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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/48/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
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.
Charlotte Bellamy brings you the latest human rights news
Children in privately-run youth detention centres are being seriously injured whilst being restrained by staff, according to a redacted Ministry of Justice report released to the Director of the children’s rights charity Article 39. The report focuses on four secure training centres (STCs) and two young offender institutions (YOIs) – the worst three of which are all run by G4S.
The report lists ‘restraints-gone-wrong’, where children were injured or suffered breathing difficulties in the process. Rainsbrook SCT – where teenager Gareth Myatt died in 2004 after choking on his own vomit while being restrained – had the highest number of incidents of serious injury. One child vomited from a prolonged restraint whilst being held in a seated position similar to the one used on Myatt. Government guidelines classify vomiting during restraint as a medical emergency.
Carolyne Willow, Director of Article 39, has been engaged in legal proceedings against the MoJ for access to an unredacted version of the manual ‘Minimising and Managing Physical Restraint’, published in 2012, which details the restraint techniques used in STCs and YOIs. However, the Upper Tribunal recently dismissed her appeal in Willow v Information Commissioner & Ministry of Justice [2016], holding that disclosure of the information would threaten the good order and security of prisons, as inmates might develop countermeasures to the techniques. Willow had argued – unsuccessfully – that Article 3(1) of the UN Convention of the Rights of the Child required a greater emphasis to be placed on the child’s interests when balancing them against the public interest (see the Panopticon Blog for further analysis).
It came to light last week that Medway SCT – the subject of a BBC Panorama exposé aired in January this year which showed G4S staff appearing to use excessive force on children – is to be taken over by the Ministry of Justice. Four members of staff had been arrested on charges of child neglect in relation to the allegations, following which G4S announced in February it was selling off the contracts to run Medway, Oakhill SCT, and 13 local authority children’s homes.
Andrew Neilson of the Howard League for Penal Reform had called at the time for SCTs to be shut down completely, calling them a “failed model”. The Ministry of Justice is due to announce the findings of the Independent Improvement Board set up by Michael Gove in response to the Medway allegations, which will detail the future of the centre.
A wider review is currently being conducted into youth justice by Charlie Taylor, former head teacher and child behavioural expert, the final report of which is expected in July. The interim findings (available here) recommend an overhaul of the youth custodial estate, replacing youth prisons with smaller secure schools focusing on education.
Other news
In addition to the polling day problems in Barnet, it seems that thousands of women living in safe houses and refuges after fleeing domestic violence may have been disenfranchised. Mehala Osborne, a mother-of-one living in a refuge in Bristol, found it impossible to register anonymously as she could not adduce the required evidence to prove her safety would be at risk if her name and address appeared on the register. She estimates that 70% of women in refuges in Bristol and possibly across the country could be in the same situation. The evidence required for Anonymous Voter Registration is a court order or the attestation of an “authorised person” – a Police Superintendent, a Director of Adult Social Services, or the Director General of the Security Services or National Crime Agency. For many in Osborne’s situation, who have fled their homes quickly, there is no time to source such authorisation. The right to vote is protected by Article 3 Protocol 1 ECHR which states that the UK will “hold free elections … under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”. Osborne suggests that refuge and safe house management staff ought to be included in the definition of an “authorised person”.
Egyptian President Abdel-Fattah el-Sisi last week told a US delegation that human rights in Egypt should not be viewed from a “Western perspective”. Though reportedly keen to emphasise his commitment to democracy, he explained that “differences in domestic and regional conditions” make it difficult to apply the same standards. 237 human rights protestors were arrested last week during a peaceful demonstration in Cairo against the el-Sisi regime, including two journalists – Mahmoud al-Sakka and Amr Badr, who work for the opposition website Bawabet Yanayer – for “spreading false news and endangering national security”. Amnesty International have described el-Sisi’s remarks as “deeply troubling”, saying that “he should stop making excuses … There’s nothing remotely ‘Western’ about basic human rights like the right not to suffer torture or to be able to speak freely without fear of arrest or imprisonment”.
Arthur Scargill, the former miners’ union president, has called for an inquiry into the conduct of the South Yorkshire Police at the 1984 ‘Battle of Orgreave’. Thousands of minors clashed with the South Yorkshire police at the coking plant near Rotherham during the year long minors’ strike of 1984-5. A redacted version of the Independent Police Complaints Commission report into Orgreave was released last year, but the Yorkshire Post has now reported that the redacted sections proved the same senior police officers were involved in the aftermath of Orgreave as Hillsborough. Shadow Home Secretary Andy Burnham recently said that the full truth of policing at Hillsborough would not be known until there is transparency over Orgreave.
