Double Feature: Article 6 and extradition in Bertino and Merticariu

4 April 2024 by Benjamin Seifert

Introduction

On 6 March 2024 the Supreme Court handed down two separate judgments in the cases of Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9 and Merticariu v Judecatoria Arad, Romania [2024] UKSC 10. The constitution of the Court for both cases was the same with the judgments written by Lord Stephens and Lord Burnett. Lords Hodge, Sales and Burrows completed the panel.

These two appeals both concern Section 20 of the Extradition Act 2003 (“the Act”) which deals with convicted individuals who are subject to convictions in their absence. Trials in absentia are extremely common in civil law jurisdictions and it is sometimes said that there is the possibility of unfairness arising from a trial with an absent defendant

Section 20(3) requires an extradition judge to decide whether or not a person has deliberately absented themselves from their trial. In those circumstances they can be extradited to serve a sentence without an entitlement to a retrial.

If the Court determines that the person was not deliberately absent Section 20(5) must be addressed and it is necessary to decide if they would be entitled to a retrial or (on appeal) a review amounting to a retrial. The case of Bertino considered deliberate absence within Section 20(3) and Merticariu the right to a retrial within Section 20(5).

These issues are integral to the protection of Article 6 of the ECHR. It is plain that deliberately absenting oneself from a trial would not subject someone to a violation of Article 6 but the two basic principles of that Article are the right to be present and the right to be represented (Bertino §27).

Bertino: the facts

The Appellant’s extradition was sought pursuant to a European Arrest Warrant (“EAW”) issued for his extradition to serve a year’s imprisonment after trial in his absence at the Italian Court of Pordenone. He was convicted for the offence of sexual activity with an under-age person.

The Appellant signed a document confirming that he was under investigation and he “elected domicile” in Italy. The document stipulated that he was obliged to notify the authorities of any change of address. Without such a notification service of any document would be executed by delivery to his lawyer. Mr Bertino elected his domicile by giving an address in Venetico, Messina and also indicated that he would be assisted by a court-appointed lawyer.

However he then left the country in November 2015 and came to the UK where he began to work. Meanwhile the prosecution in Italy commenced on 8 June 2017, a writ of summons for the court hearing was issued on 12 June 2017 and he was summoned to appeal at the Pordenone Court on 28 September 2017. The summons included a warning that his non-attendance without “lawful impediment” would lead to judgment in his absence. However he had never received the summons and by then the judicial authority knew that he was no longer at the address in Venetico. He had also failed to notify the authorities of any change of address.

There were then many unsuccessful attempts to trace him in Italy between 2016 and 2019. The Appellant did tell Westminster Magistrates’ Court that he had informed the authorities of his departure to the UK for family law purposes because, by then, his marriage was failing and arrangements were to be made for the children, but not the police in connection with the investigation.

The Council Framework Decision

EAWs must be drafted in a prescribed form according to the Council Framework Decision of 26 February 2009 2009/299/JHA, and there are various options which the issuing judicial authority is required to tick. In this case the EAW indicated that he was absent from his trial. There are a range of boxes for indicating, roughly, why this was; in Mr Bertino’s case none of those boxes was ticked and the evidence was that he was unaware of the date and place of his trial and even that there had been a decision to prosecute him.

The Deputy Senior District Judge ordering extradition found that, because the Appellant left his address without notifying a forwarding address and then came to the UK he had demonstrated a “manifest lack of diligence” [§10], a phrase echoing Court of Justice of the European Union case law.

On appeal Swift J found that there was no reason in principle to distinguish between a requested person’s awareness of the date and place of trial and the knowledge that if he does not attend trial he could be tried in absentia. This, he observed, is in accordance with Article 6 ECHR which guarantees a person’s right to be present at trial but that right, so he said, could be waived expressly or by inference.

Swift J certified the following point of law of general public importance:

For a requested person to have deliberately absented himself from trial for the purpose of Section 20(3) of the Extradition Act 2003 must the requesting authority prove that he has actual knowledge that he could be convicted and sentenced in absentia?

The Court’s conclusions on the law

If the EAW is used to convey information which demonstrates that one of the criteria from the 2009 Framework Decision is met that is normally determinative of whether or not the extraditee can be considered deliberately absent (§44). However the Framework Decision (§45) acknowledges that the question of whether or not to extradite is a matter of domestic law when none of the criteria has been satisfied. Consequently Section 20 falls to be analysed.

The phrase “deliberately absented himself from his trial” is the same, under Strasbourg jurisprudence, as the suggestion that an accused has unequivocally waived his right to be present at trial. If those circumstances lead to a finding of a breach of Article 6 then the judge must be required to consider retrial rights under Section 20(5).  However if the trial in absentia did not lead to a breach of Article 6 then the person will have deliberately absented himself from his trial.

