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Hassan v. the United Kingdom (application no. 29750/09) ECHR 936 (16 September 2014) – read judgment
This case concerned the capture of an Iraqi national, Tarek Hassan, by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. The complaint was brought by his brother, who claimed that Tarek had been under the control of British forces, and that his dead body was subsequently found bearing marks of torture and execution. In essence, the case raised issues concerning the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. This was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law, which allows the internment of prisoners of war at times of international conflict.
The Grand Chamber held that although Tarek Hassan had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops until the moment of his release; there had been no violation of Article 5(1), (2), (3) or (4) (right to liberty and security) of the European Convention on Human Rights as concerned his actual capture and detention. The European Convention had to be interpreted in parallel with international instruments which applied in time of war. Four out of the seventeen judges dissented on this point. Continue reading →
Bratza will succeed Frenchman John Paul Costa on 4 November 2011 after being elected in a secret ballot by the court’s 47 judges, and has been elected for a term of 3 years. He may use the opportunity to improve relations with the UK government which are tense following the Council’s warning that the UK must comply with a 2005 ruling against the UK’s indiscriminate ban on prisoners voting. The Prime Minister said in November that the thought of giving prisoners the vote makes him feel “physically ill“. The deadline for UK compliance is 11 October 2011.
The parliamentary Joint Committee on Human Rights this week published a report of its inquiry into whether the UK should ratify Protocol 15 of the European Convention on Human Rights. As the report states, Protocol 15 is the culmination of the UK Government’s contribution to the process of reform of the European Court of Human Rights, which was the UK’s top priority during its Chairmanship of the inter-governmental arm of the Council of Europe, the Committee of Ministers, in the first half of 2012.
The JCHR identifies as the most significant aspect of Protocol 15 the addition to the Preamble of the Convention of an express reference to the principle of ‘subsidiarity’ and the doctrine of ‘the margin of appreciation’. The Committee welcomes this amendment and recommends that the UK should ratify the Protocol – but only after it has been debated in both Houses as a means of raising members’ awareness of its significance.
This post focuses on the implications of Protocol 15 for the UK’s increasingly turbulent relationship with the Convention system, and for the wider debate about the purported ‘democratic deficit’ created by supranational judicial supervision of domestic democratically-accountable authority.
The Intelligence and Security Committee found that the UK had allowed terrorism suspects to be treated unlawfully.
Following a three-year investigation, it published two reports examining the extent to which Britain’s intelligence agencies were aware of the mistreatment of suspects. The reports found no evidence that British officers took part in the torture themselves. Neither was there clear evidence of a policy which sought to deliberately overlook mistreatment.
However, the Committee found that British intelligence officers had witnessed prisoners being tortured. They had seen detainees being mistreated at least 13 times, were told by prisoners that they were being abused at least 25 times and were informed of ill-treatment by foreign agencies 128 times. British agents also threatened detainees in nine cases.
Despite being aware of the mistreatment from an early stage, UK agencies continued to provide questions for interrogations. The Committee chairman, Dominic Grieve, said that the UK had tolerated ‘inexcusable’ actions.
Furthermore, British agencies assisted in the rendition of suspects to countries with ‘dubious’ human rights records. MI5 and MI6 subsidised, or offered to subsidise, the rendition of individuals on three occasions. They also provided information for the rendition of 28 people, proposed/ agreed to rendition in 22 cases and failed to stop the rendition of 23 others (including cases involving British nationals). Continue reading →
Welcome back to the UK Human Rights Roundup, your regular full brass band 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, Lord Neuberger implied that even if the Human Rights Act were to be abolished, the court would continue to uphold human rights, perhaps foreshadowing the Supreme Court’s decision in Osborn. Meanwhile, the controversial Immigration Bill now has its overarching documents available, LSE are looking to create a written constitution and the Daily Mail are in trouble, again.
The European Court of Human Rights underwent something of a revolution yesterday with the long-delayed introduction of reforms to its rules. The changes will help the court clear its enormous backlog of cases, but also give it significant new powers to punish states which fail to implement its rulings. The UK may be one of the first on the receiving end of these new powers in relation to prisoner voting rights.
The Strasbourg-based European Court, which interprets and applies the European Convention on Human Rights, celebrated its fiftieth birthday last year. But it has recently been showing its age, creaking under the weight of its backlog of cases, running to an astonishing 119,300 waiting to be heard in 2009.
Welcome back to the UK Human Rights Roundup, your regular fracktastic frisson 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.
In recent weeks, the Prime Minister’s cabinet reshuffle has sparked fears of human rights reform, while Parliament has come under fire for the speed at which it passed emergency legislation on data retention. In other news, the residence test for legal aid faced legal challenges, while Lindsay Sandiford lost her final appeal in the UK courts in her attempt to stop her execution in Indonesia.
The court is to be commended for its efforts to increase understanding of its new judgments, via excellent press releases, and its voluminous case-law, via these factsheets. Get them whilst they are up to date! The rest of the list is:
Is the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006 (“the smoking ban”)?