An Italian court has ruled that the theft of a piece of cheese and a wurstel sausage by a homeless man was not a crime because he acted in “desperate and immediate need of nourishment”. Roman Ostriakov had been sentenced by a lower court in Genoa to six months in jail and €100 fine after being arrested for slipping the sausage and cheese into his pocket when buying breadsticks in the supermarket. The Court of Cassation finally found in his favour, after a three-part trial to determine whether the theft of the food (worth about £3.70) amounted to a crime or not, prompting some commentators to lambaste the country’s notoriously inefficient legal system. Others, however, have lauded the judgment as establishing a “sacrosanct principle” that a small theft out of hunger is not comparable to an act of delinquency, and as an act of humanity which showed that in Italy the right to survive trumps property rights – something which would be “blasphemy in America”.
In the Courts
Cerf v Turkey – The Court found a violation of the duty to conduct an effective investigation under the procedural aspect of Article 2 (right to life) into the suspicious death of the applicant’s husband. The applicant’s husband, Serf Cerf, a local politician, was shot outside a café in the town of Yüreğir in 1994 and died on the spot. In 2000, the authorities arrested a man (in the course of operations carried out against Hizbullah, an outlawed organisation in Turkey) who confessed to killing Mr Cerf. Despite criminal proceedings being initiated against him and four others in 2000, they were not concluded until 2009 and 2013. The Court considered the delays to be excessive and incompatible with the State’s obligation under Article 2, which requires proceedings to be initiated promptly and to proceed with reasonable expedition. The delays entailed the conclusion that the investigation had been ineffective.
Abdi Mahamud v Malta – violations of Article 3 and 5. This case concerned a female Somalian asylum seeker detained for more than 16 months in overcrowded conditions, with little privacy and limited access to outdoor exercise. All the care of detained women was carried out by male staff. Ms Mahamud had been detained in May 2012. A decision on her asylum application was not made until December 2012 (when it was rejected). In the meantime she had been frequently hospitalised due several medical conditions. She was interviewed for release on the grounds of ill-health in December 2012, but was not actually released until September 2013. The cumulative effect of the detention conditions was found by the Court to be a violation of Article 3 (degrading treatment); a violation of Article 5 (right to liberty and security) § 1 was found in respect of the length of both periods of detention (seven months pending the asylum decision and the rest pending her removal). The lack of available measure to challenge the lawfulness of her detention was a violation of Article 5 § 4.
In short, the changes are much wider than initially thought. The plan is not to simply ask Parliament to approve a declaration of intent on Article 8 as some suspected, but rather to ask Parliament to approve amended Immigration Rules which will set out an extensive, codified definition of the Article 8 balancing factors, in order to:
unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.
The plans, which are set out from paragraph 27 of the report, are therefore more significant than I and others had been speculating, in that they will apply not just to the deportation of foreign criminals as was the focus of the press coverage and Home Secretary Theresa May’s statement to Parliament, but to the whole of immigration law. They also set out the legal reasoning as to why this is expected to bind judges, which appears to originate from an obiter comment in paragraph 17 of the 2007 House of Lords case of Huang. Continue reading →
That was quick! The Supreme Court appear to have responded to the request I made on Thursday that hearings be broadcast live on the internet. From today, Sky News will be broadcasting all hearings live via this website.
All hearings at the court are filmed, but until now only broadcasters had been able to use footage. I first argued in October that this was a waste and the hearings should be live screened. I don’t actually believe that my posts had anything to do with this minor technological miracle, but I have tried it out and it works. This is very exciting. For the first time the general public, lawyers and law students can see the advocacy in the UK’s highest court of appeal live and unedited.
Together with anti-racism protests sparked by the death of George Floyd, the coronavirus pandemic has continued to dominate the news. Two recently published reports have highlighted flaws in the government’s response in relation to the provision of social security and domestic abuse support during the crisis.
R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2010] UKSC 36 – Read judgment
The Supreme Court has ruled that the UK must provide minimum standards to asylum seekers, including the right to work, whether or not their first asylum application has failed. Asylum seekers will now be able to work if they have been waiting for over a year for a decision.
The ruling is the latest in a line of court defeats for the Government on its asylum policy, including the recent High Court ruling that part of the fast-track deportation system is unlawful, as well as the Supreme Court’s rejection of the policy of sending gay asylum seekers back to countries where they may face persecution for their sexuality.