It is also for the requesting judicial authority to prove to the criminal standard that an appellant has unequivocally waived his right to be present at his trial.

Application of the facts to the law

The Appellant was never arrested, charged or questioned. He was never informed that he was to be prosecuted and was never notified of the time and place of his trial (§50). He knew that he was suspected of a crime which was being investigated but there was no certainty that he would subsequently be prosecuted. When he left Italy, without giving the judicial police a new address, there were no criminal proceedings of which he could have been aware and definitely no trial from which he could have deliberately absented himself. This was the basis upon which the Supreme Court ruled that the Courts below had erred in finding that he had deliberately absented himself.

At paragraph 52 the Court stated that the Magistrates’ Court and the High Court had inferred that he had unequivocally and intentionally waived his right to be present at his trial by finding that he could reasonably foresee that the trial would proceed in his absence. The Supreme Court noted that the concepts of waiver and reasonable foreseeability were from Strasbourg case law and were not synonymous with the same concepts in English private law. The Strasbourg standard is that, in order for a waiver to be unequivocal and effective, knowing and intelligent, the accused must ordinarily be shown to have appreciated the consequences of their own behaviour and will usually require them to have been warned (§54).

The District Judge had described the Appellant’s “manifest lack of diligence” but the Supreme Court concluded (§55) that this would not have been a waiver by the fact that he could have avoided the situation which led to an impairment of his rights. It was on that basis that the Supreme Court found that the courts had previously overly broadened the definition by finding that deliberate absence is found where the person’s conduct led to him becoming unaware of the date and time of trial. However (§58) these cases are clearly to be considered on their individual facts and there may be circumstances where accused people knowingly and intelligently place themselves beyond the jurisdiction of the prosecuting and judicial authorities  so that a trial in their presence is impossible and they could be considered to appreciate that a trial in absentia is the only option.

The Court therefore ruled that Mr Bertino did not unequivocally waive his right to be present at his trial and was not deliberately absent. The appeal was therefore allowed.

Merticariu: the facts

The EAW was issued in 2019. District Judge Ezzat gave judgment on 26 August 2020 and found that Mr Merticariu had not deliberately absented himself from his trial but did have a right to a retrial in Romania and therefore, with this apparent guarantee, extradition was ordered.

On appeal (§6) to the High Court Chamberlain J dismissed the appeal, having found that he was bound by the authority of BP v Romania [2015] EWHC 3417 where the Divisional Court held that Section 20(5) of the Act will be satisfied even if the right to a retrial is conditional on a finding in the requesting state that the person was not deliberately absent from their trial.

The certified question

Chamberlain J certified the following question of general public importance arising from his decision. He refused leave to appeal.

In a case where the appropriate judge has decided the questions in section 20(1) and (3) of the Extradition Act 2003 in the negative, can the appropriate judge answer the question in section 20(5) in the affirmative if (a) the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority of that state as to whether the requested person was deliberately absent from his trial; and (b) it is not possible to say that a finding of deliberate absence is ‘theoretical’ or ‘so remote that it can be discounted’? If so, in what circumstances?

The decision

As a Romanian extradition case the High Court considered Article 466 of the Code of Criminal Procedure which provided that the person has a “right to ask for a retrial of the case”(§34). However this was not sufficient for the Supreme Court. The “natural and ordinary” meaning of the words in Section 20(5) were clear. It is not solely a question of being entitled to apply for a retrial. The answer to the question in Section 20(5) should not be “perhaps” or “in certain circumstances” (§51). The entitlement to a retrial therefore cannot be contingent on the court making a factual finding that the person was not present at or was not deliberately absent from their trial. The question is clear: are they entitled to a retrial or (on appeal) to a review amounting to a retrial?

The decision in BP was therefore wrong at paragraph 44 where it stated that an application for a retrial was a procedural step contingent on the court determining whether the person had or had not instructed a lawyer to represent her at her trial (§52). The 2009 Framework Decision replaced “an opportunity to apply for a retrial” with “a right to a retrial.”

The Supreme Court also agreed that the right to a retrial was consistent with Strasbourg principles where there is a “duty to guarantee the right of a criminal defendant to be present in the courtroom” (§54). It is consistent with Article 6 obligations.

Furthermore the principle of mutual trust and confidence, which pervades extradition arrangements between the UK and EU (§60) runs both ways because the issuing judicial authority takes part and is represented in the proceedings in the UK court and it would be entirely in accordance with this principle that courts in requesting states respect the executing courts’ decisions in this country.

The answers to the certified questions

The Supreme Court found that an appropriate judge cannot answer Section 20(5) in the affirmative if the law confers a right to a retrial which depends on a finding by a judicial authority as to whether the person was deliberately absent from their trial.

