Domestic Law and the European Convention on Human Rights - No. 4

This is the fourth post in a short series aimed at showing how the European Convention on Human Rights (E Conv HR) and the Human Rights Act 1998 (HRA) have made significant and beneficial changes to our domestic law.  The earlier posts in the series are Part 1, Part 2 and Part 3.

The Convention has had a profound impact upon the way in which those with mental health problems are treated and cared for.  The British Institute of Human Rights (BIHR) has just published an excellent document - Mental Health Advocacy and Human Rights: Your Guide.   Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips. Here is a direct link to the document (pdf - 24 pages).

Sanchita Hosali, Deputy Director of the British Institute of Human Rights said:

Whole Life Orders for murder

In 2012, the Home Secretary (Theresa May) was heckled at the Police Federation Conference in Bournemouth because of her stance on Police Pay and Conditions.  This year she returned to the lion's den with a message that, subject to consultation with the sentencing council, the sentencing starting point for those who murder a police officer will be a whole life term (without parole) and that the law would be altered to that end - The Independent 15th May.  Against a background of the murders of two Police Officers at Hattersley (Greater Manchester) in 2012, this will have been a welcome message to many.

The present sentencing framework:

The sentencing basis is now to be found in the Criminal Justice Act 2003 Schedule 21.  Under s269 of the Act, the Lord Chancellor may by Order amend Schedule 21 following consultation with the Sentencing Council.  Under section 330(5), the Lord Chancellor's Order must be approved by resolution of each House of Parliament.

The power to amend Schedule 21 has been used previously - see Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term ) Order 2010.

The clear aim of the Schedule, as presently drafted, is

At Westminster, Henry VIII is alive and kicking !

Today it is reported that the 'Eurozone' continues to be in recession - (The Guardian 15th May).  Yesterday, a DRAFT European Union (Referendum) Bill  was published on behalf of the Conservative Party - BBC 14th May.

The Bill provides for a referendum on EU membership to be held on any date up to 31st December 2017.  The referendum would be triggered by an Order made by the Secretary of State though there is a requirement for the Order to be 'laid before, and approved by a resolution of, each House of Parliament.'

Clause 3(3) enables the Order to modify or amend 'this Act or another enactment.'  Henry VIII is alive and kicking - (see views of Lord Judge CJ - Henry VIII clauses).  Clause 3 reads:

Domestic Law and the European Convention on Human Rights - Part 3

In this short series of posts I have so far looked at the list, produced by Parliament, of Human Rights cases since 1975  (post here + list here) and at the vitally important Article 2 (Right to Life) of the European Convention on Human Rights.  The impact of the European Convention on Human Rights (E Conv HR) on our domestic law has been considerable.  This post looks at another area where there has been significant impact.

A major impact has been to require States to protect the  Convention Rights of ALL individuals and not just powerful majorities.  Article 1 states clearly:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention

There are no categories of individuals who are to be denied Convention rights no matter who they are or what they have done or may have done.

The illustrative case of Bellinger v Bellinger [2003] UKHL 21 was concerned with the rights of transsexuals.  In an 'over-simplified and question-begging form' the issue was whether a person could change the sex with which he or she was born?  More specifically, was Mrs Elizabeth Bellinger, validly married to Mr Michael Bellinger since, of course, marriage was confined to persons of opposite sex.

The leading speech was that of Lord Nicholls of Birkenhead which is a masterful analysis of the development of the law relating to transsexualism and marriage.  His Lordship noted

Questions of human mortality

The BBC 13th May Right to Die cases at Court of Appeal
reports that the Court of Appeal is about to hear the cases of Mr Paul Lamb and a man referred to only as Martin. 

According to the BBC report, Paul Lamb, from Leeds, was paralysed from the neck down in a car accident and wants a doctor to help him to die.  The 58-year-old, who has effectively taken up the case begun by the late Tony Nicklinson, is seeking a ruling that would give doctors a defence to a murder charge.

Mr Lamb argues that a doctor who killed him would have a defence of 'necessity' to a criminal charge because it was 'necessary' for the doctor to stop intolerable suffering.  Mr Lamb is therefore seeking a declaration from the court that such a defence might be available.

The other man, known only as Martin, is seeking a change to the prosecution of assisted suicide.

In August last year, the High Court turned down challenges to the law in England and Wales, saying it was for Parliament to make such decisions - Judgment and post of 6th September 2012.

