Beltrami & Company

A recent report has criticised the human rights record of the Scottish Parliament’s Committees, and in particular its Justice Committee.

The report was produced for the Cross Party Group on Human Rights at Holyrood by the Glasgow Human Rights Network, which had been asked to establish the degree of consideration given to human rights by the Committees generally - and individually.

It found that the Committee system did not take enough account of human rights considerations in its discussions.

Dr Kurt Mills, Convenor of the Glasgow Human Rights Network, said:

“We found that whilst there is some consideration of human rights at Holyrood, consideration of such issues is haphazard at best. The committee with the official mandate for human rights, the Justice Committee, exhibits, according to the report, "a reductive and sceptical pattern of attitude towards human rights." It rarely makes reference to the regional and global human rights regimes of which the UK is a member, and when it does it appears to see human rights merely as a constraint on the administration of criminal justice.”

The report has called for the creation of a separate Human Rights Committee in the Scottish Parliament to ensure human rights considerations are fully taken into account.

The police would get better and faster support from their counterparts in other EU countries, for example when asking them to conduct house searches or interview witnesses, under a proposed European Investigation Order endorsed by the European Parliament's Civil Liberties Committee.

“The European Investigation Order will provide us with better rules to investigate crimes in Europe and will contribute to the fight against corruption, drug trafficking and organised crime", said Parliament's rapporteur Nuno Melo.

The proposed rules aim to make it easier for the police to obtain evidence in another EU country when conducting criminal investigations. For example, if the French police are tracking criminals holed up in Germany, they could ask their German counterparts to carry out a home search or to interview witnesses there. This is already possible, but investigators have to rely on a 50-year-old patchwork of rules, which in many cases lead to unjustified delays and administrative burdens.

The European Investigation Order would limit the grounds for refusing a request from the police in another Member State and set strict deadlines for seeking evidence. It would also reduce paperwork, by introducing a single standard form for requesting help to obtain all kinds of evidence.

The Scottish Government has introduced a new Bill to the Scottish Parliament as part of its four-year ‘Making Justice Work’ Programme. The Scottish Civil Justice Council and Criminal Legal Assistance Bill is the first in a series of legislative measures to be taken forward under the programme.

The Bill marks the Scottish Government’s commitment to two justice priorities:

Foreign Secretary William Hague has launched Human Rights and Democracy: The 2011 Foreign & Commonwealth Report, which is a comprehensive look at the human rights work of the Foreign & Commonwealth Office around the world in 2011.

The report highlights the UK's human rights concerns in 28 key countries. The website will be updated every three months to highlight key human rights events and actions that take place in each of these featured countries of concern. The updates for the first three months of 2011 have also now been published online.

The Foreign Secretary said;

"The report comprehensively assesses developments in human rights in 2011 and provides information about some important developments in early 2012.

EU Justice Ministers have adopted a new law that the European Commission had proposed to ensure defendants' right to information during criminal proceedings.

Under the 'Directive on the right to information in criminal proceedings', suspects of a criminal offence will be informed of their rights in a language they understand. The measure will ensure that EU countries will give anyone arrested – or subject to a European Arrest Warrant – a Letter of Rights listing their basic rights during criminal proceedings.

The Letter of Rights will contain practical details about the rights of persons arrested or detained, such as the right:

The UK’s pledge to reform the European Court of Human Rights has been successfully fulfilled, according to Secretary of State for Justice Kenneth Clarke.

Reform of the Court was one of the key priorities for the UK’s chairmanship of the Council of Europe and the foundations of the reforms were laid in a speech given to the Court by Prime Minister David Cameron earlier this year.

In that speech, the Prime Minister outlined the challenges faced by the court as being:

Research released by the Equality and Human Rights Commission at the Brighton conference on the European Court of Human Rights (ECHR), shows that just a tiny minority of rulings by the Strasbourg Court are against the UK government.

The research shows that of the nearly 12,000 applications brought against the UK between 1999 and 2010, the vast majority fell at the first hurdle. Only 3% (390 applications) were declared admissible. An even smaller proportion of applications - 1.8% (215) - eventually resulted in a judgment finding a violation. The latest figures for 2011 show a rate of defeat of just 0.5%, or one in 200.

