Category Archives: Human Rights

Human Rights

Lib Dems on Human Rights: Form not Substance?

Head of Legal has a good explanation and discussion of the Conservatives’ proposals to reform the Human Rights Act 1998.  In short, they are much more modest than completely abandoning the Act, jettisoning the Convention and severing all links with Strasbourg.  It is evolution, albeit problematic evolution, rather than revolution.

An interesting little footnote has emerged though, in the comments of Simon Hughes to the LibDem Party Conference.  The Law Society Gazette reports:

Hughes told delegates the Liberal Democrats had blocked the Tories’ attempts to scrap the 1998 act during their time in government and this stance would remain in 2015.

‘I make this commitment to you: we will always be the party of reform, including in Europe,’ said Hughes. ‘But, whatever the outcome of the next election, if Liberal Democrats are in government: we will always stand up for human rights.

We will never agree to leave the UK without a Human Rights Act. And we will never undermine the European Convention on Human Rights.’

The interesting word there being “a”.  Assuming that the words are accurately reported, that is a small but substantial difference to “the Human Rights Act”.  Given that the Conservatives are not proposing to abandon Human Rights legislation, but simply replace it, this suggests that any Lib Dem opposition may be narrower than opposing the Conservatives’ current plans.

Assange Case Theories

You cannot help but have seen the decision of Ecuador to grant Julian Assange asylum from Sweden/USA/UK/etc. As expected, the internet has exploded with arguments and conspiracy theories.

You do not have to believe that Julian Assange is guilty to disbelieve the more ludicrous conspiracy theory being promoted by Wikileaks at the moment.

To understand this, let’s look at four possible ways of analysing what’s going on.

1. US Conspiracy

The central allegation is that the USA is using these proceedings to extradite him and subject him to a trial for treason, where he is at risk of being subjected to the death penalty.

Looking solely at what is the incontrovertible legal situation, this is what you have to be alleging if you want to make this story stick:

The United States, in order to prosecute an Australian national with a view to subjecting him to the death penalty, has persuaded two individuals to accuse him of a crime that is notoriously difficult to prove, in order to get him extradited from a country with a very US-friendly extradition treaty, to another country with much stronger protections against extraditions to the USA. This extraditing country is legally unable to extradite him to the USA if he faces the death penalty. This is done using a legal mechanism that then requires both countries to approve his extradition to the USA. This is to be done using a legal framework that has already taken the best part of two years with no end in sight, with multiple legal obstacles along the way in both the past and future.

Alternatively, they have done this to engage in extraordinary rendition of a man with a gargantuan media profile, and without regard to the major diplomatic outcry this would cause from the UK, Sweden, Australia, the EU and the rest of the world.

This is to be done in preference to:

Porn Trial: Is it Really the CPS’s Fault?

If you’ve been remotely following the legal news, you’ll have come across #Porntrial. I’m not going to go into the details, which are accurately summarised by Nick Cohen.

A recurring theme of the coverage has been to blame the CPS, and Keir Starmer personally as DPP, for pursuing these cases. In short, prosecutions weren’t in the public interest and charges should not have been pressed.

But is it fair to lump all the blame on the CPS this way?

The public interest test is not as straightforward as commentators imagine. How it works is set out in detail in the Code for Crown Prosecutors. Specifically:

4.12 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.

The CPS is required to work from a presumption that prosecution is in the public interest, and only decide otherwise if there are specific factors pointing against that presumption (again, these can be found in the CCP). If someone has done something that meets the evidential test for criminal liability, then one has to assume prosecution is in the public interest absent any special factors. In this case, it’s hard to see what those factors could have been.

The CPS’s public interest test does not allow them to decide which laws they wish to enforce. It is there for exceptional circumstances that suggest prosecution should not occur. But it works upon the basis that behaviour attracting criminal liability should be prosecuted in the absence of those circumstances.

The real problem here isn’t with the DPP or the CPS. The problem is with the law. This is an area that is notoriously retrograde. Laws on ‘extreme pornography’ were criticised at the time for the potential to result in precisely such a prosecution as happened here. They remain deserving of that criticism. Section 63 CJIA ’08 is sloppy, poorly-defined, unjustified knee-jerk legislation.

Put simply, a prosecution such as that of Simon Walsh was simply waiting to happen. That the CPS were obliged to prosecute is not particularly their fault: faced with a straightforward contravention of the law and an absence of special factors, their discretion was seriously limited. They don’t get to choose which laws to enforce.

The real target of people’s attentions should not be the CPS, but the law they were required to enforce.


A few weeks ago I wrote about Bradley Manning’s treatment in prison.