A "necessity" to

Abu Qatada may leave UK voluntarily if .....

The long running Abu Qatada deportation issue may be drawing to an end.  Over around 8 years, the government has spent enormous amounts of public money on the various legal challenges to his deportation to Jordan.  (See Jack of Kent Resource page for a catalogue of the steps taken).    Recently, a new treaty was signed between the UK and Jordan though this remains to be ratified by both countries - (Law and Lawyers 24th April).  At a hearing before the Special Immigration Appeals Commission (SIAC), Abu Qatada's counsel Edward Fitzgerald QC has indicated that Abu Qatada will return voluntarily to Jordan provided that the new treaty is ratified - BBC News 10th May.

A voluntary return to Jordan will have the result that the courts will not, at least in the Abu Qatada case, have to pronounce on whether the treaty meets any objections, under the European Convention on Human Rights, to deportation.  Therefore,

The Queen's Speech 8th May 2013 and the State Opening of Parliament

In a 92 page pdf document  the government has published details of the Queen's Speech 2013.  The document sets out not only the speech itself but contains background details to the various Bills and policies referred to in the speech.  The document merits a full reading by those seeking greater detail about what is planned.

A much shorter overview is at The Guardian 8th May - The Queen's Speech: the key points explained.

An Offender Rehabilitation Bill will extend statutory supervision after release at all those sentenced to short custodial sentences.  This Bill will also give 'Probation Providers' greater flexibility to develop new interventions with a view to reducing re-offending.  The Anti-Social Behaviour Bill will amend the existing law relating to anti-social behaviour with some 19 powers being condensed to 6; make forced marriage a criminal offence; amend the Dangerous Dogs legislation and take further action on illegal firearms. The law on extradition will be amended as recommendations of Sir Scott Baker's review are implemented.   A DRAFT Consumer Rights Bill is to be introduced and this will allow parliamentary examination of how the law might be altered to modernise and improve consumer rights.  This is an area where there is a great deal of existing legislation and clarification is welcome.  In response to the Hargreaves Review, an Intellectual Property Bill will reform the intellectual property framework for designs.  The Unified Patents Court will be implemented.

An excellent analysis of the Bills is at Politics.co.uk - Queen's Speech 2013: All the Bills in full.

The State Opening used to be held in October but,

Domestic law and the European Convention on Human Rights - Part 2

The previous post of 5th May looked at a list prepared for the House of Commons of human rights cases involving the UK since 1975 and explained the basic scheme of the Human Rights Act 1998 (the HRA) - Human Rights cases since 1975.   Decisions of the European Court of Human Rights (the E Ct HR) and the enactment of the Human Rights Act 1998 (the HRA) have enabled significant and beneficial changes to our domestic law. Some examples follow.

THE most important human right is of course the right to life itself (ECHR Article 2). 

Regulation of the media ~ Alternative draft for a Royal Charter

In a post of 25th March the plans for media regulation were considered.  At the time it looked as though the proposed Royal Charter would be approved by the Privy Council on 15th May.  It is now reported that this will be delayed whilst an alternative draft Royal Charter is considered.  The alternative document has been drawn up by News International, Telegraph Media Group, Associated Newspapers, Trinity Mirror and Express Newspapers  - see The Guardian Draft alternative royal charter on press regulation.

A key concern is that the original draft charter placed amendment fully in the hands of politicians and therefore was seen as eroding media independence.  

Art. 9.2 of the original reads:

Domestic law and the European Convention on Human Rights - Part 1

The relationship between domestic law in the United Kingdom and the European Convention on Human Rights (the Convention) is illustrated by a useful list of cases made available by Parliament this week. - Human Rights cases since 1975.  The list commences with Golder v UK (Prisoner's correspondence) back in 1975 and ends with the Animal Defenders International case in April this year.

The list is divided into two parts - (1) cases up to the end of 2000 and (2) cases from 2001 to 2013.  Part 1 takes us back to the time before the Human Rights Act 1998 (HRA) which came into force on 1st October 2000.   Interestingly, Part 1 (covering 26 years) lists 130 cases.  Part 2 (covering just over 12 years) lists 272 cases.

The idea underlying the HRA was  to 'bring rights home' by making 'Convention rights' enforceable in our domestic courts and to reduce the need for cases to go to the European Court of Human Rights (E Ct HR) at Strasbourg.

