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Scottish police reform must include human rights

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:

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Government's secret justice plans may cost millions

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).

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Offensive Behaviour at Football Act

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:

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Report into rape prosecutions

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.

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UNHCR raises concerns with UK asylum procedures

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 detentionUNHCR 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 libertyAlthough 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-makingDetention 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.

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Fair Trials International submits plan for extradition reform

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:

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Stamping out domestic violence

A dedicated domestic abuse court has been established in Edinburgh to provide further support for victims of domestic abuse and bring offenders to court quickly.The pilot court will initially deal with cases from south and east police divisions with the intention of rolling out to other divisions. Justice Secretary Kenny MacAskill said:“This dedicated court in Edinburgh is a welcome step forward underlining that domestic violence will not be tolerated and the perpetrators will be dealt with swiftly and severely. “I support tough penalties for any perpetrators of domestic abuse and last year we introduced a new offence of 'engaging in threatening or abusive behaviour’ to give greater protection to victims. We also introduced a ground breaking phone helpline for male victims of domestic abuse." The pilot is planned to run initially for one year involving offences committed in the south and east police Divisions on or after 9th December 2011. From 7th February 2012 diets are being held fortnightly. The court will have a designated Sheriff, Sheriff Clerk and Procurator Fiscal.

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Campaign against government’s Justice and Security Green Paper

The human rights group Liberty has launched a campaign, ‘For Their Eyes Only,’ against the Government’s Justice and Security Green Paper. Liberty reports that the Green Paper contains proposals which would allow future ministers to shut out the press, public and bereaved families from any court case where it is considered a public hearing could ‘cause damage to the public interest’. This could include actions arising from complicity in torture, inquests into deaths in custody, police negligence, or compensation claims resulting from friendly fire.The Government’s proposals would see Closed Material Procedures and Special Advocates brought more generally into the civil law, claims Liberty. Proceedings would be conducted without the involvement of the party bringing the claim, and secret evidence – never disclosed to the claimant, let alone public or press – would be used to defend serious allegations. The only people present would be the judge, the Government and Special Advocates – who are forced to try and represent claimants without ever being allowed to discuss evidence with them.According to Liberty, the Government is also seeking to elevate the Security Services – and potentially other bodies – above the law in civil actions focusing on the wrongdoing of third parties where the UK is involved.

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Bail conditions and judicial discretion

The Criminal Appeal Court has struck down a provision in the Criminal Justice and Licensing (Scotland) Act 2010 that removes judicial discretion in the imposition of a particular bail condition. According to the Court, the provision is in breach of Article 5 of the European Convention on Human Rights (ECHR).

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Airport security

Justice Secretary Kenny MacAskill has welcomed the positive measures taken by Glasgow Airport police to address concerns about the use of Schedule 7 powers.It follows his visit to see the police operation at the airport and the launch of a new community engagement group in the wake of public meetings about Schedule 7 last year.Schedule 7 of the Terrorism Act 2000 gives police powers to stop, search and questions travellers at UK airports without reasonable suspicion that the person is engaged in terrorism.Mr MacAskill said:“I am pleased to see the police operation first hand and witness the important work being carried out by police at Glasgow Airport. They have been engaging with the local community to share information and I welcome the positive progress they have made working hard to reassure communities and build trust following public meetings about Schedule 7 powers last year. “Concerns were raised about a lack of clear information about the powers and how they are used, and police have acted swiftly by reviewing the leaflets given to those who are stopped and by making sure information is more widely and easily available, both at the airports and in communities.“It is important that powers to stop and question travellers must be used consistently, sensitively and appropriately. I am well aware of the sensitivities involved in the use of Schedule 7 powers. Where there are legitimate concerns and grievances in communities we need to understand them and work together to try to address them.“Scotland is not immune from terrorism, so it is vital that our airports are effectively policed to preserve public order and ensure that any threats to security are identified and addressed. The police play a crucial role, having to balance a duty to tackle crime with the protection of individual civil liberties. The powers they use are necessary to assist in their challenging role. Officers on the ground are best placed to make individual judgments as to when those powers should be used. I believe our forces make a proportionate and necessary use of the powers available to them.”