In relation to (b) of the question the Court found that it is for the issuing judicial authority to provide information in the EAW or in response to a request for further information. The executing court should not take part in a “mini trial” as to whether, on the facts and law of the requesting state, a finding is theoretical or so remote that it can be discounted. The evidence should be clear. (§64)

The application to the case

Given that the judicial authority in this case was unable to confirm whether or not the Appellant had a right to a retrial and Article 466 of the Romanian Code of Criminal Procedure demonstrated that he would not be regarded as having been tried in absentia he had no right to a retrial (§67).

Comments

In Bertino, This decision represents a pendulum swing from the past ten years of High Court authority where the concept of “manifest lack of diligence” had imposed a significant level of responsibility on a person who may not have fully understood the consequences of their decision to leave the country after they may have only been partly aware of a criminal prosecution. It provides a greater protection to those lay persons who assume that the authorities will contact them. It also now requires District Judges to exercise greater inquiry into the circumstances of an individuals departure from the country which requests their extradition.

In Merticariu, the Supreme Court has finally resolved what is a very short point. If the Court is required to consider Section 20(5) there can be no assumptions in these cases, in the absence of any clear evidence, that a right to a retrial exists. There was always a doubt that the requesting state’s s findings about deliberate absence would chime with those of the executing state and now they need to be considered together. These questions are fundamental to the fair carriage of extradition cases between the UK and EU. Whilst the earlier cases assumed compliance with Article 6 on the basis of mutual trust and confidence the UK courts now do not need to be so quick to reach the same conclusions and they will also offer greater protections to those who find themselves in our extradition courts.

Benjamin Seifert is a barrister at 1 Crown Office Row Chambers.

Ireland, Article 13 and Article 6: still no effective remedy for excessive delay in proceedings

12 May 2020 by Joanna Curtis

The recent judgment of the European Court of Human Rights in Keaney v Ireland (Application no. 72060/17) highlights the conflict that can arise between a common law legal system and the speed of redress which the European Court demands.

Upholding fundamental rights or ensuring accurate verdicts? The ECtHR and the use of unchallengeable witness evidence.

4 April 2016 by Fraser Simpson

Photo credit: The Guardian

Seton v. the United Kingdom, Application no. 55287/10, 31 March 2016 – read judgment.

The European Court of Human Rights (“ECtHR”) has held that the use of telephone recordings as evidence in a criminal trial, despite the inability of the accused to challenge the caller, did not violate his rights under Article 6, ECHR. This judgment follows a number of Grand Chamber judgments on similar issues that have altered the ECtHR’s stance on the subject of absent witness evidence.

by Fraser Simpson

Background

The applicant, Mr Seton, was on trial for murder. Prior to the trial, he submitted a defence statement stating that he believed that the murder had been carried out by Mr Pearman. The applicant alleged that he had previously been involved in a drug deal with Mr Pearman and the victim.

Mr Pearman, who was at the time imprisoned for drug dealing, was interviewed by the police but he refused to cooperate and answered “no comment” to all questions. Following these interviews, Mr Pearman phoned his wife and son from the prison and stated that he had never heard of the applicant and had no knowledge of the murder. These calls were recorded – a standard practice that Mr Pearman would have been aware of.

During the applicant’s trial for murder, it was accepted that the primary issue to be determined by the jury was whether the applicant or Mr Pearman had committed the murder. Mr Pearman had refused to attend the trial or make a formal witness statement. Accordingly, the prosecution sought to rely upon these recordings to disprove the applicant’s version of events. The trial judge, in deciding whether the recordings could be admitted as evidence, referred to s.114, Criminal Justice Act 2003 (“CJA 2003″). After considering the relevant considerations – such as the probative value of the evidence, whether it was self-serving, the reliability of the recording, and the prejudice that the applicant would face if it were to be admitted – the judge decided that the recordings could be relied upon during the trial. In summing up, the trial judge outlined the limitations of the telephone recordings and stated that it was up to the jury, in light of these limitations, to decide the relevant weight to be attached to the recordings. The applicant was subsequently convicted by the jury and sentenced to life imprisonment.

The applicant unsuccessfully appealed his conviction to the Court of Appeal (see, Seton v. R., [2010] EWCA Crim 450). The Court of Appeal considered that compelling Mr Pearman to attend the trial, which was an option, would have “been a fruitless exercise”. Mr Pearman could have invoked the protection against self-incrimination and had consistently refused to cooperate so the “prospect of any sensible evidence being given by him was, on a realistic view, nil” (paragraph 22 of Court of Appeal judgment). The Court of Appeal would only interfere with the trial judge’s decision if the decision was “marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made”. The Court of Appeal held that the relevant consideration under s.114(2), CJA 2003 had been covered by the trial judge and there were no other grounds to overturn the conviction.

Further, the Court of Appeal commented on the safety of the conviction. Due to the “overwhelming” evidence against the applicant, including eye-witness accounts, telephone call records between the applicant and the victim and cell site location evidence placing the applicant in the vicinity of the murder, the conviction was deemed to be safe.

