Buying time on prisoner votes – The Roundup

7 March 2011 by Graeme Hall

It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.

by Graeme Hall

In the news:

Although prisoner voting appears to have taken a back seat this week, the Daily Mail has reported that the UK government has asked the European Court of Human Rights to refer the decision of Greens and MT v UK to the Grand Chamber. This judgment gave compensation to two prisoners because the UK had failed to implement the court’s decision in Hirst v UK (No. 2). According to the article, the government wants to refer this decision to the court’s appeal chamber because the issue of prisoner voting rights has now been debated in Parliament. See our previous post on Greens and MT v UK, as well as our most recent summary of the ongoing prisoner voting issue. A BBC programme about the Strasbourg court can be accessed via the ECHR blog.

Continue reading →

The Round up: statelessness, Romanian prisons, parental vaccine dispute and UN

23 September 2018 by Thomas Hayes

This week, two Scottish children are playing a key role in the development of the UN Day of General Discussion (Friday, Sept 28). They are the only children from the UK represented, working alongside children from across the world, including Moldova, Norway and India. See below for more details of this event.
Continue reading →

The legal fog of war among the people

5 August 2015 by Dominic Ruck Keene

Serdar Mohammed and Others v Secretary of State for Defence [2015] EWCA Civ 843 – read judgment

The Court of Appeal has held that UK armed forces breached both Afghan law and Article 5 of the ECHR by detaining a suspected Taliban commander for longer than the 96 hours permitted by ISAF policy.

The MOD was therefore potentially liable at both public and private law for the failures to make arrangements for extended detention and to put in place such procedural safeguards as were required by international human rights law. Moreover, the defence of ‘act of state’ was not available against either the public or private law claims.
Continue reading →

Human rights and public law challenge to prisoner’s release conditions fails

2 March 2014 by

R(Gul) v Secretary of State for Justice [2014] EWHC 373 (Admin) – read judgment

Mr Gul had been imprisoned for a period, on 24 February 2011, for disseminating terrorist publications. When he was released on 6 July 2012, this was under licence, as is common following the release of dangerous prisoners. Mr Gul challenged some of the conditions of his licence by judicial review. The court rejected his challenge.

The purposes of releasing offenders from prison on licence, allowing them liberty under conditions to be supervised by a probation officer, are clear enough – protecting the public, preventing reoffending, and securing the successful reintegration of the prisoner into the community, as set out in Section 250 (8) Criminal Justice Act 2003.

Continue reading →

Super injunctions go supernova – The Human Rights Roundup

3 May 2011 by Melina Padron

It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.

by Melinda Padron

In the news

It can safely be said that the topic of “super injunctions” has received a lot of media coverage, perhaps second only to the royal wedding.

Firstly the outrage seen in tabloid newspapers and news broadcasts alike was caused by the two injunctions which gagged the media from reporting on the extra marital affairs of an actor and of a footballer. Then adding to the controversy was the decision of the former “gagger” Andrew Marr to break the terms of his own injunction and reveal himself as being responsible from preventing the reporting of his own extra marital affair.

Continue reading →

Force-feeding, gay marriage and Article 8 (and a half) – The Human Rights Roundup

18 June 2012 by Wessen Jazrawi

Welcome back to the UK Human Rights Roundup, your weekly smörgåsbord 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.

The news

This week has seen the Home Secretary Theresa May take on Article 8 – and the courts – with the announcement that she was seeking the backing of Parliament on the limits of Article 8, the right to private and family life, and that she would expect judges to “follow and take into account” the views of Parliament. In other news, the Church of England submitted its opposition to gay marriage in response to the Government consultation, which has now ended, a judge in the Court of Protection ordered that an anorexic woman should be force-fed, and the Supreme Court dismissed an application by Julian Assange to reopen his appeal against extradition.

by Wessen Jazrawi

Continue reading →

Article 3

1 June 2010 by Adam Wagner

Article 3 | Anti-torture and inhumane treatment

Read posts relating to this article

Art.3 European Convention on Human Rights provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

This provision corresponds with Art.4 of the EU Charter which has the same wording.