This was the question asked of the Supreme Court by a prisoner serving an indeterminate sentence at HMP Wymott. As Lady Hale noted in the judgment: this issue affects all premises occupied by the Crown, including central government departments, and that it is important to determine whether the ban can be properly enforced in these places.
The answer the court gave is ‘no’, as this provision does not bind the Crown, of which HMP Wymott is an institution.
LGBT campaigners have called for an urgent reform of the law, following the death of 21 year-old transgender woman Vicky Thompson in an all-male prison. Ms Thompson had previously said that she would take her own life if she were placed in a prison for men.
The system of locating transgender people within the prison estate has recently come into criticism after transgender woman Tara Hudson was placed at HMP Bristol, an all-male establishment. Ms Hudson spoke of being sexually harassed by other prisoners, before a petition signed by more than 150,000 people led to her eventual transfer to a women’s prison. Statistics from the US suggest that transgender women in male prisons are 13 times more likely than the general prison population to be sexually assaulted while incarcerated.
Under the current rules, in most cases prisoners must be located “according to their gender as recognised under UK law”, although the guidance allows discretion where the individual is “sufficiently advanced in the gender reassignment process.” But the case of Vicky Thompson has been said to show that “the law is simply not working. For people living for years as women to be sent to serve sentences in prisons for men is inviting disaster.”
Responding to a question on the issue, Parliamentary Under-Secretary of State for Justice, Andrew Selous has stated that the government intends to implement “revised policy guidance… in due course.”
In other news:
The Guardian: The Metropolitan Police has issued an unreserved apology and paid substantial compensation to women who were deceived into forming long-term intimate sexual relationships with undercover police officers. The police force acknowledged that the relationships had been “a violation of the women’s human rights, an abuse of police power and caused significant trauma.”
BBC: Members of the public and journalists will be permitted to attend the majority of hearings in the Court of Protection, where issues affecting sick or vulnerable people are heard. The new pilot scheme is intended to provide greater transparency, whilst safeguarding the privacy of the people involved.
MPs on the justice select committee have called for the scrapping of the criminal courts charge, voicing “grave misgivings” about whether it is “compatible with the principles of justice.” The charge of up to £1,200 is imposed on convicted criminals, and is not means-tested. In its report, the parliamentary committee expressed concern that the charge, which is higher for those convicted after pleading not guilty, was creating “perverse incentives” affecting defendant behaviour. The BBC reports here.
The Legal Voice: The Ministry of Justice has announced that the introduction of duty provider contracts will be postponed until 1 April 2016. A number of legal proceedings have been issued, challenging the legitimacy of the procurement process. The decision has been welcomed by the Bar Council, which has consistently opposed measures it claims would “damage access to justice and the provision of high quality advocacy services.”
BBC: A couple from north west London have been found guilty of keeping a man enslaved in their home for 24 years, in “a shocking case of modern slavery.” The couple had “total psychological control” over their victim, threatening that if he left the house he would be arrested by police as an illegal immigrant.
The Court found that a family of asylum seekers evicted from an accommodation centre had been exposed to degrading treatment, in violation of their rights under article 3 ECHR. The family had been left in conditions of extreme poverty, without basic means of subsistence for a period of four weeks. The Belgian authorities had not paid due consideration to the vulnerability of the applicants, who had small children including a seriously disabled daughter.
On 29 November 2019 Usman Khan attended a rehabilitation event at Fishmongers’ Hall and stabbed five people, two fatally. On 2 February 2020 Sudesh Amman attacked two passers-by in Streatham High Road with a knife before being shot dead by police. Both men had previously been convicted of terrorism offences. Both men had been automatically released on licence halfway through their custodial sentences.
Following these attacks, on 3 February 2020, the Secretary of State for Justice made a statement to the House of Commons highlighting that in the interests of public protection immediate action needed to be taken to prevent automatic early release halfway through an offender’s sentence without oversight by the Parole Board. He announced that terrorist offenders would now only be considered for release once they had served two-thirds of their sentence and would not be released before the end of the full custodial term without Parole Board approval. This proposal was passed in England and Wales with the enactment of the Terrorist Offenders (Restriction of Early Release) Act 2020. It was extended to Northern Ireland by the Counter Terrorism and Sentencing Act 2021 (“the Act”).
The High Court in Belfast struck down sections 12 to 16 of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 on Friday. The law granted automatic anonymity to people who are suspected of sexual offences where an allegation has been made to the police or the police have taken any step to investigate the offence, prohibiting reporting which might lead to the identification of such an individual. The prohibition only applied pre-charge, but continued for the duration of the suspect’s life and 25 years thereafter. The court found that the law was incompatible with Article 10 of the European Convention on Human Rights and did not strike a fair balance in public interest journalism cases, observing that “[p]ublic interest journalism serves a vital role in any democratic society”.