It now appears his conditions have improved significantly:

Under the old prevention order, Manning was forced to strip naked and wear just a smock at night, he had no bedding and was not permitted any personal items in his cell. He was kept locked up in solitary confinement for 23 hours a day in a windowless cell, and allowed only to walk in a yard on his own for that final hour.

In Fort Leavenworth, by contrast, he has a large window that lets in natural light. He has a normal mattress and bedding and his clothes are not removed at night.

Manning can have personal objects in his cell, including books and letters from family and friends, as well as legal documents relating to his case. He can write whenever he wants.

His new life of detention is also considerably less lonely. There are five other pretrial prisoners and Manning spends much of the day in their company. His cell is connected to a common area used by four of the detainees with a television and exercise machine, table and shower area.

You can read the full article at the Guardian.

Burqa Banned

by Charles Roffey

France’s “Burqa Ban” came into force yesterday.

I posted about this last year and generally stand by what I wrote then. There is a debate to be had about the Veil and its place in both Islam and the West. That does not entitle a liberal democracy to use the coercive power of the criminal law to force people into compliance with “our values”. Coercion cannot and should not replace rational debate and persuasion. If it does we’re no better than the systems we claim to abhor.

Nail in the Coffin

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law

Coffin v. United States, 156 U.S. 432 (1895)

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Eighth Amendment, United States Constitution

Then look at how the system treats a remand prisoner:

23-hour/day solitary confinement; barred even from exercising in his cell; one hour total outside his cell per day where he’s allowed to walk around in circles in a room alone while shackled, and is returned to his cell the minute he stops walking; forced to respond to guards’ inquiries literally every 5 minutes, all day, everyday; and awakened at night each time he is curled up in the corner of his bed or otherwise outside the guards’ full view

In addition the prisoner is now stripped of his clothing nightly and forced ‘to stand outside his cell naked during a morning inspection’.

The prisoner has not been convicted of anything, and yet has served a period on remand harsher than many custodial sentences.

What’s worse, this is supposedly being done for his own good. It is brought in under the Orwellianly-named “prevention of injury watch”. Against the recommendation of the prison psychiatrist.

This will sound quite abstract. Imagine it this way:

Go to your bathroom. Turn all the lights on. Take any reading materials you may have out. You can have one book or magazine, but that’s it. Put a mattress on the floor. Put your phone and laptop away. This is your world.

Get a stranger to lock you in. Have him open the door every five minutes to make you respond. Now sit there. Don’t do anything. Wait until you’re let out, cuffed, to another room where you live. Walk around in a circle for an hour. If you stop, you go back to the bathroom. If you speak, you go back to the bathroom. After an hour, you go back to the bathroom. Sit there. Don’t do anything. Respond to the stranger when told. When he tells you to go to sleep, take off all your clothes and give them to him. Sleep on the mattress. On your back only. If you change position you will be woken and forced back onto your back. The stranger will continue to open the door to check on you through the night. You will be woken at 6. You will stand outside the bathroom naked. The stranger will ‘inspect’ you. You get your clothes back. Back into the bathroom you go. Now sit, and let the process repeat itself.

Think you’d keep your sanity?

Is this the treatment of a presumed-innocent man by authorities genuinely concerned for his safety?

The prisoner’s name, not that it matters, is Bradley Manning.

An Expert on Assange

Well not on the man but the extradition proceedings.

Joshua Rozenberg interviewed Julian Knowles, a barrister for Matrix Chambers and an expert on extradition law, for Law in Action about the Assange case.  He sums it up in the Guardian.

The judgment is going to be later today so it makes essential reading/listening.  Of particular interest is his view on the merits of Assange’s submissions:

He dismissed two preliminary arguments raised by Assange’s defence team: that the Swedish prosecutor Marianne Ny had no power to issue aEuropean arrest warrant and that the WikiLeaks founder was wanted merely for questioning rather than to face trial.

“There is no doubt that a Swedish prosecutor does have the power to issue warrants,” said Knowles. “And the Swedish prosecutor has made it clear that Mr Assange is wanted for trial if he goes back. Unless he can demonstrate his innocence before trial, he will be tried.”

Another argument put forward by Assange was that the allegations of rape and sexual assault against him did not amount to offences for which he could be extradited. Again, though, Knowles was unimpressed. If what’s alleged against Assange had taken place in the UK, the barrister explained, it would “obviously” constitute sexual assault.

As for the claim that there might be a breach of Assange’s right to a fair trial because some of the evidence against him would be heard behind closed doors, Knowles said that the threshold of unfairness was a very high one: “You have to show there would be no meaningful trial at all.”