The Strasbourg Court

The applicant applied to the European Court of Human Rights and alleged that his right to a fair trial within Article 6(1) and 6(3)(d) had been violated. Article 6(1) includes the right to a fair hearing when facing criminal charges whilst Article 6(3)(d) ensures that the individual has the right:

“to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”

The default position is that witness evidence should be provided during the trial and the accused should have the opportunity to challenge this evidence during this trial. However, the use of witness evidence when the witness does not attend the trial does not automatically result in a violation of Article 6(1) and 6(3)(d). The Grand Chamber has previously set out specific guidance in assessing whether the use of such evidence complies with Article 6. In Al-Khawaja and Tahery v. the United Kingdom (GC), Application nos. 26766/05 and 22228/06, 15 December 2011 (see paragraphs 118-151), the Grand Chamber outlined a general three-part process:

1. Consider whether good reasons exist for the absence of the witness.

2. Consider whether the evidence was the “sole or decisive” decisive evidence against the accused.

3. Assess the existence of sufficient counterbalancing factors and procedural safeguards which allow the reliability of the evidence to be fairly and properly tested.

This process was clarified in Schatschaschwili v. Germany (GC), Application no. 9154/10, 15 December 2015. The Grand Chamber stated that the lack of good reasons for lack of attendance was not sufficient to result in a violation of Article 6, but it was a strong factor to be considered when assessing the overall fairness of the proceedings (paragraph 113). Additionally, the necessary extent of counterbalancing factors depends upon the weight of the evidence provided by the absent witness in the overall context of the proceedings (paragraph 116).

1. Were there good reasons for the non-attendance of Mr Pearman? (paragraphs 61-62)

The ECtHR has previously adopted a robust approach to assessing whether “good reasons” existed for the absence of the witness at the trial. Previously, even in situations where the witness was located in another country (Gabrielyan v. Armenia, Application no. 8088/05, 10 April 2012), or could not be located at all (Lučić v. Croatia, Application no. 5699/11, 27 February 2014), the ECtHR have held that the authorities have failed to satisfy their duty to secure attendance of the witness. In light of this, the ECtHR unsurprisingly concluded that no good reasons existed for Mr Pearman being absent from the trial. The trial court could have compelled Mr Pearman to attend the trial and whilst they could not compel him to give evidence, due to his right to silence, the jury would have at least been able to assess his demeanour when facing cross-examination.

2. Was the evidence of Mr Pearman the “sole or decisive” evidence? (Paragraphs 63-64)

The ECtHR considered that the recorded telephone calls could not be considered the “sole or decisive” evidence in the criminal trial. The Court of Appeal, in commenting on the safeness of the conviction, had listed the other “overwhelming” evidence against the applicant. However, the evidence had been described as “important” by the trial judge. Accordingly, following the Grand Chamber decision in Schatschaschwili, it was necessary to consider whether sufficient counterbalancing factors existed during the trial.

3. Did sufficient counterbalancing factors exist? (Paragraphs 65-68)

In the present case, the ECtHR highlighted the detailed legislative scheme intended to ensure that evidence from the absent witness could only be relied upon in limited circumstances. The need to assess the significance of the evidence, its reliability, and the prejudice that the applicant would face as a result of being unable to challenge the witness was an important procedural safeguard intended to uphold respect for the applicant’s rights. Additionally, the instruction of the judge as to the limitations of the evidence was another important counterbalancing factor.

As clarified by the Grand Chamber in Schatschaschwili, the assessment of counterbalancing factors is a relative one – fewer factors will be required if the evidence provided by the absent witness is not especially important. In light of the existence of separate “overwhelming” evidence against the accused, the counterbalancing factors in the present case were considered sufficient.

In conclusion, the ECtHR decided that the criminal proceedings as a whole had been fair. Having following the procedure outlined in Al-Khawaja, the ECtHR concluded that there had been no violation of Article 6.

Comment

This decision of the ECtHR is the consequence of previous Grand Chamber decisions tending to dilute the procedural protections contained within Article 6(3). The right to examine witnesses has slowly been weakened in favour of a more holistic approach that focusses upon the overall fairness of the proceedings instead of potential individual deficiencies.

When considering the three part test in Al-Khawaja, the first step – whether good reasons existed for the non-attendance of the witness – was previously considered determinative. If no good reasons existed, then Article 6 had been violated. Such a stance has even been adopted by the ECtHR following the judgment in Al-Khawaja and only months before the decision in Schatschaschwili (see Karpyuk and Others v. Ukraine, Application nos. 30582/04 and 32152/04, 6 October 2015, paragraph 123). Additionally, if such good reasons did exist but the evidence was the “sole or decisive” evidence in the case, then Article 6 had also been violated (Saïdi v. France, Application no. 14647/89, 20 September 1993, paragraph 44). Now, the position is that these considerations are merely factors that can be balanced away.