Theoretically, treatment must reach an intense level of severity for a challenge under this provision to succeed. The Strasbourg authorities originally set a high threshold for treatment falling within the scope of Art.3 ; it must exceed “a certain roughness of treatment” (The Greek Case (1969) Application Nos 00003321-3/67, 11 YbK of the ECHR 501).

In principle the rule is that conditions in the home State, however appalling, do not engage the responsibility of the deporting country. However, Art. 3 is often cited in deportation and asylum cases and allegations of institutional “torture”  and “degrading treatment” in the receiving states, advanced by intervening NGOs,  are hard to disprove.

Following the judgment in  D v United Kingdom (1997) 24 EHRR 423, that an HIV patient could not be returned to a state of origin where medical treatment was inadequate, Art. 3 has been extended to cover conditions of impoverishment and social decay in non-Convention states. In R(Adam, Limbuela and Tesema) v Home Secretary [2005] UKHL 66 the House of Lords applied this extended right to overrule legislation denying social support to asylum seekers who fail to submit their claims as soon as “reasonably practicable”. That the denial of social support was deemed to amount to torture and inhuman treatment shows how far the Convention has developed its reach as a social and economic rights instrument, where claims to social services, accommodation and a high standard of medical care can be made out under the prohibition that was drafted into the Convention in order to prevent the repeat of the sort of atrocities perpetrated in Nazi Germany. Indeed, in 2008 the Strasbourg Court stated in terms that the prohibtion on deportation extends to

the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.(N v UK, 27 May 2008)

The Strasbourg Court has recently started  to distinguish “torture” from “inhuman and degrading treatment” as separate elements of Article 3 although the results in practice are the same. In  the case of Gäfgen v. Germany (1 June 2010) the Grand Chamber considered that police officers threatening the applicant imminent pain for the purpose of extracting information  constituted “inhuman treatment” falling within the scope of Article 3. But they also held that this method of interrogation did not reach the level of cruelty to attain the threshold of torture under that provision. On the other hand, the bar for offending treatment may being set somewhat lower according to more recent case law from Strasbourg. For example, the Court found degrading treatment in breach of Article 3 when a person was deprived of his spectacles (Slyusarev v Russia 20 April 2010) even though there was no evidence of impairment to the eyes caused by the delayed replacement. The fact that the applicant could not read or write normally was sufficient to amount to treatment in breach of Art.3.   When riot police burst into schools used as shelters by G8 protestors and meted out punishment with riot sticks, this was found to have reached the level of torture under Art.3: Cesaro v Italy, 7 April 2015.  Where a prisoner with chronic health conditions and a medical note recommending the avoidance of cigarettes was confined almost all day in overcrowded cells where the other occupants smoked, the passive smoking element was relevant in the finding of conditions incompatible with Art. 3 (Florea v Romania 14 September 2010). The Court has also stated that states are under an obligation to take measures to protect prisoners from passive smoking where their state of health so requires (Elefteriadis v Romania, 25 January 2011).

Article 3 imposes an obligation on the state to ensure the health and well-being of persons deprived of their liberty, although they are not expected to provide equivalent health care in prisons as compared with the outside world (Aleksanyan v Russia, 22 December 2008).  In McGlinchey v UK the failure by the prison medical staff to properly monitor the state of the applicant, who was vomiting repeatedly under withdrawal symptoms, and suffering from dehydration, disclosed treatment in breach of Article 3 (29 April 2003). Outside the prison walls there is less case law, and the threshold is higher; for example lack of access by cancer patients to potentially life-saving experimental drugs which were not yet authorised did not amount to treatment in breach of Art.3 (Hristozov v Bulgaria, 13 November 2012).  Leaving an asylum seeker to fend for himself on the street for over a year, without provision for shelter, food or other needs, breached Art.3 in MSS v Greece and Belgium (2011).

