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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoners/page/18/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
Our attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician’s trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced.
But we know , somewhere in the back of our minds, that we are being fooled.
As with our safety from terror. We are happy because major terrorist attacks in the UK or US are thankfully rare. We are told about countless attacks which have been thwarted. We applaud, we are entranced. But we know, somewhere, that there must be a price.
That price is our civil liberties. More accurately, that price is the civil liberties of others, who we don’t know but whose faces occasionally drift through the public conscience. Binyam Mohamad, who was tortured by the CIA, apparently with collusion by our own Security Services. Shaker Aamer, who has been detained in Guantanamo Bay without charge for almost 12 years. And it is no secret that many anti-terrorism laws are draconian and involve a huge potential for abuse.
David Wolfson KC, Lord Wolfson of Tredegar, Shadow Attorney General, and Michael Ellis KC, Attorney General from 2021 – 2022, have written to Labour’s Attorney General Richard Hermer KC regarding the government’s decision to recognise Palestine at the UN General Assembly meeting in September. We highlight this here because Lord Wolfson has recently given an interview on Law Pod UK setting out some of the differences between him and Richard Hermer on what they deem to be the proper boundaries of international law.
They commence their letter with the following statement:
“The recognition of a foreign state is a prerogative act, exercised by the Government. The long-standing position of the UK Government has been that the UK will recognise a state if four criteria are met, often referred to as the Montevideo criteria: ” it should have, and seem likely to continue to have, a clearly defined territory with a population, a government who are able of themselves to exercise effective control of that territory, and independence in their external relations”.
In their view, the position taken by successive UK governments until 2025 was that the Palestinian Authority has been both factually and legally unable to exercise a range of governmental functions in the West Bank,
The PA, they point out, has also, “of course, lost control of Gaza to Hamas”.
They therefore pose a number of questions, as to whether the government is applying a different basis of statehood and recognition, and on what basis.
“If the new policy is that protracted frustration of self-determination justifies recognition of statehood regardless of facts on the ground, why is the UK refusing, for example, to recognise Western Sahara as a state?”
They urge the Attorney General to explain how, as a matter of international law, steps taken by Israel can themselves lead to the non-recognition of Palestine. In this case it would seem to be that by declaring a ceasefire, Israel could avoid the “punishment” of Palestine being recognised as a state. This, in the authors’ view, is an incoherent interpretation of international law – “the Government, so vocal when it comes to public pronouncements of general legal principle, appears to lose its voice.”
They conclude their letter with the following paragraph:
“The position of the UK government in recognising Palestine while hostages remain in dungeons in Gaza is shameful. That is a matter for your private conscience. But we believe that the Government’s policy on this issue is also a significant change from the UK’s policy as long stated and understood. That is something which you ought to explain, in public, to Parliament.”
Whatever your position on the conflict, it is worth reading the letter in full, to understand the UK’s policy on statehood recognition as set out by a written answer in the House of Commons in 1986, and in several subsequent communications.
The response to the points raised in this communication will no doubt add to the warp and weft of international law and its varying interpretations in Westminster. There can be no doubt that policy on this issue is governed not by law, but by politics.
A debate in the House of Lords on this issue would be of considerable utility to all lawyers interested in this area.
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In a significant public law decision, the Supreme Court dismissed the Secretary of State’s appeal and held that the policy governing detention pending removal fails to comply with the Dublin III Regulation as it lacks adequate certainty and predictability.
The respondents were five individuals who had travelled to the UK illegally and made claims of asylum, having entered via at least one other member state of the European Union in which they had already claimed asylum. Relying on the procedure set out in the Dublin III Regulation (Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013) (“Dublin III”), the Secretary of State requested those states to take responsibility for examining the asylum claims. Each such state agreed.
The respondents were then detained pending their removal pursuant to paragraph 16(2) of the Immigration Act 1971. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that in exercising powers of detention, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State.
The Divisional Court has recently handed down a novel decision in R (FNM) v DPP, considering the right of complainants to a fair opportunity to make representations to the Director for Public Prosecutions (“DPP”), and for those representations to be considered, when conducting a review under the Victims’ Right to Review Scheme (“the VRR Scheme”).
The Court held that in circumstances where the DPP had not waited to give the complaint an opportunity to make representations as to whether there should be a criminal prosecution, the decision not to prosecute was materially flawed.
R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 12 March 2014 – read judgment
The Court of Appeal (reversing a strong court including the former Lord Chief Justice – see my previous post) has decided that correspondence between the Prince of Wales and various government departments should be released. A Guardian journalist had made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents. The Upper Tribunal had agreed that they should be disclosed.
At that point, the Attorney-General intervened and signed a certificate saying “no”.
In an entertaining post which also raises the serious issue of journalistic responsibility, the Nearly Legal blog has put a Daily Mail “family law expert” on the naughty step in relation an article on a recent Supreme Court decision on the meaning of domestic violence in housing cases.
According to the respected housing law blog, the Mail article, entitled Shout at your spouse and risk losing your home: It’s just the same as domestic violence, warns woman judge, demonstrates“why the Mail is not a paper of record for case reports”. And
A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.
In his interesting article last week (‘Will the Detainee Inquiry be human rights compliant?’, 8 August) Matthew Flinn queried our claim that the Protocol fails to meet the requirements of article 3 ECHR. Notwithstanding the government’s own statement that it doesn’t intend for the Inquiry to comply with article 3, Flinn set out various arguments to suggest that the Protocol might nonetheless comply with article 3 in any event.