But the balancing process places an undue weight upon the existence of other incriminating evidence against the accused. The position appears to be that it is more acceptable to deny the accused the right to cross-examine a witness if the prosecution’s case against him/her is strong. This move towards focussing on the accuracy of the verdict, as opposed to upholding the rights of individuals, is a potentially worrying development. Indeed, the contemporary Strasbourg position appears, in effect, similar to  the Court of Appeal’s consideration of the safety of the conviction.

It could be argued that the ECtHR may be surrendering its role as an upholder of fundamental human rights and moving towards that of an international criminal appeal court.

Visa scheme exposes workers to abuse -the Round-up

25 January 2016 by Hannah Lynes

In the news

Domestic worker visas are leaving women vulnerable to conditions of abuse that amount to modern slavery, according to an independent review commissioned by the Home Office.

The current system ties overseas domestic workers to the foreign employer who brought them into the UK. Approximately 17,000 visas were issued under the scheme last year, with the large majority of applications coming from the Gulf States.

Workers have no legal right to change their employer, and are liable to deportation if they escape their situation. Campaigners argue that such restrictions expose women to the risk of serious ill treatment, with domestic workers being subjected to physical and sexual violence, deprivation of food and non-payment of wages.

The review of the scheme reinforces these concerns, finding “no evidence that a tie to a single employer does anything other than increase the risk of abuse and therefore increases actual abuse.” It recommends that workers be permitted to change employers and remain in the UK for up to two and a half years.

The Government has stated that it is “carefully considering the report’s recommendations” and would announce its response “in due course.”

In other news:

BBC: An independent investigation into concerns about Yarl’s Wood immigration centre has found no evidence of a “hidden or significant problem of serious misconduct” by staff at the facility. However, the report raised concerns that staffing levels had to some extent “undermined and compromised” the care of residents.

The Guardian: The Upper Tribunal has ordered the Secretary of State for the Home Department to admit to the UK four asylum seekers, currently residing in the ‘Jungle’ in Calais. The Tribunal ruled that the three unaccompanied minors and the dependent adult brother of one of them should be allowed to live with their relatives already in Britain while their asylum claims are examined.

Prime Minister David Cameron has said that there is now “an industry trying to profit from spurious claims” against UK military personnel which he plans to “stamp out”. However, lawyers have noted that the government has agreed to pay compensation in over 300 cases of abuse, and have urged Mr Cameron not to challenge the principle that no-one is above the law. The BBC reports here.

In a letter written to the Guardian, UK lawyers have sought to draw attention to the plight of human rights defenders in Honduras. Between 2010 and March 2015, the national commissioner of human rights recorded the targeted killings of 91 lawyers. The statement calls for greater protection by the Honduran state for those whose lives are at risk.

In the courts

Ivanovski v The Former Yugoslav Republic of Macedonia

This case concerned lustration proceedings brought against the former president of the Constitutional Court of Macedonia, which resulted in his dismissal from office.

The Court found that the proceedings, taken as a whole, had not satisfied the requirements of a fair trial. The Court attached particular importance to the open letter, published by the Prime Minister while lustration proceedings were still pending, which denounced the applicant as a collaborator of the secret police of the former regime. In view of the content and manner in which it was made, the statement was held to be incompatible with the notion of an “independent and impartial tribunal”. The Court therefore found a violation of Article 6 ECHR (the right to a fair trial).

UK HRB blog posts

Court of Session: Murderer’s prison conditions fair – Thomas Raine

UK Government tells High Court: Same-sex couples may be shut out of Article 14 – Professor Robert Wintemute

Stop Powers under the Terrorism Act 2000 incompatible with Article 10 – David Scott

Events

UCL will be hosting a lecture by Professor George Letsas – The Moral Dimension of Proportionality. The event will take place at 18.00 on the 17 March 2016. More information can be found here.

Hannah Lynes

Supreme Court: Failure to disclose evidence did not breach Art 6

18 December 2015 by Thomas Raine

Macklin v Her Majesty’s Advocate [2015] UKSC 77, 16^th December 2015 – read judgment

The Supreme Court has unanimously dismissed an appeal against a decision of Scotland’s High Court of Justiciary (available here) in which it refused to overturn a criminal conviction on the basis that the non-disclosure of evidence breached the appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).

Continue reading →

Supreme Court: no-win-no-fee costs regime compatible with Article 6

22 July 2015 by David Hart KC

Coventry v. Lawrence [2015] UKSC 50, 22 July 2015, read judgment here

The pre-April 2013 Conditional Fee Agreement system, under which claimants could recover uplifts on their costs and their insurance premiums from defendants, has survived – just. It received a sustained challenge from defendants to the effect that such a system was in breach of their Article 6 rights to a fair trial.

