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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/49/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
Selahattin Demirtaş delivering a speech in 2016. Photograph: Ozan Köse/AFP/Getty Images. Source: The Guardian
On 22 December 2020, the European Court of Human Rights (“ECtHR”) published a Grand Chamber decision against Turkey, requiring the immediate release of the pro-Kurdish opposition leader Selahattin Demirtaş from pre-trial detention (Selahattin Demirtaş v Turkey, Application no. 14305/17). The ECtHR said that Mr Demirtaş’ detention went against “the very core of the concept of a democratic society” and was in breach of Articles 5, 10, 18 and Article 3 of Protocol 1 of the European Convention on Human Rights (the “Convention”).
The decision is particularly significant given Mr Demirtaş’ high profile status and the numerous cases against Turkey that the ECtHR is now hearing, following the attempted coup in July 2016 and the government’s subsequent crackdown on civil society. Shortly after publication of the judgment, the ECtHR website was subject to a cyber-attack and rendered temporarily inaccessible. A group of pro-Turkish hackers claimed responsibility for the attack via a Twitter post.
Alta Fixsler was born with catastrophic brain injury. She now two years old, currently a patient at the Royal Manchester Children’s Hospital Paediatric Intensive Care Unit on intensive life sustaining treatment. In this case the court was asked to decide whether it would be in Alta’s best interests for that life-sustaining treatment to be continued. The inevitable consequence of it being discontinued will be the death of Alta.
The parents are Chassidic Practising Jews and Israeli citizens. They emphasised the fact that being devout members of the Jewish faith meant that their faith was not simply a religion but also a way of life. Within this context, the parents took detailed rabbinical advice as to their religious duties and obligations in the context of Alta’s medical situation. They opposed the application brought by the NHS Trust and instead sought to take Alta to Israel for continued treatment and the exploration of long-term ventilation at home in Israel in due course or, if the court concluded that it is in Alta’s best interests for life sustaining treatment to be withdrawn, for that step to be taken in Israel.
A declaration pursuant to the inherent jurisdiction of the High Court that it is not in the best interests of Alta for life-sustaining medical treatment to be continued, and that is it in her best interests for a palliative care regime to be implemented;
A specific issue order under section 8 of the Children Act 1989 determining that life-sustaining medical treatment should cease to be provided and a palliative care regime implemented instead.
Welcome back to the UK Human Rights Roundup, your regular delectable dossier of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, the International Criminal Court has received a dossier detailing the UK’s involvement in abuse in Iraq. Meanwhile, the House of Lords has put up a fight over the so-called ‘annoyance injunctions’, while the Government has sought to find a solution to the European Court of Human Rights’ ruling on whole life tariffs.
The Government’s announcement that eleven local authorities across England would be taking part in voter ID pilots for the 2019 local elections was controversial. There is a heated debate as to whether citizens should have to provide photo identification before receiving their ballot at elections. For some, it is a straight-forward measure to avoid the risk of fraud. For others, it is a policy that, by design or inadvertently, leads to the disenfranchisement of certain groups.
This debate was not considered by the courts in the challenge to the legality of the pilot schemes brought by Mr Neil Coughlan, a former district councillor from Witham Essex. But the consequences of the decision of the Court of Appeal in R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 could be profound for our electoral law.
Sarah Everard, a 33 year old woman living in London, was walking home from a friend’s house at around 9pm on Wednesday 3rd March 2021 when she disappeared without trace. In the days that followed, public appeals for information and press coverage ensured that the case was widely discussed. A profound sense of unease and desperation for her to be found alive was voiced by many, before the worst news was confirmed. Shockingly, a serving Metropolitan Police Officer has been charged with her kidnap and murder.
The most important thing to say about the case is contained in the statement of Sarah Everard’s family. They describe the sort of person that she was and what she meant to them.
One former colleague of Sarah Everard sharing her own memories of her added
she’s a real person, not some hanger on which to display your views about women.
But the case has prompted a wider discussion about how the risk of violence and harassment against women going about their ordinary business has been normalised and accepted as part of everyday life, such that calculations as to how to minimise that risk have become second nature to many. The MP Jess Phillips, speaking during a parliamentary debate to mark International Women’s Day said: “Killed women are not vanishingly rare. Killed women are common”,before reading the names of every woman killed in the UK in the last year where a man has been convicted or charged as the main perpetrator, that exercise taking more than four minutes.
Against this background, an organisation called “Reclaim These Streets” (“RTS”) stated that they wished to “channel the collective grief, outrage and sadness in our community” and decided to hold “a short gathering on Clapham Common, centred around a minute of silence to remember Sarah Everard and all women lost to violence”.The event was described as a “socially distanced vigil” having regard to the restrictions currently in place due to the Covid-19 pandemic. It was scheduled to take place at 6pm on Saturday 13 March 2021, close to where Sarah Everard was last seen alive.