Domestic courts may be rowing back from their earlier generous approach to Article 3 claims – see R (on the application of EW) v Secretary of State for the Home Department, [2009] EWHC 2957 and our post on the case. More recently, the Court of Appeal has confirmed that foreign nationals may be removed from the UK even where their lives will be drastically shortened due to a lack of healthcare in their home states. Removal in those circumstances does not breach Articles 3 or 8 ECHR except in the most exceptional cases (GS (India) and Ors v SSHD  [2015] EWCA Civ 40. D v UK is rarely followed in current times, as signatory states’ medical and social services become more pressed and cash strapped.

However it remains the case that Article 3 has been interpreted to cover not only state sponsored persecution but the acts of private individuals as well, since it obliges governments not to return or deport anyone to a destination country where they might be exposed to danger, whether at the hands of state agents or rebel groups.  This interpretation of Article 3 has prevented the deportation of a convicted armed robber to Somali because of the risk that he might get caught up in the civil war there – see Ahmed v Austria (1997) 24 EHRR 278.

Chahal v UK (1997) 23 EHRR 413 set a strong precedent for preventing states from deporting individuals to countries where they risk treatment in breach of Article 3. In Saadi v Italy (2008) No. 37201/06 the Court emphasised that Art.3 imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to inhumane treatment. The conduct of the person concerned, however undesirable or dangerous, cannot be taken into account. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return.  In Othman (Abu Qatada) v UK [2012] ECHR 56 the Court accepted that the UK and the Jordanian governments had made genuine efforts to provide detailed assurances that the applicant would not be ill treated on his return to Jordan; although in fact the applicant won on the basis of Article 6, as the Court found that he faced a flagrant denial of his right to a fair trial if deported.

The Strasbourg Court has also attracted criticism from high places for applying Article 3 to the way Parliament regulates the “reasonable chastisement” of children by their parents in the home (A v UK (1999) 27 EHRR 611).

• Return to Incorporated Rights Index
• Introduction to the Human Rights Act 1998

Victory for claimants in Sarah Everard vigil case

14 March 2022 by Shaheen Rahman

Leigh & Ors v (1) The Commissioner of Police of the Metropolis and (2) Secretary of State for Health and Social Care (Interested Party) [2022] EWHC 527

A year after the kidnap, rape and murder of Sarah Everard by serving Metropolitan Police officer Wayne Couzens, the Divisional Court has given its judgment on the MPS response to the proposed vigil for Ms Everard organised by #ReclaimTheseStreets on Clapham Common, near where she was last seen alive.

The aim of the vigil was to highlight risks to women’s safety and to campaign for a change in attitudes and responses to violence against women. However, it was at a time when Regulations imposed during the Covid-19 pandemic prohibited a gathering of more than 30 persons in a public outdoor place in a Tier 4 area such as London.

MPS would not sanction the plan for the vigil and it was cancelled (as discussed here). The Claimants alleged that this was because the Met had unlawfully thwarted the plan. The Court agreed.

The judgment is a comprehensive victory for the Claimants, hailed by them as a “victory for women” and an “absolute vindication”. It is also a landmark decision in the context of debate as to the impact of the Covid regulations on the fundamental rights and freedoms enshrined in primary legislation pursuant to the HRA. It contains a granular analysis of the requirements of the proportionality assessment to be undertaken in such cases. It has particular resonance given controversial changes to the way police are able to control protests currently being debated in parliament as part of the Police, Crime, Sentencing and Courts Bill.

The Weekly Round-up: Criminal justice scandals and ‘prison-like’ hotels for victims of modern slavery

24 May 2021 by Hugo Murphy

In the news:

Failures of the criminal justice system were once again under the spotlight this week.