In a seven-justice court there was a strongly-worded dissent of two, and two other justices found the case “awkward.”

The decision arises out of the noisy speedway case about which I posted in March 2014 – here. The speedway business ended up being ordered to pay £640,000 by way of costs after the trial. On an initial hearing (my post here), the Supreme Court was so disturbed by this that they ordered a further hearing to decide whether this was compatible with Article 6 .

Continue reading →

The Round-up: Human Rights Act – the long struggle ahead

1 June 2015 by Hannah Lynes

Actor Benedict Cumberbatch is vocal in his support for the HRA

This week’s Round-up is brought to you by Hannah Lynes

In the news

Prime Minister David Cameron has postponed the introduction of a British Bill of Rights, the Queen’s Speech containing only proposals for consultation. Director of Liberty, Shami Chakrabarti has welcomed the development:

“It is heartening that a Conservative Government committed to scrapping the Human Rights Act has at least paused for thought in its first Queen’s speech. There is a long struggle ahead but time is the friend of freedom.”

Debate surrounding the proposed Bill of Rights continues in full force. Proponents of the HRA draw attention to perceived misconceptions advanced by the opposing side. Lord Leveson points out that UK courts are not ‘bound’ by the decisions of Strasbourg (“the legislation only requires us to take them into account”), whilst Colin Yeo for the Free Movement blog questions the accuracy of claims that the HRA prevents us from deporting serious foreign criminals. Dr Ed Bates argues in the Constitutional Law blog that the domestic judiciary is more supportive of the ECHR than certain politicians would have us believe. Useful coverage of the views expressed by senior judges is provided here.

Other news

Housing: Leading housing charities last month issued a report claiming that the present ‘crisis’ in housing has put the UK in breach of its UN obligations to provide adequate homes. Housing campaigners fear government proposals set to reduce housing benefit for 18-21 year olds will serve to exacerbate the problem. The measures could “spell disaster for thousands of young people who…could be facing homelessness and the terrifying prospect of roughing it on the streets”, warns Chief Executive of Crisis, Jon Sparkes.

Surveillance: Prominent legal academics have signed a letter calling on the Government to ensure that any changes in surveillance law “are fully and transparently vetted by parliament, and open to consultation from the public and all relevant stakeholders”. The Guardian reports here.

Police: Hampshire Constabulary has admitted a failure to properly investigate the complaint of a victim of rape, who had been accused of lying by the force. An out-of-court settlement was reached with the young woman following commencement of proceedings under the Human Rights Act.

Discrimination: A woman turned down for a job because she observed Shabbat, the Jewish day of rest, was successful in her claim for indirect discrimination. The Telegraph reports on the decision.

Gender: An interview with barrister Roy Brown in Halsbury’s Law Exchange examines the significance of recent High Court decisions in JK and Carpenter for transgender rights in the UK.

In the courts

• Re K and H [2015]

This case concerned the question of legal representation in complex family proceedings. The Court of Appeal held that whilst it may be inappropriate for an unrepresented litigant to conduct cross-examination of his alleged victim, a judge is not entitled to order the Courts Service (HMCTS) to pay for a legally trained advocate to do so on the litigant’s behalf. A court is not permitted to circumvent the detailed provisions for legal aid eligibility set out in LASPO. Further, the result does not amount to a breach of Article 6 ECHR (the right to a fair trial), since the court has available to it other alternatives. These include the possibility of the judge himself conducting the questioning.

1COR’s David Hart QC analyses the decision here.

UK HRB posts

• The consequences of Ireland’s Vote for Equality – Martin Downs
• Phone hacking: massive privacy damages – David Hart QC
• Je suis James: Pianist finally allowed to tell his story of sexual abuse – Jim Duffy
• Non-violent extremism: some questions about laws and limits – Robert Gleave and Lawrence McNamara

Events

1COR/JUSTICE will be holding a major seminar on 4 June: Public Law in an Age of Austerity. To register please email Lisa Pavlovsky.

If you would like your event to be mentioned on the Blog, please email the details to Jim Duffy, at jim.duffy@1cor.com.

Hannah Lynes

Fair family hearings – according to the Court of Appeal

31 May 2015 by David Hart KC

Re K and H  [2015] EWCA Civ 543, Court of Appeal, 22 May 2015 – read judgment 

Philippa Whipple QC and Matthew Donmall of  1 COR appeared for the Lord Chancellor in this case.  They have played no part in the writing of this post.

Lord Dyson for the Court of Appeal has recently reversed the decision of HHJ Bellamy (see my post here) who had ordered legal aid to help an unrepresented father in family proceedings. The conundrum was that the father wanted contact with his children aged 5 and 4, but a 17-year old step-daughter, Y, told her teacher that the father sexually abused her – which the father denied.