In other UK news, three prisoners were taken to hospital on Friday after disorder at HMP Parc, a prison in Bridgend, Wales, which is run by the private security firm G4S. 10 prisoners have died at the prison in the last 3 months. Families of those who have died at the prison had held a demonstration outside the prison earlier the same week. Deborah Coles, the director of INQUEST, said that “[t]he level of death and disorder at prisons like this one shows a complete failure of accountability on the part of government and a loss of control by ministers”.
In international news
An investigation by the Guardian and the Israeli-based magazines +972 and Local Call has alleged that Israel has deployed its intelligence agencies to surveil, pressure, and allegedly threaten senior ICC staff over the last decade. Israeli intelligence allegedly captured the communications of ICC officials, intercepting phone calls, messages, emails and documents. Yossi Cohen, the former head of Israel’s foreign intelligence agency, allegedly threatened Fatou Bensouda, a former ICC prosecutor, in an attempt to pressure her to abandon a war crimes investigation relating to Israel’s activities in the occupied Palestinian territories. The Guardianreported that Cohen’s activities were “authorised at a high level and justified on the basis that the court posed a threat of prosecutions against military personnel”. Cohen is alleged to have told Bensouda “[y]ou don’t want to be getting into things that could compromise your security or that of your family”. A spokesperson for Israel’s prime minister’s office said in response to the investigation: “The questions forwarded to us are replete with many false and unfounded allegations meant to hurt the state of Israel.”
On Wednesday the European Commission announced that it considers that there is no longer a clear risk of a serious breach of the rule of law in Poland, and that it would therefore close the Article 7 procedure against Poland which had been triggered in 2017. Article 7 of the Treaty of the European Union allows the EU to suspend certain rights from a member state. The Commission stated that Poland has introduced legislative and non-legislative measures to address concerns regarding the independence of the judiciary, and that it will continue to monitor the implementation of those measures. Human Rights Watch criticised the move as premature.
In the courts
On Thursday the High Court of the Hong Kong Special Administrative Region delivered its verdict for 16 of the 47 activists and former politicians known as the ‘NSL 47’. The 47 were charged with conspiracy to subvert state power under the new National Security Law, which was passed in March this year. 14 were convicted, with two being acquitted and the remaining 31 pleading guilty. The charges arose from the activists’ participation in an unofficial primary election in July 2020 to pick opposition candidates for the 2020 legislative elections, which were then postponed. The UK said the case showed how authorities have used the controversial National Security Law to “stifle opposition and criminalise political dissent”. A spokesperson for Beijing’s Office for Safeguarding National Security defended the prosecution, saying the OSNS supported the Hong Kong judiciary’s decision to “punish acts and activities endangering national security according to the law, with no tolerance for any interference by external forces in the rule of law in Hong Kong.”
R (on the application of Zagorski and Baze) v Secretary of State for Business, Innovation and Skills and Archimedes Pharma UK Ltd – read judgment
The Administrative Court has put down a marker on the potential applicability of the EU Charter of Fundamental Rights about the morality of certain trade with the United States. The case concerned the export of Sodium Thiopental, an anaesthetic drug that is used as a preliminary to the lethal injection for prisoners on death row. This is the first time a domestic court has made a definitive ruling on the potential role of the EU Charter in domestic law. Earlier this year the Court of Appeal referred a question on the Charter to the ECJ for determination on its relevance to asylum proceedings: see R (S) v Home Secretary & (1) Amnesty International & AIRE Centre (2) UNHCR and our post on the subject.
This article first appeared on the UK Constitutional Law Association blog — the original can be found here.
As we watch the Covid-19 pandemic unfold our attention is naturally on the steps that HM Government (‘HMG’) is taking to mitigate the immediate crisis. The time is approaching, however, when it will be necessary to evaluate HMG’s preparation for, and response to, the pandemic. Calls are being made by the TUC and doctors’ groups for a public inquiry into one aspect of its response, namely failures to procure adequate personal protective equipment (‘PPE’) for NHS staff, at least 100 of whom are believed to have died having contracted the virus while treating patients. HMG is accused of failing to respond to a national exercise in 2016 testing the UK’s resilience to a similar flu pandemic which highlighted an increased need for ventilators. Other criticisms go further. This blog argues that the state owes a duty under Article 2 of the European Convention on Human Rights to investigate some deaths caused by Covid-19. This duty will require not only inquests into individual deaths but also a public inquiry under the Inquiries Act 2005 to address those systemic issues not suitable for determination by an inquest. The post builds on and responds to posts by Conall Mallory, James Rowbottom and Elizabeth Stubbins Banes. It also foreshadows the need for reform in this area.
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Hassan v. the United Kingdom (application no. 29750/09) ECHR 936 (16 September 2014) – read judgment
Sir Nicolas Bratza, the only UK judge at the European 
The parliamentary Joint Committee on Human Rights this week published a 
Welcome back to the UK Human Rights Roundup, your regular full brass band of human rights news and views. The full list of links can be found 
Welcome back to the UK Human Rights Roundup, your regular fracktastic frisson of human rights news and views. The full list of links can be found 
Is the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006 (“the smoking ban”)? 
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