Naming of suspects ~ a topical debate

Should arrested persons (suspects) be named by the Police?  Public knowledge of who is under investigation can sometimes assist either the police or the suspect.  Witnesses may come forward or individuals may provide useful information to the police. However, the automatic naming of those under investigation - especially in cases of very serious criminality or where the offence is of a type attracting particular condemnation in the community - could cause irreparable damage to reputation where, for example, the arrest turns out to be unfounded.  At the heart of the matter are the rights to a fair trial (Article 6);  respect for private and family life (Article 8) and freedom of expression (Article 10).

A Thursday miscellany

The veteran broadcaster Mr Stuart Hall (pictured) has pleaded guilty to counts of indecent assault committed in the period 1967-85.  A count of rape will 'lie on the file' and not be tried since (a) the complainant does not wish it to proceed given the guilty pleas entered and (b) the Crown Prosecution Service do not consider it in the public interest to require her to give evidence - CPS announcement and  BBC 2nd May 2013.  Mr Hall will be sentenced on 17th June.

Historic sexual abuse:

Barrister Felicity Gerry writes on the subject of historic sex abuse cases on her blog - Justice for historic sexual abuse.  Gerry highlights some of the difficulties inherent in criminal prosecutions and goes on to look at the possibility of civil actions against institutions which employed abusers.  Earlier posts - Jimmy Savile (4/10/12) and Vicarious Liability in Tort (21/11/12).

Parliamentary Papers of interest:

A couple of Parliamentary papers are of interest.  One paper looks at Human Rights cases since 1975.  The other deals with the continuing issue of voting rights for serving prisoners.

Children and Car Seat Belts

At the outset of reading this, please jot down the height (in centimetres) and the weight (in kilograms) of each of your young children or grandchildren.  If you use either child seats or booster seats in your car then answer honestly these questions: "Did you read thoroughly the instructions supplied when you bought the seat?"  "Did you definitely comply with the instructions the last time your child was in the car?"

There are many types of child car seats designed for children of certain age ranges, weights and heights:  rearward facing baby seats; forward facing child seats; booster seats and cushions.  Reading the manufacturer's instructions is essential and, for safety reasons, so is compliance with them.

The Court of Appeal (Civil Division) - Arden, Elias and Black LJJ has just given judgment in Louise Emma Williams v The Estate of Dayne Joshua Williams [2013] EWCA Civ 455. 

Hillsborough ~ new inquests and new problems

In December 2012, the original inquest verdicts into the deaths at Hillsborough in April 1989 were quashed by the High Court and fresh inquests were ordered - Law and Lawyers 20th December 2012. and see - Her Majesty' Attorney-General v HM Coroner for South Yorkshire (West) and HM Coroner for West Yorkshire (West)  [2012] EWHC 3783 Admin  - Lord Judge LCJ, Burnett LJ and HHJ Peter Thornton QC (Chief Coroner).

In addition to fresh inquests, a new Police investigation was ordered under Durham Chief Constable Jon Stoddart.  This investigation is to work closely with the Independent Police Complaints Commission (IPCC).

Following on from the quashing of the original verdicts, Lord Justice Goldring was appointed as Assistant Deputy Coroner to conduct the new inquests - Judiciary 13th February 2013.

A preliminary hearing

Court of Protection ~ an overview

Update 4th May:  Committal for Contempt of Court - Practice Direction of 3rd May

The Court of Protection has been mentioned a few times on this blog - for example, here  and here.

The court is in the news again because it has come to light that Wanda Maddocks was committed to prison for contempt of the court - Daily Mail 25th April - where it is said that, when judgment against her was handed down, she was not present in court and not represented by a lawyer.  It is also said that sentencing was not made public for six months.

In this post, I do not intend to comment on the Mail's article.  I am grateful to the Small Places blog for bringing my attention to the judgment - actually published last autumn - Stoke City Council v Maddocks [2012] EWHC B31 (COP).  Let's look at a few facts about the court.

1.  Parliament established the court by enacting Part 2 of the Mental Capacity Act 2005.  It came into existence from 1st October 2007 and replaced earlier arrangements often confusingly referred to as court of protection proceedings.

Abu Qatada ~ New Treaty with Jordan ~ but will it result in his deportation?