As any working parent will tell you, childcare is expensive. Unlike in some other European countries, there is no universal provision of free or affordable childcare for school age children in the UK. This can create a barrier for parents, especially lone parents, returning to work.
There is some support in the system of universal credit, a means-tested benefits for families on low income. This provides for a childcare costs element (CCE), which allows eligible claiming parents to be re-imbursed up to 85% of the costs of childcare.
However, the system has a flaw. Unlike other parts of universal credit, such as the housing costs element (HCE), a claimant is entitled to be paid the CCE only if she has already paid the charges, rather than merely incurred them (the ‘Proof of Payment rule’). This means that a parent claiming the CCE (who is disproportionately more likely to be a woman) must first pay her childcare provider and then re-claim the costs several weeks afterwards. Some may not be able to afford to do so.
Ms Salvato is one such lone mother, who brought judicial review proceedings claiming that the differential method for reimbursing childcare costs constituted indirect discrimination against women contrary to Article 14 (read with Article 8 and/or Article 1 Protocol 1) ECHR and was irrational at common law. The Administrative Court agreed on both grounds.
PF and EF v UK (Application No. 28326/09) – Read judgment
The European Court of Human Rights has dismissed an application brought against the police in Northern Ireland by a mother and her daughter who argued the police had failed to take sufficient action to protect them from loyalist riots on their route to primary school.
The court held that the police must be afforded a degree of discretion in taking operational decisions, and that in this case the police took all “reasonable steps” to protect the applicants.
The conflict between Israel and Hamas has continued to escalate, with some 1,400 Israelis and over 5,000 Palestinians dead, over 15,000 people injured, and over 600,000 people displaced. No end to the conflict, nor a ceasefire, is in sight. Aid entering Gaza remains far below the level required for the population size, and one-third of Gazan hospitals and nearly two-thirds of primary health care clinics have had to shut due to damage or lack of fuel. International law is being disregarded, both in the atrocious attacks by Hamas on October 7 and the subsequent retaliation by Israel, leading a group of prominent Jewish lawyers to pen an open letter in the FT (paywall) calling for restraint and an adherence to the rule of law. However, “proportionality” as a rule of international law in warfare has to be closely scrutinised when it comes to self defence. See Joshua Rozenberg’s extract from the speech given in the House of Lords by Guglielmo Verdirame, a professor of international law at the King’s College London department of war studies. The law of armed conflict is a detailed and difficult area, and has not been properly attended to by media reports following the Hamas/Israel situation. Veridrame said, regarding proportionality,
“Israel has described its war aims as the destruction of Hamas’s capability. From a legal perspective, these war aims are consistent with proportionality in the law of self-defence, given what Hamas says and does and what Hamas has done and continues to do.”
The Home Secretary has met with the Met Commissioner after the Met chose not to intervene when protestors at a pro-Palestine rally chanted “jihad”. The Met said “jihad” had numerous meanings and it believed, after consultation with the Crown Prosecution Service (CPS), that no offence had been committed. No. 10 has pushed back at suggestions that more police powers are needed, citing existing powers as adequate. The Immigration Minister, however, told ITV that “Chanting ‘Jihad’ on the streets of London is completely reprehensible … It is inciting terrorist violence”. The Merriam-Webster definition of “jihad” can be found here.
Greta Thunberg has been charged with a public order offence after she was arrested while taking part in a protest against a conference in London described as “the Oscars of oil”. According to the Met, she was charged with “failing to comply with a condition imposed under section 14 of the Public Order Act”. Police had demanded protesters move from the road on to the pavement. She was one of 29 arrested during a protest trying to stop delegates entering the Energy Intelligence Forum at the InterContinental London Park Lane in Mayfair.
In Episode 84, Emma-Louise Fenelon talks to Jo Moore, Head of Outreach at 1 Crown Office Row, and Laura Bruce, Head of Programmes and Partnerships at the Sutton Trust. They discuss improving equality and diversity at the Bar by improving access to the Bar for future generations. Listen here.
To speak to Jo about getting involved with outreach, email her at jo.moore@1cor.com. To speak to Laura about getting involved with the Sutton Trust email her at info@suttontrust.com.
Law Pod UK is available on Spotify, iTunes,Audioboom, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
This week sees the launch of the Halsbury’s Law Exchange, a new independent legal think-tank funded by LexisNexis.
The new organisation describes itself as “an independent and politically neutral think tank which contributes to the development of law and the legal sector“, aiming to “promote debate through papers, reports, events and media pieces.” The think-tank is chaired by legal journalist Joshua Rozenberg, who is joined by a number of eminent barristers and solicitors.
