We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/35/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
The Labour MP Harriet Harman has proposed a change in the law that would prevent rape complainants from being cross-examined in court about their sexual history.
Harman claims that the introduction of a complainant’s sexual history as evidence has “no evidential value.” Describing the practice as “outdated”, Harman said that “it’s based on the old notion that there were two sorts of women – those who were ‘easy’ and those who were virtuous – and if you were easy, you would have sex with anybody, because you were that sort of woman.”
Dillon v United Kingdom (no. 32621/11) – read judgment and David Thomas v United Kingdom (no. 55863/11) – read judgment
Two prisoners have failed in their human rights protest against prison rehabilitation courses in the United Kingdom.
Dillon
The applicant Dillon, currently detained in HMP Whatton, had been given an indeterminate sentence following his conviction for sexual assault. He was given a tariff period of four years. His release after the expiry of this tariff period was subject to the approval of the Parole Board.
He completed the core Sex Offenders Treatment Programme (“SOTP”) in March 2009 and had been assessed as suitable for the extended SOTP in 2010. But then the prison authorities concluded that he was insufficiently motivated to undertake the extended course. He complained that the only way that he could address the risk he presented to the public was by completing the extended SOTP, but his access to this course had been delayed. Continue reading →
Laura Profumo serves us the latest human rights happenings.
In the News:
Michael Gove appeared before the Justice Select Committee last Wednesday, in the first true baring of his political mettle as justice secretary. Overall, it seems, the MP made a largely favourable impression, though legal commentators remain wary. UKHRB’s own Adam Wagner deftly compared Gove’s success to “when they gave Obama the Nobel Peace Prize…because he wasn’t George Bush”. The “post-Grayling Gove-hope” may, then, prove deceptively shallow, defined by the simple relief that Gove is not Grayling.
Yet Gove’s evidence before the committee was laudable – reasonable, measured, and skifully non-committal. Gove’s comments on the Human Rights Act obliquely signalled the “proposals” will be published “in the autumn”, failing to specify whether they would be accompanied by a draft Bill. His substantive points were similarly vague. The Lord Chancellor invoked the “abuse” of human rights as justification for the repeal of the HRA, before conceding he could not offer a “one-hundred per cent guarantee” that the UK would remain a party to the Convention. Such a position suggests a British Bill of Rights may “seek to limit certain rights”, argues academic Mark Elliot, which would, “quite possibly”, precipitate British withdrawal from Strasbourg altogether. Gove also stressed the role of the judiciary in applying the common law to uphold human rights, holding that “there is nothing in the Convention that is not in the common law”. Such a view is “highly contestable at best, plain wrong at worst”, holds Elliot, whilst Conor Gearty finds it stokes the fantasy of “the civil libertarian common law”. Gove seems to suggest that HRA-repeal and possible ECHR-withdrawal would be “far from earth-shattering events”, Elliot notes, as judges could still invoke a panoply of common-law rights. Whilst Gove is right to remind skeptics that HRA-repeal would not leave domestic judges powerless, such “overstatement” of the common-law rights model “might end up hoist on its own petard….ringing hollower than its cheerleaders”. Continue reading →
Harriet Harman MP, chair of the Joint Committee on Human Rights. Photo: Chris McAndrew
In the news
This week, 6 months after it was passed, the Coronavirus Act 2020 is due for a review in Parliament. In advance of that review, the Parliamentary Joint Committee on Human Rights has published a report on the human rights implications of the government’s response to COVID-19. In the report, the committee highlights a wide range of failings, including in particular: widespread confusion over what is law and what is guidance; police failing to fully understand their powers under coronavirus legislation; privacy, data protection and discrimination concerns about test & trace; reduced access to justice; disproportionate harm to school children with special educational needs and disabilities; and harms inflicted by blanket bans on visits to people in care homes, prisons, and mental health facilities. The report can be viewed here; the JCHR’s proposed amendments to the coronavirus legislation to be discussed this week are here.
The JCHR is also due on Monday to scrutinise the government’s Overseas Operations (Service Personnel and Veterans) Bill, which proposes a presumption against prosecution for service personnel and veterans. Concerns have been raised about the risks of the UK contravening its international legal obligations, and creating impunity for serious war crimes and torture.