Earlier this week, the Court of Appeal refused the government permission to appeal against a decision of the Special Immigration Appeals Commission in the Abu Qatada case - BBC News 23rd April.  The government will be asking the Supreme Court to grant permission to appeal.

Today, the Home Secretary - Theresa May - informed Parliament of a new treaty between the United Kingdom and Jordan which, she claims, will enable the deportation to Jordan of Abu Qatada - Parliament and  BBC 24th April

It will remain a matter for the courts to determine whether the treaty actually answers the objections to his deportation.

Treaty on Mutual Legal Assistance in Criminal Matters between the UK and Jordan

The government will be hoping that Article 27.4 provides the solution:

The dismantling of legal aid

Please read the following and take some action to try to preserve the rights of those accused by the State:

Criminal Solicitor - The price of everything and the value of nothing

The [Justice Gap] - Appalling Vistas where Francis FitzGibbon QC looks at government policy on  legal aid

David Allen Green in The New Statesman - How the Ministry of Justice's proposal for the tendering of criminal legal aid is misconceived and illiberal.

I never thought that I would see the day when a democratically elected British government was seeking to do this.  Please do not think this will affect only others.  Anyone of us could, one day, require a good lawyer to represent us.

Please sign this petition and get on to your MP.

The consultation paper is at Gov.uk - Ministry of Justice

Legal Curiosities: Fact or Fable?

The Law Commission has published Legal Curiosities: Fact or Fable?

From time-to-time there are Statute Law (Repeals) Acts intended to tidy out dead wood from the massive so-called 'statute book.'  (See the 2013 Act).  A few candidates for the next such Act appear in the document. 

It is illegal to:

Enter Parliament wearing a suit of armour; to be drunk on licensed premises; to carry a plank along a pavement; to be drunk in charge of a horse and to fire a cannon within 300 yards of a dwelling house.   It is definitely illegal to kill a Scotsman in York whether within or outside the city walls and regardless of the day of the week !! 

It is legal to:

Die in Parliament (and some have); eat mince pies on Christmas Day; put a stamp upside down on a letter. 

A fascinating insight into some of the things which have been considered unlawful during our lengthy legal history and to some of the myths which are mentioned occasionally !

In English Law, once a statute is enacted it will always remain in force until repealed and this is so irrespective of whether the statute is actually enforced.  There is no rule of desuetude.  

There are still Dragons to fight ~ St. George's Day roundup.

Here is a roundup of some of the many legal matters both in the press and on the blogs at the moment:

1. Jon Robins, writing for Legal Voice, offers a report on the day of action by barristers practising on the Northern Circuit.  "An all-day protest by close to 400 barristers in the North West over what was called ‘a wholesale restructuring of the criminal courts’ caused disruption yesterday. It was reported that of the 241 cases originally listed, 15 trials and 42 other matters were adjourned."  A report on the Northern Circuit meeting is at Crime and Justice 22nd April.

2. Cuts to legal aid will be hugely damaging to access to justice and the ability of non-wealthy individuals to enforce their rights.   Barrister Russell Fraser, writing in the New Statesman, argues that one consequence of government policy could be that our Police, lawyers and jails will be run by G4S.  Naturally, that begs the question - "Who runs G4S" - because, if Russell Fraser is proved right, they will be very powerful and yet rather unknown individuals.

3. If you read nothing else on legal aid, read The [Justice Gap] - Appalling Vistas where Francis FitzGibbon QC looks at government policy on  legal aid David Allen Green in The New Statesman - How the Ministry of Justice's proposal for the tendering of criminal legal aid is misconceived and illiberal.

When contact in sport becomes criminal

This morning, the major talking point in the Barclay's Premier League is the incident between Luis Suárez and Branislav Ivanovic at the Liverpool v Chelsea match at Anfield on 21st April - Telegraph 22nd April - where it is reported that Luis Suárez held an opponent and then bit him.  Suarez tweeted an apology for what he described as “inexcusable behaviour”.

Clearly, Liverpool Football Club will be entitled to discipline Suarez and so will the Football Association and here is a player with a problematic disciplinary record.  Leaving such action aside, what does the criminal law say about what might appear to be an assault by one player on another?  The principal modern case is R v Barnes [2004] EWCA Crim 3246 - Lord Woolf CJ, Cresswell and Simon JJ.

The prosecution of Mr Barnes was