Over the past month, the Court of Human Rights has handed down judgment in six Article 10 cases. We have already posted about the most recent, MGN v United Kingdom. Of the other five, two involved civil defamation claims in domestic cases. In both civil defamation cases it was held that the State had infringed the right to freedom of expression but there was no finding of violation in any of the other cases. The reasoning is not straightforward in any of these cases and there are continuing doubts about the quality of the Court’s Article 10 case law.
The only “media case” amongh the five was Novaya Gazeta V Voronezhe v. Russia([2010] ECHR 2104) in which a unanimous First Section found a violation of Article 10 as a result of a domestic defamation award of RUB 25,000 (£525) and an order for the publication of an apology. The applicant newspaper had published an article which concerned abuses and irregularities allegedly committed by the mayor of Novovoronezh and other municipal officials. It also made references to services supplied by a local businessman. The article relied on and quoted from a town administration audit report. The domestic court allowed the plaintiffs’ action, holding in particular that the article implied the embezzlement of funds by the mayor and the businessman, of which the newspaper had failed to adduce any proof. It pointed out that no criminal proceedings against the plaintiffs in connection with the audit of some of the financial matters in question had been opened and that the article thus lacked a factual basis.
Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – read judgment
1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.
Late last year I posted about the case of Mr Mahajna, a national of Israel (but of Palestinian origin), who appealed against a deportation order issued by the Home Secretary under section 3(5) of the Immigration Act 1971 on the basis that his presence in the United Kingdom was not conducive to public good. To recap:
The Government has a list of “Unacceptable Behaviours” which forms the basis of its policy on excluding non-nationals under that provision. This includes actions expressing views which are likely to foster hatred and lead to inter-community violence in the UK (this policy was recent the focus of judicial consideration in the Court of Appeal in the case of R (Naik) v Secretary of State for the Home Department [2011] EWCA Civ 1546).
The Home Secretary relied on five pieces of evidence which were said to fall within the scope of the list of unacceptable behaviours and justify her conclusion that Mr Mahajna’s presence was not conducive to the public good.
The First-Tier Tribunal (FTT) examined those pieces of evidence. It concluded that the Home Secretary was entitled to conclude that they constituted examples of unacceptable behaviour and fell within the scope of the exclusion policy.
Although the order to deport Mr Mahajna constituted an interference with his right to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR) because he was unable to carry out a number of public speaking engagements in the UK, the views of the Home Secretary as to what was in the public interest were entitled to significant weight in assessing whether or not that interference was proportionate.
The FTT ultimately concluded that the interference was proportionate, and the deportation order was upheld. Continue reading →
Some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here:
Can an institution demand a CRB check from tutors visiting to train staff? – Anna Fairclough, Liberty:Another excellent answer to a human rights question via the Guardian’s Liberty Clinic. This edition addresses the overzealous use of Criminal Records Bureau checks by employers. I referred to this issue in a recent roundup, as Nacro, a crime reduction organisation, is campaigning to reform the Rehabilitation of Offenders Act so that ancient and trivial criminal offences would no longer be a bar to employment as they often are now.
Which Miliband is greenest? – Halsbury’s Law Exchange: Stephen Hockman QC, an environmental law expert, says that both Milibands have done more than the current government to promote green issues. Perhaps when David returns to front-line politics he will take up the environmental post his brother recently vacated. We have been featuring environmental law recently on the blog – see a list of recent posts here. Also, good to see the Halsbury’s Law Exchange are now blogging regularly!
Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) (23 May 2011) – Read judgment
The police may have a duty under article 8 of the European Convention on Human Rights (the right to privacy) to inform members of the public that their phone calls have been intercepted.
This was only a judicial review permission hearing, which means that the full “substantive” judicial review will still have to be argued at a later date. In short, the case is the latest in the long-running News of the World phone hacking affair (see this post and this one on Inforrm’s Blog for the latest developments).
Article 12 of the European Convention on Human Rights provides:
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
There are therefore two constituent rights, marriage and founding a family, which have been explored and developed in the case law. Because Article 8 has proved such a reliable source for claims relating to family, relationships and home the jurisprudence on Article 12 itself is fairly thin. However it has been invoked in challenges to the government’s efforts to prevent sham marriage as a way of evading immigration controls. The Strasbourg Court has recognised that countries are entitled to restrict the rights of third party-nationals to marry in such circumstances: O’Donoghue v United Kingdom, 2010.
According to Karen Reid, the Strasbourg court takes a conservative view of Article 12: “the right to marry guaranteed by Art.12 refers to the traditional marriage between persons of opposite biological sex, which interpretation is supported by reference to to the founding of a family” (A Practitioner’s Guide to The European Convention of Human Rights, Sweet & Maxwell 2015, 5th edition). In the relatively recent case of Schalk and Kopf v Austria, Application no. 30141/04, 25 June 2010, the Court observed that the choice of wording “men and women” instead of “everyone” meant that the Article must be regarded as deliberate and seen in the context of the 1950s as marriage in the traditional sense.