On Wednesday, business minister Paul Scully announced a statutory inquiry into the sub-postmaster scandal, following widespread outrage at one of the greatest miscarriages of justice un UK legal history. After the Court of Appeal quashed the convictions of 39 former sub-postmasters last month, hundreds more have been invited to appeal their own convictions for theft and fraudulent accounting, which may have been based on faulty evidence from the Post Office’s ‘Horizon’ digital accounting system. 

The full public inquiry may include an investigation of the role played by Post Office lawyers in possible failures to disclose important evidence discrediting the accuracy of the Horizon system. The Solicitors Regulation Authority had already confirmed last month that it was monitoring the case, after the judgment levelled criticism at a culture among the prosecution counsel of ‘seeking to avoid legal obligations when fulfilment of those obligations would be inconvenient and/or costly.’

The inquiry will be led by Sir Wyn Williams, President of Welsh Tribunals, and is expected to submit its findings in autumn 2022. 

Meanwhile, a stand-off emerged between the Home Secretary and an independent panel set up to investigate the murder of private investigator Daniel Morgan in 1987, for which no one has been convicted.

The Weekly Round-up: Legal but harmful content, ministerial breaches, and public record breaches

5 December 2022 by Matthew Johnson

In the news

The proposed requirement for social media platforms to delete ‘legal but harmful’ content has been partly removed from the Online Safety Bill. While the change affects adult users, the requirement to prevent children being exposed to harmful content remains in the Bill. Culture Secretary, Michelle Donelan, denied that this change was ‘weakening’ the laws protecting social media users because there will be more control about what people see on specific sites. The kinds of material people will have control over include content promoting eating disorders or inciting hate on the basis of race, gender, or religion. The removal of the ‘legal but harmful’ element of the Bill has been welcomed by many who criticised it for ‘posing a threat to free speech’. Lucy Powell MP, however, states that the removal of the section gives a ‘free pass to abusers and takes the public for a ride’.

The Domestic Abuse Commissioner has warned that a ‘deeply unjust’ postcode lottery puts victims of domestic abuse at greater risk depending on where they live in the country. The statistics demonstrate that regional inequalities exist in terms of accessing support for domestic abuse, with a 21% difference between the highest performing area (the North-East) and the lowest performing area (Wales). The report also found that black and minority ethnic victims of domestic violence struggle to access necessary support. Consequently, the Commissioner has urged that the Victims Bill place a duty on local authorities to conduct needs assessments along with a new central obligation to provide greater funding to meet those needs.

In other news

• Under a new duty, Councils, NHS trusts and other local bodies will have to consider how decision-making affects members of the Armed Forces. Schools, for example, will be required to consider if a parent is a member of the Forces and ‘give due consideration to their requirement for flexible leave depending upon the requirements of their military career’. 

• New data has revealed that 40 potential breaches of the ministerial code have never been referred for investigation by the ethics adviser. In discovering this, the report stated that it would be concerning if Rishi Sunak’s new adviser was not allowed to examine historical cases, which a parliamentary committee warned would be the case previously. One of the recommendations of the report is to make former ministers and civil servants who break the rules regulating the relation between government and the private sector face legal action.

• The High Court has been asked to decide whether a teenager who is on life-support following an apparent suicide attempt can be allowed to die. Hospital bosses have prospectively asked whether it would be lawful to remove life-support treatment, but the trial has been adjourned until the new year so that the family could have ‘as normal and as peaceful’ a Christmas as possible.

In the courts

• In The Good Law Project v The Prime Minister [2022] EWCA Civ 1580, the Court of Appeal dismissed an appeal and a claim for judicial review regarding duties owed in relation to public records under section 3(1) of the Public Records Act 1958. S3(1) establishes a duty on ‘every person responsible for the public records… to make arrangements for the selection of those records which ought to be permanently preserved and for their safe-keeping.’ The substantive issues on appeal were (i) whether this duty extended to the preservation of records before they are selected; and (ii) whether there was a duty to comply with 8 published policies. In respect of the first issue, the Court held that Parliament did not impose a general duty to retain public records and did not specify that records were to be retained pending their selection. The Court was not willing to find that the duty was implied either, as to do so would mean the duty applied to all records which would overwhelm the Departments and the National Archives [51]. In respect of the second issue, the Court found that there was no duty to comply with the policies. Importantly, they were directed to ministers and civil servants, not to the public. the Appellant could not, therefore, enforce it against the Respondent. The policies were internal and could not be framed as absolute duties not to use certain methods of communication.

