Beltrami & Company Criminal Law & Glasgow Solicitors Blog

Earlier this week, ahead of the Scottish Parliamentary debate on the Scottish Independence Referendum (Franchise) bill, human rights organisations called on MSPs to consider allowing certain prisoners to vote.

The Supreme Court has reaffirmed, in a unanimous decision, the importance of the ancient common law writ of habeas corpus, human rights organisation JUSTICE has announced.

A new evidence based report examining the experiences and treatment of children and young people who died in prison custody in England and Wales has been published by INQUEST and the Prison Reform Trust.

Gangs that lure victims to the UK and then exploit them for sex, labour and domestic slavery are being targeted following action by the government.

The Home Secretary has announced that Gary McKinnon will not face extradition to the US.

Human Rights organisation Liberty is seeking to intervene in the High Court in proceedings against the Government and Director for Public Prosecutions for not allowing Babar Ahmad (accused of setting up terrorist fundraising websites and detained for eight years without charge) to be prosecuted in the UK.

The Scottish Human Rights Commission and the Northern Ireland Human Rights Commission have urged the United Nations to scrutinise the UK Government’s intention to replace the Human Rights Act with a UK Bill of Rights.

The Commissions’ are giving evidence with the Equality and Human Rights Commission on the UK’s human rights record as part of the Universal Periodic Review process, where the UK is examined every four years by the Human Rights Council.

The joint submission also calls on the UK government to:

The European Court of Human Rights (ECHR) has given its Chamber judgment in the case of James, Wells and Lee v. the United Kingdom.

The public are being asked for their views on the operation of important border security powers in a consultation launched by the home office.

The European Data Protection Supervisor (EDPS) has adopted his opinion on the amended Commission proposal for a Regulation of the European Parliament and of the Council on the establishment of 'EURODAC' for the comparison of the fingerprints of asylum seekers.

As part of its legislative agenda for 2012-13, the Scottish Government has announced its intention to introduce a number of bills that will impact on the criminal justice system in Scotland.

The very existence of secret courts currently being legislated for by the Government may itself be a secret, human rights organisation Reprieve has claimed.

According to Reprieve, during debates in the Lords on the Justice and Security Bill, ministers confirmed that the fact the Government has applied for a Closed Material Procedure (CMP) – a process in which the public, press and the claimant is excluded from the court – could itself remain a secret.

CMPs would already allow the Government to present secret evidence to a judge without challenge from the other side in the case, in a process which is at odds with Britain's open and adversarial tradition of justice. This new development lays open the possibility that the very occurrence itself of a CMP would not be made public.

Reprieve's Executive Director, Clare Algar said: "This is a deeply disturbing development, reminiscent of super-injunctions in its excessive secrecy. Yet instead of merely covering up footballers' indiscretions, these courts could be used to sweep serious state human rights abuses – such as torture – under the carpet. If this Bill passes, it will badly damage centuries of British legal tradition and make it far harder for the citizen to hold the state to account."

Preparations have begun in a process to seek justice for survivors of historic child abuse in Scotland.

The Scottish Human Rights Commission with the Centre for Excellence for Looked After Children in Scotland (CELCIS) have launched a website ahead of an ‘InterAction’ meeting to take place in October.

The InterAction will bring together former residents, representatives of institutions, government and others with responsibility to consider how recommendations made by the Commission in 2010 can be taken forward in practical and meaningful ways. The aim is to develop an Action Plan for justice within a human rights context.

In 2010 the Commission developed a Human Rights Framework for the design and implementation of a comprehensive and progressive process of justice for survivors of historic child abuse. The Human Rights Framework is based on international human rights law, including European and United Nations human rights treaties, research on the views of survivors and others whose rights were affected, and experiences from several different countries.

The Framework is a best practice model and holds great potential in providing justice for abuse survivors. Amongst the central recommendations in the Framework are that the Scottish Government:

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 Court of Justice of the European Union has clarified the grounds on which an EU citizen can be deported for committing a crime, even if they have lived for over ten years in the host Member State.

A host Member State can take a decision to deport an EU citizen who has acquired a right of permanent residence (after completing a continuous period of at least five years) only on serious grounds of public policy or public security. Where a Union citizen has resided in the host Member State for the previous ten years, an expulsion decision can be taken only on imperative grounds of public security.

The case concerned Mr I., an Italian national, who has lived in Germany since 1987. In 2006, he was sentenced to a term of imprisonment of seven years and six months for the sexual assault, sexual coercion and rape of a young girl, who was eight years old when the offences commenced. He has been in custody since 2006 and is due to complete his sentence in July 2013.

The German authorities determined that Mr I. had lost the right of entry and residence under German law, on grounds relating in particular to the serious nature of the offences committed and the risk of re-offending, and ordered him to leave Germany, failing which he would be deported to Italy. Mr I. brought an action against the expulsion decision.

The German court asked the Court of Justice for clarification on the grounds which may justify the expulsion of an EU citizen who has been resident in the host Member State for more than ten years.

In its judgment, the Court said that criminal offences covered by the concept of “particularly serious crime” referred to in the Treaty on the Functioning of the European Union may justify deporting an EU citizen, even if that person has lived for more than ten years in the host Member State.

However, the issue of such a deportation order is conditional on the requirement that the personal conduct of the individual concerned must represent a genuine, present threat affecting one of the fundamental interests of that State.

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.

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.