The recent European Court of Human Rights (ECtHR) judgment in Al-Skeini will certainly enter the Court’s hall of fame as a landmark judgment for pushing the boundaries of the European Convention on Human Rights’s jurisdiction. While it may take us some time to appreciate the full implications of this judgment, one of its possible consequences is the potential opening of the Court’s doors to claims arising from international armed conflicts.
by Melinda Padron
In Al-Skeini, the ECtHR determined that there may be instances when the European Convention on Human Rights may apply outside the ‘espace juridique’, that is the Convention’s ‘legal space’, or within the territories of the Convention’s member states (see Alasdair Henderson’s post on the ruling, which concerned Article 1 of the Convention). This may occur when agents of a member state are exercising authority and control over individuals (personal rather than strictly territorial control) within a given territory upon which that same member state is exercising some public powers. Accordingly, in the case of Al-Skeini, the Convention was found to be applicable to actions taken by British troops in Basra (Iraq), where the UK assumed the exercise of some of the public powers normally exercised by a sovereign government (see paras. 149-150 of the judgment).
Following an Article 2 inquest into the tragic death of Prince Fosu, a vulnerable foreign national detained in an immigration removal centre, a jury has found that Mr Fosu’s death was avoidable and was caused by a number of gross failures on the part of the Home Office and various agencies to provide appropriate care in immigration detention at Harmondsworth Immigration Removal Centre.
Background
Mr Fosu, a car parts dealer from Ghana, entered the UK in April 2012 on a valid business visa. However, on arrival, he was refused leave to enter. His subsequent in-country appeal was rejected in September 2012 and he was booked on a flight to leave the UK on 5 November 2012.
A month after his unsuccessful appeal, he was arrested after walking naked on the road. He continued to act bizarrely at the police station and kept undressing. However, following assessment, mental health professionals at the station determined that he did not need to be sectioned and was fit for detention. When he urinated in his cell, he was seemingly labelled as a “dirty protestor” rather than being re-referred for medical assessment. After three days in police custody, Mr Fosu was transferred to Harmondsworth on the basis that he had overstayed his stay and was liable to immigration removal.
As part of reception screening at Harmondsworth, Mr Fosu was seen by a nurse, who carried out a five-minute healthcare assessment, without having access to any of his medical records. At the inquest the nurse accepted that she had done a “completely inadequate assessment” and that she was “out of her depth”.
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Graeme Hall
In the news
Phone-hacking
The Leveson Inquiry has had a star-studded parade of witnesses and phone hacking has dominated the headlines. This week’s highlights have been comprehensively covered by Inforrm’s Blog here, here and here.
David Allen Green, writing in the New Statesman, remarks that this Inquiry is a boost for democracy as it gives a voice to those who have been at the sharp end of press intrusion – normally all to easily ignored and silenced by papers. Freedom of expression, at least during the Inquiry, is not just the preserve of the press.
The family courts were opened up to media scrutiny by the Justice Secretary Jack Straw at the end of April 2009. One year on, the Times legal editor reports that not only have family courts remained closed, but media access is even more restricted than before the reforms.
In a week where promoting open justice has been high on the Court of Appeal’s agenda in cases involving terrorism, Frances Gibb writes that the family courts are still sealed shut: “After a flurry of interest, the media have stopped reporting family cases in all but rare high-profile disputes because a restrictive reporting regime makes coverage meaningless.”
The Justice Secretary’s 2009 reforms were the outcome of years of campaigning by the media and pressure groups to open up the secretive family courts. The arguments had centred on the conflict between the privacy of those involved in proceedings versus the public benefit of open justice; a balancing exercise which all public authorities are now familiar with by virtue of Article 8 of the European Convention on Human Rights (the right to privacy). It is an often quoted principle of English law that justice must not just be done but be seen to be done, and it seemed that that the family courts were moving onto that side of the balance.
In the heady days of late April 2009, Camilla Cavendish, who had campaigned for the changes predicted that “more than 200,000 hearings involving sensitive and traumatic cases, and with decisions that will have a huge impact on the lives of children and their families, will now be open to media scrutiny.”
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R (NM) Secretary v of State for Justice [2011] EWHC 1816 – Read judgment
The Home Office has released its 
That was quick! The Supreme Court appear to have responded to the 
The recent European Court of Human Rights (ECtHR) 
Welcome back to the human rights roundup. Our full list of links can be found 
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