The research also shows that, in a similar situation to the Human Rights Act, where the UK parliament has sovereignty over its implementation, UK courts have the flexibility to interpret the European Convention on Human Rights in a manner different to that of the Strasbourg court. A ‘margin of appreciation’ recognises that national authorities are in the main best placed to decide how human rights should be applied.

While judgments against the UK have been relatively few in number, a significant proportion involved basic civil liberties such as the right to a fair trial; around 8% of judgments related to the right to life and the prohibition of torture and inhuman or degrading treatment.

Other important rulings have led to better protection against unnecessary intrusion into privacy through the use of secret surveillance; legislation outlawing forced labour and servitude; equal rights for lesbian, gay, bisexual or transgender people and protecting the freedom of the UK media, including the protection of journalists' sources and the importance of investigative journalism, as in the exposure by the Sunday Times of the thalidomide case.

The Commission on Women Offenders, established to examine how female offenders are dealt with in the criminal justice system, has produced its final report.

The Commission’s remit was to set out a series of measures to help reverse the continued rise in the female prison population, which has doubled in the last decade.

Commenting on the report, Justice Secretary Kenny MacAskill said:

“The independent Commission has made recommendations which, taken together, set out a vision for how we can work effectively with women to reduce their offending and ultimately reverse the ten year upward trend in female imprisonment rates.

“Protecting the public will always be my top priority, and prison remains the only option for the most serious criminals, men and women. However, only 2% of female prisoners were involved in serious violence last year, with the majority of the population not posing a serious risk of harm to the public. So, instead of spending taxpayers money to keep offenders who do not pose a serious risk of harm to the public locked up, we must find better and more cost-effective ways of addressing their behaviour by offering real and meaningful ways for them to rehabilitate themselves in the communities that they are part of.

“The Commission has reported on the continuous pattern of offending of many of the women held in prison, and the damaging cycle that they are so often unable to break. It is clear that there are better solutions to stopping female reoffending than simply locking them up. Many female offenders are deeply vulnerable people for whom offending is a result of chaotic lifestyles, mental health difficulties, and severe addiction problems. Many will have been the victims of abuse in their lifetime.

“It is in society’s interest to reduce the number of female offenders and consequently reduce the family break ups that often result, and the detrimental impact that can have on the life chances of their children who are ultimately our citizens of the future.”

The Judiciary of Scotland has announced that STV has been given permission by Lord Hamilton the Lord President and Lord Justice General to film Lord Bracadale sentencing David Gilroy at the High Court in Edinburgh on 18th April 2012. 

David Gilroy was found guilty of the murder of Suzanne Pilley in March 2012.

This is the first time that permission has been granted to film during a sentencing diet in the High Court. A number of restrictions have been placed on the filming, including a stipulation that the accused will not appear on camera. The camera instead will remain focused on the judge. It has also been agreed that filming will not start until the plea in mitigation has finished.

Footage of the sentencing will be made available immediately afterwards via satellite feed.

The European Court of Human Rights has ruled that detention conditions and length of sentences of five alleged terrorists would not amount to ill-treatment if they were extradited to the USA.

The case of Babar Ahmad and Others v. the United Kingdom concerned six alleged international terrorists – Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan, Mustafa Kamal Mustafa (known more commonly as Abu Hamza), Adel Abdul Bary and Khaled Al-Fawwaz.

Between 1999 and 2006 all six applicants were indicted on various terrorism charges in the United States of America. On the basis of those indictments, the US Government requested each applicant’s extradition from the United Kingdom.

As a result, all six applicants were arrested in the UK and placed in detention pending extradition to the USA. They then contested their extradition in separate proceedings in the English courts, without success, their requests for leave to appeal to the House of Lords and the Supreme Court ultimately being rejected.

In its Chamber judgment in the case, which is not final, the European Court of Human Rights held, unanimously, that there would be:

The House of Commons Home Affairs Committee has recommended that the Government seek major amendments to the 2003 US-UK Extradition Treaty.

