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Two jury trials will resume at the Old Bailey this week in the first steps toward Crown court cases restarting around the country. It has been almost two months since jury trials were suspended on 23 March amid coronavirus lockdown measures.
In his announcement, the Lord Chief Justice, Lord Burnett of Maldon, began by affirming that “the practice of trial by jury sits at the heart of our criminal justice system.” In contrast, the Lord Chancellor, Robert Buckland QC, began his statement with a more equivocal comment about a well-functioning justice system being the hallmark of a healthy democracy.
In this two-part article, Ruby Peacock,an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town, examines the history of medical claims brought under Article 3 of the European Convention on Human Rights.
The first part analyses the history of how such cases have been decided, with particular focus on claims based on psychiatric illness.The second part will examine the recent developments in the law and what these may mean for the future.
Debate about whether the Human Rights Act (HRA) might be replaced by a new UK Bill of Rights often dwells on the potential loss, or at least weakening, of the legal route to accountability and redress for victims of human rights violations. An event next month in Liverpool reminds us how much more might be lost if the HRA were to be scrapped or watered down. In particular, it highlights the significance of section 6 of the Act, which requires all public authorities to act in a way which is compatible with European Convention rights unless primary legislation requires them to act otherwise.
Great Ormond Street Hospital v Yates and Gard – [2017] EWHC 1909 (Fam) – read judgment
“A lot of things have been said, particularly in recent days, by those who know almost nothing about this case but who feel entitled to express opinions. Many opinions have been expressed based on feelings rather than facts.”
So said Francis J, when dealing with an unusual application by Great Ormond Street Hospital (Gosh) asking for an order, rather than a declaration, that Charlie Gard should be allowed to slip away quietly. The involvement of the White House, the Vatican, the Bambino Gesu Children’s Hospital in Rome and Dr. Hirano and the associated medical centre in the USA in this story demonstrates the fact that a mere declaration carries too much ambiguity to allow the hospital staff to do what the courts have approved. The terms in which Gosh put its application were unambiguous indeed:
Therefore orders are sought to remove any ambiguity; orders are enforceable. Despite all of the hospitals best endeavours, this appears as potentially necessary. Not for the first time the parents through their solicitors raised the prospect of criminal proceedings against the hospital and its staff. The Hospital understands that no court order best interests proceedings can afford it or its staff from prosecution.
Welcome back to the UK Human Rights Roundup, your regular wholesome takeaway 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 Sarina Kidd.
Welcome to 2014 and Santa has brought us the Defamation Act 2013, which aims to reduce the ‘chilling effect’ of previous libel laws . But as we enter 2014, not all is new. The Conservative Party continues to complain about European human rights. They seek to challenge the ECtHR ban on prison life sentences. How to deal with this? With hundreds of years of imprisonment instead. Meanwhile, today criminal lawyers will refuse to appear at court in order to protest against legal aid and criminal barrister fee cuts.
Welcome back to the UK Human Rights Roundup, your regular summer festival 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, secret trials and Labour’s stance on the Human Rights Act 1998 have generated discussion. In other news, the Supreme Court reconsiders whether religious doctrine is a justiciable question for the courts.
In the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others [2016] EWCOP21 – read judgment
The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.
I posted last year on the case of a woman who had suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment (King’s College Hospital NHS Foundation Trust v C and another [2015] EWCOP 80). Continue reading →
A recent decision of the High Court concerning the Manchester Arena Inquiry highlights an interesting question about public inquiries, the role of survivors and the protections offered by the European Convention.
A succinct summary of the decision and its context is set out by Matthew Hill here. As he explains, permission was refused on a number of grounds, including that the challenge was brought late. But it is the Court’s analysis of the obligations imposed by Articles 2 and 3 of the European Convention on Human Rights (“ECHR”) which is of interest to this article.
M, R (on the application of) Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 (30 June 2016)
The Court of Appeal has ruled that a 60 year old woman may use her daughter’s frozen eggs to give birth to her own grandchild. Her daughter, referred to as A in the judgment, died of cancer at the age of 28 in 2011. The High Court had dismissed M’s argument that the HFEA had acted unlawfully by refusing to allow the eggs to be exported to a fertility clinic in the United States where an embryo would be created using donor sperm, and implanted in the mother.
The HFEA is bound by statute (the 1990 Human Fertilisation and Embryology Authority Act) to provide services using a person’s gametes only where that person consents. The difficulty here was that while A had consented to treatment for egg removal and storage, including storage after her death, she had not completed a specific form giving details of the use that was now proposed.
The essence of the appellants’ challenge was there was “clear evidence” of what A wanted to happen to her eggs after she died. “All available evidence” showed that she wanted her mother to have her child after her death, the Court was told.
Arden LJ, giving the judgement of the court, found that the judge below had reached his conclusion on the basis of a “misstatement of certain of the evidence” about A’s consent by the Committee. Continue reading →
GS (India) and Ors v SSHD [2015] EWCA Civ 40 – read judgment
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.
