R (Humberstone) v Legal Services Commission  EWHC 760 (Admin) – Read case
Part 2 of Matthew Hill’s feature on the duty to investigate deaths under human rights law (read Part I).
A recent High Court decision (see previous post) concerning the funding of a party at a coroner’s inquest has highlighted the importance of distinguishing between the two different types of investigative duty that arise under Article 2 ECHR.
It is argued in this post that imprecise terminology and a failure to appreciate that Article 2 is engaged in Jamieson as well as Middleton inquests has confused this area, and that the learned judge in R (Humberstone) v Legal Services Commission  EWHC 760 (Admin) erred by eliding the investigative duties and the case-law from which they emerged.
Flood v Times Newspapers Ltd  EWCA Civ 804 (13 July 2010) – Read judgment
A Detective Sergeant in the Metropolitan Police accused of taking bribes has won his battle against the Times to prevent the newspaper relying on the Reynolds defence, which allows allegations to be reported even the it they turn out to be wrong, in the interest of media freedom.
In June 2006 the newspaper had published an article entitled “Detective accused of taking bribes from Russian exiles”, leading the detective to sue in libel The Court of Appeal reversed the decision of Mr Justice Tugendhat in the High Court which had said the Times could rely on Reynolds privilege. The Inforrm Blog has provided an excellent analysis of the judgment. The post sums up the facts as follows:
The courts’ relationship with religious principles is rarely out of the spotlight, and recent decisions have provided more fuel for this debate.
Aidan O’Neill QC, writing on the UK Supreme Court Blog, provides an interesting discussion of last week’s Supreme Court decision in HJ (Iran) in the context of a series of controversial United States decisions on sexuality and religion.
We posted last week on the case of HJ (Iran), in which the Supreme Court ruled that policy of sending back gay refugees to their home countries where they feared persecution is unlawful as it breached their human rights. Rosalind English examined the case in the context of a European Court of Human Rights rejecting a complaint by a same-sex couple that Austria was in violation of the Convention for not granting them the right to marry.
Al Jedda V Secretary Of State For Defence 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 →
The criminalisation of support for terrorist organisations has arisen in various domestic and international contexts recently, and it is likely that the issue will continue to attract controversy as states attempt to trace the boundaries of what can fairly be considered “support” for terrorism, and risk criminal legislation unjustifiably infringing on human rights.
The Human Rights in Ireland blog has posted the first in a series addressing the issue (update – the second post in the series is now available, see below). In the post, Dr. Cian Murphy suggests that “One of the most corrosive effects on political freedom during the “war on terrorism” has been that caused by material support legislation.” He goes on to refer to three recent decisions, including the 2008 Kadicase on EU implementation of UN sanctions against individuals linked to the Taleban, al-Qaeda and bin Laden (see ASIL case comment).
This is Part I of Matthew Hill’s feature. Click here for Part II.
A recent decision of the Strasbourg Court has reopened the issue of the State’s obligation to investigate deaths under the European Convention on Human Rights, leaving a tension between the European Court’s view and that of the highest UK court.
In Silih v Slovenia (2009) 49 E.H.R.R. 37, the European Court looked again at the question of whether the investigative obligations under Article 2 ECHR have retrospective effect in domestic law. A majority of the Court held that Slovenia’s failure to provide an effective independent judicial system to determine responsibility for the death of a patient receiving medical treatment violated Article 2 even though the death itself took place before the Convention came into force in that state.
Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom – 24027/07  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”.
In two recent but separate developments, homosexuals fleeing persecution have been granted a lower threshold for refugee status and the Strasbourg Court has rejected a complaint by a same sex couple that Austria was in violation of the Convention for not granting them the right to marry.
There are two questions raised by this judgment and its implications. One concerns the extraterritorial reach of rights observed by signatory states to the Refugee and Human Rights Conventions. The second is the sheer practical difficulty of examining the veracity of a persecution claim based on these particular grounds.
The controversial stop and search anti-terrorism powers are to be scrapped after a decision of the European Court of human Rights that they violated human rights law.
According to a press release on the Home Office website, the decision will have immediate effect and is a direct response to the European Court’s decision:
Theresa May today tells Parliament that the government will change how stop and search powers under section 44 of the Terrorism Act are used, with immediate effect.