The Committee's inquiry, which began in 2010, took evidence from those who had been involved in the extradition process as defendants, lawyers, campaigners, prosecutors and judges.

The recommendations made by the Committee include:

All crime victims should have the same basic rights across the EU, and should have their specific needs assessed, under a draft EU directive setting minimum protection standards unanimously endorsed by the Civil Liberties and Women’s Rights committees. An estimated 75 million people are victims of crime every year in the EU.

When crimes happen abroad, differing cultures, languages and laws can create serious problems. The draft directive aims to ensure that whatever the crime -  mugging, robbery, assault, rape, harassment, hate crime, terrorist attack, or human trafficking - and wherever in the EU it is committed, all victims have the same basic rights to be recognised and treated with respect and dignity, get protection and support for their physical integrity and property, and have access to justice and compensation.

Under the European Commission proposal, children, persons with disabilities, victims of rape and victims of human trafficking will be considered vulnerable and will benefit from special treatment. MEPs propose to extend the list of vulnerable victims and include asylum seekers and refugees, elderly and victims of gender-based violence, terrorism, organised crime, violence in close relationships, torture, hate crime, organ trafficking and attempted homicide. Relatives of murdered persons should also be considered vulnerable.

Victims need to be informed from the start about their rights, either orally or in writing, in simple and accessible language and in a language that they understand. Victims should also be enabled to report the crime and take part actively in the criminal proceedings (interviews and court hearings) in a language that they understand. Interpretation and translation services would be made available to this end, MEPs say.

Amnesty International has recently been giving evidence on human trafficking to the Scottish Parliament's Equal Opportunities Committee, in which it raises concerns about the lack of prosecutions for human trafficking in Scotland.

Shabnum Mustapha, Programme Director for Amnesty in Scotland, said:

"There have been 150 convictions for trafficking offences in England and Wales, but only one successful prosecution in Scotland. Prosecutions for lesser offences, whilst potentially easier to prove, carry lesser punishments, and make it impossible to know the scale and nature of trafficking here. Whilst we welcome the Scottish Government's consideration of a statutory human trafficking criminal aggravation, there should be more efforts to pursue full prosecutions as in England and Wales.

"The Scottish Parliament’s Equal Opportunities Committee’s own report into Trafficking and Migration, published in 2010, recommended that a Scottish referral mechanism be set up which places the welfare of the potentially trafficked individual above all else.

“We were disappointed that this recommendation was not taken up and would urge the Scottish Government to lead the way in tackling this form of modern-day slavery and adopt the Committee’s recommendation. We need to ensure that traffickers are pursued vigorously and that it is the welfare of the victim which is the primary concern. We also need to ensure that individuals showing signs of being trafficked are identified early and given the support they need.”

Trial Chamber I of the International Criminal Court (ICC) has decided unanimously that Thomas Lubanga Dyilo is guilty, as a co-perpetrator, of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities from 1st September 2002 to 13th August 2003.

The crimes were committed in the context of an internal armed conflict that took place in the Ituri (the Democratic Republic of the Congo) and involved the Force patriotique pour la libération du Congo (Patriotic Force for the Liberation of the Congo) (FPLC), led by Thomas Lubanga Dyilo, against the Armée Populaire Congolaise and other militias, including the Force de résistance patriotique en Ituri.

A common plan was agreed by Mr Lubanga Dyilo and his co-perpetrators to build an army for the purpose of establishing and maintaining political and military control over Ituri. This resulted in boys and girls under the age of 15 being conscripted and enlisted, and used to participate actively in hostilities.

This is the first verdict issued by an ICC Trial Chamber. At present, 14 other cases are before the Court, three of which are at the stage of trial.

The ICC is the first permanent, treaty-based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, namely war crimes, crimes against humanity, genocide and the crime of aggression.

The European Court of Human Rights has ruled that, in the case Austin and Others v. the United Kingdom, there had been no violation of Article 5 (right to liberty and security) of the European Convention on Human Rights.

The case concerned a complaint by a demonstrator and some passers-by that they were not allowed to exit a police cordon for almost seven hours during a protest against globalisation in London.

