ECtHR
1 September 2010 by Adam Wagner
R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment
Last month, Matt Hill posted on a case relating to the retention of DNA profiles and fingerprints by the police, for which the full judgment is finally available. Permission has been granted for an appeal directly to the Supreme Court, and the outcome of that appeal may have interesting implications for the status of European Court of Human Rights decisions in domestic law.
It is worth revisiting the decision in order to extract some of the principles, as although not novel, they do highlight the difficulties for claimants who have taken a case to the European Court of Human Rights and won, but who are still waiting for their decision to be implemented by the UK government.
Continue reading →
Like this:
Like Loading...
12 August 2010 by Adam Wagner
It is possible that the European Union will soon sign up to the European Convention on Human Rights. The change would have interesting implications for European human rights law, as well as for UK citizens seeking redress for alleged human rights violations.
Comments are enabled for this post
It may sound odd that whilst member states are signed up to the European Convention, the European Union as a corporate body is not. But negotiations began last month (see this Council of Europe press release) on the European Union’s accession to the European Convention. The Vice-President of the EU’s Commissioner for Justice, Fundamental Rights and Citizenship said “We are now putting in place the missing link in Europe’s system of fundamental rights protection, guaranteeing coherence between the approaches of the Council of Europe and the European Union”.
Continue reading →
Like this:
Like Loading...
9 August 2010 by Adam Wagner
The Strasbourg court
A new Government report on the implementation of European Court of Human Rights judgments has highlighted the vexed issue of the rightful place of such rulings in domestic law. Many decisions, for example on prisoner voting rights, have languished unimplemented for years and it remains to be seen whether the Coalition Government will do any more to fulfil its legal obligations to the thousands affected.
The report sets out the Government’s position on the implementation of human rights judgments from the domestic and European courts. It is a response to the Joint Committee on Human Rights‘ March 2010 report, in which the committee criticised “inexcusable” delays in implementation.
The United Kingdom is obliged to implement judgments of the European Court of Human Rights under Article 46 of the European Convention on Human Rights. In 2009, the UK was found to have violated the European Convention 14 times, which represents 1% of the overall total of violations found by the Court. However, the UK has a high proportion of leading cases outstanding for more than 5 years.
Continue reading →
Like this:
Like Loading...
13 July 2010 by Isabel McArdle
Al Jedda V Secretary Of State For Defence [2010] EWCA Civ 758 – Read judgment
The Court of Appeal has found that there was no breach of the “essence” of a right guaranteed under the Iraqi Constitution to have a prisoner’s detention reviewed by a judicial authority when the reviewing authorities were not judges, but had the necessary judicial qualities.
Mr Al Jedda was detained in Iraq in 2004 by British forces on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007 in Iraq but was at no time charged with any offence.
The case has had an interesting route through the courts which is worth summarising briefly.
Continue reading →
Like this:
Like Loading...
9 July 2010 by Adam Wagner
Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom – 24027/07 [2010] ECHR 1067 (6 July 2010) – Read judgment
The European Court of Human Rights has delayed the extradition of four men, including the notorious Mustafa Kamal Mustafa (Abu Hamza), from the United Kingdom to the United States due to concerns that long prison sentences and harsh conditions in a “supermax” prison could violate their human rights.
In this admissibility application, the four men mounted a wide-ranging attack on the US Justice system to the Strasbourg court, in terms usually reserved for lawless rogue states. The men claimed their extradition would put them at risk of harsh treatment, extraordinary rendition and the death penalty, amongst other draconian penalties. They said that the trial of non-US citizens on terrorism charges would lead to a “flagrant denial of justice”.
Continue reading →
Like this:
Like Loading...
9 June 2010 by Adam Wagner
The Council of Europe has expressed “profound regret” that the UK has failed to implement its 5-year-old European Court of Human Rights ruling against the policy which prevents prisoners from voting in elections.