In my previous blog on the Supreme Court’s judgment in Rabone I discussed the central feature of the case, the extension of the operational duty on the state to protect specific individuals from threats to their life, including suicide. Here, I consider the other elements of the case that Melanie Rabone’s parents had to establish in order to succeed in their claim for damages under the Human Rights Act 1998 (“HRA”).
Existence of the operational duty in Melanie’s case
Having established that the operational duty could be applied in Melanie’s case, her parents then had to establish, on the facts, that it was – by showing that there was a “real and immediate” threat to her life from which she should have been protected. Ever since the notion of an operational duty was first enunciated in Osman v United Kingdom (2000) 29 EHRR 245, it has become something of a judicial mantra that the threshold for establishing a “real and immediate” threat was high (see for example Re Officer L[2007] UKHL 36, and Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681 [41] and [66],). There are good reasons for not imposing the operational duty lightly, given the enormous pressures and complexities involved in running police, prison and mental health services for the community as a whole. However, an overly-stringent test risked making the operational duty an obligation that was more hypothetical than real.
W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department [2012] UKSC 8 – read judgment
The court is entitled to make an order for a witness to give evidence before the Special Immigration Appeals Commission (SIAC) in such a way that the identity of the witness and the substance of the evidence remains confidential. Such an order will only be granted if the court is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and it has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state.
Welcome back to the UK Human Rights Roundup, your regular festive trifle 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 Church of Scientology registered a win of sorts in the Supreme Court, while London’s biggest university said no to occupational student protests just as others were contemplating the possibility of gender-segregated talks Meanwhile, the Home Secretary puts forward her answer to modern day slavery, while the Joint Committee on Human Rights puts pressure on Chris Grayling regarding the proposed legal aid reforms.
R (NM) Secretary v of State for Justice [2011] EWHC 1816 – Read judgment
This case concerned whether the prison authorities were in breach of the Disability Discrimination Act 1995 and the Equality Act 2010 when they failed to conduct a form investigation into a sexual assault against a prisoner with learning disabilities, NM.
It was further considered whether the failure to conduct a formal investigation was in breach of NM’s Article 3 rights. The claimant was assisted in bringing his case by the Howard League for Penal Reform. The court found in relation to all points that the defendant had acted lawfully.
The news has been nothing
if not dramatic this week. US President Donald Trump arranged for the
assassination of Iranian General Qasem Soleimani by drone strike on Friday. At
Soleimani’s state funeral in Tehran, the streets were filled with crowds chanting
‘death to America!’, and a weeping Ayatollah Khamenei promised that a ‘harsh retaliation’
would come to the USA. The media is full of geopolitical speculation: some say
that this amounts to a ‘declaration of war’ by the USA on Iran, and will lead
to World War III, while others worry about the possibility of nuclear
escalation. The BBC has published this relatively deflationary overview of
the risks, as the situation stands.
British-Iranian
dual citizen Nazanin Zaghari-Ratcliffe, who was imprisoned in 2016 for allegedly
‘plotting to topple the Iranian regime’ and ‘spreading propaganda against Iran’,
remains in prison in the country. Her husband has called for an urgent meeting
with UK Prime Minister Boris Johnson. In light of Mr Johnson’s previous mishandling
of the situation as Foreign Secretary, and his refusal to condemn the killing,
saying on Sunday “we will not lament his death”, Richard Ratcliffe may well
consider that he is entitled to a meeting.
International
concern continues, too, over the 19-year-old UK citizen held in Ayia Napa in
Cyprus, who says that she was compelled to withdraw her allegations of gang
rape against a group of Israeli nationals under duress from Cyprus police. She
was convicted in 2019 for ‘wilfully indulging in public mischief’, and is now
pursuing an appeal process which could take up to three years. Dominic Raab
this week urged the Cypriot authorities to ‘do the right thing’ in deciding her
case.
Nothing in Helena Kennedy QC and Philippe Sands QC’s article is particularly surprising. The Commissioners emerge as a dysfunctional group of seasoned advocates on two sides of a case, with no presiding judge to rein them in or decide who was right. The report itself, with its bewildering array of separate papers and minority reports, demonstrated how little common ground there was between the commissioners.
I recommend reading the article in full, but here are a few interesting tidbits. Of course, some caution is necessary as the other members of the Commission (particularly the Conservative ones) may remember things differently.
A person who undergoes the physical and biological process of carrying a pregnancy and giving birth, irrespective of gender? This was the ruling of the Rt. Hon. Sir Andrew McFarlane P, President of the Family Division, on 25th September in TT, R(on the application of) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam) . He decided that the Claimant, (known as “TT”), who was legally recognised as male at the time of giving birth to his child, (“YY”), is correctly registered as “mother” on YY’s birth certificate. Continue reading →
Chamberlain J has provided new guidance on when the court may order a rolled-up hearing. The procedural point arose in the context of an ongoing piece of strategic litigation, and resulted in an interlocutory judgment in R (Al-Haq) v SSBT [2025] EWHC 173 (Admin).
Al-Haq is an independent Palestinian human rights organisation. It brought a judicial review claim to challenge various decisions of the UK government in the licensing of exports of military and dual-use goods destined for Israel for potential use in Gaza. The decisions were taken by the Secretary of State for Business and Trade. Oxfam, Amnesty International and Human Rights Watch were granted permission to intervene.
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Our attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician’s trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced.
A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs 
This is the second of two blogs on the recent Supreme Court case of 
Welcome back to the UK Human Rights Roundup, your regular festive trifle of human rights news and views. The full list of links can be found 
R (NM) Secretary v of State for Justice [2011] EWHC 1816 – 
In March I 
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