The applicants complained that they were deprived of their liberty without justification, in breach of Article 5 § 1. Their applications were lodged with the European Court of Human Rights during July 2009.

The Court notably found that the people within the cordon had not been deprived of their liberty within the meaning of the Convention. In particular, the police had imposed the cordon to isolate and contain a large crowd in dangerous and volatile conditions. This had been the least intrusive and most effective means to protect the public from violence. Although the police tried to start dispersing the crowd throughout the afternoon, they had been unable to do so as the danger had persisted.

Since Article 5 did not apply, the Court held – by 14 votes to three - that there had been no violation of that provision.

Notwithstanding the above finding, the Court emphasised the fundamental importance of freedom of expression and assembly in all democratic societies, and underlined that national authorities should not use measures of crowd control to stifle or discourage protest, but rather only when necessary to prevent serious injury or damage.

The European Commission has proposed new rules to allow for more effective recovery of assets acquired through crime.

The Scottish Government and Parliament should seize the historic opportunity in reforming police services in Scotland to embed human rights principles into the new structures from their inception.

The call comes in a submission from the Scottish Human Rights Commission to the Scottish Parliament Justice Committee consultation on the Police and Fire Reform (Scotland) Bill, which would establish a single police force across Scotland.

The Bill in its current form does not include any explicit reference to human rights principles despite the distinct human rights obligations for the police under the Human Rights Act. 

The Commission makes six recommendations to the Justice Committee, including:

According to human rights organisation, Reprieve, the Government’s own assessment of its plans for secret courts has warned that they could cost an extra £11 million every year, and lead to a “higher risk of potential security breaches.”

The warnings are contained in an Impact Assessment of the Government’s plans to roll out secret proceedings across the civil justice system, buried on an obscure part of the Cabinet Office website – which also states that the plans may lead to “a reduction in confidence in court processes.”

The document was produced by the Government to assess its own policy, the Justice and Security Green Paper, which proposes extending Closed Material Procedures (CMPs) across the civil courts whenever ministers have concerns that “sensitive material might be involved.” Such a move would lead to a massive extension of secrecy in the British justice system, and make it much more difficult to hold the Government to account for a wide range of abuses, such as complicity in rendition and torture.

According to Reprieve, the document states that:
•The introduction of CMPs could have a net cost of as much as £11m each year, since “the savings from [the current system of Public Interest Immunity] are not judged to be significant enough to outweigh the costs of the CMPs over the next decade” (pp19, 27)
•Introduction of CMPs may lead to a “Higher risk of potential security breaches due to a larger number of individuals accessing sensitive information [and] any potential breaches may impose substantial costs to UK security.” (p12)
•The proposals may “[lead] to resentment or a reduction in confidence in court processes” (p2) “and unwillingness to participate in jury service” (p11).

The Scottish Government has announced that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is now in force. The Act gives Scotland's police and prosecutors  additional tools to crack down on sectarian songs and abuse at and around football matches and threats posted on the internet or through the mail. 

The Act creates two new distinct offences, punishable through a range of penalties up to a maximum five-year prison sentence and an unlimited fine:

Offence A - "Offensive Behaviour"

Intended to deal with sectarian and other offensive chanting and threatening behaviour likely to cause public disorder.

The offence covers behaviour likely to lead to public disorder:

A joint inspection published by HM Inspectorates of Constabulary and the Crown Prosecution Service has found that the English criminal justice system has made progress in relation to the needs of rape victims although there is more to do.

Improvements must also be made to the way the police gather and analyse intelligence material to identify perpetrators of rape and more can be done to ensure that prosecutions are robust. 

The number of rapes recorded by the police has risen by 3,261 (26%) over the last three years. Criminal justice agencies attribute this partly to victims having more confidence that police and prosecutors will deal with offences sensitively and professionally.

HMIC and HMCPSI found that there is some evidence to support this: as previous reports have recognised while there is absolutely no room for complacency, the reactions of practitioners have become more attuned to the needs of victims, and to the problems associated with the investigation and prosecution of this serious offence. Investigative techniques and prosecutions must also improve to ensure that perpetrators of rape and the full extent of their offending are identified quickly and where appropriate prosecuted.