In a Committee of Ministers decision, the Council, which monitors compliance with European Court rulings, has:
expressed profound regret that despite the repeated calls of the Committee, the United Kingdom general election was held on 6 May 2010 with the blanket ban on the right of convicted prisoners in custody to vote still in place
It also appears to be giving the new Government a chance, expressing
confidence that the new United Kingdom government will adopt general measures to implement the judgment ahead of elections scheduled for 2011 in Scotland, Wales and Northern Ireland, and thereby also prevent further, repetitive applications to the European Court;
Continue reading →
Like this:
Like Loading...
7 June 2010 by Matthew Hill
Louisa Watts v UK [2010] ECHR 793 (4 May 2010) – Read judgment
A 106-year-old woman has lost her challenge in the European Court of Human Rights to the closure of her care home. This is a latest in a line of unsuccessful human rights challenges by care home residents facing similar scenarios. Are the courts providing enough protection to this vulnerable section of society?
Louisa Watts, a 106 year-old resident of Underhill House, a care home owned and managed by Wolverhampton City Council, challenged the Council’s decision to close the home and move her to alternative accommodation. Her application for judicial review was refused, as was her appeal against that decision to the Court of Appeal. As a last resort, she took her case to the European Court of Human Rights on the basis that her Convention rights, including her rights to life and to respect for private life, had been breached.
Continue reading →
Like this:
Like Loading...
2 June 2010 by Adam Wagner
Increasing powers
The European Court of Human Rights underwent something of a revolution yesterday with the long-delayed introduction of reforms to its rules. The changes will help the court clear its enormous backlog of cases, but also give it significant new powers to punish states which fail to implement its rulings. The UK may be one of the first on the receiving end of these new powers in relation to prisoner voting rights.
The Strasbourg-based European Court, which interprets and applies the European Convention on Human Rights, celebrated its fiftieth birthday last year. But it has recently been showing its age, creaking under the weight of its backlog of cases, running to an astonishing 119,300 waiting to be heard in 2009.
Continue reading →
Like this:
Like Loading...
1 June 2010 by Adam Wagner
The European Court
The UK Supreme Court Blog has posted a useful round-up of key European Court of Human Rights judgments from the past few months.
The following cases catch the eye (all summaries courtesy of the UK Supreme Court Blog):
Al-Saadoon and Mufdhi v. the United Kingdom(Application no. 61498/08) (2 March 2010) This was a case about two Iraqis taken prisoner by the British troops in Iraq and handed over to the Iraqi authorities against the ECtHR’s previous orders. The ECtHR found a violation of Article 3 (prohibition of torture) as the two prisoners had been exposed to the death penalty which they would face in Iraq. This judgment is important in the context of a series of decisions and judgments on the death penalty (see paragraph. 123 of the judgment).
Continue reading →
Like this:
Like Loading...
21 May 2010 by Adam Wagner
The Electoral Commission, an independent body which sets standards for the running of elections, has released its report on problems experienced by voters during the 2010 General Election. It calls for “urgent action” to ensure that “the restrictive rules which prevented participation should be changed”. This has probably opened the door to legal claims.
The Interim Report found that at least 1,200 people were still queuing at 27 polling stations in 16 constituencies at 10pm. It concludes that the main contributing factors to this problem were:
- Evidence of poor planning assumptions in some areas.
- Use of unsuitable buildings and inadequate staffing arrangements at some polling stations.
- Contingency arrangements that were not properly triggered or were unable to cope with demand at the close of poll.
- Restrictive legislation which meant that those present in queues at polling stations at the close of poll were not able to be issued with a ballot paper.
There are a number of possible legal remedies for barred voters.
Continue reading →
Like this:
Like Loading...
13 May 2010 by Adam Wagner
Not for everyone
We posted earlier this week on whether those who were locked out from voting in the 2010 General Election can claim for compensation under the Human Rights Act 1998 (read our post here). Liberty are asking spurned voters to contact them with a view to further legal action. But Joshua Rozenberg argues in this morning’s Law Society Gazette that those voters will face significant difficulties finding a legal remedy.
