Search Results for: prisoner voting/page/44/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.

Courts should take note of Strasboug’s doctrine of deference

6 July 2012 by Rosalind English

R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment

This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.

Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.

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Did the UK misuse European court process on prisoner votes? – Dr Ed Bates

15 April 2011 by Guest Contributor

The recent rejection, by a panel of the Grand Chamber of the European Court of Human Rights, of the British government’s attempt to overturn the ruling in Greens and MT v United Kingdom (prisoner voting) case, brings into focus the role of the Strasbourg Grand Chamber.

In this post I attempt to highlight how the idea of a Grand Chamber came about, and its role under the ECHR. Building on Adam Wagner’s earlier posts, I also offer a possible explanation as to why the panel of the Grand Chamber refused a rehearing of the Greens case.

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Religious Accommodation, European Controversy, and Posthumous Pardons – the Human Rights Roundup

30 December 2013 by Celia Rooney

Welcome back to the UK Human Rights Roundup, your regular fluttering confetti 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, amidst the festive cheer, controversy over European human rights rages on, in relation to both the Charter and the Convention.  In other news, the posthumous pardon of Alan Turing sparks debate over the use and abuse of the royal prerogative.

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Speaking for the dead, prisoner votes and equal pay – The Human Rights Roundup

28 October 2012 by Sam Murrant

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.

In the news

This week, free speech continues to be widely discussed, along with prisoner votes and the popular conception of human rights law in the UK. A group of Birmingham women win a landmark equal pay case in the Supreme Court and the Chief Coroner speaks.

1 Crown Office Row seminar on inquests and inquiries

Public Inquiries and inquests have dominated the headlines recently, with members of One Crown Office Row appearing in many of them. On 8 November 2012 One Crown Office Row will be hosting a mock trial and panel discussion on the topic – there are still a few places left for legal practitioners, full details here.

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Restriction of student loans in Scotland to under-55s deemed to be unlawfully discriminatory

1 June 2016 by Fraser Simpson

Photo credit: The Guardian

Hunter, Re Judicial Review, [2016] CSOH 71 – read judgment.

The Outer House of the Court of Session has held that the restriction of student loans to individuals under 55 years old in Scotland is unjustifiably discriminatory. Additionally, the Scottish Ministers breached their public sector equality duty under the Equality Act 2010 by failing to assess the discriminatory effects that the regulation imposing this age restriction would have.

by Fraser Simpson

Background

The petitioner, Elizabeth Hunter, applied for a student loan from the Students Awards Agency for Scotland (“SAAS”) in order to allow her to pursue a course in Hospitality Management. At the time of applying for this loan, in 2014, the petitioner was aged 55. In line with Regulation 3(2)(b)(ii), Education (Student Loans) (Scotland) Regulations 2007, she was refused the loan. Regulation 3(2)(b)(ii) limits eligibility for student loans to individuals under 55.

The petitioner claimed that this decision, and the relevant regulation, unlawfully discriminated against her in violation of Article 14, ECHR. Additionally, she also claimed that the Scottish Ministers had failed to consider the potentially discriminatory effect that these regulations could have and, therefore, failed to satisfy their public sector equality duty (“PSED”) imposed by section 149, Equality Act 2010.

Article 14, which protects against discrimination on the basis of age, amongst other characteristics, is not a “free-standing” right. Instead, it is only applicable when the facts of the case fall within the scope of one of the Convention’s substantive provisions. Accordingly, the first issue for Lady Scott was to assess whether one of the substantive Convention rights was engaged in this situation. The petitioner submitted that either Article 1, Protocol 1, which includes the right to property and possessions, or, alternatively, Article 2, Protocol 1, which protects the right to education, was of relevance.
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Judges once again avoid right to die issue

2 April 2017 by Rosalind English

Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640 – read judgment

Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act  was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).

Background facts and law

The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP [2009] UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.

In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.

The Court concluded – with an interesting dissent from Charles J – that  this was a matter for parliament.  A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.

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Passports at the junction of international and domestic law – Richard Alton

30 August 2015 by Guest Contributor

Western governments are increasingly concerned to establish that they have the power to prevent individuals from traveling to the Middle East to engage in terrorism-related activity (see Rosalind English’s recent post on Jihadi Brides). This has resulted in a spike in passport seizures, especially on the domestic level.  Under Chapter 1 of the Counter-Terrorism and Security Act 2015 the UK government has the authority to seize UK passports

where a person is suspected of intending to leave Great Britain or the United Kingdom in connection with terrorism-related activity.

