Beltrami & Company Criminal Law & Glasgow Solicitors Blog

A man from Nottingham who was sentenced to prison after the riots that took place last year intends to take his case to the European Court of Human Rights, reports the BBC.

The 22-year-old was sentenced to three years in prison for violent disorder but, according to his lawyer, the conviction is a breach of his human rights as he is innocent of any wrong doing. The man claims he was in the area to get some food, and only ran because a large group of people, who were being chased by police, were running towards him.

Speaking to the BBC, his lawyer said: "[But] it is very likely this case will be taken to the European Court as a test case, to ask if the correct levels of proof were applied and if people should be guilty by association."

The Network for Police Monitoring (NetPol) has published a new report, which claims that police forces across the UK are adopting a hard line 'total policing' approach to handling protests, which is restricting the right to protest.

The report also claims that the use of police tactics such as 'kettling', stop and search and pre-emptive arrests have effectively prohibited most forms of popular street protests.

Val Swain, commenting on the report’s launch on behalf of NetPol, said:

The Equality and Human Rights Commission intervened in a test case in England in which the High Court has ruled that the police cannot keep photographs of people without criminal records or those not found guilty.

The judges agreed with the Commission’s submission that unless someone has been charged with, or convicted of, a crime it is an unjustifiable breach of their right to a private life for the police to hold on to a photograph of them.

The court did not agree with the Metropolitan Police’s argument that keeping these photographs of those not convicted was necessary for preventing crime and disorder.

The court has ordered the Metropolitan Police to revise its guidelines within months. The police force is then very likely to have to destroy its photographs of anyone who is innocent of any crime.

The ruling is in keeping with other test cases that the Commission has been involved in where the courts also decided that the police could not retain people’s DNA and fingerprint data indiscriminately or indefinitely.

John Wadham, General Counsel, Equality and Human Rights Commission, said:

“Without the protection of our human right to a private life, the police would be able to hold onto your DNA, fingerprints, and photographs even if you’d done nothing wrong. There is no good reason why the police should hold onto information about people who have not committed any crime.

"However, we recognise the importance of retaining the identification of people who have been charged with or convicted of offences. But it is essential that the police use these powers appropriately, proportionately and fairly.”

The European Commission has adopted the EU Strategy towards the Eradication of Trafficking in Human Beings (2012-2016), a set of concrete and practical measures to be implemented over the next five years.

These include the establishment of national law enforcement units specialised in human trafficking and the creation of joint European investigation teams to prosecute cross-border trafficking cases.

Preliminary data collected by Member States at EU level show that three quarters of victims identified in EU Member States are trafficked for sexual exploitation (76% in 2010). Other victims are forced into labour exploitation (14%), begging (3%) and domestic servitude (1%).

The strategy includes prevention, protection and support of the victims, as well as prosecution of the traffickers. It identifies five priorities and outlines a series of initiatives for each of them, such as:

The Government has announced changes to the Immigration Rules for family migration as part of its programme of reform of the migration routes. These changes are due to come into effect in July 2012.

As part of these changes, the Government intends to end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 – the right to respect for private and family life – do so essentially without regard to the Immigration Rules.

The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis.

The Immigration Rules will reflect the UK Border Agency’s duty to have regard to the need to safeguard and promote the welfare – or ‘best interests’ – of children who are in the UK. The rules will set clear thresholds for the impact of an applicant’s criminality on the scope for them to be granted leave to enter the UK on the basis of their family life or leave to remain in the UK on the basis of their family or private life. The rules will also reflect the fact that family life established when the parties knew one or both of them lacked a valid basis of stay in the UK carries less weight under the case law of the European Court of Human Rights.

In particular:

The UN Human Rights Council has issued the UK’s latest human rights “report card.” Sixty-one countries commended the UK’s ongoing commitment to human rights but made recommendations for improvements, reports the Equality and Human Rights Commission.

The UN’s 132 recommendations encourage the UK to strengthen human rights protection for vulnerable individuals. The UN also recommends that the rights set out in the Equality Act, the Human Rights Act and international human rights laws are preserved. It notes that the right balance must be found between security and people’s basic rights, for example in the areas of stop and search, counter-terrorism and migration policy.