That issue had to be decided first – and understandably the father felt unable to cross-examine Y himself. Hence the judge’s order that the Courts Service (HMCTS) should pay for legal representation for the father limited to that cross-examination of Y.

Continue reading →

The Round-up: A British Bill of Rights on the Horizon?

11 May 2015 by Hannah Lynes

Photo Credit: The Telegraph

In the news

‘The Conservative Party has won a majority and can implement its manifesto. The Human Rights Act will be scrapped,’ writes Colin Yeo for the Free Movement blog. Such an outcome might not be a foregone conclusion, but Professor Mark Elliott is clear that ‘repeal of the HRA, the adoption of a British Bill of Rights and perhaps even withdrawal from the ECHR are now less unthinkable’.

Questions surrounding the content of the proposed Bill of Rights have therefore assumed increased urgency. A press release issued in October 2014 spoke of limiting the rights of illegal immigrants, travellers, victims of British military abuse and foreigners who commit crimes in the UK. Yet as UKHRB founder Adam Wagner notes, ‘only foreign criminals were mentioned in the manifesto, so it is all to play for.’

The HRA has failed to secure resilience in domestic politics. Benedict Douglas for the UK Constitutional Law blog attributes this failure to an absence in the Act of a ‘justification for rights possession in dignity or any other foundational human characteristic’. Mark Elliott points to the manner of its introduction: little effort was made ‘to engage the general public in what was perceived to be a political and legal elite’s pet project’.

Current discussions could thus present an opportunity, argues Adam Wagner for RightsInfo. A ‘Bill of Rights, done properly with real public involvement might help convince people that human rights are for all of us.’

For those looking to read more about human rights reform:

The Human Rights Act and a Question of Legitimacy – Barrister Austen Morgan considers the advantages of a British Bill of Rights for The Justice Gap.

What does a Conservative Government Mean for the Future of Human Rights in the UK? – Professor Mark Elliot puts together a useful list of recent posts he has written on Conservative plans for reform.

Other news:

• Michael Gove has been appointed Justice Secretary and Lord Chancellor in the post-election Cabinet. The Telegraph reports here.
• BBC: Two Syrian asylum seekers imprisoned for failing to provide passports have been successful in appealing their convictions.
• The High Court has ruled that a child should be brought up by her genetic father and his male partner, despite objections from the surrogate mother. The Guardian reports.
• The Justice Gap: The Uk Supreme Court has launched an on-demand video catch-up.
• Legal Voice: More than 8,000 lawyers are set to join the London Legal Walk to raise funds for the legal not-for-profit sector
• Mark Freedland and Jeremias Prassl express concerns over the impact and regulation of ‘zero-hours contracts’ for the Oxford Human Rights Hub.

In the courts

• Kapetanios and Others v Greece

The case concerned the imposition of administrative fines on individuals who had been acquitted by the criminal courts of the same offence. The ECtHR found a violation of the right to a presumption of innocence (contra. Article 6 ECHR) and also the right not to be tried or punished twice (Article 4 of Protocol No.7).

UK HRB posts

• Bank Mellat’s $4bn A1P1 claim gathers pace – David Hart QC
• Local authorities and judicial review: they should not put their heads completely in the sands – David Hart QC
• Will either major party protect human rights after the Election? – Adam Wagner
• A1P1 claims by photovoltaics get to the Court of Appeal – David Hart QC

Events

‘In Conversation with Sir Stephen Sedley’ – As part of LSE’s Legal Biography Project, Sir Ross Cranston will interview Sir Stephen Sedley on his life and career in the law. The event will be held on 19 May in the Wolfson Theatre, New Academic Building. More information can be found here.

If you would like your event to be mentioned on the Blog, please email Jim Duffy at jim.duffy@1cor.com

Hannah Lynes

“Lamentable”, “egregious” and “wholly indefensible”: High Court lambasts local authority’s conduct of care proceedings

1 February 2015 by Jim Duffy

Northamptonshire County Council v AS, KS and DS [2015] EWFC 7 – read judgment

A Family Division judge has awarded damages under the Human Rights Act against a local authority in what he described as an “unfortunate and woeful case” involving a baby taken into foster care. Mr Justice Keehan cited a “catalogue of errors, omissions, delays and serial breaches of court orders” by Northamptonshire County Council. Unusually, the judge decided to give the judgment in this sensitive case in public in order to set out “the lamentable conduct of this litigation by the local authority.”

On 30 January 2013, the local authority placed the child (known as ‘DS’) with foster carers. He was just fifteen days old. In the weeks prior to DS’s birth, his mother’s GP had made a referral to the local authority due to her lack of antenatal care and because she claimed to be sleeping on the street. The mother then told a midwife that she had a new partner. He was a heroin addict.

