The increasing role of human rights law in extradition and deportation cases

Human rights challenges to deportation and extradition seem to be constantly in the public eye. Gary McKinnon’s battle against extradition has caught the public, as has the now notorious “Pathway Students” terrorist deportation case. An examination of three recent decisions highlights the various ways in which the courts approach the human rights arguments in such cases.

There have been a steady stream of high-profile deportation and extradition decisions in the past few weeks, none more controversial than the “Pathway students” case, where two suspected terrorists were saved from deportation to Pakistan as they were thought to be at risk of torture or death upon their return. The Daily Telegraph reports that the Human Rights Act is being invoked in a growing number of asylum and immigration case, although it does not say whether the number of successful uses of the Act has increased.

Religious versus other freedoms: the future of Article 9?

McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010) – Read judgment or our previous post

Case comment

Lord Carey of Clifton, responding to Lord Justice Laws’ observations in MacFarlane, has called this latest dust-up about religion in the courts a “deeply unedifying clash of rights“. It is indeed a clash of rights, but unedifying it is not. It is precisely when these rights collide that some real, hard thinking is generated, not only about the precise content of these rights, but their historical purpose and their proper function in modern society.

It may be that when the architects of the Convention drafted Article 9, guaranteeing freedom of thought, conscience and religion, they did not foresee that its future role would not be so much the protection of oppressed believers against Soviet-style secularisation but instead a thorn in the flesh of public authority employers seeking enforce their legitimate objectives against non-compliant religious employees.

Feature | Barred voters and the right to compensation under human rights law

With possibly thousands of people prevented from voting in the 2010 General Election, can those who were locked out claim for compensation for breach of their human rights, and how much are they likely to receive?

The legal basis: Article 1 of Protocol 3 to the European Convention on Human Rights, the duty on States to hold free and fair elections, has been receiving more than its usual share of attention. Under Section 6 of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with a convention right. Under Section 7, a person may bring proceedings against a public authority which has acted unlawfully. One of the potential remedies is compensation.

How many: It appears that thousands of voters may have been prevented from voting as polling stations were unable to handle the amount of people who arrived in the last few hours before voting closed at 10pm. For example, The Guardian reports that “In Chester more than 600 people were unable to vote because the electoral list had not been updated and Labour won on a majority of 549“and in Hackney “The council estimated that 270 voters were turned away at four polling stations in the south of the borough.” In Sheffield Hallam “students tried to prevent ballot boxes being taken to the count after up to 500 voters were turned away”.

How much: We posted on Friday on an article by Lord Pannick, a human rights barrister, in which he said that prisoners denied the right to vote (a separate but certainly comparable issue to those who were turned away) may be entitled to awards “in the region of £750 and possibly more”. Geoffrey Robertson QC, also a well known human rights barrister, told the BBC that spurned voters may be entitled to “at least £750”.

However, it is not clear where either lawyer derived the £750 figure from.

Feature | Freedom of expression, the American way

The UK Supreme Court Blog has posted on United States v Stevens, a US Supreme Court decision on animal cruelty videos, involving “freedom of expression in the extreme”. The decision provides for an interesting comparison with the approach to freedom of expression in the UK courts.

If the Human Rights Act 1998 is replaced by a Bill of Rights, the Bill’s drafters are likely to look at other legal systems in order to see how best to recalibrate the balance of the various protections. The drafters of the European Convention on Human Rights themselves had the US Bill of Rights, which has been in force since 1791, as inspiration.

Similar but different

Arguably, the US Bill of Rights places a stronger emphasis on freedom of expression than our domestic law. Freedom of expression under Article 10 of the European Convention is subject to a number of qualifications. There is a long list, including the interests of national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the reputation or rights of others.

Section 12 of the Human Rights Act 1998 shifts the balance slightly, by stating that a court must pay “particular regard” to cases involving the public interest in disclosure of material which has journalistic, literary or artistic merit.

By contrast, despite the US Bill of Rights’ 219 years on the statute books, there remains only a very limited list of forms of expression which are not

Feature | DNA Database: another key human rights election issue

The National DNA database has become another key human rights issue in the 2010 Election. It is by far the largest such database in the world, with over 1 in 10 people now on the database. The issue of whether innocent people will have their DNA retained has now become highly politicised.

The Tories have now dropped their opposition to the Crime and Security Bill 2010, which has since become law. They had initially opposed provisions which allowed the police to retain the DNA samples of innocent people for up to 6 years. However, they have pledged if elected to bring in early legislation to ensure the DNA profiles of innocent people accused by minor crimes would not be retained.

The Prime Minister and the Home Secretary recently accused the Tories of not being tough enough on crime, whilst appearing at a press conference with Linda Bowman, whose daughter was raped and murdered at age 18. Her killer was convicted in 2008 with the help of DNA evidence. Liberty, the civil liberties organisation, commented that Labour had deliberately confused the issue.

The Conservatives pledge in their manifesto to “Reform Labour’s DNA system with the slimmer and more efficient Scottish system as our model” and “Change the rules on the DNA database to allow a large number of innocent people to reclaim their DNA immediately”.

The Liberal Democrats agree they will “Remove innocent people from the police DNA database and stop storing DNA from innocent people and children in the future, too.”

For their part, Labour say they will “ensure that the most serious offenders are added to the database no matter where or when they were convicted – and retain for six years the DNA profiles of those arrested but not convicted.”

It is probably no coincidence that the criticism of the Tory policy coincides with the Government’s recent concession to strong criticism from the European Court of Human Rights (ECtHR).

Feature | Are the courts taking child protection too far in abuse claims?

Sharon Shoesmith’s court action over her sacking by Haringey Council has once more brought to the fore the sorry account of neglect and mismanagement by police and local authorities of that led to the death of baby Peter Connelly (‘Baby P’). It has also, however, highlighted the increasingly significant role of courts in the UK and Europe in holding public and private authorities to account in claims involving allegations of child abuse.

It is not just local authorities that are under pressure. Allegations of sexual abuse by members of the Catholic church rumble on, occasionally erupting into well publicised court dramas. For example, the recent groundbreaking claim brought against a Catholic priest, Father Clonan, relating to events in Coventry in around 1976 (MAGA v The Trustees Of The Birmingham Archdiocese Of The Roman Catholic Church [2010] EWCA Civ 256).

The claimant (MAGA) was at the time a child of 12 with learning disabilities. The High Court had ruled that the Church was not liable for the abuse as MAGA was not a Roman Catholic, and as such Father Clonan had no business having any dealings with him and was not doing so in his capacity as a priest. MAGA succeeded on appeal because the Court of Appeal accepted that a priest’s duties are very wide, and involve him befriending non-Catholics, such as in the course of his evangelising role.

Beginning of the end for the "Super Injunction"?

A high profile panel has been formed to review ‘super injunctions’, which have recently been used with varying success to halt media coverage of controversial legal disputes.

Super injunction applications have seen two competing European Convention rights fighting it out; Article 8 (right to privacy) versus Article 10 (freedom of expression).

We have previously posted on the super injunction which was imposed and then swiftly lifted in relation to press coverage of Chelsea footballer and England Captain John Terry’s extra-marital affair.

The committee is to be led by Lord Neuberger, the Master of the Rolls, and will be composed of legal and media experts. One notable absence, as Joshua Rozenberg blogs, is Mr Justice Eady, who has been responsible for many of the more controversial super injunctions.

According to the Judicial Communications Office, The Master of the Rolls has set up the committee following the recent report by the Culture, Media and Sport Committee’s report on press standards, privacy and libel and concerns expressed to the judiciary.

Read more:

• Mr Justice Tugendhat decision in the John Terry case
• The Judicial Communication Office announcement (including the names of the committee members)
• Commentary from Liberty Central in The Guardian

Just Satisfaction – But only just?

The award of damages under the Human Rights Act – Article by Ben Collins

Article 13 ECHR requires national courts to provide an effective remedy for violations of the convention. This article examines the extent to which the UK courts are prepared to conclude that such an effective remedy should include an award of damages. As will be seen, there is a marked reluctance to award damages save in the clearest cases.

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