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Prison Visiting Committees

The Scottish Human Rights Commission has welcomed the debate in the Scottish Parliament on Prison Visiting Committees.The Scottish Human Rights Commission is the National Human Rights Institution for Scotland and is part of the National Preventative Mechanism (NPM) under the Optional Protocol to the Convention Against Torture (OPCAT). The UK ratified OPCAT in December 2003, the objective of which is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.The Commission welcomes the reference to OPCAT at Section 90 of the Police and Fire Reform (Scotland) Bill which provides for independent custody visiting but is concerned at the proposal to abolish prison visiting committees in favour of some form of advocacy service. The Commission welcomes the creation of a new advocacy service for prisons, but considers that this should run alongside the human rights protections that are currently provided by prison visiting committees. While HMIP plays an important role in the inspection of prisons and coordinates the NPM it plays a very different role to prison visiting committees.Over the last year, prison visiting committees have continued to monitor all 15 prisons and eight legalised police cells in Scotland. Visiting committee members have dealt with over 1,100 complaints from prisoners and undertaken almost 1,500 unannounced visits. In other parts of the UK, there are Independent Monitoring Boards which fulfil a similar function to prison visiting committees and which form part of the NPM.The Commission supports the conclusions of the 2005 Review of prison visiting committees, that they should be re-established as Independent Monitoring Boards (IMBs). They should be independent and form part of the NPM to ensure that prisoners in Scotland receive the same level of protection as those in other parts of the UK.The Commission welcomes the Scottish Government’s commitment to consult further on this issue to help ensure that Scotland is able to continue to improve the protection of human rights for all of the people in Scotland.

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Stronger controls needed for undercover deployments

Undercover officers deployed into protest communities gathered intelligence which enabled the police to prevent acts of serious violence; but there was serious intrusion into the lives of others, and this risk needs to be better managed in future, a report published by Her Majesty’s Inspectorate of Constabulary (HMIC) has found.HMIC reviewed the use of undercover officers by the National Public Order Intelligence Unit (NPOIU), which is now part of the National Domestic Extremism Unit (NDEU). Undercover deployments are inherently risky: and those aimed at gathering intelligence (ie as carried out by the NDEU) were in some respects more so than those aimed at gathering criminal evidence (e.g. staging a drugs purchase on a street corner). For instance, they tend to last longer (sometimes years), partly because trust takes longer to grow; this increases the risk of intrusion into the lives of all members of the group among which they are deployed. In addition, there is not the same accountability to the courts as for evidence-gathering deployments.HMIC found that as well as being more risky, NPOIU operations were not as well controlled as those of other units which deploy undercover officers on serious criminality. HMIC is therefore making recommendations to improve the control of undercover officers deployed to tackle criminality associated with public order and domestic extremism. These improvements centre on three main areas:System of control: Serious consideration should be given to establishing a stronger system of pre-authorisation for pre-planned, long-term intelligence development operations, in order to increase the level of accountability in future. Definitions: HMIC recommends that a clearer definition of domestic extremism (which reflects the severity of crimes that might warrant this title) would help in judging whether an undercover deployment is an appropriate tactic to use. Structure: HMIC recommends a clear separation between units that collect intelligence on public order generally and those that collect intelligence on extremism, in recognition of the fact that domestic extremism and public order policing are two different police functions.

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Factsheets on defendants’ rights

The European Commission has made available to the public, on the European e-Justice portal, national factsheets on the rights of defendants in all 27 Member States of the EU. The European Commission’s e-Justice portal aims at facilitating access to justice by citizens and businesses across Europe. It is also aimed at reinforcing judicial co-operation, on the basis of existing legal instruments, and at bringing e-Justice closer to the legal profession and all interested parties.The factsheets were prepared by the Council of Bars and Law Societies of Europe (CCBE) working together with experienced criminal defence lawyers, the CCBE's member Bars, Ministries of Justice and qualified legal translators. They list in a simple but comprehensive way the rights available to defendants in criminal proceedings in all the EU Member States. They are available in all of the EU’s official languages.The factsheets cover the following areas: obtaining legal advice; rights during the investigation of a crime (arrest, questioning and police investigation, searches, first court hearing, preparation for trial); rights during the trial; rights after the trial; and road traffic offences.The CCBE believes that the factsheets provide a very useful source of information for suspects and defendants in cross-border situations. For example, a Portuguese national who is charged with a crime in Germany can now access information in Portuguese on his rights throughout the German court process.

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Murder case to be reinvestigated under Double Jeopardy legislation

The Crown Office has announced that it is to review the murder of Surjit Singh Chhokar, who was killed in 1998. Strathclyde Police have now been instructed to carry out further investigation into his murder under the Double Jeopardy legislation introduced in November last year.The Double Jeopardy (Scotland) Act 2011 came into force in Scotland on 28th November 2011. Key elements of the Act include:

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Concerns at moves to block accession to Human Rights Convention

Representatives of the the Parliamentary Assembly of the 47-nation Council of Europe (PACE) and the European Parliament have urged national governments – notably the UK and France – not to stand in the way of the EU signing up to the European Convention on Human Rights.Kerstin Lundgren (Sweden, ALDE), PACE rapporteur on the impact of the Lisbon Treaty on the Council of Europe, and Barbara Lochbihler MEP, Chair of the European Parliament Sub-Committee on Human Rights, have issued the following statement:“EU accession to the European Convention on Human Rights will close a gaping hole in European human rights protection as, for the first time, the laws and actions of the EU itself will be subject to the same external scrutiny as those of 47 countries across Europe – including all of the EU member states.“The Lisbon Treaty has significantly increased the scope for EU action in areas which directly or indirectly affect human rights. With this increased responsibility, it is only right that there should also be increased accountability.“EU accession to the convention is also needed to fully ensure consistency in the work of the Strasbourg and Luxembourg courts. This is a vital first step towards creating a ‘common European space’ for human rights, and has the full backing of both the European Parliament and the Parliamentary Assembly of the Council of Europe.“We are therefore deeply concerned that the accession process – which is a legal obligation for the EU under the Lisbon Treaty – is currently being sidetracked by political objections from the UK, and to a lesser extent France.“We cannot risk this process being derailed, as failure to fully incorporate the EU could serve to weaken the existing European system for human rights protection which has been put in place by the Council of Europe over the last 60 years and is envied worldwide.“Intense negotiations since June 2010 show that the complex technical and legal issues involved in this process can be resolved. What is needed now is clear and unequivocal political commitment on the part of all 27 EU member states.”