Concerns about surveillance in the UK continue, as it was revealed this week that surveillance cameras manufactured by Chinese company Hikvision are being used across the UK; their use has expanded in the wake of the COVID-19 pandemic. Hikvision was blacklisted by the US government for human rights violations in connection with the Uighur concentration camps in Xinjiang. Hikvision says it has been engaging with the UK and US governments to “clarify misunderstandings”, and claims it is “committed to cybersecurity standards which are compliant with the most rigorous certifications and best practices.”
On Friday, former Home Secretary Lord Blunkett raised his issues with the Police, Crime, Sentencing and Courts Bill, an enormous piece of legislation that reforms much existing legislation and common law offences. Lord Blunkett pointed to the difficulties the police could face in interpreting the new law, and the sensitive nature of the relationship between the police and protestors. The Bill is currently at the Committee Stage of Parliamentary procedure. Particular attention has been drawn to s.59 of the Bill, which purportedly codifies the common law offence of public nuisance, following the recommendations of the Law Commission’s 2015 report, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency. This section would create an offence of ‘intentionally or recklessly causing public nuisance’, defined as where a person’s act or omission causes serious harm to the public or a section of the public. Subsection (2) states that this offence can be constituted where ‘a person’ suffers ‘serious distress, serious annoyance, serious inconvenience or serious loss of amenity’. On indictment, a defendant is liable to imprisonment for a term up to ten years. While the Law Commission’s recommendation that the fault element should be intention or recklessness as opposed to ‘knew or should have known’ was adopted, the significant maximum term is a new addition.
One of the many outrages perpetrated by Donald Trump in the waning of his Presidency was granting a pardon to four private military contractors for their role in the Nisour Square massacre. Those military contractors had opened fire indiscriminately, killing 14 Iraqi civilians, including two children.
As with many of Trump’s assaults on the Rule of Law, the thought was that this kind of abuse could not happen in the UK. But certainty over our moral high ground will be short-lived if Parliament passes the Overseas Operations (Service Personnel and Veterans) Bill – a Bill whose precise aim is to make it much harder to prosecute British military personnel for abuses (including murder) carried out overseas. The Bill reaches Second Reading this week in the House of Lords.
Hurdles to prosecution under the Bill
The Bill introduces three substantial hurdles to the prosecution of British soldiers if the incident took place overseas more than five years ago. The first is that prosecutions must only be “exceptional circumstances”. The second is that the consent of the Attorney General is required. The third is that, in contemplating prosecutions, prosecutors must place particular weight on a list of exculpatory factors, but with the absence of a list of factors tending in favour of prosecution.
… well there aren’t exactly fifty ways to leave the European Union, but from the vociferous debate in legal as well as political circles we might be excused for thinking there are a great deal more. Today’s Times reports that “1,000 people join legal fight against Brexit” to ensure that parliament votes before the government formally triggers the exit procedure from the EU. David Pannick will argue the challenge. But against such a legal heavyweight is former law lord Peter Millett, whose letter published in yesterday’s Times declares that the exercise of our treaty rights is a matter for the executive and the triggering of Article 50 does not require parliamentary approval. So whom are we to believe?
In her guest post Joelle Grogan has speculated upon the possible future for rights in the immediate aftermath of the referendum so I won’t cover the same ground. I will simply draw out some of the questions considered in two reports produced before the result of the referendum was known: 1. House of Lords EU Committee Report (HL138) and the more detailed analysis by Richard Gordon QC and Rowena Moffatt: 2 “Brexit: The Immediate Legal Consequences”.
States have an inherent right to withdraw. It would be inconceivable that the member states of such a close economic arrangement would force an unwilling state to continue to participate. The significance of Article 50 therefore lies not in establishing a right to withdraw but in defining the procedure for doing so. Continue reading →
Last Thursday, legislation providing for safe access zones around abortion clinics came into force. Within these safe access zones, it is now a criminal offence to intentionally or recklessly:
influence any person’s decision to access or facilitate abortion services at an abortion clinic;
obstruct any person from accessing or facilitating abortion services at an abortion clinic; or
cause harassment, alarm or distress to any person in connection with a decision to access, provide or facilitate abortion services at an abortion clinic.