The move is in response to a decision by the European Court of Human Rights (new window), which found that the use of stop and search powers under section 44 of the Terrorism Act 2000 (new window) amounted to a violation of the right to a private life. Continue reading →
A v (1) East Sussex County Council (2) Chief Constable of Sussex (2010) – Read judgment
The Administrative Court has held that the removal of a baby from her mother due to fears that she was fabricating symptoms was not a breach of human rights. The court did, however, identify ways in which the situation could have been handled less heavy-handedly.
This case involved a claim under the Human Rights Act 1998 for damages for breach of Article 8 of the European Convention. The Claimant was a young mother who had taken her baby into hospital when she was worried he appeared to have episodes when he stopped breathing. The baby was admitted to hospital and the medical assessment was there was nothing wrong with the baby. The paediatrician was concerned that the mother, having reported incidents that were not observed by medical staff, might be suffering from factitious illness, i.e. that she was deliberately fabricating the symptoms. He alerted social services who held a meeting on 29 December.
HJ (Iran) v Secretary of State for the Home Department  UKSC 31 (07 July 2010) – Read Judgment
The Supreme Court has ruled that the government’s “Anne Frank” policy of sending back gay refugees to their home countries where they feared persecution is unlawful as it breached their human rights..
HJ and HT are both homosexual men and had been persecuted in their home countries – Iran and Cameroon respectively – after their sexual orientation had been discovered.
The court criticised the controversial policy, practised since 2006, of telling gay asylum seekers who feared prosecution in their home countries to hide their sexuality upon their return, rather than granting them asylum. In the Court of Appeal the men’s barrister had referred to this as an “Anne Frank” policy, in that, like Anne Frank, the men would be safe if they hid from authorities but not if they didn’t.
The details of the forthcoming wide-ranging public inquiry into British complicity with “rendition” and torture abroad have been announced by the Prime Minister.
He also announced the public release of guidance, formerly secret, on the questioning of suspects overseas, and that a new committee is to review the use of secret evidence in court proceedings.
The statement can be read in full here. Contrary to some reports, the new inquiry is to be judge-led. It will be headed by Sir Peter Gibson, a retired Court of Appeal Judge, who amongst other things headed up the Omaghbombingintelligence review in 2008, and currently is serving as the Intelligence Services Commissioner, a post which involves reviewing actions taken by the Secretary of State under the Intelligence Services Act 1994 and the activities of British intelligence.
Human Rights Watch has released a comprehensive report into the Government’s controversial anti-terrorism stop and search powers.
The report – Without Suspicion Stop and Search under the Terrorism Act 2000 – runs to 64 pages and seeks to systematically dismantle the case for area-based stop and search under section 44 of the Terrorism Act 2000, which allows the police to stop and search without suspicion. Responding to proposals to cut the scope of the scheme, the reports states:
… we believe that even if the law were improved—if its geographic scope were permanently narrowed or its use restricted to specialist officers—the reforms would not entirely address the risk of arbitrary use, including profiling of ethnic minorities or stops of children. It is impossible to give clear guidance to officers on the use of a power that requires no reasonable suspicion. The risk of arbitrary use also makes the power incompatible with the traditional discretion given to UK police officers in course of their duties. The use of section 44 compromises the UK’s human rights obligations and is counterproductive.
The Coalition Government is to introduce a system of statutory regulation to govern the use of automatic number plate recognition (ANPR) cameras, responding to criticism of its scheme in Birmingham which was said to be targeting Muslim residents.
The Coalition Government has today launched the “Your Freedom” website, “giving people the opportunity to suggest ideas on restoring liberties that have been lost, repealing unnecessary laws and stripping away excessive regulation on businesses”.
The website can be accessed here, although it appears to be having some bandwidth issues at the moment. Amongst other things, it asks the public “which current laws would you like to remove or change because they restrict your civil liberties?” According to the Number 10 press release, the answers will be taken into account in the Freedom Bill later this year.
In its Program for Government, the Coalition promised a “Freedom” or “Great Repeal Bill”, which is a marrying together of the two parties’ manifesto promises (the Liberal Democrats and Conservatives respectively). Whether the eventual legislation will be as wide-ranging as the draft Bill published by the Liberal Democrats is not clear, although interestingly a substantial number of the Bill’s proposals made it into the Coalition agreement, notably children’s biometrics, freedom of information, trial by jury, ID cards, DNA, regulation of CCTV and the right to public assembly.
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