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Court rules against deportation of Abu Qatada to Jordan

The European Court of Human Rights has ruled in the case Othman (Abu Qatada) v. the United Kingdom, which is not final, that Omar Othman (also known as Abu Qatada) would be at real risk of a grossly unfair trial if deported to Jordan, where he is wanted on terrorism charges.The European Court of Human Rights held, unanimously, that, if Mr Othman were deported to Jordan:

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ECHR rules life imprisonment is not inhuman or degrading

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.

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Calls for independent judicial inquiry into torture allegations

The Crown Prosecution Service (CPS) has announced that for the time being no one from the security or intelligence services will be charged over British complicity in torture. However, according to the human rights organisation Liberty, the CPS clearly vindicated concerns that British security agencies provided questions for Binyam Mohammed’s interrogation in Morocco between 2002 and 2004.The CPS has also decided that suspicions about Britain’s involvement in rendition to and torture in Libya are serious enough to warrant an immediate criminal investigation. In addition, there may be further criminal investigations into other aspects of the rendition scandal.Liberty first expressed concerns in November 2005 that the UK government may be complicit in alleged torture practices if secret “torture flights,” carrying suspects to third countries where they may face torture, transited UK airports. Liberty has always insisted that an inquiry into the allegations must be fair, independent and its findings presented openly and transparently.When the Evidence Protocol for the ‘detainee inquiry’ was published in July 2011 – a year after the inquiry was announced – it was clear that the crucial final word on whether material could be made public rests not with a Judge but with the Cabinet Secretary, the Government’s chief civil servant. A covering letter received by Liberty also makes clear that the Government proposes that torture victims should not be able to put questions to those allegedly complicit in their abuse - even by way of their legal representatives. In light of this all the non-governmental organisations involved – including Liberty – and the torture victims withdrew their participation from the process.Shami Chakrabarti, Director of Liberty, said:“We of course welcome the criminal investigation into Britain’s suspected involvement with torture under the Gaddafi regime. But the criminal law is not the only way of correcting grave injustices in a great democracy. It is now even more important that the victims, security agencies and wider public benefit from a full and independent judicial inquiry into one of the worst scandals of recent memory.”

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Human trafficking study

Glasgow Caledonian University lecturer Dr Kiril Sharapov, an expert in the field of human trafficking, is to undertake the biggest study ever into the public’s attitude towards the problem – and how consumers’ spending habits contribute towards it.Dr Sharapov says that there is a widespread misconception that human trafficking is only associated with the illegal sex trade, where people are forced into prostitution after being trafficked across borders.He believes a growing demand for cheap goods and services, and lack of public awareness of trafficking, obscure our concern for the welfare of the migrant workers involved. Such demand and lack of awareness fuel the exploitation of migrant workers, many of whom work in a wide variety of everyday situations, including care homes, hotels, construction, the service industry and the UK’s meat and poultry processing sector. “Trafficking is not just the issue of badly controlled borders, or economic migrants or criminals. It should be looked at from the perspective of why people are smuggled and trafficked here – there is a demand for cheap and exploitable labour. The rising costs of energy and raw materials and the continuing economic downturn are having a direct impact on the price of consumer goods,” said Dr Sharapov.“This creates downward pressure on wages and an increasing demand for cheap labour that can be easily intimidated, for example by physical violence, threats of deportation or to the security of family back home, and exploited.”Dr Sharapov’s work will focus on the UK (where people are trafficked to), Ukraine (where people are trafficked from) and Hungary (where people are trafficked through).

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First prosecution and conviction under the Bribery Act 2010

The first prosecution and conviction under the new Bribery Act 2010, which came into effect on 1 July 2011, took place on 14 October 2011 following the guilty plea of 22 year old Munir Yukub Patel. Patel was subsequently imprisoned for 3 years on 18 November 2011 in respect of this conviction, which was discounted given his early guilty plea. In sentencing Patel, HHJ McCreath stated that if the case had gone to trial Patel would have received 4-5 years’ imprisonment out of a potential maximum of 10 years’ imprisonment. Patel was also sentenced to 6 years’ imprisonment in respect of misconduct in public office. The sentences are being served concurrently.

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