Dame Diana Johnson, Crime and Policing Minister, has stated that she is “confident that the safeguards we have put in place today will have a genuine impact in helping women feel safer and empowered to access the vital services they need”. Last week also saw the introduction of a new preventative duty under the Equality Act 2010 with employers now being required to take “reasonable steps” to prevent the sexual harassment of their employees.
In Other News
The Israeli Knesset (Parliament) voted by a 92-10 majority last Monday night to adopt two bills banning the UN’s Palestinian refugee agency (UNRWA) from Israel and the Occupied Palestinian Territories and labelling it a terrorist organisation. Israeli PM Benjamin Netanyahu said in a post on X (formerly Twitter) that “UNRWA workers involved in terrorist activities against Israel must be held accountable. Since avoiding a humanitarian crisis is also essential, sustained humanitarian aid must remain available in Gaza now and in the future”. However, no alternative aid structure has been proposed, leading to serious concerns about the availability of aid in the region. The new laws are likely to have the effect of forcing the closure of the UNRWA headquarters in East Jerusalem. In response to the vote, UN Security Council President Pascale Christine Baeriswyl has issued a press statement confirming that the members of the Security Council have “underscored that UNRWA remains the backbone of all humanitarian response in Gaza, and affirmed that no organization can replace or substitute UNRWA’s capacity and mandate to serve Palestinian refugees and civilians in urgent need of life-saving humanitarian assistance”. Philippe Lazzarini, UNWRA Commissioner-General, has said that the vote “sets a dangerous precedent” and “will only deepen the suffering of Palestinians” who have already “been going through sheer hell”.
Charity Human Rights Watch (HRW) criticised last week a bill under consideration by the Armenian government which is seeking to enforce mandatory video surveillance across the capital city. HRW have stated that the surveillance is “unjustified and interferes with privacy and other rights”, claiming that it would have a “chilling effect on fundamental civil and political rights”. The proposed laws would require private entities to install surveillance equipment and provide police 24/7 access to live video feeds. HRW referred to a 2022 report from the United Nations High Commissioner for Human Rights on the right to privacy in the digital age which states that mass surveillance for the purposes of general monitoring, of the same type the proposed bill would introduce, is an “almost invariably disproportionate” interference with the privacy of individuals. The Armenian parliament is expected to have a final vote on the bill before the close of the year.
In the Courts
The Supreme Court has handed down judgment in the case of Tindall v Chief Constable of Thames Valley Police, confirming that the police do not owe a positive duty of care in law to protect individuals from harm. The facts of Tindall concern a driver who, after hitting a patch of black ice on the A413 and temporarily losing control but escaping serious injury, reported the ice to the police. The police attended the scene but did not take any effective action to remove the danger, resulting in the deaths of two drivers shortly afterwards who collided after skidding on the same patch of ice. While the Court accepted that the actions of the police amounted to a ‘serious dereliction of their public duty owed to society at large’, it was held that public authorities such as the police are not liable for merely ‘failing to protect’ members of the public. The Court interestingly agreed that the police would have been liable had they actively made matters worse; however, this was not the case on the facts. Tindall is the latest in a controversial line of cases denying that the police should owe a legal duty of care to protect individuals from harm as a result of their special status.
Judgment has also been given in Abu Qamar v Secretary of State for the Home Department, a human rights appeal won by a Palestinian student who had her UK visa revoked after making highly controversial comments regarding the 7 October attacks last year. The First-tier Tribunal (Immigration and Asylum Chamber) held that the Home Office decision constituted a “disproportionate interference with her protected right to free speech” under the ECHR and that the Home Office had failed to show that Abu Qamar’s presence in the UK was “not conducive to the public good”. The Tribunal referenced the “clearly recognised and fundamental distinction between supporting the Palestinian cause and supporting Hamas and their actions,” stating that “nowhere” did the appellant “express support for Hamas specifically, or their actions”. In particular, her referring to Israel as an “apartheid state” was said to be “consistent with views expressed publicly by human rights organisations”.
The head of Sky News has argued in a new Guardian article that justice must be televised as allowing TV cameras in court would help restore public faith in criminal proceedings.