• In Kays v Secretary of State for Work and Pensions [2022] EWCA 1593, the Court of Appeal dismissed an appeal against the refusal of a claim for universal credit. The Appellant was a student with severe disabilities. He applied for universal credit under the understanding that students in receipt of disability living allowances are entitled. His claim was refused because he had not been assessed as having limited capability for work before the claim was made (as per the 2020 Regulations), which he claimed was unlawful. The grounds for appeal were that the Respondent acted irrationally in deciding not to consult before making the 2020 Regulations, and that it resulted in arbitrary results. It was held that no duty exists to consult on the making of regulations; the Respondent was not obliged to consult and did not see anything necessitating her to do so. It was held that there was nothing irrational in that approach [26]. It was also held that the 2020 Regulations did not lead to arbitrary results because the issues complained of were not caused by the Regulations themselves. The opportunity to obtain an assessment of work capability was contained in the relevant regulations before the 2020 Regulations were made [32].

• In Ware v French [2022] EWHC 3030 (KB), the High Court found in favour of the Claimant in a defamation trial regarding the Panorama documentary ‘Is Labour Anti-Semitic?’ that aired in July 2019. An article was published in Coldtype magazine by the Defendant entitled ‘Is the BBC Anti-Labour? Panorama’s biased AntiSemitism Reporting – A Case to Answer, an investigation by Paddy French’. The Claimant, the programme’s reporter, claimed that the article was defamatory because it caused him serious harm by describing him as a rogue and biased journalist. This position was described as ‘overwhelming’. The wide dissemination of the article, the large interest in antisemitism within the Labour Party, and the Claimant’s high profile as a journalist all contributed to a situation where the allegations directly impacted the Claimant’s ability to earn a living.

Life sustaining treatment – whose decision?

31 January 2018 by Rosalind English

Kings College Hospital NHS Foundation Trust v Thomas and others [2018] EWHC 127 (Fam) – read judgment

Updated: The Court of Appeal has now ruled that doctors at King’s College hospital, London, could remove Isaiah from the ventilator that has kept him alive since he was deprived of oxygen at birth and sustained catastrophic brain injury. The judges also refused the parents permission to appeal against this ruling. McFarlane LJ said

This case is not about the parents or their hopes. It is and must firmly be about Isaiah and his best interests.

Parental love is to be cherished by society, particularly when a child is sick. But the “flattering voice of hope” is not always in best interests of the object of that love.  So concluded MacDonald J in a recent ruling which has attracted considerable media attention. The judge concluded that it was not in the 11- month old boy’s best interests for life-sustaining treatment to be continued. He was satisfied on the evidence of the court, he said, that the boy, Isaiah, had

 no prospect of recovery or improvement given the severe nature of the cerebral atrophy in his brain

and that he would remain “ventilator dependent and without meaningful awareness of his surroundings”

Perhaps with the Charlie Gard publicity in mind, MacDonald J was careful to emphasise the weight of the medical evidence as against the parents’ assessment of the boy’s condition. The publicity sparked by this case has led to visits to the child by other medical professionals. There are some forceful concluding remarks in this judgement about the inappropriate nature of these possible “clandestine examinations”. These are now a matter for the police.

The judge also rejected the argument that the court should hear evidence from “foreign” experts on the approach from which other cultures might approach this question in terms of its ethics and outcome.  There was a “world of difference” between medical expertise from abroad and a foreign “expert” who simply takes the view that the medical or ethical approach to these issues in this jurisdiction differs from that in their own practice.