And the barrister was scathing about defence arguments that Assange might be re-extradited from Sweden to the US, where he might be held at Guantánamo Bay or face the death penalty. “That is, frankly, a hopeless argument,” Knowles said

Prisoners’ Votes: Background

ObiterJ covers the to the decision in Hirst v UK at Law and Lawyers. It’s a very good introduction and worth a read.

Taken at face value this does no more than impose a general duty on states to hold effective elections. However, in Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1 the European Court decided that certain individual rights were necessarily implied in Article 3 – i.e. a right to vote in elections and a right to stand for election. Later cases have added that, if elected, the person has a right to sit in the legislature.

Prisoners’ Votes and the ECHR

On Friday the Commons voted to ignore judgments of the European Court of Human Rights, from Hirst v UK (No 2) [2005] ECHR 681 onwards, and deny prisoners the vote in any form. Lawbreakers should not be allowed to vote, said the lawmakers.

Parliament did not pass an Act that would challenge the legal status of the judgment in Hirst. It remains legally binding. All that was passed was a resolution of the House of Commons. Such resolutions have zero legal effect (Stockdale v Hansard (1839) 9 Ad & El 1). The legal status of the Human Rights Act 1998, the European Convention on Human Rights and the decision in Hirst thus remain unchanged. Parliamentarians therefore simply voted for the government to disregard these.

In other words, the parliamentarians felt so strongly that lawbreakers should not be allowed to vote that they voted in favour of breaking the law.

On the same day Eric Illsley, until recently the MP for Barnsley Central, was sentenced to 12 months imprisonment for fiddling his expenses. In line with domestic law he will, of course, not be allowed to vote while he is in prison. But he would, had he not resigned, have been able to stay on as an MP under section 1 of the Representation of the People Act 1981. Lawbreakers can’t vote for the lawmakers, but they can themselves be one.

In a similar vein, if you were to breach a court order, or otherwise act in contempt of court, you could face a sentence of up to two years’ imprisonment. Even though you have arguably demonstrated more disregard for the law and society than other prisoners, you would not be deprived of your right to vote.

This might suggest that the position is a little contradictory.

Much of what has passed for a debate on this issue has been depressing. In many quarters it has been massively ill-informed.

The right to vote is absolutely fundamental to being a democracy. To suggest that there should be no judicial oversight of this right, while maintaining judicial protection of others, would be to leave a glaring omission in the law protecting fundamental rights. The right to vote is too important to not have it subject to any legal protection.

To suggest that “when you break the law, you lose your rights” is patently false. If that simplistic formulation were true, there would be no need to bother with a right to a fair trial, prohibitions on inhuman punishment, the right to counsel and so forth. The concept of ‘civic death’ is outdated, and nobody seriously suggests a return to the old sentence of outlawry. When you break the law, you forfeit some rights. Which, and to what extent, are decided by society and overseen by the law.

The logic advanced is that denying prisoners the vote should be considered part of the punishment runs into problems because it becomes a punishment that is inconsistently applied, and not just given the examples I mentioned at the beginning. Sentencing is based on the specific factors affecting that offence and the offender himself. The principle is that two (let’s say) identical crimes and offenders should receive the same punishment. A blanket ban on voting runs into difficulties here.

The shortest possible prison sentence a court can impose is seven days. On the assumption that a general election were to be held at regular 5-year intervals, that would mean that, roughly speaking, only one in 260 people sentenced to a 7 day sentence would be punished by disenfranchisement. That is for no reason other than the date the trial and/or sentencing hearing is held. It bears no relation to the facts of the offence or the circumstances of the offender. An additional punishment is being imposed on an entirely chance-basis. That goes against the idea of consistent sentences.

Moreover, is it really right to say that someone sentenced to seven days in prison has transgressed so badly that he should be deprived of the vote? If so, why should he be disenfranchised while the offender given a two-year suspended sentence (indicating greater harm and culpability) remains free to vote? And why should someone sentenced to two years for contempt of court be allowed to vote over them?

The ban is, as the ECtHR said, ‘a general, automatic and indiscriminate restriction on a vitally important Convention right’.

Contrary to what other commentators have suggested, this is the thrust of the judgment in Hirst. It is not suggesting that the Peter Sutcliffe’s of this world should be allowed to vote, nor anyone convicted of a serious offence. There is legitimate scope to ban those convicted of certain offences or in certain circumstances from voting.

This, however, is where the crux of the reaction to the judgment is. People don’t like the idea that human rights laws protect people we don’t like. People like John Hirst, whose background and appearances in the media are, to say the least, inflammatory, are used as examples of why the franchise should not be extended. Human rights are fine, so the argument goes, so long as they are only extended to the people with whom society sympathises. To suggest this, however, is to misunderstand how human rights, and in particular human rights laws, work.