Sky news has been campaigning for TV cameras to be allowed in court for the past year. John Ryley argues that the upcoming prosecutions of 5 men accused of abusing the parliamentary expenses system should be televised as the judge in the case has said the matter is “of intense public interest”. Televising proceedings would help restore the loss of confidence in parliament and politics and ensure that judges who are seen are “out of touch” and “liberal” need not escape the spotlight.
The Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) recently published a report on police and prison facilities in Scotland after its visit in 2018.
This was an ad hoc visit and it aimed to evaluate the developments made since the CPT’s last visit to Scotland in 2012. The CPT’s delegation visited five police custody facilities and five prisons across Scotland. The report covers several areas, including the treatment of detained persons in police facilities, the conditions of male prisons, inmates in segregation and those on remand. It also focused on female prisons in general, and healthcare.
Police custody facilities
Overall, the CPT’s delegation was satisfied by the conditions and treatment in the police facilities that it visited. Every detained person that they interviewed reported that they had been correctly treated whilst in custody. However, an area of concern was the number of detainees who made allegations that they had suffered ill-treatment at the time of their arrest. Around one third of the detained persons alleged that they experienced excessively tight handcuffing and physical abuse by police officers. Several also claimed that they experienced this treatment despite not resisting arrest. The delegation reported that many of those making the allegations had visible signs of injury, such as bruises, scratches, and swelling.
Work recently began on a wall in Calais, funded by the UK government, to prevent migrants and asylum seekers from crossing the Channel to Britain. Nearly simultaneously, the government announced that it would increase immigration tribunal fees by over 500%, erecting a different type of barrier—to access to justice. It was claimed that doing so would bring in an estimated £34 million in income annually and preserve the functioning of the tribunals.
The decision to increase fees was made despite the fact that responses to a public consultation conducted by the government overwhelmingly disagreed with the proposals. The suggestion to increase fees in the First-tier Tribunal (the first port of call when a person wants to challenge an immigration or asylum decision by the state) was opposed by 142 of 147 respondents. Introducing fees in the Upper Tribunal (where appeals against decisions in the First-tier Tribunal are heard) was opposed by 106 of 116 respondents, and the introduction of fees for applications for permission to appeal in both Tribunals was opposed by 111 of 119 respondents. In partial concession to critics of the proposal, the government has said it will introduce fee waiver and exemption schemes in certain cases. However, these plans are as yet unspecified and are likely to increase the bureaucratic burden on migrants. Continue reading →
Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin) – Read judgment
A recent decision of the High Court, relating to a challenge to planning permission for a power station, could significantly limit access to environmental justice for local community groups.
The Aarhus Convention requires that access to justice and effective remedies be provided to members of the public in environmental matters, and that the procedures be “fair, equitable, timely and not prohibitively expensive.”
Both the UK and the EU are signatories to the Convention; the access to justice provisions are given effect in EU law in the Directive 85/377 EEC, which requires that such access be given to “members of the public concerned” who have a sufficient interest or are maintaining the impairment of a right.
The government’s proposed reforms to legal aid will have a catastrophic effect on those who have suffered as a result of negligent medical treatment.
When Kenneth Clarke informed Parliament on Monday that
Legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where there is risk of serious physical harm or the immediate loss of their home.
he clearly did not mean that the destruction of a person’s life or the suffering of seriously physical harm through the mismanagement of their medical treatment was to be included within this. If he had meant that he would have proposed at the same time that clinical negligence would continue to be funded by legal aid.
The Mayor of London v. Brian Haw & others [2011] EWHC 585 (QB) – read judgment.
The High Court has ruled that it would not be a breach of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) to grant a possession order in respect of Parliament Square Gardens (“PSG”) and an injunction compelling protesters to dismantle and remove all tents and other structures erected on PSG. The potential effect of this might be to remove Brian Haw, the peace campaigner who has been protesting almost non-stop outside Parliament for the best part of a decade.
This is the latest in a long-running series of cases exploring the extent of the freedom to protest. We have analysed the previous court decisions about the Parliament Square protesters here and here. The issue of restrictions on freedom of assembly and freedom of expression has been a hot topic in recent months more generally, having also come up recently in the contexts of the student protests last year, political asylum seekers and hate speech.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
The Mayor of London v. Brian Haw & others [2011] EWHC 585 (QB) – 
Recent comments