The appellants were foreign nationals suffering from very serious medical conditions (five from end-stage kidney disease (ESKD) and one from an advanced stage of HIV infection). They were all receiving effective treatment here in the UK. All were at a high risk of very early death if returned to their home states, where the treatment they needed was unaffordable or simply unavailable. The Secretary of State nevertheless decided to remove them, and the Upper Tribunal dismissed their appeals. They appealed to the Court of Appeal on the grounds that removal would breach their rights under Articles 3 and 8 of the ECHR.
why should judges decide matters of social policy [thrown up by human rights cases] at all? The political rights, Article 8 – 12, with the right set out in the first part and the derogation in the second, create a structure which means that a very large number of legal debates is about how the balance between private right and public interest should be struck. But what authority, expertise, do lawyers have to strike that balance, that is special to them? Why are lawyers any better qualified to assess family ties in foreign criminal questions?
When the floor was opened to questions I suggested that these comments could be extended out more broadly: what was the proper role and function of the Strasbourg Court? This question, I suggest, lies at the heart of much of the recent controversy surrounding the influence of the European Court of Human Rights, especially in the context of the disagreement over whether prisoners should be able to vote.
Harry Dunn’s family after meeting with the foreign secretary, Dominic Raab, last week. Photograph: Credit: The Guardian, Peter Summers/Getty Images.
The usually obscure concept of diplomatic immunity came to the fore this week after it emerged that the wife of an American diplomat was wanted for questioning in connection with the death of a motorcyclist in Northamptonshire. Anne Sacoolas was spoken to by police after a collision with Harry Dunn in which he was killed whilst riding his motorbike, prior to her return to the United States.
Article 31 of the 1961 Vienna Convention grants immunity from the criminal jurisdiction of the receiving state to diplomats, a feature extended to their family members by article 37. However, both the United Kingdom and the United States were this weekend reported as having agreed that diplomatic immunity was no longer “pertinent” in the case of Mrs Sacoolas. This raised the possibility of the UK seeking her extradition, despite President Trump being photographed this week with a briefing card stating that she would not be returning to Britain.
Meanwhile, the country’s attention turned back towards Brexit, with the week ahead promising to, in the Prime Minister’s words, be “do or die” for the prospects of a negotiated deal. At the beginning of the week it was widely reported that talks had faltered, with Downing St leaks suggesting a deal was “essentially impossible”. However, the mood surrounding negotiations changed significantly on Thursday, with Taoiseach Leo Varadkar describing the emergence of a “pathway” to a deal following his meeting with Boris Johnson. Continue reading →
A bill in Georgia demanding that all foreign entities and NGOs which receive more than a fifth of their funding from international sources must be labelled as ‘bearing the interests of a foreign state’ passed its third and final reading in the Tbilisi Parliament. Such organisations would be subjected to increased scrutiny by the Georgian Justice Ministry and could be subjected to fines if they fail to disclose sensitive information that is requested of them. There are fears that the bill may be used to silence dissidents and will harm Georgia’s chances of joining the EU. The High Representative of the European Commission has confirmed that “the adoption of this law negatively impacts Georgia’s progress on the EU path. The choice on the way forward is in Georgia’s hands”. The US State Department has also said it is “gravely disappointed” by the advance of the bill, which it has called “Kremlin-inspired”. Major protests against the bill have been ongoing for nearly a month, and there is little indication they will die down. The protestors have been met with riot police, leading to violent altercations. The British Embassy in Tbilisi has called for an end to the “unlawful intimidation” of protestors, suggesting tactics such as “threatening phone calls, unlawful detention, beatings and personalised posters portraying civil society members as traitors” have been deployed by police. Georgia President Salome Zourabichvili – an opponent of the Prime Minister, Irakli Kobakhidze who supports the bill – told the BBC she would veto the law. However, the Prime Minister’s party Georgian Dream has sufficient numbers to overrule her, having just backed the bill in its final reading by 84 votes to 30.
The New Yorker is in hot water following the publication of a story on the upcoming retrial of Lucy Letby, who was convicted in August 2023 of the murder of seven babies and attempted murder of a further six. The jury failed to return a verdict on a further six counts of attempted murder, one of which will be the subject of the retrial in June. The Court has ordered reporting restrictions in the lead up to the retrial in order to prevent the trial being prejudiced and to protect the integrity of the jury. The New Yorker article was in contravention of these restrictions – which could amount to contempt of court. The article has now been blocked online and is inaccessible to UK readers, but print editions featuring the story on the cover were circulated last week. While the New Yorker does not have an incorporated entity in the UK against whom contempt orders can be enforced, its parent company Condé Nast does. It remains to be seen whether action will be taken. Conservative MP David Davis queried the blocking of the article in the UK, stating it seems “in defiance of open justice”. Other commentators have suggested the opposite, that the purpose is to ensure Letby receives the fair trial to which she is entitled.