It would be extremely unfortunate if the standard response to applications of this nature was to become one of scouring the world for medical experts who simply take the view that the medical, moral or ethical approach to these issues in their jurisdiction, or in their own practice is preferable to the medical, moral or ethical approach in this jurisdiction.

Continue reading →

Occupy, kettling and Strasbourg stress – The Human Rights Roundup

23 January 2012 by Wessen Jazrawi

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Wessen Jazrawi

In the news

BAILII

First, a plea from the Pink Tape family law blog to donate to BAILII, particularly if you run a blog that links to BAILII or if you are a lawyer who relies on BAILII for transcripts, or to simply do their online survey: BAILII – Pink Tape. This blog would not exist without the excellent service provided by BAILII – please help them by donating and doing the survey.

The report from the Wilton Park conference, where the good and great of Europe met to discuss the future of the European Court of Human Rights, has been published. Suggestions included requiring individuals to show that non-examination of the case would cause a “significant disadvantage” and introducing a “universal periodic review” procedure, such as that used by the UN. It was recognised that national implementation was by far the biggest challenge that the system faced.  The full report can be found here.

Continue reading →

Have you renewed your MOT? RTA claims and “ex turpi causa”

10 December 2024 by Rosalind English

Ali v HSF Logistics Polska SP ZOO [2024] EWCA 1479

This was a very simple case that illustrates in a nutshell the courts’ approach to the principle of “ex turpi causa”: the notion that prevents a claimant from seeking a legal remedy if the claim arises in connection with their own illegal or immoral act. Even in a civil case, courts are reluctant to allow a party to benefit from their own wrongdoing, as it may be seen as contrary to the interests of justice and social morals. However, it cannot be a blanket rule, as we shall see from the case below. Proportionality has to to be applied.

This concerned an RTA leading to a claim for damages by the claimant for repair to his car after the defendant negligently drove his lorry into it whilst it was parked.

A small and mundane detail could have made all the difference to the outcome. The claimant had not renewed the MOT on his car for some months before the accident, so that the defendant pleaded that the the claimant’s argument that he needed to be reimbursed for the car he had to hire after his car had been damaged meant that he had had no insurance at the time of the accident, and that the claim should fall as being ex turpi causa (Agheampong v Allied Manufacturing (London) Ltd [2009] Lloyds Rep IR 379.)

Furthermore, and as the next logical step, the defendant asserted that, because there was no valid MOT certificate for the Volvo, the claimant had suffered no compensable loss when the Volvo was rendered unroadworthy by the defendant’s tort. This was called a “causation defence”.

The latest injunction against HS2 protestors bans nearly everyone anywhere on 170 mile route

7 November 2022 by Rosalind English

High Speed Two (HS2) Limited and the Secretary of State for Transport v Four Categories of Persons Unknown and Ross Monaghan and 58 other Named Defendants [2022] EWHC 2360 (KB)

 This case involved the application, and grant, of an interim injunction in the “unknown” as well as “known” protester context by Knowles J in the Birmingham District Registry.

.

The first claimant  was the company responsible for construction HS2, the high speed railway line between London and the North of England via the Midlands, part of which is already under construction.  The second claimant was the company responsible for the successful delivery of the HS2 scheme. 

A legislative scheme gave the company wide powers to acquire and take temporary possession of land for the purposes of construction and maintenance.  This land covers the whole of the proposed HS2 route, and other land providing access.  

Both claimants applied for an interim injunction to restrain trespass and nuisance by a large number of defendants who were opposed to the construction of HS2. Some of these defendants were named, most unnamed.

Legal Aid Antipathy, MoD Worries and Scrutinising Surveillance – The Human Rights Roundup

23 June 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular grape and strawberry fondu 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. Links compiled by Adam Wagner, post by Sarina Kidd.

This week, important figures criticise the legal aid reforms, the MoD may have to watch their back, surveillance activities threaten to challenge a number of laws and secret ‘justice’ is slammed once again.

by Sarina Kidd

Continue reading →