Our post concentrated on potential remedies under the Human Rights Act 1998, highlighting that the European Court of Human Rights has been reluctant to award monetary compensation in the past. The European Court has generally held that the “just satisfaction” remedy under human rights law was fulfilled by the fact that criticism from the court would lead to a change in the respective State’s voting system. As such, financial compensation to reflect the breach of the voters’ rights was not seperately awarded. It should be noted, however, that many of the recent cases involved prisoners and ex-convicts being barred from voting. We concluded that
Jack Straw, the Justice Secretary, has already said that the problem “shows a lack of foresight and preparation”, so it seems unlikely that voters will be left without a remedy, and that may come in the form of compensation probably by way of an out of court settlement… However, how much that will be is by no means clear, and it may be difficult to prove in practice that a person was prevented from voting as a direct result of administrative difficulties.
Rozenberg addresses potential remedies under the Representation of the People Act 1983, and in particular the potential that some ballots may have to be re-run:
What about trying to get the election re-run in a constituency where a lot of people were unable to vote? A dissatisfied voter may present a petition which may be tried by an election court. But there is little chance of a second poll unless the number of people who were locked out in a particular constituency is more than the winning candidate’s majority. Even then, there might need to be some evidence that the non-voters were likely to have supported the candidate who came second rather than, as seems more likely, that they would have voted in proportion to the constituency as a whole.
That is because section 23 of the Representation of the People Act 1983 says that ‘no parliamentary election shall be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty… if… the election was so conducted as to be substantially in accordance with the law as to elections and the act or omission did not affect its result’.
It will be clearly be difficult for spurned voters to bring claims. However, there is a strong duty imposed by human rights law on the State to conduct free and fair elections. Further, it seems that at least some of the constituencies where voters were turned away were ultimately decided by a small majority. This is unsurprising, as one would expect turnout to be higher in places where people expect the vote to be close. So, the uphill climb which spurned voters face may still lead to some kind of legal remedy.
Read more:
Like this:
Like Loading...
7 May 2010 by Adam Wagner
See a more recent post on this topic here
One of the enduring images of the 2010 General Election will be of long queues of people turned away from polling stations due to lack of facilities. This may well result in legal action. But according to Lord Pannick, the worse scandal may be the exclusion of 85,000 prisoners, which he says is “a constitutional disgrace that undermines the legitimacy of the democratic process”.
The BBC reports this morning that hundreds of voters were turned away from polling stations throughout the UK. This was initially blamed on a higher than expected turnout. The Electoral Commission has promised a “thorough review“, but legal action may follow from the individuals, who have been denied their basic rights, but also from the parties who may argue that marginal results would have been different if people hadn’t been turned away. In the likely outcome of a hung parliament, every seat counts and litigation may therefore follow (Update – Afua Hirch in The Guardian: Legal challenge to polling stations could result in byelections; meanwhile, Liberty, the human rights organisation, says that it will investigate the issue on behalf of voters.)
Those who have been disenfranchised may be entitled to claim under the Human Rights Act 1998. Article 1, Protocol 3 of the European Convention provides:
“The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
This Article imposes obligations on States, and the provision includes the right to vote. Voters should be able to claim for damages under section 8 of the Human Rights Act if they can prove that they were denied a vote due to administrative incompetence, which appears to have been the case in some places. Whilst high turnout may have been a factor, voters will argue that high turnout has been predicted for a while, and should have been planned for. Similar claims were made in respect of the controversial 2000 presidential election in the United States, which was ultimately decided by the US Supreme Court, but resulted in months of paralysis.
85,000 claims?
Whilst a few hundred appear to have been affected by administrative incompetence, Lord Pannick, barrister and cross-bench peer, argues that the absolute ban on prisoners voting runs contrary to repeated decisions of the European Court of Human Rights. We have posted recently on the tens of thousands of potential compensation claims that may result, which Lord Pannick estimates will be worth at least £750 each. Similar claims may be available to those who were denied the vote for other reasons.