In the Courts
The High Court has declared that parts of the Police, Crime, Sentencing and Courts Act 2022 are incompatible with the human rights of travellers. The Act provided for an increase in the duration for which police can ban travellers from an area from 3 to 12 months, as well as conferring powers upon police to seize homes and fine, arrest, or imprison those living in unauthorised encampments. Gypsies, Roma, and travellers are considered a distinct racial group and are thus protected from discrimination on grounds of their identity. The Court found that the increase in the no-return period constituted a disproportionate interference on the travellers’ Article 14 ECHR rights (freedom from discrimination) when read with Article 8 (the right to respect for private and family life) as a result of the unavailability of transit sites where travellers can stay without fear of a criminal penalty. The Court issued a rare declaration of incompatibility, which prompts Parliament to examine the offending legislation and consider amending it in order to achieve compatibility with the ECHR. Marc Willers KC, lead counsel for the Claimant, said: “This is hugely significant judgment. In granting the declaration of incompatibility, the court recognised that there is a lack of lawful stopping places for Gypsies and Travellers and that unless the government increases provision, the law as currently drafted will amount to unjustified race discrimination.” The charity Friends, Families, & Travellers who acted as intervenors in the case have called the judgment a “serious” blow to the Police Act 2022.
The High Court in Northern Ireland has upheld a previous ruling that parts of the Illegal Migration Act 2023 are incompatible with Article 2 of the Windsor Framework, and further declared that the offending sections of the Illegal Migration Act are incompatible with the ECHR. Article 2 WF provides that there must be no diminution of rights conferred under the Good Friday Agreement as a result of the UK’s withdrawal from the EU. The Windsor Framework is legally ‘supreme’, meaning any legislation with which it conflicts must be disapplied. Every provision challenged before the Court was found to cause a diminution in rights and has therefore been disapplied in Northern Ireland. This includes a number of significant provisions, including on detention and removal. A declaration of incompatibility was also issued in respect of various provisions of the IMA, declaring the provisions to be incompatible with ECHR Articles 3 (prohibition of torture), 4 (prohibition of slavery), & 8 (right to respect for private and family life). Although Humphreys J acknowledged the status of declarations of incompatibility as “a measure of last resort”, the making of one was justified on account of the “significant nature of the violations identified”. DUP leader Gavin Robinson told Good Morning Ulster that he believes “if the government do not assert the sovereignty of Parliament and ensure a UK-wide immigration system”, Northern Ireland risks becoming a “magnet” for migrants. Lord Sharpe, Parliamentary Under-Secretary of State, stated to the House of Lords that “the Government will take all steps to defend their position, including through an appeal”. PM Rishi Sunak has suggested that the ruling will not affect the Government’s efforts to remove migrants to Rwanda.
A whistleblower who leaked documents revealing war crimes committed by the Australian military in Afghanistan has been sentenced to prison. David McBride pled guilty to the charges after the evidence supporting his whistleblowing defence was struck out on grounds of national security. McBride had been a military lawyer who did two tours of Afghanistan, including one with the Australian special forces where he became concerned with the conduct of commanders towards their officers. Having tried internal procedures and reporting to the defence and police minister, McBride eventually leaked documents he had covertly copied to the Australian Broadcasting Corporation believing they would prove that Australian commanders were scapegoating their officers in an attempt to escape allegations of unlawful killings. Instead, the dossier included The Afghan Files, a series of reports which revealed the commission of war crimes Australian forces in Afghanistan. The Brereton Report has since found credible evidence of the war crimes revealed within the documents. Despite this, calls to drop the charges against McBride were refused. Mossop J during sentencing emphasised the severity of the offences charged – stealing Commonwealth property, breaching the Defence Act and disclosing confidential information – and placed weight upon the fact that McBride’s actions constituted a “gross breach of trust” for which he shows “no contrition”. He has been sentenced to 5 years and 8 months. The sentence has led to calls for increased whistleblower protection in Australia. The Asia Director at Human Rights Watch has called it “a stain on Australia’s reputation that some of its soldiers have been accused of war crimes in Afghanistan, and yet the first person convicted in relation to these crimes is a whistleblower not the abusers”.
Following almost fourteen years of detention without trial, the last British resident to be held in Guantanamo Bay, Shaker Aamer, has been released. Amnesty International has described Aamer’s plight as “one of the worst of all the detainees at Guantanamo,” given the time involved, the lengthy spells in solitary confinement and the torture he was allegedly subjected to.
“The case against the US authorities that perpetrated this travesty of justice, and British ministers and security personnel who allegedly colluded with them, should now be vigorously pursued”, writes the Observer. Long-standing questions remain surrounding claims of UK complicity in human rights abuses: in the 2009 civil case of former Guantanamo detainee Binyam Mohamed, the High Court pointedly noted that the UK’s relationship with US authorities went “far beyond that of a bystander or witness to the alleged wrongdoing.” Continue reading →
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Debate about whether the 
Welcome back to the UK Human Rights Roundup, your regular wholesome takeaway of human rights news and views. The full list of links can be found 
GS (India) and Ors v SSHD [2015] EWCA Civ 40 – read 
At last week’s Inner Temple hall event, 
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