But in the UK the position is different. Until recently English law has permitted civil partnerships for same-sex couples but prevented them from marrying. But the campaign to allow civil partnerships to be registered in religious institutions and the legal challenge to UK law has led to the recognition of same-sex marriage, enshrined in the Marriage (Same Sex Couples) Act 2013.
The “founding a family” limb of Article 12 does not create a right to access to reproductive technologies or adoption. This involves issues of resource allocation and costs which are usually outside the purview of the Convention, although there may be an argument based on the prohibition on discrimination under Article 14 if such treatment is arbitrarily allocated.
The Home Office has published a domestic violence consultation response and draft bill as part of a landmark overhaul of domestic abuse laws. Theresa May promised an overhaul almost two years ago, and the bill was a key pledge in the 2017 Queen’s Speech.
The bill introduces the first statutory definition of domestic abuse, which encompasses financial and emotional abuse as well as coercive and controlling behaviour. It would prohibit perpetrators from cross-examining their victims in court, impose polygraph tests on high-risk offenders as a condition of release, and create new powers to force perpetrators into rehabilitation programmes. Among other new protections for victims, the bill would make domestic abuse complainants automatically eligible for special measures in the criminal courts. It would also establish a new “office of the Domestic Abuse Commissioner” tasked with improving response and support for victims across public services.
Domestic violence is a major human rights issue which can deprive women of their rights to health and physical and mental integrity, freedom from torture, inhuman and degrading treatment, and the right to life. The bill has been welcomed by some as a significant step towards combatting the issue . However, writing in the Guardian, Julie Bindel criticises the new measure as “impossible to implement” and likely to be “misued by vindictive men” and “misunderstood by those tasked with protecting women”.
The City of London has succeeded in its court High Court battle against the Occupy London movement which is currently occupying an area close to St Paul’s Cathedral. As things stand, subject to any appeals, the movement has been evicted.
The Judiciary website will be publishing the full judgment tomorrow morning, but for those seeking it before then, I have uploaded it here. Below is the very helpful summary of the judgment sent to me by the Judicial Office (with apologies for the numbering, which is a quirk of the blog formatting, not the summary).
Conway, R (on the application of) v Secretary of State for Justice [2018] – read judgment
A man suffering from motor neurone disease has been refused permission to appeal to the Supreme Court in his bid to be allowed to choose when and how to die. He is now wheelchair bound and finds it increasingly difficult to breathe without the assistance of non-invasive mechanical ventilation (NIV). His legal campaign to win such a declaration, on his own behalf and others in a similar position, has met with defeat in the courts (see our previous posts on Conway here,here and here). As the Supreme Court noted in their short decision, Mr Conway
could bring about his own death in another way, by refusing consent to the continuation of his NIV. That is his absolute right at common law. Currently, he is not dependent on continuous NIV, so could survive for around at least one hour without it. But once he becomes dependent on continuous NIV, the evidence is that withdrawal would usually lead to his death within a few minutes, although it can take a few hours or in rare cases days.
But Mr Conway doesn’t see this as a solution to his difficulties, since he cannot predict how he will feel should ventilation be withdrawn, and whether he will experience the drowning sensation of not being able to breathe. Taking lethal medicine, he argued, would avoid all these problems.
In his view, which is shared by many, it is his life and he should have the right to choose to end it in the way which he considers most consistent with his human dignity.
The Home Office is proposing to legislate for a new criminal offence relating to the “possession of the most serious material glorifying or encouraging terrorism”.
This follows a suggestion made by the Chief Coroner, HHJ Mark Lucraft QC, in his report concerning the 2017 London Bridge terrorist attack. In his view, the lack of such an offence may sometimes prevent counter-terror police taking disruptive action against terror suspects, even when the extremist propaganda they possess is of the most offensive and shocking character. That propaganda might include, for instance, footage of sadistic violence.
The criminal law is ultimately concerned with the prevention of harm. The normative classification of harm with a political dimension, however, engages the right to freedom of thought under Article 10 of the European Convention on Human Rights, as protected under the Human Rights Act. To ensure a proper balance is struck between protecting the public and safeguarding civil liberties, any new offence ought to satisfy a three-limb test:
It must provide a specific definition for the “most serious” category of materials which “glorify or encourage” terrorism. This should be supplemented with empirical guidance to ensure a high and objective threshold is set for criminal sanction.
The mens rea requirement for the offence must be deliberate possession of harmful material, with the knowledge that said material glorifies or encourages terrorism. The standard of liability must be one of intention rather than recklessness or negligence. This would ensure that only harmful purposes are penalised.
It must establish statutory defences to such possession on grounds of reasonable excuse and/or working in the public interest.
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Welcome back to the UK Human Rights Roundup, your regular delectable dossier of human rights news and views. The full list of links can be found 
The City of London has succeeded in its court High Court battle against the Occupy London movement which is currently occupying an area close to St Paul’s Cathedral. As things stand, subject to any appeals, the movement has been evicted.
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