These events encouraged me to revisit a 2010 publication I co-authored with my colleague Jason Reed Struble, entitled ‘The Nature of a Passport at the Intersection of Customary International Law and American Judicial Practice’ (16 Ann. Surv. Int’l & Comp. L. 9 (2010)). In that piece we discussed the very nature of a passport and its role in both international and United States domestic law. This article focussed on the seizure of foreign passports by the U.S. Department of Homeland Security, and the subsequent tribulations that follow. Thus, the work focused on a different spectrum of passport seizures, i.e. a government seizing another government’s passport, as opposed to a government seizing passports of its own nationals.
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Sex abuse allegations against parent should be disclosed in contact proceedings

28 September 2012 by Matthew Flinn

Re J (A Child: Disclosure) [2012] EWCA Civ 1204 – read judgment

The Court of Appeal has ordered the the disclosure of serious allegations made against a parent by an anonymous third party in contact proceedings. In doing so, it has demonstrated the correct approach to balancing the many different human rights considerations involved. 

Every day, family courts across the UK are required to determine the difficult question of how much contact there should be between a child and his or her parents. It is the norm for these cases to be factually complicated and emotionally draining. However, this case was exceptional. It was an appeal relating contact proceedings in respect of a ten year old girl (A). The court had made various orders for contact over a number of years, with a final order being made in 2009 that the she was to stay with her father for two weeks each February and four weeks each summer.

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The missing Rule 35 mechanism for immigration detention in prison

27 April 2021 by Alice Kuzmenko

The Court of Appeal in MR (Pakistan) and Another v Secretary of State for the Home Department [2021] EWCA Civ 541 recently dealt with appeals regarding the absence of a process to assess the vulnerability of a person detained under immigration powers at Her Majesty’s Prisons (“HMPs”). This absence remains despite such a process existing for those detained under the same immigration powers in Immigration Removal Centres (“IRCs”) by virtue of Rules 34 and 35 of the Detention Centre Rules. These provisions enable a medical report to be prepared which is then considered by the SSHD when deciding on the management of the individual under relevant policy guidance.

The Court upheld the claim in part, holding that whilst this discrepancy did not give rise to systemic unfairness, in the individual two cases there was an irrational failure to obtain a Rule 35 report or equivalent. Despite this, however, it was held that these failures were not relevant to the decisions to detain the individuals in the particular cases.

Claims against the Catholic Church: When is there vicarious liability, when is there a duty of care and are the situations different?

16 April 2010 by Rosalind English

We posted last week on issues of breach of duty in cases involving child protection, and mentioned the MAGA case as an important decision in extending the duty of care to priests in the Catholic church. The lawyers in the case have now written up the judgment.

Case comment by Elizabeth-Anne Gumbel QC and Justin Levinson

(Barristers for the Claimant, MAGA)

MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256, Court of Appeal (Lord Neuberger MR, Lord Justice Longmore and Lady Justice Smith) (read judgment)

This appeal was brought with permission from the trial Judge Mr Justice Jack. The claim arose out of sexual abuse suffered by the Claimant whilst a child living in the area of the Church of Christ the King in Coundon, Coventry. This was a Catholic church under the control of the the Trustees of the Birmingham Archdiocese of the Roman Catholic Church. The priests appointed to work at that church in the 1970s included a senior priest father McTernan and a younger priest Father Clonan. The Claimant was seriously and repeatedly sexually assaulted over a number of months by the younger priest known as Father Clonan. The abuse took place after Father Clonan befriended the Claimant, invited him to the church youth club and then to the Presbytery where Father Clonan and other priests including the senior Priest Father McTernan lived.

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Coroner not required to investigate identities of Birmingham bombers

2 October 2018 by darraghcoffey

Emergency service personnel in the aftermath of the Birmingham bombings, November 1974 (Credit, The Guardian).

Coroner for the Birmingham Inquests v Hambleton & Ors [2018] EWCA Civ 2081 (26 September 2018)

At an inquest, the Coroner must investigate four things: the identity of the deceased and how, when and where they came by their death. Ordinarily, the question ‘how the deceased came by their death’ means ‘by what means’ they came by their death (R v. North Humberside Coroner, ex parte Jamieson [1995] QB 1).

