Beltrami & Company Criminal Law & Glasgow Solicitors Blog

A European Commission proposal to allow the use of EU air passenger name record (PNR) data in investigating serious crime and terrorist offences was rejected by Civil Liberties Committee MEPs last week, by 30 votes to 25.

A recent report published by the Joint Committee on Human Rights (JCHR) has criticised what it considers to be the Government’s failure to allow enough time to fully examine the human rights implications of some of its legislation.

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:

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.

In a Chamber judgment in the case Vinter and Others v. the United Kingdom, which is not final, the European Court of Human Rights (ECHR) has unanimously held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights in respect of any of the three applicants.

The case concerned the applicants’ complaint that their imprisonment for life amounted to inhuman and degrading treatment as they had no hope of release.

The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are British nationals  currently serving mandatory sentences of life imprisonment for murder.

When convicted by the English courts, the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds (for example, if they are terminally ill or seriously incapacitated).

The power of the Secretary of State to release a prisoner is provided for in section 30(1) of the Crime (Sentences) Act 1997. Under this Act it was practice for the mandatory life sentence to be passed by the trial judge, who – along with the Lord Chief of Justice – then gave recommendations to the Secretary of State to decide the minimum term of imprisonment (the “tariff” part of the sentence) which the prisoner would have to serve to satisfy the requirements of retribution and deterrence and be eligible for early release on licence.

In general, the Secretary of State reviewed a whole life tariff after 25 years’ imprisonment. With the entry into force of the Criminal Justice Act 2003, all prisoners whose tariffs were set by the Secretary of State are now able to apply to the High Court for review of that tariff.

Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), all three applicants complained that their imprisonment without hope of release was cruel and amounted to inhuman and degrading treatment.

The application was lodged with the European Court of Human Rights on 11th December 2009.

The Court held that in each case the High Court had decided that an all-life tariff was required, relatively recently and following a fair and detailed consideration. All three applicants had committed particularly brutal and callous murders. To date, Mr Vinter had only served three years of imprisonment, Mr Bamber 26 years and Mr Moore 16 years.

The Court did not consider that these sentences were grossly disproportionate or amounted to inhuman or degrading treatment. There had therefore been no violation of Article 3 in the case of any of the applicants.

Crime victims who are granted protection in one EU Member State will be able to get similar protection if they move to another, under new European Protection Order rules endorsed by the Civil Liberties and the Women's Rights Committees of the European Parliament. Protection would be available to, for instance, victims of gender violence, harassment, abduction, stalking or attempted murder.

Anyone suspected or accused of having committed a crime in the EU must be promptly informed of his or her procedural rights in easy-to-understand language, according to a draft law endorsed by the Civil Liberties Committee of the European Parliament.

The Equality and Human Rights Commission (the Commission) has launched the findings from its inquiry into human trafficking in Scotland. The inquiry focused on trafficking for the purposes of forced labour, domestic servitude and criminal exploitation, but more explicitly on commercial sexual exploitation.