According to the Scottish Human Rights Commission, recommendations from other UN member states also included that the UK:

The European Court of Human Rights (ECHR) has given its judgment on the issue of prisoner voting, saying that it is up to Member States to decide how to regulate the ban on prisoners voting, but that an automatic and indiscriminate disenfranchisement of all serving prisoners, irrespective of the nature or gravity of their offences, such as exists in the UK, is incompatible with Article 3 of Protocol No. 1 (right to free elections) of the European Convention on Human Rights.

However, it accepted the UK Government’s argument that each State has a wide discretion as to how it regulates the ban, both as regards the types of offence that should result in the loss of the vote and as to whether disenfranchisement should be ordered by a judge in an individual case or should result from general application of a law.

The Court did not consider it appropriate to give guidance as to the content of future legislative proposals, which was a decision for the Government. However, it took the view that the lengthy delay to date demonstrated the need to set a timetable for the introduction of proposals to amend the electoral law in the UK.

The Court has therefore given the UK Government six months to bring forward legislative proposals to amend the law.

UK businesses will be required to disclose all their efforts to end slavery, under a Bill launched in Parliament.

The Transparency in Supply Chains Bill, drafted by the Centre for Social Justice and Labour MP Fiona MacTaggart, will demand that businesses investigate whether their supply chains are slave-free.

As part of landmark measures to raise awareness about the nature and scale of human trafficking, businesses will be encouraged to conduct an audit of their suppliers to check that they comply with anti-slavery laws.

An estimated 27 million people are enslaved worldwide and this latest legislation will prompt all UK businesses, with a turnover of over £100 million or more, to take responsibility to end this appalling abuse.

Employees working with suppliers should be trained to blow the whistle on questionable practice, and all information of the vital work being done to combat slavery should be published online as part of the business’s annual review.

The Bill, intended to foster cooperation and build a consensus on slavery, is expected to prompt a cultural change similar to that brought about by the environmental or fair trade movements.

The CSJ is conducting an 18 month review of slavery in the UK which will be published in the Autumn of 2012.

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.

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.

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 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:

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 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).

Following the publication of the inspection report into the UK's Detained Fast Track (DFT) asylum procedures, the United Nations High Commissioner for Refugees (UNHCR) has identified a number of key concerns with how these procedures operate.

These concerns include:

Vulnerable asylum seekers are wrongly held in detention
UNHCR is of the view that safeguards to identify vulnerable and traumatised individuals are inadequate. A quarter of individuals who enter the DFT are later released, most of whom are referred to organisations caring for victims of torture. However, even among those who remain within the DFT, UNHCR has identified vulnerable people and applicants with complex cases which are not suitable for being decided quickly. This includes individuals who claim to be victims of rape or trafficking.

Deprivation of liberty
Although claims in the DFT are expected to be decided between seven and ten days, the Government’s current policy leaves open the possibility for detention to exceed this period and even, to be of unlimited duration. UNHCR considers that depriving an individual of their liberty for reasons of administrative convenience risks breaching international human rights principles.

There is insufficient time for accurate decision-making
Detention and the speed of the DFT affect the fairness of a procedure which determines whether or not a person will be protected or sent home. The short time frame means that both UKBA decision makers and applicants lack sufficient time to prepare for the asylum interview. The determination of asylum claims is a complex procedure which requires time and consideration on the part of the decision maker to gather evidence, including the information available on the situation in an applicant’s country, and to assess the credibility of the claim. Furthermore, asylum seekers who have had traumatic experiences and possible mental health issues may require time to establish trust and confidence to disclose their stories to the authorities.

Human rights charity Fair Trials International has submitted a six-point plan to the Home Affairs Committee for reforming the UK’s extradition arrangements.

Many of the proposed changes have already been recommended by other in-depth extradition reviews that took place in 2011. According to Fair Trials, all can be achieved simply and quickly, and the impact for people facing extradition requests would be substantial if the reforms were enacted.

The six reforms are: