post on Lexology.
Charlotte Bellamy brings you the latest human rights news
Children in privately-run youth detention centres are being seriously injured whilst being restrained by staff, according to a redacted Ministry of Justice report released to the Director of the children’s rights charity Article 39. The report focuses on four secure training centres (STCs) and two young offender institutions (YOIs) – the worst three of which are all run by G4S.
The report lists ‘restraints-gone-wrong’, where children were injured or suffered breathing difficulties in the process. Rainsbrook SCT – where teenager Gareth Myatt died in 2004 after choking on his own vomit while being restrained – had the highest number of incidents of serious injury. One child vomited from a prolonged restraint whilst being held in a seated position similar to the one used on Myatt. Government guidelines classify vomiting during restraint as a medical emergency.
Carolyne Willow, Director of Article 39, has been engaged in legal proceedings against the MoJ for access to an unredacted version of the manual ‘Minimising and Managing Physical Restraint’, published in 2012, which details the restraint techniques used in STCs and YOIs. However, the Upper Tribunal recently dismissed her appeal in Willow v Information Commissioner & Ministry of Justice [2016], holding that disclosure of the information would threaten the good order and security of prisons, as inmates might develop countermeasures to the techniques. Willow had argued – unsuccessfully – that Article 3(1) of the UN Convention of the Rights of the Child required a greater emphasis to be placed on the child’s interests when balancing them against the public interest (see the Panopticon Blog for further analysis).
It came to light last week that Medway SCT – the subject of a BBC Panorama exposé aired in January this year which showed G4S staff appearing to use excessive force on children – is to be taken over by the Ministry of Justice. Four members of staff had been arrested on charges of child neglect in relation to the allegations, following which G4S announced in February it was selling off the contracts to run Medway, Oakhill SCT, and 13 local authority children’s homes.
Andrew Neilson of the Howard League for Penal Reform had called at the time for SCTs to be shut down completely, calling them a “failed model”. The Ministry of Justice is due to announce the findings of the Independent Improvement Board set up by Michael Gove in response to the Medway allegations, which will detail the future of the centre.
A wider review is currently being conducted into youth justice by Charlie Taylor, former head teacher and child behavioural expert, the final report of which is expected in July. The interim findings (available here) recommend an overhaul of the youth custodial estate, replacing youth prisons with smaller secure schools focusing on education.
Other news
In addition to the polling day problems in Barnet, it seems that thousands of women living in safe houses and refuges after fleeing domestic violence may have been disenfranchised. Mehala Osborne, a mother-of-one living in a refuge in Bristol, found it impossible to register anonymously as she could not adduce the required evidence to prove her safety would be at risk if her name and address appeared on the register. She estimates that 70% of women in refuges in Bristol and possibly across the country could be in the same situation. The evidence required for Anonymous Voter Registration is a court order or the attestation of an “authorised person” – a Police Superintendent, a Director of Adult Social Services, or the Director General of the Security Services or National Crime Agency. For many in Osborne’s situation, who have fled their homes quickly, there is no time to source such authorisation. The right to vote is protected by Article 3 Protocol 1 ECHR which states that the UK will “hold free elections … under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”. Osborne suggests that refuge and safe house management staff ought to be included in the definition of an “authorised person”.
Egyptian President Abdel-Fattah el-Sisi last week told a US delegation that human rights in Egypt should not be viewed from a “Western perspective”. Though reportedly keen to emphasise his commitment to democracy, he explained that “differences in domestic and regional conditions” make it difficult to apply the same standards. 237 human rights protestors were arrested last week during a peaceful demonstration in Cairo against the el-Sisi regime, including two journalists – Mahmoud al-Sakka and Amr Badr, who work for the opposition website Bawabet Yanayer – for “spreading false news and endangering national security”. Amnesty International have described el-Sisi’s remarks as “deeply troubling”, saying that “he should stop making excuses … There’s nothing remotely ‘Western’ about basic human rights like the right not to suffer torture or to be able to speak freely without fear of arrest or imprisonment”.
Arthur Scargill, the former miners’ union president, has called for an inquiry into the conduct of the South Yorkshire Police at the 1984 ‘Battle of Orgreave’. Thousands of minors clashed with the South Yorkshire police at the coking plant near Rotherham during the year long minors’ strike of 1984-5. A redacted version of the Independent Police Complaints Commission report into Orgreave was released last year, but the Yorkshire Post has now reported that the redacted sections proved the same senior police officers were involved in the aftermath of Orgreave as Hillsborough. Shadow Home Secretary Andy Burnham recently said that the full truth of policing at Hillsborough would not be known until there is transparency over Orgreave.
An Italian court has ruled that the theft of a piece of cheese and a wurstel sausage by a homeless man was not a crime because he acted in “desperate and immediate need of nourishment”. Roman Ostriakov had been sentenced by a lower court in Genoa to six months in jail and €100 fine after being arrested for slipping the sausage and cheese into his pocket when buying breadsticks in the supermarket. The Court of Cassation finally found in his favour, after a three-part trial to determine whether the theft of the food (worth about £3.70) amounted to a crime or not, prompting some commentators to lambaste the country’s notoriously inefficient legal system. Others, however, have lauded the judgment as establishing a “sacrosanct principle” that a small theft out of hunger is not comparable to an act of delinquency, and as an act of humanity which showed that in Italy the right to survive trumps property rights – something which would be “blasphemy in America”.
In the Courts
Cerf v Turkey – The Court found a violation of the duty to conduct an effective investigation under the procedural aspect of Article 2 (right to life) into the suspicious death of the applicant’s husband. The applicant’s husband, Serf Cerf, a local politician, was shot outside a café in the town of Yüreğir in 1994 and died on the spot. In 2000, the authorities arrested a man (in the course of operations carried out against Hizbullah, an outlawed organisation in Turkey) who confessed to killing Mr Cerf. Despite criminal proceedings being initiated against him and four others in 2000, they were not concluded until 2009 and 2013. The Court considered the delays to be excessive and incompatible with the State’s obligation under Article 2, which requires proceedings to be initiated promptly and to proceed with reasonable expedition. The delays entailed the conclusion that the investigation had been ineffective.
Abdi Mahamud v Malta – violations of Article 3 and 5. This case concerned a female Somalian asylum seeker detained for more than 16 months in overcrowded conditions, with little privacy and limited access to outdoor exercise. All the care of detained women was carried out by male staff. Ms Mahamud had been detained in May 2012. A decision on her asylum application was not made until December 2012 (when it was rejected). In the meantime she had been frequently hospitalised due several medical conditions. She was interviewed for release on the grounds of ill-health in December 2012, but was not actually released until September 2013. The cumulative effect of the detention conditions was found by the Court to be a violation of Article 3 (degrading treatment); a violation of Article 5 (right to liberty and security) § 1 was found in respect of the length of both periods of detention (seven months pending the asylum decision and the rest pending her removal). The lack of available measure to challenge the lawfulness of her detention was a violation of Article 5 § 4.
A highly experienced magistrate – Richard Page – has been sacked for airing views opposing same-sex couples being allowed to adopt. In a statement the Judicial Conduct Investigations Office said his views – which he had expressed in an BBC interview in 2015 – constituted “serious misconduct which brought the magistracy into disrepute”. Alice Arnold in the Guardian agrees with the decision to sack him (“the law is clear… magistrates must respect it”), whereas the Christian Legal Centre say this represents a “new political orthodoxy” and “modern day madness”. In a subsequent development, Mr Page is now planning to sue Michael Gove, citing religious discrimination. Continue reading →
The Justice and Security Bill, which proposes to introduce secret ‘Closed Material Procedure’ (CMP) hearings into civil trials, has been published. Here are some useful resources for picking your way through the controversy:
You can access all of the UK Human Rights Blog coverage of the secret trials proposals here, including our exclusive on the Special Advocates’ opposition to the proposals, which became the most damaging aspect of the case against the Green Paper.
The 94-page report, written by a group including a QC and a High Court judge, is a major and ambitious attempt to make the justice system fairer and simpler for people who go to court without a lawyer. A huge amount of research and thought has gone into it, building on the process begun by Lord Woolf in 1997 with the Civil Procedure Act. The CJC was itself a creation of the 1997 Act, its function being to figure out how to make the civil justice system more accessible, fair and efficient.
The New Zealand Parliament seems about to drop that country’s commitment to the rule of law from the Act underpinning the judicial branch. Retiring Supreme Court judge (and former Solicitor-General) Sir John McGrath thinks that’s worrying. He’s right. There’s still time for ex-pat Kiwis to lobby the Minister of Justice.
One of the first legislative measures of the young South Pacific colony, back in 1841, drafted in part by the Birmingham born first Chief Justice, Sir William Martin, was the creation of what is now known as the High Court of New Zealand.
That legislation has been updated over the years, significantly in the 1880s before consolidation in 1908 in the Judicature Act. That Act was overseen by the country’s fourth Chief Justice, the remarkable, Shetland born, Sir Robert Stout. Continue reading →
The Iraq (Chilcott) Inquiry was broadcast live but it was not a public inquiry under the Inquiries Act 2005, as Leveson’s is. The Inquiry’s website has been relaunched and will be hosting the live stream of hearings on this page. My only grumbles about the new website are that the live coverage should be more prominently advertised on the main page.
The UK Human Rights Blog launched on 30 March 2010 with a total of 2 readers and a budget of £200. Two years later, despite the budget remaining consistent, the Blog has just surpassed 1,000,000 individual page views and has over 10,000 subscribers over email, Twitter and Facebook. I would like to take a moment to reflect on this success.
As you can probably guess, we are (and I am) thrilled at the response to UKHRB. When we launched, our aim was to provide a new voice in the always colourful but often shrill arena of human rights commentary. We felt that there was a gap in the market (as it were – the blog has been and remains free to access) for a non-ideological legal human rights update service which would be accessible to the lawyers and lay persons alike.
In his Conservative Party Conference speech the Prime Minister David Cameron signalled his strong support for the legalisation of gay marriage. He said:
Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.
We have covered the slow progress towards legalised gay marriage in a number of posts since this blog launched in March 2010: see the links below. Where are we up to now?
Update – Isabel McArdle talks to Rosalind English about this case in the latest episode from Law Pod UK, available for free download from iTunes and Audioboom (episode 23).
The Supreme Court has made a significant decision on the question of the scope of the common law duty of care owed by police when their activities lead to injuries being sustained by members of the public. It has long been the case that a claim cannot be brought in negligence against the police, where the danger is created by someone else, except in certain unusual circumstances such as where there has been an assumption of responsibility.
This case, however, was focussed on the question of injuries resulting from activities of the police, where the danger was created by their own conduct. The answer is that the police did owe a duty of care to avoid causing an injury to a member of the public in those circumstances.
Owain Thomas QC reviews this new book by 1 Crown Office Row’s own Sally Smith QC.
Sally Smith’s wonderful new biography of the great Edwardian advocate Edward Marshall Hall is the first reappraisal of his life and career since the celebrated biography by Marjoribanks, published only two years after his death. Since then the worlds of law, journalism, celebrity, and crime have become intertwined in so many complex ways, but Smith charts in this book the quite remarkable public life of the era’s most sought after barrister. He attained celebrity beyond the dreams of even the most fervent publicity hungry barrister. His cases were regularly front page news. Because of the deliciously lurid subject matter some might have got there anyway, but his name added a lustre and whetted the public appetite for the scandal to come with the promise of a coup de théâtre. Thousands waited for the verdicts outside the Old Bailey. Continue reading →
Philip Havers QC of 1 Crown Office Row will be leading a challenge to the lockdown measures adopted by the government in response to the Covid-19 pandemic.
The Daily Mail has belatedly “corrected” its front page story on human rights damages, over a month after it appeared on 7 October 2013. Early last month I blogged on the original bogus article, which was so poor it generated a response from the ordinarily placid Council of Europe.
I have quote-pincered “corrected” as despite the newspaper’s actions, the damage is already done. A month has passed, which in social media time might as well be million years. People have moved on. Another human rights myth is implanted in the collective consciousness, and no sad little correction is going to dislodge a front page headline.
And to make things worse, the story was amplified by a whole host of other newspapers which picked it up without bothering to check the facts, including the Telegraph (corrected) and Daily Star (as yet uncorrected).
What really rankles about this story is how wrong it was.
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Updated | The reference to sexual orientation in a resolution on extrajudicial, summary and arbitrary executions has been restored. The General Assembly voted 93 in favour of the US proposal, with 55 countries voting against and 27 abstaining, with some 16 delegations taking the floor to explain their position.
The Justice and Security Bill, which proposes to introduce secret ‘Closed Material Procedure’ (CMP) hearings into civil trials, has been 
The Civil Justice Council (CJC) has just released a major new report: 
The 
In his 
The Daily Mail has belatedly “
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