Human rights laws are not really there to protect those the mainstream of society likes. They can generally stand on their own two feet in a democracy in the knowledge that mainstream opinion supports them and can apply pressure to change the law. They are there to protect those that are shunned and hated. Although anyone can say today that the historic (and in some cases recent and ongoing) denial of the human rights of, for example, Jews, Gays and Black people were bad things and that human rights laws protecting them are a good thing, this ignores that at the time when they were most needed such a view would very much be in the minority. The mainstream view would have been that jews and homosexuals were deviants who had placed themselves outside of society, and that granting them the same rights of civilised people would make one ‘sick to the stomach’. Human rights are there precisely to protect those people society shuns, for they are the very people whose rights are most likely to be violated. You don’t persecute people you like.

And at any rate, John Hirst will be able to vote regardless of the outcome here. He’s no longer in prison. He’s not actually that relevant to the issue.

It is, of course, open for Parliament to withdraw from the European Convention of Human Rights, legal minefield though it may be. To do so would in my view, however, be a massively retrograde step.

As the Economist points out:

A British pull-out from the ECHR, or a British decision to reject a ruling by the court, would give great comfort to just those governments cited by Mr Davis above [‘Bulgaria for police brutality, Moldova for torture and Russia for atrocities committed in Chechnya‘]. The ECHR is attacked in this country for having a huge backlog of thousands of unheard cases. Much of that backlog involves Russian cases, because the ECHR has become—in the words of one old Moscow hand—the “unofficial supreme court of Russia”. Look at the list of countries that have flouted ECHR rulings in the recent past. Russia is there, as is Azerbaijan (a country with a noted enthusiasm for jailing journalists, among other things).

Pulling out of the ECHR wouldn’t just “repatriate our rights”, it would strike a serious blow to the authority of the ECtHR. Having Britain in the system provides us with significantly more moral and practical authority on the human rights of countries on the periphery of Europe than we would have if we went it alone. Is it really worth sacrificing that for the sake of giving the vote to a few thousand people?

Gagging Orders

Eddie Gilfoyle was released on licence earlier this week.

The case is a troubling one. Gilfoyle is alleged to have fooled his pregnant wife into writing a suicide note, then killing her by hanging. There is a serious claim that the case is a miscarriage of justice. Gilfoyle protests his innocence and has appealed against his conviction twice already, in 1995 and 2000. A fresh appeal is being considered by the Criminal Cases Review Commission. People involved in the original prosecution have subsequently come out and expressed their doubts about Gilfoyle’s conviction, as has a senior member of the police force at the time. There are significant concerns about the handling of the investigation and evidence (see also here).

Gilfoyle was released on licence after his first parole application.

What is particularly concerning at the moment, however, is a condition of his licence:

After his release Gilfoyle released a simple statement which read: “I am not able to provide a response because the Parole Board has imposed a condition on my life licence that prohibits me contacting the media either directly or indirectly whether this is regarding my release or my appeal [emphasis mine].

The imposition of conditions on a life licence is designed to protect the public by minimising the risk of future offending. Normal conditions include residence requirements, supervision and so forth. Other cases (for example, the Bulger killers) may include exclusion from a geographic area or preventing contact with the victims and/or their families. These ‘non-standard conditions’ must be justified in terms of risk and must be reasonable, necessary and proportionate (PSO 4700 Lifer Manual, Chapter 13).

This doesn’t appear to have occurred in this case. The ambit of the condition appears grossly disproportionate (even Gilfoyle’s relatives and campaigners feel unable to comment to the media), and bear little relevance on his risk of re-offending. The justifications from the parole board are troubling:

[A spokesman for the parole board] said: “Any prisoner who is released is released if we reach a judgment that he is safe to release and that he is not going to go on to commit another offence. It is sometimes the case that one of the licence conditions is that the prisoner being released doesn’t get involved with the media. If that is the case, the only reason for that condition would be to prevent further offending.

“For instance, it might be the case that if a high-profile prisoner talks to the media after he has been released, there would be issues concerning the feelings of the victims.

“There might be concerns about the reaction of the general public to someone who has been released from a life sentence.”

These examples were given as general ones as the Parole Board cannot comment on individual cases. Nonetheless they do not appear to be applicable here. Given that the media coverage of the case tends to focus on the claim that this is a miscarriage of justice, it is highly unlikely that public reaction would lead to further offending. Moreover, the right of a person to protest his innocence and have his name cleared ought to outweigh any right the victim has. At any rate, the draconian nature of the media ban appears to be be so unbalanced as to be unlawful.

John Hirst, who is himself on a life licence, picks apart the claims in more detail.