However, in some cases, an enhanced investigative duty arises. When the death under investigation may have involved a failure by the state to fulfil its positive obligations under Article 2 of the ECHR, the interpretation of ‘how’ must be expanded to include an inquiry into the ‘circumstances in which the deceased came by his or her death’.

Coroner for the Birmingham Inquests (1974) v. Hambleton & Ors. [2018] EWCA Civ 2081 involved such an inquest. The central question for the Court of Appeal (composed of a panel including the Lord Chief Justice and the Vice-President of the Criminal Division of the Court) was whether, as part of his investigation into the deaths of the 21 victims of the 1974 Birmingham bombings, the Coroner was required to call evidence directed at identifying those responsible for the bombings. The Court of Appeal decided that, in this case, the Coroner was not so obliged.

One Crown Office Row’s Peter Skelton QC, Mathew Hill and Gideon Barth appeared on behalf of the Coroner. They were not involved in writing this post.

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More prisoners disenfranchised, this time in Austria

27 April 2010 by Adam Wagner

Frodl v Austria (Application no. 20201/04) 8 April 2010 – Read judgment

The European Court of Human Rights has taken another opportunity to criticise a European state for not allowing a prisoner, in this case convicted of murder, to vote. Prisoners will not be voting in the upcoming UK General Election, which may yet lead to a slew of compensation claims against the Government.

We posted recently on the continuing refusal of the UK Government to comply with the 2005 judgment of Hirst v UK, where the European Court held that the ban on prisoners voting in the UK was a breach of Article 3 of Protocol 1 to the European Convention on Human Rights.

In Frodl v Austria the Court said that any restriction on voting rights must be proportionate to the end pursued, and

“must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.”

The Court went on to find a violation of the European Convention, for the reason that “it is inconceivable… that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction“.

The Court added that a prisoner’s right to vote could in some cases be taken away, but only in the limited scenario where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. In other words, there needs to be a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“.

In the UK, the Government have shown little willingness to enfranchise prisoners and convicts. This may well be because it prefers the risk of thousands of compensation claims, as well as continuing criticism from Europe, to taking the politically unpopular decision of allowing convicted criminals  to vote.

Read more:

• Previous post: Prisoner takes UK to court for right to vote
• Case comment on The Strasbourg Observers blog

When does life mean life?

28 February 2011 by Adam Wagner

Peter Sutcliffe

Three convicted murderers are challenging their sentences in the European Court of Human Rights. They claim that the rare “whole life” tariffs which have been imposed in their cases is contrary to their human rights.

Jeremy Bamber, Peter Moore and Douglas Vinter were all convicted for murder and therefore sentenced to life imprisonment, which is the mandatory sentence for the crime. It has been so since death penalty was abolished in 1969.  However, as is well-known, life does not always mean life, and when a judge passes sentence he also sets a tariff, which is the number of years before which the prisoner will be eligible to be considered for early release on licence. The rules have already been altered to make them compatible with fair trial rights. Will they have to be altered again?

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Electric shock pet collar ban did not breach human rights

23 November 2010 by Catriona Murdoch

Petsafe Ltd, R (on the application of) v The Welsh Ministers [2010] EWHC 2908 (Admin) (16 November 2010) – Read judgment

The High Court has ruled that a Welsh ban on the use of collars designed to administer electric shocks to cats and dogs does not breach Article 1 of the First Protocol of the ECHR or impinge upon the free movement of goods protected under European Union Law.

The Judicial Review application was brought by two interested parties, Petsafe Ltd and The Electronic Collar Manufacturers Association against the Welsh Ministers who after a lengthy consultation period dating from 2007, brought into force the Animal Welfare (Electronic Collars (Wales)) Regulations 2010 (SI 2010/934) (“the 2010 Regulations”) which banned the use of electric collars. The 2010 Regulations were created under the powers conferred to the Welsh Ministers under the Animal Welfare Act 2006 (“AWA 2006”). A breach of the 2010 Regulations is an offence punishable with up to 51 weeks imprisonment and/or a fine not exceeding Level 5 (£5,000).

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Prisoners Votes, Public Authorities and Presidential Views – The Human Rights Roundup

20 October 2013 by Daniel Isenberg

 Welcome back to the UK Human Rights Roundup, your regular chocolate fondu 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.

The issue of prisoner votes returned to the courtroom this week, with an unsurprising judgment on many fronts.  Meanwhile Lord Neuberger made his views known on how access to justice forms a crucial component of the rule of law; and commentators discuss why public bodies can’t bring claims under the HRA.

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