Lord Pannick is scathing of the Government’s failure to implement the European decisions. He says:
Continue reading →
Like this:
Like Loading...
27 April 2010 by Adam Wagner
Frodl v Austria (Application no. 20201/04) 8 April 2010 – Read judgment
The European Court of Human Rights has taken another opportunity to criticise a European state for not allowing a prisoner, in this case convicted of murder, to vote. Prisoners will not be voting in the upcoming UK General Election, which may yet lead to a slew of compensation claims against the Government.
We posted recently on the continuing refusal of the UK Government to comply with the 2005 judgment of Hirst v UK, where the European Court held that the ban on prisoners voting in the UK was a breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
In Frodl v Austria the Court said that any restriction on voting rights must be proportionate to the end pursued, and
“must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.”
The Court went on to find a violation of the European Convention, for the reason that “it is inconceivable… that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction“.
The Court added that a prisoner’s right to vote could in some cases be taken away, but only in the limited scenario where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. In other words, there needs to be a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“.
In the UK, the Government have shown little willingness to enfranchise prisoners and convicts. This may well be because it prefers the risk of thousands of compensation claims, as well as continuing criticism from Europe, to taking the politically unpopular decision of allowing convicted criminals to vote.
Read more:
Like this:
Like Loading...
23 April 2010 by Isabel McArdle
Adetoro v United Kingdom (Application no. 46834/06, ECtHR)
The European Court of Human Rights has ruled that there was no violation of of the European Convention on Human Rights when a man was convicted after the judge failed to direct a jury properly in relation to the Defendant’s silence in a police interview.
Read judgment
The Court found there was no violation of Article 6 as the Defendant had not been convicted on the strength of his silence alone and there had been no unfairness in the trial as a whole.
The Applicant had been convicted of offences relating to a string of robberies. When interviewed by the police he had answered “no comment” to questions in relation to his movements recorded by police surveillance, association with other persons and whereabouts when the robberies were occurring. At trial, he admitted involvement in dealing in stolen cars and claimed that this explained the matters which the police had observed. He explained his silence on the basis that he did not wish to incriminate others.
In summing up, the judge omitted from his direction to the jury words to the effect that no inferences could be drawn from the Applicant’s silence unless its members were satisfied that the reason for his silence was that he had no answer to the questions asked or none that would stand up to scrutiny.
The Applicant argued that
Continue reading →
Like this:
Like Loading...
22 April 2010 by Adam Wagner
A prisoner is suing the UK Government in the European Court of Human Rights for the right to vote in the upcoming General Election. With voting registration already closed, he won’t be voting in the election, but he may receive compensation. This could open the door to claims from tens of thousands of prisoners in the UK.
The BBC reports that Leon Punchard, 19, who is serving an 18-month sentence at Norwich prison for burglary, has filed an application to the European Court for a declaration and compensation.
We have already posted on the ban on prisoners voting (see here and here). Four years ago, the European Court of Human Rights criticised the policy in Hirst v UK, which arose out of the 2002 case of R v Home Secretary ex parte Hirst. The European Court held that Section 4 of the Representation of the People Act 2000 which prevents prisoners from voting is in breach of the electoral right under Article 1 of Protocol 3 of the European Convention on Human Rights.
The Government insists that it is still considering the responses to its second stage consultation on the issue, despite it closing over six months ago. With voter registration for the 2010 General Election closing on 20 April, prisoners will not get their chance to vote in a general election for at least a few more years.
However, Mr Prichard may well win a compensation payment from the UK Government, which the European Court of Human Rights has the power to award in cases where a contracting state has breached a citizen’s human rights. This could open the door to the other 87,883 serving prisoners to bring their own legal actions.
Read more:
Like this:
Like Loading...
R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment
Recent comments