After the birth DS’s mother avoided seeing her midwife. She frequently moved addresses and conditions at home were exceedingly poor. Three days before DS was taken into care, his mother told social workers that her new partner was being aggressive and threatening to her. She reported that he was leaving used needles around the house.
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Acquitted defendants costs regime not incompatible with ECHR

28 January 2015 by David Hart KC

R (o.t.a Henderson) v. Secretary of State for Justice, Divisional Court, 27 January 2015 – judgment  here

The Court (Burnett LJ giving the sole judgment) has ruled on whether the statutory changes made to the ability of acquitted defendants in the Crown Court to recover their costs from central funds are compatible with the ECHR. 

Its answer – an emphatic yes, the new rules are compatible. This conclusion was reached in respect of the two statutory regimes applicable since October 2012, as we shall see.

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How to make family hearings fair

5 January 2015 by David Hart KC

Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1, HHJ Bellamy – read judgment 

Philippa Whipple QC of  1 COR appeared for the Lord Chancellor in this case.  She has played no part in the writing of this post.

This case raises a very stark problem. A father wants to see his children aged 5 and 4. The mother has an elder daughter, Y, aged 17. Y told her teacher that the father sexually abused her. The truth or otherwise of this allegation is relevant to whether there should be contact between father and his children. 

The father is a litigant in person, and unsurprisingly (whatever the status of her allegations) Y does not to be cross-examined by the father, nor, equally understandably, does the father wish to do so himself.

So who should? And does the court have the power to order Her Majesty’s Courts and Tribunals Service (HMCTS) to pay for legal representation for the father limited to that cross-examination of Y? So the Lord Chancellor was allowed to intervene – he had been invited to do so in a previous case (Q v. Q – here, and our post here, to which we will come), but had been unwilling to do so – not perhaps tactful to the judges but then he still seems to be learning the ropes in that respect – see here.

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Exceptional legal aid funding should not be limited to extreme cases – Court of Appeal

17 December 2014 by Rosalind English

R (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others [2014] EWCA Civ 1622 – read judgment

The Court of Appeal has ruled that the Lord Chancellor’s Guidance on exceptional funding in civil legal aid is incompatible with the right of access to justice under Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. The Court has further decided that this Guidance was not compatible with Article 8 of the ECHR in immigration cases; in other words, that legal aid should not be refused when applicants for entry to the UK seek to argue that refusal of entry would interfere with their right to respect for private and family life.

This was an appeal against a ruling by Collins J in the court below that the appellant Director’s refusal to grant the respondents exceptional case funding under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in their immigration cases was unlawful.
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Government not required to disclose full details of defence

27 October 2014 by Rosalind English

CF v The Ministry of Defence and others [2014] EWHC 3171 (QB) – read judgment

Angus McCullough QC of 1 Crown Office Row acted as Special Advocate in this case. He has nothing to do with the writing of this post.

The High Court has ruled that in a case against the state which did not directly affect the liberty of the subject, there was no irreducible minimum of disclosure of the state’s case which the court would require. The consequences of such disclosure for national security prevailed.

Factual and legal background

The claimant, Mohammed Ahmed Mohamed, had made a number of claims against various government departments, alleging complicity in unlawful and arbitrary detention and inhuman and degrading treatment and torture on the part of British authorities in Somaliland.  He also sought damages for trespass, breach of the Human Rights Act 1998, and misfeasance in public office. As Irwin J said,

The remedy sought is not confined to ordinary compensation, but extends to damages for breach of the Convention and to declaratory relief, which in the context of this case, and if the Claimant succeeded, would represent an important marking of unlawful behaviour: a matter in which there is a legitimate public interest.

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Barclay bros duck out – leaving Supreme Court to sort out the constitutional problem

25 October 2014 by David Hart KC

R (ota) Sir David Barclay and Sir Frederick Barclay v Secretary of State for Justice and Lord Chancellor, The Committee for the Affairs of Jersey and Guernsey and Her Majesty’s Privy Council [2014] UKSC 54 – read judgment

 The Supreme Court has just ruled on a case which appeared before the Administrative Court on the judicial workings of Sark, and the power of the ruling body to alter the pay of the local judge (known as”Seneschal”). The Administrative Court had thought this was potentially open to arbitrary use and therefore incompatible with Article 6 of the Human Rights Convention – read judgment and Rosalind English’s post here.

But things took a different turn in the Supreme Court. For reasons unexplained, the Barclay brothers (who own these island just off Sark) dropped out of the case, and none of the remaining parties sought to uphold the judgment of the Administrative Court. The Article 6(1) point was not adjudicated upon, and the case became a constitutional one. The Channel Islands are not part of the UK, and have their own legislatures, though they act internationally by the UK Government.

In those circumstances – how should a UK Court go about reviewing the London approach to reviewing a measure put forward by an independent legislature?

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